+1443 776-2705 panelessays@gmail.com

 

The following discussion comes from your week 4 readings. Outside research to address these issues is encouraged. I would suggest using the online library for additional sources of information and research.  In addition, I would recommend utilizing the legal studies program guide. Please remember to cite your references.

The Fifth Amendment protect individuals against self- incrimination. The Sixth Amendment affords individuals protections in the criminal process.

This discussion asks you to examine the rights afforded to individuals under the Fifth and Sixth Amendment.

Please thoroughly discuss each of the following:

  1. Discuss the difference between an arrest and a custodial interrogation. When must Miranda be given to an individual?
  2. Discuss how the court determines if a confession should be admissible or not. What does the court look for to determine if a confession is voluntarily given? 

University of Michigan Law School
University of Michigan Law School Scholarship Repository

Articles Faculty Scholarship

2017

The Miranda Case Fifty Years Later
Yale Kamisar
University of Michigan Law School, [email protected]

Available at: https://repository.law.umich.edu/articles/1858

Follow this and additional works at: https://repository.law.umich.edu/articles

Part of the Constitutional Law Commons, Criminal Procedure Commons, Evidence Commons,
and the Supreme Court of the United States Commons

This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has
been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more
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Recommended Citation
Kamisar, Yale. “The Miranda Case Fifty Years Later.” Bos. U. L. Rev. 97, no. 3 (2017): 1293-307.

1293

CLOSING KEYNOTE ADDRESS

THE MIRANDA CASE FIFTY YEARS LATER

YALE KAMISAR∗

I. A LOOK BACK AT MIRANDA ……………………………………………………. 1293
II. THE THREE DISSENTS IN MIRANDA …………………………………………… 1296
III. WHAT IS WRONG IF THE POLICE ASK ONE OR TWO QUESTIONS? …. 1298
IV. THE ROLE OF TELFORD TAYLOR ……………………………………………… 1299
V. THE LIMITED ROLE OF THE LAWYER ………………………………………… 1299
VI. THE “COMPROMISE” STRUCK IN MIRANDA ………………………………… 1299
VII. SHOULD THERE BE MORE WARNINGS? …………………………………….. 1300
VIII. ONE REASON FOR SAYING THAT MIRANDA HAS FAILED ……………… 1300
IX. WHAT THOSE WHO STUDY HOW THE WARNINGS ARE

DELIVERED TELL US ……………………………………………………………… 1301
X. SALINAS V. TEXAS ……………………………………………………………………. 1302

I. A LOOK BACK AT MIRANDA
A decade after the Supreme Court decided Miranda v. Arizona,1 Geoffrey

Stone took a close look at the eleven decisions the Court had handed down
“concerning the scope and application of Miranda.”2 As Stone observed, “[i]n
ten of these cases, the Court interpreted Miranda so as not to exclude the
challenged evidence.”3 In the eleventh case, the Court excluded the evidence on
other grounds.4 Thus, Stone noted, ten years after the Court decided the case,
“the Court ha[d] not held a single item of evidence inadmissible on the authority
of Miranda.”5 Not a single item. To use baseball terminology, in Miranda’s first
eleven “at bats,” it went zero for eleven.

∗ Clarence Darrow Distinguished Professor Emeritus of Law, University of Michigan
School of Law; Professor Emeritus of Law, University of San Diego School of Law.

1 384 U.S. 436 (1966).
2 Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 SUP. CT. REV. 99,

100; see also United States v. Washington, 431 U.S. 181 (1977); United States v. Wong, 431
U.S. 174 (1977); Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam); Doyle v. Ohio, 426
U.S. 610 (1976); United States v. Mandujano, 425 U.S. 564 (1976); Beckwith v. United
States, 425 U.S. 341 (1976); Baxter v. Palmigiano, 425 U.S. 308 (1976); Michigan v. Mosley,
423 U.S. 96 (1975); Oregon v. Hass, 420 U.S. 714 (1975); Michigan v. Tucker, 417 U.S. 433
(1974); Harris v. New York, 401 U.S. 222 (1971).

3 Stone, supra note 2, at 100.
4 Id. (citing Doyle, 426 U.S. at 619).
5 Id. at 100-01. I agree with Frank Allen, who stated that:

1294 BOSTON UNIVERSITY LAW REVIEW [Vol. 97:1293

For those of us who welcomed Miranda, this turned out to be deeply
disappointing. But it would not have come as much of a surprise to those who
remember the four Justices President Nixon appointed to the Supreme Court
during his first term of office: Chief Justice Burger, Justice Blackmun, Justice
Powell, and Justice Rehnquist.6

Before being appointed Chief Justice of the Supreme Court, then-Judge
Burger of the Court of Appeals for the District of Columbia Circuit left no doubt,
both in his dissenting opinions7 and in public speeches,8 that he was extremely
unhappy with the Warren Court’s criminal procedure cases.9

Chief Justice Burger may have been the most police-friendly Supreme Court
Justice of all time—only with the possible exception of another Nixon appointee,
William Rehnquist.10 In fact, shortly after Rehnquist became Assistant Attorney

[S]urely the most fundamental reasons for the [Warren] Court’s loss of impetus lies in
the social and political context of the Court in the late 1960’s. That period was a time of
social upheaval, violence in the ghettos, and disorder on the campuses. Fears of the
breakdown of public order were widespread. Inevitably, the issue of law and order were
[sic] politically exploited. In the presidential campaign of 1968 the bewildering problems
of crime in the United States were represented simply as a war between the “peace
forces” and the “criminal forces.” The decision in Miranda evoked a chorus of criticism
of the Court, ranging from the excited to the psychotic. Congress responded with the
Omnibus Crime Control and Safe Streets Act of 1968, some provisions of which were
obviously retaliatory. These events combined to create an atmosphere that, to say the
least, was unfavorable to the continued vitality of the Warren Court’s mission in criminal
cases.

Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal
Cases, 1975 U. ILL. L.F. 518, 538-39 (footnotes omitted).

6 See Stone, supra note 2, at 99 n.2; see also Yale Kamisar, The Rise, Decline, and Fall (?)
of Miranda, 87 WASH. L. REV. 965, 974-91 (2012).

7 See, e.g., Frazier v. United States, 419 F.2d 1161, 1176 (D.C. Cir. 1969) (Burger, J.,
concurring in part and dissenting in part) (“We are well on our way to forbidding any utterance
of an accused to be used against him unless it is made in open court. Guilt or innocence
becomes irrelevant in the criminal trial as we flounder in a morass of artificial rules poorly
conceived and often impossible of application.”); Borum v. United States, 380 F.2d 595, 602
(D.C. Cir. 1967) (Burger, J., dissenting) (“I suggest that the kind of nit-picking appellate
review exhibited by reversal of this conviction may help explain why the public is losing
confidence in the administration of justice. I suggest also that if we continue on this course
we may well come to be known as a society incapable of defending itself—the impotent
society.”).

8 See, e.g., Warren E. Burger, Who Will Watch the Watchmen?, 14 AM. U. L. REV. 1, 23
(1964) (“We can all ponder whether any community is entitled to call itself an ‘organized
society’ if it can find no way to solve this problem except by suppression of truth in the search
for truth.”).

9 See Kamisar, supra note 6, at 976-98 (chronicling then-Judge Burger’s contempt for the
Warren Court’s criminal procedure jurisprudence, and describing how his views caught the
attention of President Nixon).

10 See id. at 980-91 (describing the prominent roles Chief Justice Burger and Chief Justice
Rehnquist played in “the downsizing and dismantling of Miranda”).

2017] THE MIRANDA CASE FIFTY YEARS LATER 1295

General in charge of the Office of Legal Counsel, he urged the President to
appoint a commission to consider whether such cases as Miranda needed to be
corrected by a constitutional amendment.11

As for Justice Blackmun and Justice Powell, neither one’s appointment to the
Court should have come as much of a surprise either. Chief Justice Burger had
recommended then-Judge Blackmun, a close friend since their childhood days,
to President Nixon for a nomination to the Court.12 It was widely assumed that
Justice Blackmun would follow the new Chief Justice’s lead.13 As for Justice
Powell, when the National Crime Commission issued its report in 1967, the
future Justice turned out to be one of seven members of the Commission to sign
a supplemental statement underscoring the need to return to the pre-Miranda
“voluntariness” test14—even “[i]f, as now appears likely, a constitutional
amendment is required.”15

In retrospect, I think it is fair to say that Miranda never recovered from
Nixon’s four Supreme Court appointments.16

11 Memorandum from William H. Rehnquist, Assistant Att’y Gen., Office of Legal

Counsel, to John W. Dean III, Assoc. Deputy Att’y Gen. (Apr. 1, 1969).
12 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 9-46 (2005).
13 See JOHN D. EHRLICHMAN, WITNESS TO POWER: THE NIXON YEARS 129 (1982) (noting

that Justice Blackmun “could be expected to follow closely the new Chief Justice’s lead”).
Indeed, in his first five years on the Court, Justice Blackmun voted with Justice Burger in
over eighty-five percent of the closely divided cases. GREENHOUSE, supra note 12, at 186. In
the next ten years, however, Justice Blackmun voted more often with Justice Brennan than
with the Chief Justice. Id. (“By the next five-year period, 1975 to 1980, Blackmun was joining
Brennan in 54.5 percent of the divided cases and Burger in 45.5 percent. During the final five
years that he and Burger served together, he joined Brennan in 70.6% of the close cases and
Burger in only 32.4 percent.”).

14 PRESIDENT’S COMM’N ON LAW ENF’T & ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME
IN A FREE SOCIETY 303 (1967), https://www.ncjrs.gov/pdffiles1/nij/42.pdf
[https://perma.cc/FUT4-UC2N].

15 Id. at 308. The supplemental statement also emphasized the need to allow “for comment
on the failure of [a defendant] to take the stand” in his or her own defense. Id.

16 I should recognize, however, that some thoughtful commentators have reached very
different conclusions than I have regarding the impact of President Nixon’s four
appointments. See, e.g., JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 398 (1994)
(“With the appointments of Burger and Blackmun and the later addition of Powell and
Rehnquist, the conservatives had a decisive majority on most questions of criminals’ rights.
But to the distress of some and the relief of others, there was no sudden about-face. The
conservative majority generally accepted the achievements of the Warren Court—but refined
them, constrained them, and reduced their scope. The result was a new synthesis, based partly
on the insights and innovations of the Warren Court and partly on the doubts and objections
of its critics.”).

1296 BOSTON UNIVERSITY LAW REVIEW [Vol. 97:1293

II. THE THREE DISSENTS IN MIRANDA
Returning to the case itself, four Justices wrote three separate dissenting

opinions in Miranda.17 In one way or another, each dissent assumed that
Miranda would be a criminal justice disaster—that very few suspects, if any,
would waive their rights.

Justice Clark was the most senior Justice to dissent in Miranda, but he spoke
only for himself. Justice Clark maintained that there was “no significant support”
for the view that “the Fifth Amendment privilege, in effect, forbids custodial
interrogation.”18 This is an odd statement about Miranda—the majority never
said anything like that—and it is unsupported by any plausible interpretation of
the case. Rather, the majority in Miranda took some time spelling out what is,
and what is not, “custodial interrogation.”19 Shortly after Miranda was decided,
it remained to be seen what impact it would have on custodial interrogation. But
Miranda did permit some still-to-be-determined interrogation to take place.20

Justice Harlan, joined by Justices Stewart and White, wrote a long dissent.21
At one point, Harlan claimed (without any explanation) that “to suggest or
provide counsel for the suspect simply invites the end of the interrogation.”22 It
is not at all clear what Justice Harlan meant.23

But, before getting to the final dissent, another word about the police and the
right to a lawyer. Miranda does not automatically (or routinely) provide for

17 See Miranda v. Arizona, 384 U.S. 436, 499-504 (1966) (Clark, J., dissenting); id. at 504-

26 (Harlan, J., dissenting); id. at 526-45 (White, J., dissenting).
18 Id. at 503 n.4 (Clark, J., dissenting).
19 See, e.g., id. at 444 (majority opinion) (“By custodial interrogation, we mean

questioning initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way.”); id. at 477 (“The
principles announced today deal with the protection which must be given to the privilege
against self-incrimination when the individual is first subjected to police interrogation while
in custody at the station or otherwise deprived of his freedom of action in any significant
way.”). The Miranda majority does tell us that “[g]eneral on-the-scene questioning as to facts
surrounding a crime or other general questioning of citizens in the fact-finding process is not
affected by our holding.” Id. at 477. The majority added, however, that “[i]t is an act of
responsible citizenship for individuals to give whatever information they may have to aid in
law enforcement.” Id. at 477-78.

20 See Kamisar, supra note 6, at 971-72 (discussing some of the misperceptions pervasive
in public opinion in the wake of Miranda).

21 See Miranda, 384 U.S. at 504-26 (Harlan, J., dissenting).
22 Id. at 517 (emphasis added).
23 Of course, there is a huge gap between “suggesting” counsel and “providing” it.

2017] THE MIRANDA CASE FIFTY YEARS LATER 1297

one.24 Rather, the suspect must ask for one.25 In recent years it has become quite
clear that most suspects wind up deciding not to ask for one.26

Justice Harlan was not the only Justice who wrote a long dissenting opinion.
Justice White, joined by Justices Harlan and Stewart, did so as well.27 Of the
three dissenting opinions written in Miranda, Justice White’s struck me as the
most powerful. At one point, however, Justice White simply skipped over the
fact that those taken into custody were free to waive their rights without ever
meeting with a lawyer.28 The second time around, Justice White made a
correction. He did say that a suspect could waive his right to counsel without
ever meeting with a lawyer.29 But his conclusion was still misleading because
Justice White seemed to assume that a lawyer could still “advise the accused to
remain silent”—could still rescue the suspect—even though the accused had
already waived his right to counsel:

As the Court declares that the accused may not be interrogated without
counsel present, absent a waiver of the right to counsel, and as the Court
all but admonishes the lawyer to advise the accused to remain silent, the
result adds up to a judicial judgment that evidence from the accused should
not be used against him in any way, whether compelled or not.30

Justice White failed to make it clear that once the suspect waives his right to
obtain the advice of a lawyer, the lawyer drops out of the picture completely.
That is, there is no longer any lawyer to advise the accused to remain silent. To
put it another way, once a suspect no longer seeks the advice of a lawyer, only
two things can happen: (1) the suspect can remain silent, not saying anything to
anyone; or (2) the suspect can start talking to other people in the vicinity (most
likely other police officers or other prosecuting attorneys—because nobody else
is likely to be in the vicinity).31

24 See Miranda, 384 U.S. at 474 (majority opinion) (stating that the Court’s decision did
not mean “that each police station must have a ‘station house lawyer’ present at all times to
advise prisoners”); Kamisar, supra note 6, at 979 (noting that “the Miranda Court plainly
rejected” a rule “requiring the police to make sure that a custodial suspect actually confers
with a lawyer before he can be questioned”).

25 See Kamisar, supra note 6, at 979 (“[T]he rule Miranda actually adopted . . . only calls
for the police to advise a custodial suspect he has a right to a lawyer, and only grants him the
right to a lawyer if he asks for one . . . .”).

26 See infra note 44; see also Kamisar, supra note 6, at 980.
27 See Miranda, 384 U.S. at 526-45 (White, J., dissenting).
28 See id. at 536 (“[T]he Court not only prevents the use of compelled confessions but for

all practical purposes forbids interrogation except in the presence of counsel.”).
29 Compare id., with id. at 537-38 (acknowledging the potential for suspects to waive their

right to an attorney).
30 Id. at 537-38 (emphasis added).
31 In recent years, numerous studies have concluded that approximately eighty percent of

suspects do waive their rights. See infra note 44 and accompanying text (discussing the
statistical impacts of Miranda).

1298 BOSTON UNIVERSITY LAW REVIEW [Vol. 97:1293

III. WHAT IS WRONG IF THE POLICE ASK ONE OR TWO QUESTIONS?
At one point in his dissenting opinion, Justice White wondered what is wrong

or inappropriate if the police ask a murder suspect a single question without
giving any warning: “Did you kill your wife?”32 But if the police can ask only a
single question, this is unlikely to be the one they will ask. The police realize
that in order to be successful they must first build a rapport with the suspect. It
takes a number of questions (and an appreciable amount of time) to achieve that.
Moreover, if one question is unlikely to produce a “compelled” answer,33 neither
are two or three questions. They, too, do not produce a “compelled” confession.
So, what’s wrong with asking a few questions, such as the following: “(1) How
long were you married? (2) How many children do you have? (3) Was it a happy
marriage? (4) Did you kill your wife?” If two or three questions were permitted,
the issue would soon become whether the police questioning amounted to
sustained or persistent questioning. This issue would give trial judges
considerable room to maneuver—as trial judges once had.34 I do not believe we
want to return to the old days (especially when most police questioning is still
not videotaped or tape-recorded).35

32 See Miranda, 384 U.S. at 533-34 (White, J., dissenting) (arguing that under the
majority’s decision, a suspect’s response to such a question, “if there is one, has somehow
been compelled, even if the accused has been clearly warned of his right to remain silent”).

33 See, e.g., id. at 534 (“While one may say that the response was ‘involuntary’ in the sense
the question provoked or was the occasion for the response and thus the defendant was
induced to speak out when he might have remained silent if not arrested and not questioned,
it is patently unsound to say the response is compelled.”).

34 See Paul Marcus, It’s Not Just About Miranda: Determining the Voluntariness of
Confessions in Criminal Prosecutions, 40 VAL. U. L. REV. 601, 643-44 (2006) (asserting that
“[t]he due process test offers almost no guidance for lawyers and judges,” and concluding that
the voluntariness rules are “just as poorly and inconsistently applied as they were in the 1950s
and 1960s,” and that “[i]n comparison, the imprecisely bright line rules of Miranda look very
good”); Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 869-70
(1981) (observing that under the voluntariness test, “[n]ot only were conscientious trial judges
left without guidance for resolving confession claims but they were virtually invited to give
weight to their subjective preferences when performing the elusive task of balancing”);
William J. Stuntz, Miranda’s Mistake, 99 MICH. L. REV. 975, 980 (2011) (conceding that “the
three decades before Miranda showed that a case-by-case voluntariness inquiry sorted badly,
and at least part of the reason was that courts had a very hard time judging, case by case, the
difference between good and bad police interrogation tactics”).

35 As do many other commentators, George Thomas and Richard Leo favor “recording the
relevant contact between the police and the suspect.” GEORGE C. THOMAS III & RICHARD A.
LEO, CONFESSIONS OF GUILT: FROM TORTURE TO MIRANDA AND BEYOND 220-21 (2012).
“Perhaps one hundred other writers,” point out Thomas and Leo, “are on record
recommending some form of recording.” Id. at 221. So far as I know, only one commentator
has declined to add his name to the list: Lawrence Rosenthal. See Lawrence Rosenthal,
Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect, 10
CHAP. L. REV. 579, 607 (2007) (“[W]e cannot expect videotaping to curb what are already
deemed abuses under current law . . . .”).

2017] THE MIRANDA CASE FIFTY YEARS LATER 1299

IV. THE ROLE OF TELFORD TAYLOR
Of all the lawyers involved in Miranda and its companion cases, Telford

Taylor was probably the most impressive. Shortly after the end of World War
II, he had been a high-ranking Nuremberg prosecutor.36 At the time he argued
Miranda, he was a professor at Columbia Law School.37

Taylor was the principal author of an amicus brief filed on behalf of twenty-
seven states.38 He also argued the case in the Supreme Court on behalf of these
states. When it came to the waiver of rights, Taylor turned out to be even more
emphatic—even more extreme—than any of the dissenting Justices in Miranda
had been. Taylor, too, skipped over the possibility that suspects could and would
waive their rights. In fact, he came close to ridiculing the idea that a significant
number of suspects would do so. To quote from Taylor’s brief:

Assuming that the privilege against self-incrimination is the principal legal
element in the interrogation problem, virtually the only function of the
station-house counsel will be to paste adhesive tape over his new clients’
mouths. It is at best dubious whether such a practice would attract the
cream of the bar.39

V. THE LIMITED ROLE OF THE LAWYER
If one takes the Justices who dissented in the Miranda case seriously, one

comes away with the impression that the lawyer decides whether there is a
meeting between lawyer and client—not the suspect. Justice White’s views to
the contrary notwithstanding, the suspect “calls the shots”—not the lawyer. The
lawyer plays no role whatever unless and until the suspect asks to meet with a
lawyer if it ever gets that far. The lawyer may ultimately decide to paste tape
over her new client’s mouth,40 but she does not get the opportunity to do so
unless and until the potential client invokes her right to counsel. Thus, the lawyer
is unable to do anything unless and until the suspect makes the decision to meet
with a lawyer. The suspect never even finds out who his or her lawyer might
have been—unless she makes the decision to meet with one.

VI. THE “COMPROMISE” STRUCK IN MIRANDA
As it turned out, the Miranda majority was listening to the four dissenters

more closely than the Miranda dissenters themselves realized. As a result, the

36 See Richard Severo, Telford Taylor, Who Prosecuted Top Nazis at the Nuremberg War
Trials, Is Dead at 90, N.Y. TIMES (May 24, 1998),
http://www.nytimes.com/1998/05/24/nyregion/telford-taylor-who-prosecuted-top-nazis-
nuremburg-war-trials-dead-90.html [https://perma.cc/X3N8-8M28].

37 See id.
38 See Brief for New York et al. as Amici Curiae Supporting Respondents, Miranda v.

Arizona, 384 U.S. 436 (1966) (Nos. 759-62, 584).
39 Id. at 30.
40 See id.

1300 BOSTON UNIVERSITY LAW REVIEW [Vol. 97:1293

Miranda majority had worked out a compromise that the Miranda dissenters—
based on what they wound up writing in their dissenting opinions—failed to
fully appreciate. Peter Arenella has explained it well:

If the Court had followed the logic of its “inherently coercive” rationale
[pertaining to police interrogation] to its bitter end, it would not have
permitted suspects to waive their Miranda rights without the advice of
counsel. But requiring the advice of counsel before permitting a valid
Miranda waiver would have seriously eroded the police’s ability to engage
in successful custodial interrogations. To avoid this law enforcement
nightmare, the Court compromised by permitting waivers of Miranda
rights before consultation with counsel.41

VII. SHOULD THERE BE MORE WARNINGS?
Convinced that a major reason Mirandized suspects talk to the police is the

belief “that remaining silent will make them ‘look guilty’ and will be used
against them as evidence of guilt,” Mark Godsey has proposed that the first two
warnings “should be buttressed by a new ‘right to silence’ warning that provides
something to the effect of: ‘If you choose to remain silent, your silence will not
be used against you as evidence to suggest that you committed a crime simply
because you refused to speak.’”42 There is something to be said for such a
warning. The Miranda Court might have required the warning if it had focused
on this specific issue in 1966. Since then, however, I would have to say that the
“balance of power” between the suspect and the police has been worked out and
the Court is unlikely to change it any more.

VIII. ONE REASON FOR SAYING THAT MIRANDA HAS FAILED
Fifteen years ago, George Thomas maintained that “by most accounts,

Miranda has been a spectacular failure.”43 One reason Thomas arrived at this
conclusion is probably the high rate of “waiver of rights” when suspects are
given the Miranda warnings—approximately eighty percent.44 Very few so-

41 Peter Arenella, Miranda Stories, 20 HARV. J.L. & PUB. POL’Y 375, 384 (1997) (emphasis
added).

42 Mark A. Godsey, Reformulating the Miranda Warnings in Light of Contemporary Law
and Understandings, 90 MINN. L. REV. 781, 793 (2006).

43 George C. Thomas III, Miranda’s Illusion: Telling Stories in the Police Interrogation
Room, 81 TEX. L. REV. 1091, 1092 (2003) (reviewing WELSH S. WHITE, MIRANDA’S WANING
PROTECTIONS (2001)).

44 See, e.g., DONALD A. DRIPPS, ABOUT GUILT AND INNOCENCE 224-25 n.117 (2003);
THOMAS & LEO, supra note 35, at 188; LAWRENCE S. WRIGHTSMAN & MARY L. PITMAN, THE
MIRANDA RULING 4 (2010); Godsey, supra note 42, at 792; Richard A. Leo & Welsh S. White,
Adapting to Miranda: Modern Interrogators’ Strategies for Dealing with the Obstacles Posed
by Miranda, 84 MINN. L. REV. 397, 468 (1999); Richard A. Leo, Inside the Interrogation
Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 286 (1996); Charles D. Weisselberg, Mourning
Miranda, 96 CALIF. L. REV. 1519, 1547-63 (2008); Tracey Maclin, A Comprehensive Analysis

2017] THE MIRANDA CASE FIFTY YEARS LATER 1301

called “Supreme Court experts” (and I was one of them fifty years ago) expected
anything like that figure when Miranda was first decided.45 It has become
increasingly clear that some system of recording or videotaping how the
warnings are delivered should be required. Indeed, support for such an approach
now seems close to overwhelming.46

IX. WHAT THOSE WHO STUDY HOW THE WARNINGS
ARE DELIVERED TELL US

In the meantime, those relatively few experts who have actually studied how
the warnings are delivered should be taken quite seriously. One such expert
reports the following:

Transcripts of modern interrogations indicate that police interrogators are
often so overwhelmingly in control of the interrogation—dictating the pace
of the questioning and the topics under discussion—that the suspect has no
practical opportunity to invoke his rights during the most critical parts of
the interrogation. In addition, the interrogator’s ability to connect with the
suspect . . . often renders the suspect unable or disinclined to break the
connection by asserting his rights. In many cases, the Miranda warnings
are therefore inadequate to counteract the pressures generated by
sophisticated interrogators.47

Sometimes, for example, the interrogator will launch directly “into the
interrogation without first asking the suspect whether he wished to waive his
rights or even whether he was willing to speak to the police.”48 Other times, the
interrogator may maintain that “she can only inform the suspect of the charges
against him and the likely disposition of the case if the suspect waives his
Miranda rights.”49 Still other times, the interrogator “may simply assert either

of the History of Interrogation Law, with Some Shots …