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Wednesday, February 14, 2007

New Article Spotlight: When a Case Name (Miranda) Becomes Not Only a Household Word But a Chic Female Name, Something Went Wrong

Miller_jeFrom SSRN.com: Chapman University School of Law CrimProf Jeremy M. Miller recently published "When a Case Name (Miranda) Becomes Not Only a Household Word But a Chic Female Name, Something Went Wrong." Here is the abstract: 

Miranda was judicial fiat, at its worst, it was ultra vires, it was a usurpation of the legislative function, it was illogical, it was - being complimentary - the second try at handling a social problem, it was verbose, it confused the Sixth Amendment Right to Counsel with the Fifth Amendment Self-Incrimination Clause, it was filled with dictum that was inexorably eroded from its birth to the present, it changed the long-held belief that the self-incrimination right attached at trial or trial-like proceedings, not in the street; but it was idealistic, it attempted to maximize the truth-finding function of trial, it maximized individual dignity and liberty. Additionally, it relied on the intrinsic equitable powers of the High Court to fashion appropriate remedies.

The Framers were not plagued by crime, nor did they have a massive police force. They were aware that uncorroborated confessions were unreliable; and thus the corpus delicti rule was and is part of our common and extant law. The rule precludes convicting an individual based solely on his or her own uncorroborated confession.

Then the High Court began an embarrassing set of stumbles. Correctly, it held the right to counsel of the Sixth Amendment, in Massiah, applied after formal charging. But it stumbled badly in Escobedo, in holding that the “target” of a criminal investigation must be told of his or her right to counsel - whether or not that person is arrested or formally charged.That case has been over-ruled.

The rule proved as impracticable as it was ridiculous, and has been riddled by exceptions. The Miranda opinion has been carved up, almost beyond recognition.

The simple rule should have been to mandate the arrestee be told of the right to silence, and that at jail or on the street, the arrestee be offered counsel—thus moving the Sixth Amendment Counsel right, also, to the pre-trial arena of jail or arrest.

A brief statement as to the historical background of this clause will be helpful for interpretation. Even in colonial times an inquisitorial, torture-laden, trial by ordeal method was not uncommon. Likewise there was hostility to the "ex officio" oath. The ex officio oath, was a badge of infamy on an often exemplary common law. It required the defendant place his or her hand on a Bible and promise to tell the truth to questions then asked him or her. After this point, incriminating answers were sought, and were punishable. Further, there was no right to refuse to answer. Perjury, incidentally, was a capital crime. Sir Edward Coke, an Elizabethan English lawyer and judge, placed his career on the line to have the ex officio oath ousted from the common law. In fact, King James did just that - he was removed from office for this stand. The Lilburne trial and tragedy, also in the 1600s in England, more than anything, cemented these procedural rights into the common law. Here, the rebel writer Lilburne was tortured and tried. He dramatically emphasized this lacking in the then English system, and by his eloquence and popular support, brought the safeguards we now have into their system, via the Self-Incrimination Clause.

Another source of the privilege was the 1689 Scottish Claim of Rights. It should be noted, however, that the right was not in the Magna Carta. James Madison, the principal author of the Amendment, purposefully used a broad drafting - so as to make the right, itself, broad.

Wechsler's seminal article, Toward Neutral Principles of Constitutional Adjudication and the critical stage analysis of the Wade/Gilbert line of cases (extending the right to counsel to pre-trial line-ups, transcripts and the like) allowed the High Court to rule that police interrogation after arrrest is a critical stage - but under the SIXTH amendment (where it belongs). [Mark Godsey]

http://lawprofessors.typepad.com/crimprof_blog/2007/02/new_article_spo_2.html

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