Death by a Thousand Cuts: Miranda and the Supreme Court’s 2009-10 Term

By , October 13, 2010 5:08 pm
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A leading Miranda scholar recently concluded that “[t]he best evidence now shows that, as a protective device, Miranda is largely dead. It is time to ‘pronounce the body,’ as they say on television, and move on.”[1] And that was before the Supreme Court’s 2009–10 term.

In a trilogy of decisions from that term,[2] the Court eviscerated Miranda safeguards, reversed state and federal decisions finding violations of Miranda, and, in the view of dissenting justices, “turn[ed] Miranda upside down.”[3] As an attorney for the National Association of Criminal Defense Lawyers lamented, “[a]t this rate, what’s left of Miranda will be only what we see on TV.”[4]

In this essay, I analyze the Court’s Miranda decisions from the 2009–10 term. Part I provides an overview of the three cases, highlighting how the Court narrowed longstanding interpretations of Miranda in each case. Part II discusses the implications of the decisions. I show that the Court created new rules that make it harder for suspects to assert their rights while making it easier for police to question suspects without the presence of counsel and for prosecutors to introduce inculpatory statements into evidence. I also consider the potential impact on police interrogation tactics and what the new decisions suggest about the future of Miranda given the current composition of the Court. Regrettably, my conclusion echoes prior assessments of the state of Miranda.[5] That is, although the Court has not overturned Miranda, it has whittled away at the decision bit by bit, transforming a bold effort to protect suspects’ constitutional rights into a hollow ritual. In many ways, I conclude, that is a fate worse than death.

Harvard Law and Policy Review » Death by a Thousand Cuts: Miranda and the Supreme Court’s 2009-10 Term.

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