{"id":1456,"date":"2010-09-24T22:43:25","date_gmt":"2010-09-25T02:43:25","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?page_id=1456"},"modified":"2010-09-24T22:43:25","modified_gmt":"2010-09-25T02:43:25","slug":"death-by-a-thousand-cuts-miranda-and-the-supreme-courts-2009-10-term","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/lpr\/online-articles\/death-by-a-thousand-cuts-miranda-and-the-supreme-courts-2009-10-term\/","title":{"rendered":"Death by a Thousand Cuts: Miranda and the Supreme Court\u2019s 2009-10 Term"},"content":{"rendered":"

By Anthony J. Franze *<\/a><\/a><\/p>\n

Introduction<\/h3>\n

A leading Miranda <\/em>scholar recently concluded that \u201c[t]he best evidence now shows that, as a protective device, Miranda<\/em> is largely dead. It is time to \u2018pronounce the body,\u2019 as they say on television, and move on.\u201d[1]<\/a><\/a> And that was before<\/em>the Supreme Court\u2019s 2009\u201310 term.<\/p>\n

In a trilogy of decisions from that term,[2]<\/a><\/a> the Court eviscerated Miranda<\/em> safeguards, reversed state and federal decisions finding violations ofMiranda<\/em>, and, in the view of dissenting justices, \u201cturn[ed] Miranda<\/em> upside down.\u201d[3]<\/a><\/a> As an attorney for the National Association of Criminal Defense Lawyers lamented<\/a>, \u201c[a]t this rate, what\u2019s left of Miranda<\/em> will be only what we see on TV.\u201d[4]<\/a><\/a><\/p>\n

In this essay, I analyze the Court\u2019s Miranda <\/em>decisions from the 2009\u201310 term. Part I provides an overview of the three cases, highlighting how the Court narrowed longstanding interpretations of Miranda <\/em>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<\/em> given the current composition of the Court. Regrettably, my conclusion echoes prior assessments of the state of Miranda<\/em>.[5]<\/a><\/a> That is, although the Court has not overturned Miranda<\/em>, it has whittled away at the decision bit by bit, <\/em>transforming a bold effort to protect suspects\u2019 constitutional rights into a hollow ritual. In many ways, I conclude, that is a fate worse than death.<\/p>\n

I. Three for the Prosecution<\/h3>\n

A. Florida v. Powell<\/em><\/h4>\n

In its first Miranda<\/em> decision of the 2009\u201310 term, Florida v. Powell<\/em>,[6]<\/a><\/a> the Supreme Court addressed the substance of Miranda<\/em> warnings. The Court held that a pre-printed Miranda <\/em>warning form used by the Tampa police department\u2014while \u201cnot the clearest possible<\/em> formulation of Miranda<\/em>\u2019s right-to-counsel advisement\u201d[7]<\/a><\/a>\u2014was essentially good enough. By finding a less-than-clear warning sufficient, the Court quietly displaced Miranda<\/em>\u2019s explicit directive that suspects must \u201cbe clearly informed\u201d of their rights in \u201cclear and unequivocal terms.\u201d[8]<\/a><\/p>\n

<\/a><\/p>\n

1. The Interrogation of Mr. Powell<\/span><\/p>\n

The case arose from the interrogation of Kevin Powell, who was arrested after police found a handgun in his girlfriend\u2019s apartment upon going there to question Powell in connection with a robbery investigation.[9]<\/a><\/a> At the police station, officers read Powell the following warnings from a standard Tampa police department Miranda <\/em>form:<\/p>\n

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.[10]<\/a><\/a><\/p><\/blockquote>\n

The warning form did not state that Powell had the right to have counsel present with him during the interrogation, but rather, that he could \u201ctalk to\u201d an attorney \u201cbefore answering any of our questions.\u201d Powell testified that he signed the form and said the gun was his only after police threatened to charge his girlfriend and have her young children taken away by social services.[11]<\/a><\/a> At trial, Powell\u2019s inculpatory statement was the only evidence linking him to the gun. He was convicted of unlawful possession of a firearm and sentenced to ten years in prison.[12]<\/a><\/a><\/p>\n

The Florida Supreme Court reversed the conviction, holding that the form used by the Tampa police was defective because the language\u2014\u201cYou have the right to talk to a lawyer before answering any of our questions\u201d\u2014failed to satisfy Miranda<\/em>\u2019s requirement that police clearly advise suspects of the right to have a lawyer present during questioning.[13]<\/a><\/a> Like numerous lower courts that had construed comparable Miranda<\/em> warnings,[14]<\/a><\/a> the Florida high court found that \u201c[t]he \u2018before questioning\u2019 warning suggests to a reasonable person in the suspect\u2019s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.\u201d[15]<\/a><\/a><\/p>\n

2. The Supreme Court\u2019s New Warning Standard<\/span><\/p>\n

In a 7\u20132 decision written by Justice Ruth Bader Ginsburg,[16]<\/a><\/a> the Supreme Court reversed, finding the less-than-clear warning sufficient under Miranda.<\/em> The Court acknowledged Miranda<\/em>\u2019s requirement that \u201can individual held for questioning \u2018must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.\u2019\u201d[17]<\/a><\/a> Nevertheless, the Court found that the warnings given Powell, while \u201cnot the clearest possible<\/em> formulation,\u201d were \u201csufficiently comprehensive and comprehensible when given a commonsense reading.\u201d[18]<\/a><\/a><\/p>\n

The majority relied primarily on the last sentence of the warning form, which stated: \u201cYou have the right to use any of these rights at any time you want during this interview.\u201d[19]<\/a><\/a> The Florida Supreme Court had concluded that \u201c[t]his last sentence could not effectively convey a right the defendant was never told he had. In other words, how can a defendant exercise at any time during an interrogation a right he did not know existed?\u201d[20]<\/a><\/a> Justice Ginsburg, however, disagreed. Parsing the text of the warning form, she wrote that \u201c[i]n combination, the two warnings reasonably conveyed Powell\u2019s right to have an attorney present, not only at the outset of interrogation, but at all times.\u201d[21]<\/a><\/a><\/p>\n

The majority rejected the risk\u2015identified by Powell and severalamici, including<\/a> Miranda<\/em> scholar Professor Richard Leo[22]<\/a><\/a>\u2015that if the Court allowed such unclear warnings to stand, law enforcement agencies would be tempted \u201cto end-run Miranda<\/em> by amending their warnings to introduce ambiguity.\u201d[23]<\/a><\/a> Rather, citing only an amicus brief submitted by the United States, the Court found that police would have \u201clittle reason to assume the litigation risk of experimenting with novel Miranda<\/em>formulations.\u201d[24]<\/a><\/a> At the same time, the Court declined to adopt any bright-line formulation of Miranda<\/em>warnings to prevent or deter police from doing so.[25]<\/a><\/a><\/p>\n

Justice John Paul Stevens, joined in part by Justice Stephen Breyer,[26]<\/a><\/a> dissented, finding the majority\u2019s analysis \u201cunpersuasive\u201d and arguing that the Florida Supreme Court had \u201cthe better view on the merits.\u201d[27]<\/a><\/a> The Tampa warning, Stevens concluded, \u201cif given its natural reading, entirely omitted an essential element of a suspect\u2019s rights\u201d: the right to have counsel present during interrogation.[28]<\/a><\/a><\/p>\n

B. Maryland v. Shatzer<\/em><\/h4>\n

The day after it decided Powell<\/em>, the Supreme Court issued its decision in Maryland<\/em> v. Shatzer<\/em>,[29]<\/a><\/a> which addressed the rules governing police re-interrogation of a suspect who previously asserted his Miranda<\/em>rights. Nearly thirty years ago, the Court in Edwards v. Arizona<\/em>[30]<\/a><\/a> held that once a suspect invokes hisMiranda <\/em>right to counsel,any further responses to police-initiated questioning without the presence of counsel are presumed involuntary and inadmissible.[31]<\/a><\/a> In Shatzer<\/em>, the Court retreated from the Edwards<\/em>presumption of involuntariness when there is a \u201cbreak in custody\u201d of the suspect lasting more than fourteen days between the first and second attempts at interrogation.[32]<\/a><\/a><\/p>\n

1. The Interrogation of Mr. Shatzer<\/span><\/p>\n

The case arose out of multiple police interrogations of Michael Shatzer\u2015who at the time was incarcerated for a child sexual abuse offense\u2015concerning unrelated allegations that he had sexually abused his son. In the first interrogation, Shatzer invoked his Miranda <\/em>rights and declined to speak without an attorney present. The interrogation ended and Shatzer was released back into the general prison population.[33]<\/a><\/a><\/p>\n

Two and a half years later, while Shatzer remained incarcerated, police reopened the investigation and, despite Shatzer\u2019s prior invocation of Miranda<\/em>, questioned him without an attorney present. A detective read Shatzer his Miranda<\/em> rights and obtained a written waiver on a standard form. During the interrogation and a polygraph examination taken a few days later, Shatzer made inculpatory statements. The state charged him with child sexual abuse of his son, and after denying motions to suppress, the trial court found him guilty. The Maryland Court of Appeals reversed the conviction under Edwards<\/em>.[34]<\/a><\/a><\/p>\n

2. The New Fourteen-Day and Prison-Is-Not-Custody Rules<\/span><\/p>\n

The Supreme Court reversed the Maryland high court.[35]<\/a><\/a> In a unanimous judgment and 7\u20132 opinion written by Justice Antonin Scalia,[36]<\/a><\/a> the Court held that the Edwards<\/em> restriction on re-interrogation no longer applies after a break in custody lasting longer than fourteen days.[37]<\/a><\/a> The Court further concluded that Shatzer\u2019s return to the general prison population, after he had invoked his right under Miranda<\/em> not to speak without counsel present, constituted such a break in custody.[38]<\/a><\/a><\/p>\n

First, the Court held that because the Edwards <\/em>rule is a \u201cjudicially prescribed prophylaxis,\u201d it could not be expanded without justification.[39]<\/a><\/a> Justice Scalia examined the costs and benefits of Edwards<\/em> and found no such justification.[40]<\/a><\/a> He explained that in the paradigmatic Edwards<\/em> situation\u2015in which the \u201csuspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated\u201d\u2015there is a risk of police badgering a suspect to abandon an earlier refusal to submit to interrogation without counsel present.[41]<\/a><\/a> But when a suspect has been released from custody and has returned to his normal life for a sufficient duration, \u201cthere is little reason to think that his change of heart regarding interrogation without counsel has been coerced.\u201d[42]<\/a><\/a> Thus, the \u201c[u]ncritical extension of Edwards<\/em>\u201d would have minimal benefits, while the \u201ccosts\u201d would include courts excluding voluntary confessions and police not even trying to obtain voluntary confessions.[43]<\/a><\/a><\/p>\n

As for the \u201cduration\u201d needed for a break in custody to dissipate the coercive effects of the initial interrogation, the Court found a case-by-case approach impractical because \u201claw enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.\u201d[44]<\/a><\/a> In a move Justice Scalia acknowledged was \u201cunusual,\u201d the majority picked a specific time period, fourteen days from release, after which police can renew their questioning. That period, Scalia reasoned, \u201cprovides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.\u201d[45]<\/a><\/a><\/p>\n

Second, the Court addressed whether release into the general prison population could constitute a break in custody for Miranda<\/em> purposes.[46]<\/a><\/a> The Court found that \u201clawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda<\/em>.\u201d[47]<\/a><\/a> Justice Scalia reasoned that \u201csuspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine\u2015they regain the degree of control they had over their lives prior to the interrogation.\u201d[48]<\/a><\/a> The Court found that Shatzer\u2019s life in a medium security facility lacked the inherently compelling pressures of custodial interrogation. As such, Shatzer\u2019s release into the prison population was a break in custody and, therefore, the Edwards<\/em> presumption did not apply.[49]<\/a><\/a><\/p>\n

Justice Stevens and Justice Clarence Thomas separately concurred in the judgment.[50]<\/a><\/a> Both disagreed with the fourteen-day rule, but for different reasons. Stevens found the blanket rule too rigid, while Thomas argued that it was an unjustified expansion of Edwards<\/em>.[51]<\/a><\/a> Thomas joined the majority\u2019s prison-is-not-custody holding, but Stevens found that it ignored the realities of prison.[52]<\/a><\/a> In addition, Stevens found that both rules created incentives for aggressive police interrogation practices, such as police engaging in catch-and-release tactics with the intent of seriatim interrogations until the suspect spoke without counsel present.[53]<\/a><\/a><\/p>\n

C. Berghuis v. Thompkins<\/em><\/h4>\n

On June 1, 2010, the Court issued its third and most contentious Miranda <\/em>decision of the term, Berghuis v. Thompkins<\/em>.[54]<\/a><\/a> In a 5\u20134 decision, the majority held that suspects must affirmatively and unambiguously speak to invoke their right to remain silent and that suspects may implicitly waive theirMiranda <\/em>rights by answering a single question after hours of uninterrupted interrogation.[55]<\/a><\/a><\/p>\n

1. The Interrogation of Mr. Thompkins<\/span><\/p>\n

The case arose out of the interrogation of Van Chester Thompkins, whom police suspected of murder in a shooting outside a mall in Southfield, Michigan. Two officers interrogated Thompkins for about three hours in an eight-by-ten foot room. The officers began the interrogation by presenting Thompkins with aMiranda<\/em> form. One of the officers read the form aloud and then had Thompkins read a portion of the form aloud to confirm that he could read and understand English. The officers then asked Thompkins to sign the form to demonstrate he understood his rights, and Thompkins refused.[56]<\/a><\/a><\/p>\n

Thompkins remained mostly silent during questioning.[57]<\/a><\/a> \u201cHe did give a few limited verbal responses, however, such as \u2018yeah,\u2019 or \u2018no,\u2019 or \u2018I don\u2019t know.\u2019 And on occasion he communicated by nodding his head.\u201d[58]<\/a><\/a> Nearly three hours into the interrogation, an officer asked Thompkins if he believed in God and whether he \u201c\u2018pray[ed] to God to forgive you for shooting that boy down?\u2019\u201d Thompkins \u201canswered \u2018Yes\u2019 and looked away.\u201d He thereafter refused to make a written confession, and the interrogation ended about fifteen minutes later.[59]<\/a><\/a><\/p>\n

Thompkins was charged with first degree murder, the State used his statement against him at trial, and he ultimately was found guilty and sentenced to life in prison without parole.[60]<\/a><\/a> Addressing Thompkins\u2019s habeas corpus application, the Sixth Circuit threw out the conviction, concluding that his \u201cpersistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.\u201d[61]<\/a><\/a><\/p>\n

2. The New Waiver and Clear Statement Rules<\/span><\/p>\n

In a 5\u20134 decision written by Justice Anthony Kennedy,[62]<\/a><\/a> the Court reversed the Sixth Circuit and reinstated Thompkins\u2019s conviction.[63]<\/a><\/a> First, the majority held that to invoke the right to remain silent, an accused must do so unambiguously.[64]<\/a><\/a> Justice Kennedy noted that the Court has long held that to invoke the right to counsel under Miranda<\/em>, a suspect must do so \u201cunambiguously.\u201d[65]<\/a><\/a> A fortiori<\/em>, Kennedy found, \u201cthere is no principled reason to adopt different standards for determining when an accused has invoked his Miranda<\/em> right to remain silent.\u201d[66]<\/a><\/a> Kennedy wrote that there was \u201cgood reason\u201d for the rule: \u201cIf an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused person\u2019s unclear intent and face the consequences of suppression \u2018if they guess wrong.\u2019\u201d[67]<\/a><\/a> Thompkins could have said he wanted to remain silent or that he did not want to speak with the police, but he did not make \u201ceither of these simple, unambiguous statements\u201d and therefore failed to invoke his right to remain silent.[68]<\/a><\/a><\/p>\n

Second, Justice Kennedy recognized that even absent an invocation of the right to remain silent, a suspect\u2019s statement is inadmissible unless the prosecution establishes that the suspect \u201cknowingly and voluntarily\u201d waived his or her Miranda<\/em> rights.[69]<\/a><\/a> The Court held that Thompkins\u2015despite spending most of the three-hour interrogation in silence and refusing to sign the Miranda<\/em> form\u2015had implicitly waived his rights.[70]<\/a><\/a> The majority acknowledged that \u201c[s]ome language in Miranda<\/em> could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement,\u201d but found that decisions since Miranda <\/em>reflected a more relaxed standard.[71]<\/a><\/a> No \u201cformalistic waiver procedure\u201d is required and an \u201cimplicit waiver\u201d of the right to remain silent is sufficient. In short, \u201c[w]here the prosecution shows that a Miranda<\/em> warning was given and that it was understood by the accused, an accused\u2019s uncoerced statement establishes an implied waiver of the right to remain silent.\u201d[72]<\/a><\/a><\/p>\n

Under this relaxed standard, the Court found that Thompkins understood his rights because the Miranda<\/em>form was given and read to him and he read a portion back to the officers, confirming he could read and understand English.[73]<\/a><\/a> Answering the officer\u2019s questions, even after saying next to nothing for nearly three hours in the face of consistent police questioning, itself was a \u201ccourse of conduct indicating a waiver.\u201d[74]<\/a><\/a> Justice Kennedy also reasoned that \u201cthere is no authority for the proposition that an interrogation of this length is inherently coercive.\u201d[75]<\/a><\/a> Nor did the record show coercive conduct by the police, such as threats, food or sleep deprivation, or that Thompkins was in fear.[76]<\/a><\/a><\/p>\n

Justice Sonia Sotomayor, joined by Justices Stevens, Ginsburg, and Breyer, wrote a vigorous dissent.[77]<\/a><\/a> She found the majority decision \u201cturns Miranda<\/em> upside down. Criminal suspects must now unambiguously invoke their right to remain silent\u2015which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.\u201d Those results, Sotomayor concluded, \u201cfind no basis in Miranda<\/em>or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.<\/em>\u201d[78]<\/a><\/a><\/p>\n

II. Miranda \u201cUpside Down\u201d: Observations and Implications<\/h3>\n

A. Where We Are<\/h4>\n

Before the 2009\u201310 term, many who have studied Miranda<\/em> and police interrogation practices had questioned Miranda<\/em>\u2019s utility as a protective device.[79]<\/a><\/a> Those views find further support in Powell<\/em>,Shatzer<\/em>, and Berghuis. <\/em>Consider the new rules resulting from these decisions: the police can take an individual into custody, read him an ambiguous Miranda<\/em> warning, and then question him for hours without a lawyer present. If the suspect does not speak up and unambiguously invoke his right to counsel or right to remain silent, police can persistently question him and use even a single, terse, one-word response after hours of questioning as an implicit knowing and voluntary waiver of his rights. If, by chance, the suspect unambiguously invokes his rights, the police can release him for fourteen days and then pick him up on day fifteen to begin the entire interrogation process anew.<\/p>\n

It is no surprise, then, that many have questioned<\/a> whether these decisions have \u201cdecimated Miranda<\/em>\u201d[80]<\/a><\/a> or \u201cfinally dealt Miranda<\/em> a death blow.\u201d<\/a>[81]<\/a><\/a> To be sure, the Court did not overturn Miranda<\/em>. But the Court\u2019s recent jurisprudence certainly has done little to counter views that Miranda<\/em> has gone from a rule designed to protect suspects to one that protects the police. To borrow from Justice Sotomayor\u2019s Berghuis<\/em>dissent, the new rules \u201cturn[] Miranda<\/em> upside down,\u201d reflect \u201ca substantial retreat from the protections against compelled self-incrimination,\u201d \u201cignore[] the important interests Miranda<\/em> safeguards,\u201d and \u201cbode[] poorly for the fundamental principles that Miranda<\/em> protects.\u201d[82]<\/a><\/a><\/p>\n

B. How We Got Here<\/h4>\n

While this essay will not undertake the historical, ideological, or theoretical reasons for Miranda<\/em>\u2019s transformation over the years, it is safe to say that the 2009\u201310 term decisions were possible only through a narrow interpretation of the landmark 1966 decision. In Powell<\/em>, for instance, the Court essentially permitted ambiguous Miranda<\/em> warnings, notwithstanding that Miranda<\/em> itself repeatedly held that suspects must \u201cbe clearly informed\u201d[83]<\/a><\/a> of their rights in \u201cclear and unequivocal terms\u201d[84]<\/a><\/a> and that \u201conly by effective and express explanation\u201d[85]<\/a><\/a> of the rights can there be assurance that the accused was in a position to exercise them. Indeed, the Court in Powell <\/em>allowed police to use a warning that omitted the suspect\u2019s right to have counsel present during interrogation, even though Miranda<\/em> and later decisions explicitly stated that \u201can individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation<\/em> . . . .\u201d[86]<\/a><\/a><\/p>\n

As for Shatzer<\/em>, Justice Stevens\u2019s assessment that the majority was \u201cinsufficiently sensitive to the concerns that motivated the Edwards<\/em> line of cases\u201d[87]<\/a><\/a> was an understatement. That Justice Scalia would circumscribe Miranda <\/em>and Edwards <\/em>is consistent with his prior appraisal of those decisions. Justice Scalia previously has argued that Miranda<\/em> is \u201ca milestone of judicial overreaching\u201d that should be overruled[88]<\/a><\/a> and has described the Edwards<\/em> line of cases as \u201cprophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.\u201d[89]<\/a><\/a> Ironically, Justice Scalia\u2019s fourteen-day rule in Shatzer <\/em>resembles the \u201cCourt-made code\u201d he found offensive about Miranda.<\/em>[90]<\/a><\/a> His majority opinion in Shatzer<\/em> may be, as Professor Orin Kerr surmised, the result of an \u201cif you can\u2019t beat \u2019em, join \u2019em\u201d approach[91]<\/a><\/a>\u2015one that forgoes dissenting opinions rejecting prophylaxis rules outright in favor of majority decisions that remove their teeth.<\/p>\n

For its part, Berghuis<\/em> is the most striking example of the Court essentially rewriting Miranda.<\/em> Justice Sotomayor\u2019s dissent correctly noted that \u201c[r]arely do this Court\u2019s precedents provide clearly established law so closely on point with the facts of a particular case.\u201d[92]<\/a><\/a> She quoted Miranda<\/em> and other decisions establishing that \u201cthe fact of a \u2018lengthy interrogation\u2019 prior to obtaining statements is \u2018strong evidence\u2019 against a finding of valid waiver; \u2018mere silence\u2019 in response to questioning is \u2018not enough\u2019; and waiver may not be presumed \u2018simply from the fact that a confession was in fact eventually obtained.\u2019\u201d[93]<\/a><\/a> Contrary to these cases, the Berghuis<\/em> majority found an implicit waiver after a lengthy interrogation where the accused sat mostly silent, but uttered a few inculpatory words.<\/p>\n

While it is hard to miss the retreat from precedent reflected in each of the decisions, it takes a closer look to notice a disquieting doctrinal inconsistency. For instance, whereas Powell <\/em>permits police to give the accused an ambiguous warning, Berghuis<\/em> requires the accused to speak \u201cunambiguously\u201d with lawyer-like clarity to invoke the right to remain silent, creating an untenable double standard.[94]<\/a><\/a><\/p>\n

Another example of inconsistency concerns the Court\u2019s approach to bright-line rules. Whereas the majority justified the fourteen-day rule in Shatzer<\/em> and the requirement of an \u201cunequivocal\u201d invocation of the right to remain silent in Berghuis <\/em>based on the need to provide clear guidance to police, the Court eschewed any bright-line in Powell <\/em>when it declined to set a precise formulation police must use when advising suspects of their Miranda<\/em> rights.[95]<\/a><\/a><\/p>\n

A subtler doctrinal inconsistency can be seen in the Court\u2019s views on the coercive nature of custodial interrogation. In Shatzer<\/em>,the majority found that prison is not \u201ccustody\u201d for Miranda<\/em> purposes because imprisonment does not impose the highly \u201ccoercive pressures\u201d inherent in a custodial interrogation.[96]<\/a><\/a> In Berghuis<\/em>, however, the majority downplayed the inherently coercive environment of a custodial interrogation by stating that suspects can easily assert their rights unequivocally and suggesting that coercion exists only when there are overt acts of coercion, like threats of violence or deprivation of food or sleep.[97]<\/a><\/a><\/p>\n

C. The Road Ahead<\/h4>\n

So what do the 2009\u201310 term decisions say about the future of Miranda<\/em>? As a practical matter, the decisions could lead to more aggressive police interrogation tactics. The social science literature onMiranda<\/em> indicates that law enforcement agencies \u201chave developed multiple strategies to avoid, circumvent, nullify, and sometimes violate Miranda<\/em> and its invocation rules in their pursuit of confession evidence.\u201d[98]<\/a><\/a> Nevertheless, the majorities in Powell<\/em>, Shatzer<\/em>, and Berghuis<\/em> all but ignored the risks that police would misuse the new rules. In Powell<\/em>, for example, Professor Leo warned in an amicusbrief that if the Court approved the ambiguous warning given to Powell, it would \u201ccreate incentives for law enforcement nationwide to experiment with the Miranda <\/em>warnings . . . to change the standard Miranda<\/em>formulation in an effort to dilute the warning. Indeed, the history of Miranda <\/em>demonstrates that some law enforcement agencies and officials will seek to do just that.\u201d[99]<\/a><\/a> The majority not only ignored the risk, it presumed the opposite\u2014that law enforcement agencies would want to make warnings as clear as possible to avoid litigation.[100]<\/a><\/a> Arguably, portions of the Powell<\/em> decision itself may offset incentives to water down warnings. Justice Ginsburg was effusive in her praise of the FBI\u2019s standard warning as \u201cexemplary\u201d and \u201cadmirably informative,\u201d[101]<\/a><\/a> such that law enforcement agencies may be inclined to adopt the FBI\u2019s more clear formulation as \u201clitigation proof\u201d because it now has been blessed by the high court.<\/p>\n

Similarly, in Shatzer<\/em>, Justice Stevens\u2019s concurring opinion raised red flags about the potential for police abuse of the new rules, which the majority brushed aside. Justice Stevens noted that the new rules give incentives for police to engage in the catch-and-release tactics of letting a suspect go with the intention of picking him up again for questioning fourteen days later.[102]<\/a><\/a> Stevens further argued that the prison-is-not-custody rule presents the risk that police, knowing the suspect is locked up, will simply \u201cbide their time, interrogating and reinterrogating their suspect until he slips up.\u201d[103]<\/a><\/a> And in Berghuis<\/em>, in the face of obvious risks that police will use the decision as license to unfettered lengthy questioning of an accused who sits silent, the Court\u2019s response was to downplay the pressures of custodial interrogation and suggest that suspects can make a \u201csimple\u201d assertion of their right to remain silent or to counsel.[104]<\/a><\/a><\/p>\n

Beyond their potential influence on police interrogation practices, the 2009\u201310 term decisions suggest more of the same from the Court in the future. Both Powell<\/em> and Shatzer<\/em> had seven-justice majorities.[105]<\/a><\/a> And while Berghuis <\/em>was a 5\u20134 decision, one of the dissenters was now-retired Justice Stevens. Stevens in fact was the only <\/em>justice who disagreed with the majority in all three cases, authoring the dissenting and concurring opinions in Powell <\/em>and Shatzer<\/em>, respectively, and joining Justice Sotomayor\u2019s dissenting opinion in Berghuis<\/em>.<\/p>\n

With Stevens\u2019s retirement, the Court lost one of its \u201cforemost defenders of Miranda<\/em>-related rights.\u201d[106]<\/a><\/a> In a forthcoming article, Professor Christopher Smith conducts an impressive comparative analysis of the Court\u2019s Miranda<\/em> jurisprudence and concludes that Justice Stevens\u2019s opinions, more than any other justice\u2019s, reflect a \u201csensitivity to the risks of deceptive and abusive practices by law enforcement officials and strong beliefs about the essential role of defense attorneys in the American adversarial system of justice.\u201d[107]<\/a><\/a> Those strong beliefs were on display in the 2009-10 term. From his practical view inPowell<\/em> that, at minimum, when Miranda <\/em>said a warning must be clear, that is what it meant;[108]<\/a><\/a> to his concerns in Shatzer <\/em>about the Court\u2019s lack of sensitivity to the underlying motivations of the Edwards<\/em>rule and the troubling incentives for police abuse created by the new fourteen-day rule;[109]<\/a><\/a> to joining Justice Sotomayor\u2019s powerful rebuke in Berghuis<\/em>, Justice Stevens approached each issue mindful of the real-world implications of the Court\u2019s decisions and the inability of the average criminal suspect to navigate the justice system without the assistance of counsel.<\/p>\n

Whether Justice Elena Kagan will share any of Stevens\u2019s views on Miranda<\/em> is unclear. Professor Charles Weisselberg has argued that Justice Kagan \u201cwas complicit in Miranda<\/em>\u2019s demise,\u201d[110]<\/a><\/a> because as Solicitor General her office filed an \u201caggressive\u201d brief in Berghuis<\/em> that reflected \u201cno understanding of modern police interrogation tactics or that suspects\u2014who are in a position of powerlessness during an interrogation\u2014may have difficulty asserting their rights or using precise language to do so.\u201d[111]<\/a><\/a> Others, however, have expressed concern<\/a> that Kagan is a Miranda<\/em> sympathizer.[112]<\/a><\/a> During the Senate confirmation process, for instance, Senator Jeff Sessions submitted written questions to Kagan concerning a certiorari memorandum she had written as a law clerk to Justice Thurgood Marshall. There, Kagan suggested that a Ninth Circuit decision upholding the admission of physical evidence derived from statements obtained in violation of Miranda <\/em>was a \u201cdisservice to the Miranda<\/em> rule\u201d and opined that \u201c[i]t seems to me likely that this Court would use this case to curtail even further the scope and meaningfulness of Miranda<\/em> protections.\u201d[113]<\/a><\/a> Senator Sessions\u2019s written questions pointedly asked, \u201c[w]hat was the \u2018disservice\u2019 you thought was done to Miranda<\/em>?\u201d and \u201c[w]hat did you fear the Court would do to \u2018curtail\u2019 the \u2018scope and meaningfulness\u2019 of Miranda?<\/em>\u201d[114]<\/a><\/a><\/p>\n

To be sure, while Justice Kagan was Solicitor General her office filed amicus briefs in not just Berghuis<\/em>, but all three of the 2009\u201310 term Miranda<\/em> cases, each arguing that the lower courts had erred in finding Miranda<\/em> violations.[115]<\/a><\/a> But those briefs were filed on behalf of the United States, and I do not think personal views can be meaningfully gleaned from positions a lawyer takes on behalf of a client. Similarly, I do not think that memos drafted over two decades ago to a boss Justice Kagan knew was a Miranda<\/em> supporter say much about her personal views today. One could imagine Justice Kagan in the future, strolling the marble halls of the high court contemplating a Miranda<\/em> case, allowing her thoughts to stray to Marshall, but those tea leaves are of little value to any accurate assessment of her views on Miranda<\/em>.<\/p>\n

As for the other justices, that Justice Ginsburg wrote the majority opinion in Powell<\/em> or Justices Ginsburg and Breyer joined the majority in Shatzer<\/em> may have been surprising to some. It may be that Powell<\/em>carried a 7\u20132 majority based on the view that the decision was narrow; the Miranda<\/em> form used by Tampa police was unlike the more precise warning forms used by nearly all law enforcement agencies nationwide.[116]<\/a><\/a> As for Shatzer<\/em>, its peculiar facts\u2014the second interrogation took place more than two years after the initial questioning and the defendant signed a Miranda<\/em> waiver form\u2014likely helped secure the majority.<\/p>\n

In any event, the justice who may turn out to be the most forceful, if unexpected, advocate for Miranda<\/em> in Stevens\u2019s absence may be Justice Sotomayor. Granted, she joined the majorities in Powell<\/em> and Shatzer<\/em>, so the early signals were that her years as a prosecutor and judge may have left her no friend of Miranda<\/em>. But it is those practical experiences that may, as in her vigorous dissent in Berghuis<\/em>, render her loath to place further limits on Miranda<\/em>. In the end, however, it may not matter whether Justices Kagan and Sotomayor turn out to be strong Miranda<\/em> advocates\u2014their votes would not be enough to overcome the majorities in Powell<\/em>, Shatzer<\/em>, or Berghuis<\/em> or future cases like them.<\/p>\n

Notwithstanding this grim assessment of Miranda<\/em>\u2019s future, I do see one ray of hope: the controversy surrounding the three decisions may prompt litigants and state courts to focus more vigorously on state constitutional protections of Miranda<\/em> rights. In Powell<\/em>, the Court noted that \u201c[n]othing in our decision today, we emphasize, trenches on the Florida Supreme Court\u2019s authority to impose, based on the State\u2019s Constitution, any additional protections against coerced confessions it deems appropriate.\u201d[117]<\/a><\/a> Indeed, the Florida Supreme Court held that the warning given Powell violated both Miranda<\/em> and the Florida Constitution.[118]<\/a><\/a> After the 2009\u201310 term, state courts may be more inclined to rely less on Miranda<\/em> and more on their own rules that often closely resemble the Miranda<\/em> of 1966.<\/p>\n

Finally, there is one thing I can predict with some certainty about Miranda<\/em>\u2019s future: it will remain a hot-button issue. That is particularly the case in the political sphere. Amidst all the criticisms that the Court had decimated Miranda<\/em>, for instance, the Obama administration did not back down from its May 2010 announcement<\/a> that it would push for Congress to enact a broad \u201cpublic safety\u201d exception to Miranda<\/em>allowing investigators to interrogate terrorism suspects without informing them of their rights .[119]<\/a><\/a> Likewise, even after Berghuis<\/em>, Senators during the confirmation process appeared concerned that Justice Kagan supported Miranda<\/em> rights.[120]<\/a><\/a> Regardless of whether it has lost its force, then, Miranda<\/em>assuredly will maintain its title as one of the Supreme Court\u2019s most controversial decisions.<\/p>\n

Conclusion<\/h3>\n

A decade ago the Supreme Court found an insufficient \u201cjustification for overruling Miranda. Miranda<\/em>has become embedded in routine police practice to the point where the warnings have become part of our national culture.\u201d[121]<\/a><\/a> Powell, Shatzer<\/em>, and Berghuis<\/em> reaffirm that the Court will not overrule Miranda<\/em>in a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts.<\/p>\n

\n

*<\/a><\/a> The author is a member of Arnold & Porter LLP\u2019s Appellate and Supreme Court practice. He was co-counsel for the defendant in Florida v. Powell<\/em>, 130 S. Ct. 1195 (2010), one of the Miranda <\/em>cases discussed in this essay. The author would like to thank R. Stanton Jones, Sheila B. Scheuerman, and Ben Wallfisch for their comments on earlier drafts. The views expressed herein are those of the author alone and not Arnold & Porter LLP or any of the firm\u2019s clients.<\/p>\n

[1]<\/a><\/a> Charles D. Weisselberg, Mourning<\/em> Miranda, 96 Cal. L. Rev. 1521, 1521 (2008).<\/p>\n

[2]<\/a><\/a> Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), available from the Supreme Court<\/a>; Maryland v. Shatzer, 130 S. Ct. 1213 (2010), available from the Supreme Court<\/a>; Florida v. Powell, 130 S. Ct. 1195 (2010), available from the Supreme Court<\/a>.<\/p>\n

[3]<\/a><\/a> Berghuis<\/em>, 130 S. Ct. at 2278 (Sotomayor, J., dissenting).<\/p>\n

[4]<\/a><\/a> Tony Mauro, Miranda Dealt One-Two Punch by High Court<\/em><\/a>, Nat\u2019l L.J., Feb. 24, 2010 (quoting Jeffrey Green (quotation alterations omitted).<\/p>\n

[5]<\/a><\/a> See, e.g.<\/em>, Weisselberg, supra<\/em> note 1; see also infra <\/em>sources cited notes 95-96, 104.<\/p>\n

[6]<\/a><\/a> 130 S. Ct. 1195 (2010).<\/p>\n

[7]<\/a><\/a> Id.<\/em> at 1205 (emphasis in original).<\/p>\n

[8]<\/a><\/a> Miranda v. Arizona, 384 U.S. 436, 467\u201368, 471 (1966), available from the Legal Information Institute<\/a>.<\/p>\n

[9]<\/a><\/a> Powell<\/em>, 130 S. Ct. at 1200.<\/p>\n

[10]<\/a><\/a> Id. <\/em>(quoting Tampa Police Department Consent and Release Form 310).<\/p>\n

[11]<\/a><\/a> See <\/em>Brief for Respondent at 5\u20136, Powell<\/em>, 130 S. Ct. 1195 (No. 08-1175) (discussing trial record), available from the American Bar Association<\/a>.<\/p>\n

[12]<\/a><\/a> Id.<\/em> at 7; accord Powell<\/em>, 130 S. Ct. at 1200.<\/p>\n

[13]<\/a><\/a> Powell<\/em>, 130 S. Ct. at 1201.<\/p>\n

[14]<\/a><\/a> See <\/em>Brief for Respondent, supra<\/em> note 11, at 28\u201333, 52 (discussing numerous Florida and federal cases rejecting comparable warnings as deficient under Miranda<\/em>).<\/p>\n

[15]<\/a><\/a> State v. Powell, 998 So. 2d 531, 541 (Fla. 2008), rev\u2019d<\/em>, 130 S. Ct. 1195.<\/p>\n

[16]<\/a><\/a> Justice Ginsburg\u2019s opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor. Powell<\/em>, 130 S. Ct. at 1199.<\/p>\n

[17]<\/a><\/a> Id.<\/em> at 1203 (quoting Miranda<\/em>, 384 U.S. at 471).<\/p>\n

[18]<\/a><\/a> Id.<\/em> at 1205.<\/p>\n

[19]<\/a><\/a> Id.<\/em> at 1200.<\/p>\n

[20]<\/a><\/a> Powell<\/em>, 998 So. 2d at 541.<\/p>\n

[21]<\/a><\/a> Powell<\/em>, 130 S. Ct. at 1205.<\/p>\n

[22]<\/a><\/a> See generally <\/em>Brief for Professor Richard A. Leo as Amicus Curiae in Support of Respondent at 13\u201319, Powell<\/em>, 130 S. Ct. 1195 (No. 08-1175), available from the American Bar Association<\/a>.<\/p>\n

[23]<\/a><\/a> Powell<\/em>, 130 S. Ct. at 1206.<\/p>\n

[24]<\/a><\/a> Id. <\/em>(quoting Brief for the United States as Amicus Curiae Supporting Petitioner at 6, Powell<\/em>, 130 S. Ct. 1195 (No. 08-1175), available at the American Bar Association<\/a>).<\/p>\n

[25]<\/a><\/a> Id.<\/em><\/p>\n

[26]<\/a><\/a> Justice Breyer joined the part of the majority decision addressing a separate issue raised by the defendant: whether the Supreme Court lacked jurisdiction to hear the case because the Florida Supreme Court\u2019s decision rested on an adequate and independent state law ground. Id. <\/em>at 1199. Justice Stevens authored the dissenting opinion, which disagreed with the majority on both the jurisdiction and Miranda issues. Justice Breyer joined the dissenting opinion on only the Miranda issue. Id.<\/em><\/p>\n

[27]<\/a><\/a> Powell<\/em>, 130 S. Ct. at 1206, 1210 (Stevens, J., dissenting).<\/p>\n

[28]<\/a><\/a> Id.<\/em> at 1210\u201311.<\/p>\n

[29]<\/a><\/a> 130 S. Ct. 1213 (2010).<\/p>\n

[30]<\/a><\/a> 451 U.S. 477 (1981).<\/p>\n

[31]<\/a><\/a> Id.<\/em> at 484\u201385.<\/p>\n

[32]<\/a><\/a> 130 S. Ct. at 1222\u201323.<\/p>\n

[33]<\/a><\/a> Id.<\/em> at 1217.<\/p>\n

[34]<\/a><\/a> Id. <\/em>at 1217\u201318.<\/p>\n

[35]<\/a><\/a> Id.<\/em> at 1227.<\/p>\n

[36]<\/a><\/a> Justice Scalia\u2019s opinion was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor. Id.<\/em> at 1217.Justice Thomas joined in part and wrote an opinion concurring in part and concurring in the judgment. Id.<\/em> Justice Stevens wrote an opinion concurring in the judgment.Id.<\/em><\/p>\n

[37]<\/a><\/a> Id.<\/em> at 1223.<\/p>\n

[38]<\/a><\/a> Id.<\/em> at 1225.<\/p>\n

[39]<\/a><\/a> Id. <\/em>at 1220.<\/p>\n

[40]<\/a><\/a> Id.<\/em> at 1220\u201324.<\/p>\n

[41]<\/a><\/a> Id.<\/em> at 1220.<\/p>\n

[42]<\/a><\/a> Id.<\/em> at 1221.<\/p>\n

[43]<\/a><\/a> Id.<\/em> at 1221\u201322.<\/p>\n

[44]<\/a><\/a> Id. <\/em>at 1222\u201323.<\/p>\n

[45]<\/a><\/a> Id.<\/em> at 1223.<\/p>\n

[46]<\/a><\/a> Id. <\/em>at 1224\u201326.<\/p>\n

[47]<\/a><\/a> Id.<\/em> at 1224.<\/p>\n

[48]<\/a><\/a> Id.<\/em><\/p>\n

[49]<\/a><\/a> Id. <\/em>at 1225.<\/p>\n

[50]<\/a><\/a> Justice Stevens concurred in the judgment because he \u201cagree[d] that the presumption from Edwards . . . <\/em>is not \u2018eternal\u2019\u201d and that the two and a half years between Shatzer\u2019s first and second interrogations was a sufficient break to end the presumption. Id.<\/em> at 1228, 1234 (Stevens, J., concurring in the judgment) (citations omitted). Justice Thomas joined the part of the Court\u2019s opinion that held the release into the general prison population constitutes a break in custody. Id.<\/em>at 1227(Thomas, J., concurring in part and concurring in the judgment).Thomas did not join the Court\u2019s decision \u201cto extend the presumption of involuntariness\u201d established in Edwards<\/em> because he felt it was an unwarranted expansion of Edwards<\/em>. Id.<\/em><\/p>\n

[51]<\/a><\/a> Id. <\/em>at 1227\u201328 (Thomas, J., concurring in part and concurring in the judgment); id.<\/em> at 1228\u201334 (Stevens, J., concurring in the judgment).<\/p>\n

[52]<\/a><\/a> Id. <\/em>at 1227 (Thomas, J., concurring in part and concurring in the judgment); id.<\/em> at 1233 (Stevens, J., concurring in the judgment).<\/p>\n

[53]<\/a><\/a> Id. <\/em>at 1231 n.10, 1233 n.13 (Stevens, J., concurring in the judgment).<\/p>\n

[54]<\/a><\/a> 130 S. Ct. 2250 (2010).<\/p>\n

[55]<\/a><\/a> Id.<\/em> at 2259\u201365.<\/p>\n

[56]<\/a><\/a> Id. <\/em>at 2256.<\/p>\n

[57]<\/a><\/a> Id.<\/em><\/p>\n

[58]<\/a><\/a> Id.<\/em> at 2256\u201357.<\/p>\n

[59]<\/a><\/a> Id. <\/em>at 2257.<\/p>\n

[60]<\/a><\/a> Id. <\/em>at 2257\u201358.<\/p>\n

[61]<\/a><\/a> Id.<\/em> at 2258\u201359 (quoting the lower court).<\/p>\n

[62]<\/a><\/a> Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined the majority opinion. Justice Sotomoyor, joined by Justices Stevens, Ginsburg, and Breyer, dissented. Id.<\/em> at 2255.<\/p>\n

[63]<\/a><\/a> Id. <\/em>at 2265.<\/p>\n

[64]<\/a><\/a> Id.<\/em> at 2260.<\/p>\n

[65]<\/a><\/a> Id. <\/em>(discussing Davis v. United States, 512 U.S. 452 (1994), http:\/\/www.law.cornell.edu\/supct\/html\/92-1949.ZO.html).<\/p>\n

[66]<\/a><\/a> Id.<\/em><\/p>\n

[67]<\/a><\/a> Id.<\/em> (quoting Davis<\/em>, 512 U.S. at 461).<\/p>\n

[68]<\/a><\/a> Id.<\/em><\/p>\n

[69]<\/a><\/a> Id.<\/em><\/p>\n

[70]<\/a><\/a> Id.<\/em> at 2262\u201363.<\/p>\n

[71]<\/a><\/a> Id.<\/em> at 2260\u201361.<\/p>\n

[72]<\/a><\/a> Id. <\/em>at 2262.<\/p>\n

[73]<\/a><\/a> Id.<\/em><\/p>\n

[74]<\/a><\/a> Id.<\/em> at 2263.<\/p>\n

[75]<\/a><\/a> Id.<\/em><\/p>\n

[76]<\/a><\/a> Id.<\/em><\/p>\n

[77]<\/a><\/a> Id. <\/em>at 2266\u201378 (Sotomayor, J., dissenting).<\/p>\n

[78]<\/a><\/a> Id. <\/em>at 2278.<\/p>\n

[79]<\/a><\/a> See, e.g.<\/em>, Weisselberg, supra<\/em> note 1; see also <\/em>Brief for Professor Richard A. Leo as Amicus Curiae,supra<\/em> note 22.<\/p>\n

[80]<\/a><\/a> Adam Cohen, Has the Supreme Court Decimated Miranda?<\/a><\/em>, Time, June 3, 2010, (discussing Berghuis<\/em>); accord <\/em>Mauro, supra <\/em>note 4 (discussing Powell <\/em>and Shatzer<\/em>). But not everyone has concluded that these decisions decimated Miranda<\/em>. See<\/em> Brooks Holland, Commentary: How the Court Retooled Miranda<\/a><\/em>, Nat\u2019l L.J., July 14, 2010, (discussing the Cohen article and other assessments and noting that the Court narrowed Miranda<\/em> but that \u201cjustices who have criticized Miranda<\/em> in the past applied the rule this term, treating it seemingly as settled law. Miranda <\/em>thus looks to have a future of refinement or limitation, but a future nevertheless.\u201d).<\/p>\n

[81]<\/a><\/a> Charles Weisselberg, Elena Kagan and the Death of Miranda<\/a><\/em>, Huffington Post (June 1, 2010, 2:45 PM).<\/p>\n

[82]<\/a><\/a> Berghuis v. Thompkins, 130 S. Ct. 2250, 2266, 2272, 2278 (2010) (Sotomayor, J., dissenting).<\/p>\n

[83]<\/a><\/a> 384 U.S. 436, 471 (1966).<\/p>\n

[84]<\/a><\/a> Id. <\/em>at 467\u201368.<\/p>\n

[85]<\/a><\/a> Id.<\/em> at 473.<\/p>\n

[86]<\/a><\/a> Id. <\/em>at 471 (emphasis added).<\/p>\n

[87]<\/a><\/a> Maryland v. Shatzer, 130 S. Ct. 1213, 1229 (2010) (Stevens, J., concurring in the judgment).<\/p>\n

[88]<\/a><\/a> Dickerson v. United States, 530 U.S. 428, 465 (2000) (Scalia, J., dissenting),available from theLegal Information Institute<\/a>.<\/p>\n

[89]<\/a><\/a> Orin Kerr, Does the Constitution Have a 14-Day Clause? A Comment on Maryland v. Shatzer<\/a><\/em>, TheVolokh Conspiracy (Feb. 25, 2010, 2:16 AM) (quoting Minnick v. Mississippi, 498 U.S. 146, 166 (1990) (Scalia, J., dissenting)).<\/p>\n

[90]<\/a><\/a> Dickerson<\/em>, 530 U.S. at 465 (Scalia, J., dissenting).<\/p>\n

[91]<\/a><\/a> See<\/em> Kerr, supra <\/em>note 104; see also <\/em>Holland, supra<\/em> note 95.<\/p>\n

[92]<\/a><\/a> Berghuis v. Thompkins, 130 S. Ct. 2250, 2270 (2010) (Sotomayor, J., dissenting).<\/p>\n

[93]<\/a><\/a> Id.<\/em> (quotation sources and alterations omitted).<\/p>\n

[94]<\/a><\/a> See supra <\/em>text accompanying notes 16\u201318 & 77\u201381.<\/p>\n

[95]<\/a><\/a> See supra <\/em>text accompanying notes 24\u201325, 49 & 80.<\/p>\n

[96]<\/a><\/a> Maryland v. Shatzer, 130 S. Ct. 1213, 1224 (2010).<\/p>\n

[97]<\/a><\/a> See supra <\/em>text accompanying notes 81, 89\u201390.<\/p>\n

[98]<\/a><\/a> Richard A. Leo, Police Interrogation and American Justice 124 (2008) (discussing studies on police interrogation in America).<\/p>\n

[99]<\/a><\/a> Brief for Professor Richard A. Leo as Amicus Curiae, supra<\/em> note 22, at 20.<\/p>\n

[100]<\/a><\/a> See<\/em> supra <\/em>text accompanying notes 22\u201324.<\/p>\n

[101]<\/a><\/a> Florida v. Powell, 130 S. Ct. 1195, 1206 (2010). The standard FBI warnings provide in relevant part \u201cYou have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.\u201d Id. <\/em>(quoting Brief for the United States as Amicus Curiae,supra<\/em> note 24, at 12 n.3).<\/p>\n

[102]<\/a><\/a> See supra <\/em>text accompanying note 60.<\/p>\n

[103]<\/a><\/a> Maryland v. Shatzer, 130 S. Ct. 1213, 1233 n.13 (2010).<\/p>\n

[104]<\/a><\/a> See supra <\/em>text accompanying note 81.<\/p>\n

[105]<\/a><\/a> See <\/em>discussion supra<\/em> notes 16, 41.<\/p>\n

[106]<\/a><\/a> Christopher E. Smith, Justice John Paul Stevens: Staunch Defender of <\/em>Miranda Rights<\/em>, 59 DePaul L. Rev. (forthcoming 2010) (manuscript at 38) (on file with author).<\/p>\n

[107]<\/a><\/a> Id.<\/em><\/p>\n

[108]<\/a><\/a> See<\/em> supra <\/em>text accompanying notes 26\u201328.<\/p>\n

[109]<\/a><\/a> See<\/em> supra <\/em>text accompanying notes 58\u201360.<\/p>\n

[110]<\/a><\/a> Weisselberg, supra<\/em> note 96.<\/p>\n

[111]<\/a><\/a> Id.<\/em><\/p>\n

[112]<\/a><\/a> See <\/em>Tom Grant & John Ullyot, Kagan and the \u2018Public Safety Exception\u2019,<\/a><\/em> Wall St. J., May 14, 2010 (questioning whether Kagan shares Stevens\u2019s \u201cextremist\u201d views on Miranda<\/em>).<\/p>\n

[113]<\/a><\/a> Responses to Senator Jeff Sessions, Questions for the Record 22, available from the Senate Judiciary Committee<\/a>.<\/p>\n

[114]<\/a><\/a> Id. <\/em>at 22\u201323.<\/p>\n

[115]<\/a><\/a> Brief for the United States as Amicus Curiae, supra<\/em> note 24; Brief for the United States as Amicus Curiae Supporting Petitioner, Berghuis<\/em>, 130 S. Ct. 2250 (No. 08-1470), available from the American Bar Association<\/a>; Brief for the United States as Amicus Curiae Supporting Petitioner, Shatzer<\/em>, 130 S. Ct. 1213 (No. 08-680), available from the American Bar Association<\/a>.<\/p>\n

[116]<\/a><\/a> See <\/em>Brief for Respondent, supra<\/em> note 11, at 7, 52-53 (discussing Miranda<\/em> forms used nationwide and Tampa police\u2019s change in its form).<\/p>\n

[117]<\/a><\/a> Florida v. Powell, 130 S. Ct. 1195, 1203 (2010).<\/p>\n

[118]<\/a><\/a> Id. <\/em>at 1200.<\/p>\n

[119]<\/a><\/a> See <\/em>Charles Savage, Holder Backs a Miranda Limit for Terror Suspects<\/a><\/em>, N.Y. Times, May 9, 2010.<\/p>\n

[120]<\/a><\/a> Responses to Senator Jeff Sessions, Questions for the Record, supra<\/em> note 128; Responses to Senator Lindsey Graham, Elena Kagan Questions for the Record, at 3, available from the Senate Judiciary Committee<\/a>.<\/p>\n

[121]<\/a><\/a> Dickerson v. United States, 530 U.S. 428, 443 (2000).<\/p>\n","protected":false},"excerpt":{"rendered":"

By Anthony J. Franze * Introduction A leading Miranda scholar recently concluded that \u201c[t]he best evidence now shows that, as […]<\/p>\n","protected":false},"author":2,"featured_media":0,"parent":261,"menu_order":0,"comment_status":"open","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-1456","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/PeZQka-nu","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages\/1456","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1456"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages\/1456\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/pages\/261"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1456"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}