Thursday, September 1, 2005
My newest piece is entitled Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings. I just accepted an offer to publish it at the Minnesota Law Review. Here's the abstract:
Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny.
This Article proposes that the substance of the Miranda warnings should be reconsidered as the rules of law underlying the warnings substantially evolve, and as we gain new insights into their effectiveness (or lack thereof). In light of the significant legal changes of the last four decades, and the real world experience that we have gained with the warnings during this time, Miranda's 40th anniversary presents an opportune time to reexamine the content of the warnings to ensure that they remain consistent with and continue to reflect the evolving legal principles that support and justify their existence, and to reaffirm that they remain effective in upholding and enforcing the constitutional rights of suspects.
A close examination of the warnings suggests that they are out of date. This Article argues that if the warnings were redesigned today, by a Court as mindful of properly balancing the competing interests as was the Miranda Court, they would take a different form. The first two warnings, relating to the right to remain silent, would certainly be included. However, these warnings should be buttressed by a third right to silence warning that would provide something to the effect of: If you choose to remain silent at the beginning or at any time during the interview, your silence will not be used against use as evidence to suggest that you committed a crime simply because you refused to speak.
Furthermore, the third and fourth warnings, relating to the right to counsel, would not make the updated list. In place of the two right to counsel warnings would be three new requirements, reflecting legal developments and practical lessons that have come to light since 1966. The first requirement would be a new warning as follows: If you choose to talk, you may change your mind and remain silent at any time, even if you have already spoken. The second requirement would be a rule mandating that the police to re-instruct suspects of the new Miranda warnings at intervals throughout lengthy interrogations. Finally, the police would be required to videotape all interrogations. These three new requirements would more effectively achieve the intended policy goals of the right to counsel warnings, and thus, should replace the right to counsel warnings in the prophylactic scheme.
Obtain a rough draft of the paper here. I welcome any comments. [Mark Godsey]