Friday, October 19, 2012
Yale Kamisar (University of San Diego School of Law) has posted The Rise, Decline and Fall (?) of Miranda (Washington Law Review, Vol. 87, No. 4, December 2012) on SSRN. Here is the abstract:
Miranda v. Arizona (1966) was the centerpiece of the Warren Court’s so-called revolution in American criminal procedure. But the Warren Court disbanded more than 40 years ago. And President Richard Nixon, who campaigned against the Warren Court, made four appointments to the U.S. Supreme Court.
Since then, led over the decades by Warren Burger, William Rehnquist and Antonin Scalia, the Court has seriously weakened Miranda in various ways. A good example is Berghuis v. Thompkins (2010), which allows the police to obtain a waiver of a custodial suspect’s rights after they have started to interrogate him.
There has been much talk lately to the effect that Miranda is dead or dying – or might as well be dead. Even some liberal commentators have concluded that the time has come to give Miranda a respectful burial and “move on.” But move on to what? Can Congress or the state legislatures be counted on to protect those suspected of, or arrested for, serious crimes?