The Heritage Foundation

Legal Memorandum #190 on Legal Issues

September 21, 2016

September 21, 2016 | Legal Memorandum on Legal Issues

Miranda at 50

Miranda v. Arizona was a highly controversial decision in 1966 and remains so 50 years later. Congress tried to “overrule” Miranda by enacting the Omnibus Crime Control and Safe Streets Act of 1968, but the U.S. Supreme Court rebuffed Congress’s attempt to play Super Supreme Court. It is, of course, possible that the Court someday will reconsider Miranda. After all, it has expressly or implicitly upheld the constitutionality of the death penalty for the past 40 years, but that has not deterred litigants from attempting to persuade the Court to change its mind or some Justices from expressing their willingness to reconsider the issue. The bottom line is that Miranda is still “good law” today, but that could easily change tomorrow.

Key Points

  1. In 1963, Gideon v. Wainwright guaranteed every defendant the right to have a lawyer present at trial. In 1966, Miranda v. Arizona effectively granted a suspect the same right in an interrogation room, thereby making sure that a suspect had a lawyer before trial when the Supreme Court thought one was most needed.
  2. Proponents argued that only by bringing an independent third party into the interrogation room would there be some chance that police coercion would end, because a defense attorney could have a confession excluded if Miranda’s rules were not strictly satisfied.
  3. Criticisms from law enforcement were intense, and some scholars said that the Court had acted like a legislature by transforming the advice-of-rights admonition then used by Special Agents of the Federal Bureau of Investigation into permanently fixed constitutional law.
  4. Neither the Burger Court nor the Rehnquist Court, however, was willing to overrule Miranda, and the Roberts Court likewise has shown no such readiness.

Some people are born into fame or notoriety. Others just get lucky. Ernesto Miranda belongs in the second category.

Miranda v. Arizona

In 1963, Phoenix, Arizona, police officers arrested Miranda for kidnapping and rape and took him to a local police station. After the complaining witness identified him, two officers questioned Miranda for two hours without informing him that he had a right to have an attorney present. By the end of the interrogation, they had his signed confession, which the prosecution introduced into evidence at Miranda’s trial. Miranda was convicted of both crimes.

Three years later, the Supreme Court of the United States reversed Miranda’s conviction on the ground that the officers had obtained his confession without advising him that he had a right to have counsel present during their interrogation. In an opinion for a 5–4 Court written by Chief Justice Earl Warren, the Supreme Court ruled that a suspect must be given certain warnings—known ever since as the Miranda warnings—before being subjected to a custodial interrogation.[1] The police must advise a suspect that he has the right to remain silent; that anything he says can be used against him at trial; that he has the right to an attorney and to have that attorney present during police questioning; and that if he cannot afford an attorney, the court will appoint one for him. The recitation of those rights, however, is not sufficient for a confession to be admissible: A suspect must waive his rights for any statement to be admissible. Finally, a suspect is entitled to end the interrogation at any time by invoking either his right to remain silent or his right to have an attorney present.[2]

In Miranda’s case, the Phoenix police did not advise him of his rights prior to questioning, so his confession was inadmissible.[3] The Court therefore reversed his kidnapping and rape convictions.[4]

Miranda has come to be recognized as one of the most famous—or infamous, depending on your perspective—Warren Court decisions. There was an immediate outcry from the law enforcement community. Their criticisms were intense; their predictions, dire: “Miranda will handcuff the police. It will end an officer’s ability to obtain a suspect’s confession. It will turn an interrogation into a lawyer-mediated interview. It will require the police to station defense counsel in every precinct house. It will transform police stations into courtrooms. It will shelter the guilty. It will spur an increase in the crime rate.” Those criticisms are not just the exasperated hyperbole of the losing party in a case. Three dissenting Justices—Justices John Marshall Harlan II, Potter Stewart, and Byron White—voiced the same fears.[5]

Those, by the way, are just the criticisms voiced by law enforcement. Some scholars condemned Miranda on the ground that the Supreme Court had acted like a legislature—or, better yet, like Platonic Guardians—by transforming the advice-of-rights admonition then used by Special Agents of the Federal Bureau of Investigation as a matter of practice into permanently fixed constitutional law.[6] Miranda took the brief text of the Fifth Amendment Self-Incrimination Clause—“No person…shall be compelled in any criminal case to be a witness against himself[.]”—and “read” it to demand a new, far more fulsome set of warnings:

[A suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.[7]

Calling that an “interpretation” of the Self-Incrimination Clause, many argued, gave new meaning to the term chutzpah.

The Case for Miranda

But not everyone predicted that the sky would fall—or was troubled by that prospect. In fact, some said that the collapse was long overdue. Numerous parties lauded the majority for its willingness to make some effort, however small, to keep the police from browbeating, intimidating, and coercing a suspect into confessing.[8] After all, Miranda was not the first time that the Supreme Court had to decide whether the police had coerced a confession from an unwilling (and possibly innocent) suspect. For the 30 years preceding Miranda, the Supreme Court had reviewed a never-ending series of cases in which it had been confronted with that problem.

In the first case, Brown v. Mississippi,[9] decided in 1936, a defendant was hauled into court still exhibiting the rope burns from where he had been hung until he confessed.[10] In other cases, the police had isolated a suspect for days of intensive “grilling” to secure his confession[11] or confined him under torturous conditions of confinement.[12] And various suspects had at least facially legitimate claims that they had been beaten until they talked.[13]

But cases with admittedly extreme facts came before the Supreme Court only early in the process. As the Supreme Court found those circumstances coercive, the state trial courts began to make factual findings that the Court found suspect.[14] In other words, after the Court had made it clear that coerced confessions were verboten, the states began a form of “massive resistance” to that other Brown decision.[15]

During the years after Brown, the state courts generally persisted in admitting confessions extracted by third degree practices. The Court, seeing its Brown decision being disregarded, reversed these convictions as well. In numerous cases, the defendant told a credible story of physical abuse by the police, but the trial judge discredited it. Since the Supreme Court does not admit to reviewing findings of credibility, it discovered other bases for reversal in the uncontested facts of those cases. Thus, Brown was extended from cases involving admitted physical brutality to those admittedly involving prolonged “grilling,” mob intimidation, etc.
As the chain of reversals lengthened, the lower courts responded by finding all the relevant facts against the defendants. No longer could they risk admitting confessions concededly extracted by brutality or other coercive pressures, so they found that the pressures did not exist. Time and again, cases came before the Supreme Court in which the defendant testified that he had been abused in the police station, the police denied it, and the trial court believed the police. Brown was palpably being evaded in at least some of these cases, and there was little that the Supreme Court could do about it.[16]

The Supreme Court could have thrown up its hands in surrender, but it decided to take one more stab at preventing police coercion. Miranda was it.

[W]hat the Supreme Court [did]…is to recognize, after long and exasperating experience, that the right vouchsafed to suspects by Brown v. Mississippi is essentially worthless if it is left to vindication by state trial judges upon the testimony of policemen. No experienced criminal lawyer could doubt that judgment. Miranda’s insistence that the suspect have a lawyer in the station house is plainly necessary, as the Court says, “unless other fully effective means are devised to…[protect his] right of silence.” And the only fully effective means that comes to mind is a shakeup of the police forces and the trial benches of the fifty states.[17]

In sum, confronted with three facts—the continued use of coercion, even brutality, by the police to obtain a confession to “clear” a case (i.e., make an arrest); the readiness of the interrogating officers to lie in court about their tactics; and the willingness of the state courts to become complicit in the officers’ perjury—the Supreme Court concluded that the only option left was to place a defense lawyer in the interrogation room should a suspect ask for one. To do that, the police must advise him that he has that right and must refrain from any further interrogation until an attorney arrives. Only by bringing an independent, impartial third party into the interrogation room would there be some chance that police coercion would end, because a defense attorney could have a confession excluded if Miranda’s new rules were not strictly satisfied.

The effect was to make sure that a suspect had a lawyer before trial when the Supreme Court thought one was most needed. The Court’s 1963 decision in Gideon v. Wainwright[18] had guaranteed every defendant the right to have a lawyer present at trial. Miranda effectively granted a suspect the same right in an interrogation room. A lawyer would protect a suspect from being coerced or improvidently waiving his right to remain silent. The risk, of course, was that no suspect would confess once his lawyer showed up. That may be a foul-tasting medication for law enforcement, but a 30-year-long disease required it. So the Court prescribed it.

The Case Against Miranda

“Foul!” cry Miranda’s critics.[19] Use of “third-degree tactics”[20] may have been a common law enforcement tactic back in the “bad old days”—that is, the 1930s through the 1960s—but that was half a century ago. The police no longer use those techniques; even Bob Dylan would agree that times and things have changed.[21] Indeed, interrogation techniques like those were disappearing in the 1960s around the time of Miranda due to the increase in police professionalism that was being witnessed throughout the nation;[ 22] they certainly are gone today.[23] That fact is important. Insofar as Miranda required its warnings to be given to forestall police brutality, the elimination of those practices militates in favor of repealing the “prophylactic rules” that Miranda adopted.[24] Unless now-condemned and now-abandoned police practices are treated as a form of Original Sin that police officers can never shed, there is no good reason to shackle today’s police to yesterday’s miscreants.[25]

But there is a separate powerful reason to abandon Miranda: It seriously hampers effective law enforcement. As Professors Paul Cassell and Richard Fowles have shown, even after controlling for factors such as the crime rate, law enforcement expenditures, and the percentage of people in the “crime prone years” (i.e., teens through twenties), law enforcement’s ability to solve crimes declined sharply after Miranda “for the composite groupings of ‘violent’ and ‘property’ crimes, as well as for the individual crime categories of robbery, vehicle theft, larceny, and (in most models) burglary.”[26] Only murder, rape, and assault did not show significant clearance rate reductions due to Miranda, and the explanation for that difference may be that the police reassigned additional officers to investigate those more serious crimes.[27] There is also an obvious risk that describing percentage declines in case clearance rates tends to “underplay the human tragedies involved.”[28]

As Professor Gerald Caplan has concluded, the statistical studies “reduce crime to something remote and abstract, a string of numbers, an event that one reads about in the newspapers, something that happens in another part of town. There is no hint of rape as a nightmare come alive, or robbery as a ruinous matter.” Moreover, we have not discussed the inequitable distribution of the social consequences of these unsolved crimes. It is likely that these costs fell most heavily on those in the worst position to bear them, including racial minorities and the poor.[29]

The result is that the predictions offered by law enforcement and the dissenting Justices in Miranda in 1966 have been realized:

Justice Harlan’s dissenting opinion warned that the decision was a hazardous experiment with the country’s safety, with “harmful consequences” that “only time can tell.” The experiment’s results are now in. The clearance rate data collected in this study—coupled with the other evidence concerning Miranda’s effect—strongly suggest that Miranda has seriously harmed society by hampering the ability of the police to solve crimes. Indeed, based on national crime clearance rates, a rough and conservative measure of its impact, Miranda may be the single most damaging blow inflicted on the nation’s ability to fight crime in the last half century. In short, it appears that Miranda has, as its critics charge, handcuffed the cops. It is time to consider removing those shackles and regulating police interrogation in less costly ways.[30]

The Current Status of Miranda

No summer and no Supreme Court last forever. The Warren Court gave way to the Burger Court, which in turn was replaced by the Rehnquist Court and now the Roberts Court. None was or has been inclined to expand the reach of Miranda. With one exception,[31] the Burger, Rehnquist, and Roberts Courts have generally treated Miranda like a statute by reading its terms quite literally[32] or like a common-law ruling by reasonably defining its reach[33] or (what is perhaps the same point, just said differently) creating reasonable exceptions to its requirements.[34] Neither the Burger Court nor the Rehnquist Court, however, was willing to overrule Miranda. To date, the Roberts Court also has shown no such readiness.

If the Rehnquist Court had had any hankering to abandon Miranda, it would have taken the opportunity in Dickerson v. United States.[35] Dickerson raised the question whether, in the Omnibus Crime Control and Safe Streets Act of 1968,[36] Congress had repealed the need for Miranda warnings or created an adequate substitute by directing federal district courts to exclude involuntary confessions. The case presented a perfect opportunity to revisit Miranda: “Miranda was the paradigmatic example of the Warren Court acting like a legislature, and the Omnibus Crime Control and Safe Streets Act was an archetypical instance of a legislature acting like a court. The symmetry was poetic; the Supreme Court, unreceptive.”[37] Miranda survived Congress’s attempt to overrule that decision by statute, and the Court refused to overrule Miranda itself: “With a nod in the direction of Dirty Harry movies and TV cop shows, the Court also refused to rescript police interrogation practices: ‘Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.’”[38] After teetering on the edge of being overruled for 30-plus years, Miranda survived by a 7–2 vote—in an opinion written by Chief Justice William Rehnquist, no less (“Et tu, Brute?”). It is still the law today.

Conclusion

Miranda v. Arizona was a highly controversial decision in 1966 and remains so 50 years later. Congress tried to “overrule” Miranda by enacting the Omnibus Crime Control and Safe Streets Act of 1968, but the Supreme Court rebuffed Congress’s attempt to play Super Supreme Court. It is possible that the Court someday will reconsider Miranda. After all, it has expressly or implicitly upheld the constitutionality of the death penalty for the past 40 years,[39] but that has not deterred litigants from attempting to persuade the Court to change its mind or some Justices from expressing their willingness to reconsider the issue.[40]

The bottom line is this: Miranda is still “good law” today, but there’s always tomorrow.

—Paul J. Larkin, Jr. is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

Paul Larkin Senior Legal Research Fellow
Edwin Meese III Center for Legal and Judicial Studies

Show references in this report

[1] Miranda v. Arizona, 384 U.S. 436 (1966).

[2] Id. at 467–79.

[3] Id. at 491–93. Ironically, statements that Miranda made during that interrogation implicated him in an unrelated robbery, for which he was also convicted at a separate trial. The permissibility of the prosecution’s use of his confession in the robbery case was not before the Supreme Court. Id. at 491 n.66.

[4] Despite his fame (or infamy), Miranda met an inglorious end 10 years after the Supreme Court decision that bears his name when he was stabbed to death in a bar fight in Phoenix. The police arrested a suspect, Fernando Zamora Rodriguez, but the Maricopa County Attorney’s Office declined to prosecute “for insufficient evidence.” See Associated Press, Murder Charge Is Dropped in Slaying of Miranda, N.Y. Times, Feb. 4, 1976, http://www.nytimes.com/1976/02/04/archives/murder-charge-is-dropped-in-the-slaying-of-miranda.html?_r=0. (Imagine the poetic irony if the prosecution had been forced to drop the charge against Rodriguez because he invoked his Miranda rights after being arrested.)

[5] See Miranda, 384 U.S. at 504, 517 (Harlan, J., dissenting, joined by Stewart & White, JJ.) (“I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell…. How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete…and little is added by the Court’s reference to the FBI experience and the resources believed wasted in interrogation…. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, and that the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.”); id. at 542–54 (White, J., dissenting) (“There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State’s evidence, minus the confession, is put to the test of litigation. [¶] I have no desire whatsoever to share the responsibility for any such impact on the present criminal process. [¶] In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case. [¶] Nor can this decision do other than have a corrosive effect on the criminal laws as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not, we should posthaste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct.”).

[6] Id. at 483–86 (describing FBI practice).

[7] Id. at 479.

[8] For the best defense of Miranda, see Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785 (1970). There are others who follow Professor Amsterdam in the lineup. See, e.g., Yale Kamisar, Remembering the “Old World” of Criminal Procedure: A Reply to Professor Grano, 23 U. Mich. J. L. Ref. 537 (1990). Some criticize Miranda not for going too far, but for stopping far too short of what was (and is) necessary to prevent police coercion. See, e.g., Welsh S. White, Miranda’s Failure to Restrain Pernicious Police Practices, 99 Mich. L. Rev. 1211 (2001).

[9] 297 U.S. 278 (1936).

[10] Id. at 281.

[11] See, e.g., Reck v. Pate, 367 U.S. 433, 439 (1961) (Reck, a 19-year-old who was mentally retarded and had only a seventh-grade education, confessed after being in custody “almost 80 hours without counsel, without contact with his family, without a court appearance and without charge or bail. The text of this joint confession reveals mostly yes and no answer[s].” Reck also was ill during his incommunicado questioning, “he became ill and vomited a considerable amount of blood on the floor,” id. at 437, and had received an injection of morphine, id.); Chambers v. Florida, 309 U.S. 227, 229–35, 239–40 (1940) (“For five days petitioners were subjected to interrogations culminating in Saturday’s (May 20th) all night examination. Over a period of five days they steadily refused to confess and disclaimed any guilt. The very circumstances surrounding their confinement and their questioning without any formal charges having been brought, were such as to fill petitioners with terror and frightful misgivings. Some were practical strangers in the community; three were arrested in a one-room farm tenant house which was their home; the haunting fear of mob violence was around them in an atmosphere charged with excitement and public indignation.”) (footnote omitted).

[12] See, e.g., Beecher v. Alabama, 389 U.S. 35, 36–37 (1967) (interrogation took place before Miranda even though the Supreme Court’s decision came afterwards) (“The uncontradicted facts of record are these. Tennessee police officers saw the petitioner as he fled into an open field and fired a bullet into his right leg. He fell, and the local Chief of Police pressed a loaded gun to his face while another officer pointed a rifle against the side of his head. The Police Chief asked him whether he had raped and killed a white woman. When he said that he had not, the Chief called him a liar and said, ‘If you don’t tell the truth I am going to kill you.’ The other officer then fired his rifle next to the petitioner’s ear, and the petitioner immediately confessed. Later the same day he received an injection to ease the pain in his leg. He signed something the Chief of Police described as ‘extradition papers’ after the officers told him that ‘it would be best * * * to sign the papers before the gang of people came there and killed’ him. He was then taken by ambulance from Tennessee to Kilby Prison in Montgomery, Alabama. By June 22, the petitioner’s right leg, which was later amputated, had become so swollen and his wound so painful that he required an injection of morphine every four hours. Less than an hour after one of these injections, two Alabama investigators visited him in the prison hospital. The medical assistant in charge told the petitioner to ‘cooperate’ and, in the petitioner’s presence, he asked the investigators to inform him if the petitioner did not ‘tell them what they wanted to know.’ The medical assistant then left the petitioner alone with the State’s investigators. In the course of a 90-minute ‘conversation,’ the investigators prepared two detailed statements similar to the confession the petitioner had given five days earlier at gunpoint in Tennessee. Still in a ‘kind of slumber’ from his last morphine injection, feverish, and in intense pain, the petitioner signed the written confessions thus prepared for him.”) (footnote omitted).

[13] See, e.g., White v. Texas, 310 U.S. 530, 532 (1940).

[14] See Amsterdam, supra note 8, at 789 (“Factual findings by the trial judge concerning contested police conduct frequently obscure or entirely obstruct the presentation to appellate courts of issues relating to that conduct. A convicted defendant cannot challenge on appeal any treatment by the police that the trial court, crediting incredible police denials, finds did not occur. (For example, suspects invariably ‘trip’ and strike their heads while entering their cells; they are never shoved against the bars by police.)”).

[15] That is, Brown v. Mississippi, 297 U.S. 278 (1936), not Brown v. Bd. of Educ., 347 U.S. 483 (1954).

[16] Amsterdam, supra note 8, at 806.

[17] Id. at 809.

[18] 372 U.S. 335 (1963).

[19] Miranda’s best-known critic is former U.S. District Court Judge and now Law Professor Paul Cassell. He has authored several articles castigating the decision. See, e.g., Paul G. Cassell, The Paths Not Taken: The Supreme Court’s Failures in Dickerson, 99 Mich. L. Rev. 898 (2001); Paul G. Cassell, The Guilty and the “Innocent”: An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 Harv. J.L. & Pub. Pol’y 523 (1999); Paul G. Cassell & Richard Fowles, Falling Clearance Rates After Miranda: Coincidence or Consequence?, 50 Stan L. Rev. 1181 (1998); Paul G. Cassell & Richard Fowles, Handcuffing the Cops?: A Thirty Year Perspective on Miranda’s Harmful Effects on Law Enforcement, 50 Stan L. Rev. 1055 (1998) (hereafter Cassell & Fowles, Handcuffing the Cops); Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions—And from Miranda, 88 J. Crim. L. & Criminology 497 (1998); Paul G. Cassell, Miranda’s “Negligible” Effect on Law Enforcement: Some Skeptical Observations, 20 Harv. J.L. & Pub. Pol’y 327 (1997); Paul G. Cassell & Bret Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839 (1996); Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda’s Defenders, 90 Nw. U.L. Rev. 1084 (1996); Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 486–98 (1996); Paul G. Cassell, The Costs of the Miranda Mandate: A Lesson in the Dangers of Inflexible, “Prophylactic” Supreme Court Inventions, 28 Ariz. St. L.J. 299 (1996). Professor Cassell is not alone in that regard. See, e.g., Joseph D. Grano, Confessions, Truth and the Law (1993). While some have disagreed with his approach to Miranda, see, e.g., Richard A. Leo & Richard J. Ofshe, Using the Innocent to Scapegoat Miranda: Another Reply to Paul Cassell, 88 J. Crim. L. & Criminology 557 (1998), his scholarship is firmly within the mainstream of American legal thought.

[20] Miranda, 384 U.S. at 505 (Harlan, J., dissenting).

[21] Compare Bob Dylan, The Times They Are A-Changin’ (1965), https://www.youtube.com/watch?v=e7qQ6_RV4VQ, with Bob Dylan, Things Have Changed (2000), https://www.youtube.com/watch?v=L9EKqQWPjyo.

[22] See Miranda, 384 U.S. at 523 (Harlan, J., dissenting, joined by Stewart & White, JJ.).

[23] Could there be isolated instances of police coercion? Of course; even cops can break bad. See Sewel Chan, The Abner Louima Case, 10 Years Later, N.Y. Times, Aug. 9, 2007, http://cityroom.blogs.nytimes.com/2007/08/09/the-abner-louima-case-10-years-later/?_r=0. No one defends that conduct; on the contrary, everyone condemns it. See, e.g., Cassell & Fowles, Handcuffing the Cops, supra note 19, at 1120 n.312.

[24] Connecticut v. Barrett, 479 U.S. 523, 528 (1987).

[25] That is particularly true in the case of federal law enforcement. Miranda did not fault the FBI for a history of brutalizing suspects by engaging in the same type of stationhouse terrorism that the Court had seen committed by state and local police officers. Nonetheless, federal law enforcement officers were stuck with the same rules that applied to every local deputy sheriff. See Miranda, 384 U.S. at 494–97.

[26] Cassell & Fowles, Handcuffing the Cops, supra note 19, at 1059–60; see also id. at 1067–1120, 1126.

[27] Id. at 1060, 1089–91.

[28] Id. at 1127.

[29] Id. at 1127–28 (footnotes omitted) (quoting Gerald M. Caplan, Miranda Revisited, 93 Yale L.J. 1375, 1384–85 (1984)).

[30] Id. at 1131–32 (footnotes omitted).

[31] The exception was Edwards v. Arizona, 451 U.S. 477 (1981). Edwards held that once a suspect asks for a lawyer, any further police questioning is presumptively coercive, and the police cannot recommence a custodial interrogation until counsel is present or the suspect reinitiates the conversation. See also, e.g., Smith v. Illinois, 469 U.S. 91 (1984). The Edwards presumption, however, does not last forever. For example, a break in custody of two weeks or more ends the Edwards presumption of involuntariness. See Maryland v. Shatzer, 130 S. Ct. 1213 (2010).

[32] See, e.g., Salinas v. Texas, 133 S. Ct. 2174, 2180 (2013) (plurality opinion) (refusing to extend Miranda to noncustodial interviews with a police officer); Howes v. Fields, 132 S. Ct. 1181, 1189–91 (2012) (rejecting the argument that a prisoner is necessarily “in custody” for Miranda purposes when questioned by the police in prison); id. at 1189–91 (collecting Supreme Court decisions defining “in custody” as a formal arrest or a comparable restraint on a person’s freedom of movement); Berghuis v. Thompkins, 560 U.S. 370 (2010) (ruling that the defendant’s silence during the bulk of a police officer’s questioning was insufficient to invoke his right to remain silent under Miranda, that the defendant waived his right to remain silent under Miranda, and that the defendant waived his Miranda rights by responding to the officer’s questions); Florida v. Powell, 559 U.S. 50, 60 (2010) (collecting cases ruling that the four Miranda warnings are essential, but there is no talismanic phraseology that must be used to convey their meaning); Montejo v. Louisiana, 556 U.S. 778 (2009) (ruling that neither a defendant’s request for counsel at arraignment nor the appointment of counsel by the court gives rise to an Edwards presumption that any subsequent waiver by the defendant to police-initiated interrogation is invalid); United States v. Patane, 542 U.S. 630 (2004) (ruling that the failure to give a suspect Miranda warnings does not require suppression of the physical fruits of his unwarned but voluntary statements); Stansbury v. California, 511 U.S. 318 (1994) (ruling that a police officer’s subjective and undisclosed view concerning whether a person being interrogated is suspect is irrelevant to determining whether a person is “in custody” for Miranda purposes); Colorado v. Spring, 479 U.S. 564 (1987) (ruling that Miranda does not require the police to advise a suspect as to the crimes about which he could be questioned for the suspect’s waiver of his Miranda rights to be valid); Connecticut v. Barrett, 479 U.S. 523 (1987) (ruling that a defendant’s refusal to make a written statement without the presence of an attorney did not prohibit all further questioning by the police because the defendant agreed to make an oral statement without first having counsel present); Moran v. Burbine, 475 U.S. 412 (1986) (ruling that the failure of the police to inform a defendant of efforts of an attorney, retained for the defendant by his sister without his knowledge, to reach him before any police questioning did not vitiate his waiver of his Miranda rights); Oregon v. Elstad, 470 U.S. 298 (1985) (ruling that the failure to give Miranda warnings does not invariably render all subsequent statements made by a suspect inadmissible if he later receives proper Miranda warnings before making them); Berkemer v. McCarty, 468 U.S. 420 (1984) (ruling that a roadside stop of a motorist for the purpose of issuing a traffic citation does not place the motorist “in custody” for Miranda purposes); Minnesota v. Murphy, 465 U.S. 420 (1984) (refusing to extend Miranda to interviews with a probation officer); Oregon v. Bradshaw, 462 U.S. 1039 (1983) (ruling that the defendant had “reinitiated” further conversation with the police for purposes of Edwards by asking the officers “Well, what is going to happen to me now?”); Rhode Island v. Innis, 446 U.S. 291 (1980) (narrowly defining “interrogation” to exclude a conversation between police officers in the suspect’s presence even though it referred to the case because it was not intended to elicit an incriminating response from the suspect); Fare v. Michael C., 442 U.S. 707 (1979) (refusing to equate a suspect’s request to see his probation officer with a request for a lawyer); Beckwith v. United States, 425 U.S. 341 (1976) (refusing to extend Miranda to noncustodial questioning); Harris v. New York, 401 U.S. 222 (1971) (permitting statements obtained in violation of Miranda to be used to impeach a testifying defendant); see also, e.g., Chavez v. Martinez, 538 U.S. 760, 772 (2003) (plurality opinion) (ruling that the failure to administer Miranda warnings can render a suspect’s confession inadmissible but does not itself violate the Fifth Amendment); Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (stating that Miranda’s warning requirement is “not itself required by” the Fifth Amendment and “is instead justified only by reference to its prophylactic purpose”); Michigan v. Tucker, 417 U.S. 433, 444 (1974) (Miranda’s safeguards “were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected”); cf. Colorado v. Connelly, 479 U.S. 157 (1986) (statements made by the defendant when he approached a police officer and said that he wanted to confess to murder and then did so after receiving Miranda warnings were admissible regardless of the defendant’s mental health). Occasionally, a defendant has benefitted from a literal application of Miranda. See, e.g., Missouri v. Seibert, 542 U.S. 600 (2004) (Miranda warnings given mid-interrogation after the defendant made an unwarned confession were ineffective, so his second confession given after receiving Miranda warnings was inadmissible); Arizona v. Roberson, 486 U.S. 675 (1988) (holding that the Edwards rule that a suspect who has invoked his right to counsel is not subject to further interrogation until counsel has been made available to him applies when a police-initiated interrogation following a suspect’s request for counsel occurs in the context of a separate investigation); cf. Doyle v. Ohio, 426 U.S. 610 (1976) (ruling that the prosecution’s use for impeachment purposes of a defendant’s post-Miranda silence violates the Due Process Clause).

[33] See Illinois v. Perkins, 496 U.S. 292 (1990) (ruling that an undercover police officer need not give an incarcerated suspect Miranda warnings before asking him questions).

[34] See New York v. Quarles, 467 U.S. 649 (1984) (creating an exigency exception to Miranda).

[35] 530 U.S. 428 (2000).

[36] Pub. L. No. 90-351, Title II, § 701(a), 82 Stat. 197 (codified at 18 U.S.C. § 3501 (2012)).

[37] Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 763–64 (2013) (footnotes omitted).

[38] Id. at 764.

[39] See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2735 (2015); Gregg v. Georgia, 428 U.S. 153 (1976).

[40] See, e.g., Brooks v. Alabama, 136 S. Ct. 708 (2016) (Justice Breyer, dissenting from denial of application for stay of execution and petition for certiorari); Glossip, 135 S. Ct. at 2755–77 (Breyer, J., dissenting).