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LEXSEE 99 MICH. L. REV. 898
Copyright (c) 2001 Michigan Law Review
Michigan Law Review
March, 2001
99 Mich. L. Rev. 898
LENGTH: 21506 words
PANEL ONE: ALTERNATIVES TO THE MIRANDA WARNINGS: THE PATHS NOT TAKEN: THE SUPREME
COURT'S FAILURES IN DICKERSON
NAME: Paul G. Cassell*
BIO: * James I. Farr Professor of Law, University of Utah College of Law (cassellp@law.utah.edu). Thanks to those
who offered suggestions on this Article, especially the participants in this Symposium. Thanks also to the lawyers who
helped me fight the good fight during Dickerson in various ways, including Doug Beloof, Reg Brown, David Castro,
Dan Collins, Ted Cooperstein, Doug Cox, Bob Cyncar, Ron Eisenberg, Miguel Estrada, Bruce Fein, Joe Grano, Sarah
Hart, Chuck Hobson, Bob Hoyt, Gary Malphrus, Jim Manek, Josh Marquis, Andy McBride, Edwin Meese III, Greg
Munson, Michael O'Neil, Patrick Philbin, Rick Romley, Devallis Rutledge, Kyle Sampson, Kent Scheidegger, Chris
Simpkins, Scott Sommerville, David Wilson, Ken Woodington, and especially Paul Kamenar, Bill Otis, Lee Otis, and
Trish Cassell. I also want to extend a special note of thanks to Yale Kamisar for suggesting this Symposium and, more
generally, for all the interest he has shown in my work over the years. In fact, my desire to pursue the Dickerson
litigation was prompted, in part, by Yale's admission to me a few years ago that he "wasn't sure" what the Supreme
Court would do if it ever faced 3501. Yale, I should never have let you convince me to throw Miranda into the briar
patch!
SUMMARY:
... "Where's the rest of the opinion?" That was my immediate reaction to reading the Supreme Court's terse decision in
Dickerson, delivered to me via email from the clerk's office a few minutes after its release. ... In Dickerson, the Court
gives as a ground for not overruling Miranda the lack of any significant harm to law enforcement. ... Congress, of
course, has no authority to modify the content of constitutional rights either directly or under the guise of its remedial
powers. ... In brief concluding paragraphs on this issue, Dickerson first quoted Chief Justice Burger's concurring view,
in a 1980 case, that "the meaning of Miranda has become reasonably clear and law enforcement practices have adjusted
to its stricture; I would neither overrule Miranda, disparage it, nor extend it at this late date. ... Finally, Dickerson's
claim that it is more difficult for law enforcement officers to comply with a voluntariness test than deliver Miranda
warning demolishes a strawman. ... * * * * * In short, what the Court could have said in Dickerson was this: There is a
factual question about whether Miranda has harmed legitimate law enforcement efforts. ... ... what would have been the
result of Dickerson properly acknowledging that there was harm to law enforcement from Miranda? Does it necessarily
follow that Miranda should have been overruled? ...
TEXT:
[*898]

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"Where's the rest of the opinion?" That was my immediate reaction to reading the Supreme Court's terse decision in
Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some
glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear
that I had received all of the Court's opinion, my incredulity grew.
Just six months earlier, the Court had appointed me to defend my victory in the Fourth Circuit, where I had
persuaded that court to hold that 18 U.S.C. 3501 validly replaced the "prophylactic" Miranda requirements as the
standard for the admissibility of confessions in federal court. n1 My appointment stemmed from the Justice
Department's virtually unprecedented decision to align itself with the criminal defendant it was prosecuting in arguing
against admitting his confession. The Department and Dickerson filed briefs urging reversal of the Fourth Circuit,
supported by amicus briefs from the ACLU and several other civil rights organizations. I responded with a brief
defending the Fourth Circuit's decision, supported by amicus briefs from the United States House of Representatives,
leading Senators, seventeen states, and many of the nation's law enforcement officials, prosecutors, [*899] and victims'
organizations. At oral argument in April, an active Court n2 wrestled with the contending positions. Meanwhile, the
press and public awaited what many projected would be, regardless of the outcome, a landmark ruling.
Yet the case ended with a whimper, rather than a bang. On June 26, 2000, the Court announced it had reversed the
decision below. The rationale for the reversal was only briefly sketched out. The entire majority opinion spans just a
few pages (about eight in West's Supreme Court Reporter). n3 Only about half of those pages address the substantive
constitutional issues. n4 The opinion briefly concludes that Miranda announced a "constitutional rule," had
"constitutional underpinnings," and was "constitutionally based." n5 Surprisingly, at no point does the majority
explicate precisely what this means. Justice Scalia's dissent highlights a critical omission in the majority opinion:

It takes only a small step ... [for the Court to] come out and say quite clearly: "We reaffirm today that custodial
interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United
States." It cannot say that, because a majority of the Court does not believe it. n6
One would think this a sufficiently important issue for the majority to respond to it - either to affirm or deny the claim.
Yet the majority did not trouble itself to answer.
The description of Miranda as a "constitutional rule" was sufficient to achieve the Court's apparent twin aims:
striking down 3501 while leaving in place its various decisions crafting exceptions to Miranda. n7 [*900] But this
result-oriented "success" came at the great cost of any pretense of consistency in the Court's doctrine. For example,
Dickerson's assertion that Miranda created a "constitutional" rule contradicts numerous clear statements in earlier
opinions. Surprisingly, these statements can be traced to Chief Justice Rehnquist, the author of the Dickerson opinion.
Although Miranda itself contains constitutional language, then-Justice Rehnquist had written as early as 1974 in
Michigan v. Tucker n8 that Miranda's safeguards were "not themselves rights protected by the Constitution ... ." n9
From this premise, the Court allowed derivative evidence from a non-Mirandized statement to be used against a
defendant because "the police conduct at issue here did not abridge respondent's constitutional privilege against
compulsory self-incrimination, but departed only from the prophylactic standards" of Miranda. n10 Building on Tucker,
in a series of cases spanning nearly three decades, the Court repeated the characterization of Miranda rules as
"prophylactic" and relied on that rationale to limit the reach of Miranda. n11 At the same time, numerous federal courts
of appeals reaching the issue had understood these statements to mean that Miranda rights were not constitutional in
character. n12 Indeed, no less than the preeminent academic defender of Miranda - Yale Kamisar - had also seemingly
acknowledged that, under prevailing doctrine, Miranda rights were not constitutionally required. n13
[*901] This issue of the Court's "deconstitutionalization" of Miranda lies at the heart of the question presented in
Dickerson. Yet, by my count, the majority opinion devotes only three substantive sentences to explaining why the
Court's own, repeated statements should not be taken at face value. The majority acknowledges that "language" in some

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of its earlier opinions supports the view that Miranda rights are not constitutionally required. But, the majority says,
these cases prove not that Miranda is not a constitutional rule, but only that "no constitutional rule is immutable." n14
Instead, asserts the majority, such exceptions are a "normal part of constitutional law." n15 Chief Justice Rehnquist does
not pause to offer any explanation why then that language had been used in more than a half-dozen Supreme Court
opinions on various Miranda issues.
The majority's cursory treatment of this central issue leaves Miranda doctrine incoherent. As others in this
Symposium have pointed out, n16 there is no rationale for numerous results over the last twenty-five years. Why can
the "fruits" of Miranda violations be used against a defendant? The traditional rule excludes fruits of, for example,
unconstitutional searches. n17 In Oregon v. Elstad, the Court said very specifically that the reason for not following the
Fourth Amendment rule in the Miranda context was that "a simple failure to administer Miranda warnings is not in itself
a violation of the Fifth Amendment." n18 The majority in Dickerson viewed these statements not as "proving that
Miranda is a nonconstitutional decision" but rather that "unreasonable searches under the Fourth Amendment are
different from unwarned interrogation under the Fifth Amendment." n19 Again, in its haste to dispose of the case, the
Court [*902] did not tarry to explain the difference. n20 Similarly, in New York v. Quarles, the Court carved out a
"public safety" exception to Miranda. The Fifth Amendment admits of no such public safety exception; the police
cannot coerce an involuntary statement from a suspect and use it against him even if there are strong public safety
reasons for doing so. The rationale Quarles gave, however, was that the Miranda rules were nonconstitutional rules
subject to modification by the Court. n21 Dickerson hazards no attempt at explaining Quarles. In short, as Justice
Scalia's dissent cogently argues, the Court in Dickerson behaved like "some sort of nine-headed Caesar, giving
thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy." n22 Or, as Akhil
Amar has written, Dickerson reads like little more than the pronouncement: "The Great and Powerful Oz Has Spoken!"
n23
While other authors in this Symposium have discussed aspects of this doctrinal incoherence at some length, n24 the
point I pursue here is whether this doctrinal incoherence was necessary. Perhaps the Court simply had no choice in the
face of irreconcilable lines of cases. My thesis is that Dickerson could have been written coherently - that the Court
could have crafted other resolutions that would have allowed it to harmonize its doctrine far more effectively than the
skimpy, jerry-built opinion the Court announced.
Part I describes a different path the Court could have taken to reconcile both its decisions describing Miranda as a
sub-constitutional rule and those applying Miranda to the states. The Court could have treated Miranda as a form of
constitutional common law, an interim court-created remedy for the enforcement of Fifth Amendment rights. That path
would have been more consistent with Dickerson's emphasis on respect for precedent and would have effectively
reconciled all of the Miranda cases.
Part II articulates still another path the Court could have followed to sustain 3501. The Court could have concluded
that 3501, bolstered by improved tort remedies and other post-Miranda innovations in the law, provided a viable
substitute to Miranda.
Part III lays out yet another path available to the Court for sustaining 3501 - and harmonizing its decisions. This
section explains [*903] how the Court's assertion of its power to promulgate Miranda conflicted with its more recent
decision in City of Boerne v. Flores. n25 Boerne regulated congressional enforcement of constitutional rights, adding a
"congruence and proportionality" requirement to any enforcement scheme. Applying Boerne to judicial enforcement of
Fifth Amendment rights - that is, to Miranda - reveals that Miranda's exclusionary rule lacks "congruence and
proportionality" to the underlying Fifth Amendment. The Court could have solved these problems by viewing Miranda
as creating a presumption of involuntariness that could be rebutted by the prosecution.
Part IV addresses one last conflict between Dickerson and settled doctrine. In Dickerson, the Court gives as a
ground for not overruling Miranda the lack of any significant harm to law enforcement. But Congress has reached
precisely the opposite conclusion. In numerous other cases involving disputed factual questions, the Court has given

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deference to congressional findings. Dickerson should have followed these other decisions in evaluating whether to
modify Miranda to uphold 3501.
Part V concludes with an exploration of how Dickerson might have encouraged Congress to adopt alternatives to
Miranda - alternatives like videotaping of police interrogation - that might have offered a way of better protecting
suspects' rights during questioning and society's interest in obtaining voluntary confessions. The absence of any
discussion of alternatives to Miranda is Dickerson's most serious failure.
I. Section 3501 As Modification of Constitutional Common Law
Perhaps the simplest way for the Court to reconcile its various pronouncements was to treat Miranda as a form of
"constitutional common law," to use the phrase made famous in Henry Monaghan's 1975 article in the Harvard Law
Review. n26 Under this view, the Miranda rules are interim remedies not required by the Constitution, but designed in
the absence of legislation to assist in protecting constitutional rights. The Court has exercised such power in other cases,
perhaps most notably in the 1971 decision Bivens v. Six Unknown Federal Narcotics Agents. n27 There the Court
created the right to sue the federal government for violations of constitutional rights - the so-called Bivens remedy. The
Court has also crafted a judicially-devised remedy for enforcing Fourth Amendment rights - the exclusionary [*904]
rule of Mapp v. Ohio. n28 Because the Court has crafted extraconstitutional measures, like the exclusionary rule, to
protect constitutional rights from infringement by the states, n29 this understanding of Miranda is consistent with its
application to the states. n30
For present purposes, the salient feature of constitutional common law is that it is subject to change - change by the
Court and, in appropriate cases, by Congress. The Bivens doctrine illustrates this evolutionary aspect. In subsequent
cases, the Court has allowed Congress to modify the Bivens structure, so long as an alternative adequate to protect
constitutional rights remains in place. In Bush v. Lucas, n31 for instance, the Court refused to allow a Bivens action by
a federal worker for a violation of First Amendment rights because Congress had created a different remedy through
federal personnel statutes. In reaching this holding, the Court recognized that the other remedy was not as fully effective
as a judicially-created damages remedy. n32 Nonetheless, the Court explained that the touchstone for assessing the
constitutionality of Congress's remedial regime was not whether it matched in every respect the judicially-devised
regime for which it substituted. Rather, the touchstone was whether the congressional regime provided "meaningful"
protection for the constitutional right at issue. If it did, then its strength compared to the judicially-devised scheme was
irrelevant. n33
Similarly, in Smith v. Robbins, a case decided just a few months before Dickerson, the Court held that its procedure
for dealing with frivolous appeals could be superseded by a California procedure. n34 In words that echo the cases
interpreting Miranda, the Court said that the procedure imposed on the states by Anders v. California n35 was simply a
"prophylactic framework" and not "a constitutional command." Accordingly, California could substitute an alternative
procedure. [*905] The Robbins Court warned that "any view ... that converted [the Anders procedure] from a
suggestion into a straitjacket would contravene [our] established practice of allowing the States wide discretion, subject
to the minimum requirements of the [Constitution], to experiment with solutions to difficult policy problems." n36 The
test for whether the substitute California procedure was constitutional was whether it provided the "minimum
safeguards" to protect the constitutional right at issue. n37
Under a constitutional common law approach, the Dickerson case could have been resolved straightforwardly in a
way that reconciled Miranda with its progeny. Like the interim measures in Bivens and Anders, the Court could have
viewed the Miranda rules as an interim "prophylactic framework" designed to safeguard Fifth Amendment rights. This
would justify Miranda, since the Court is free (as in Bivens and Anders) to craft rules that assist in the enforcement of
constitutional rights. At the same time, this view would fit precisely the language and rationale of post-Miranda
exceptions cases - Tucker, Quarles, Elstad, and the like - which were predicated on Miranda as a "prophylactic" device.
Indeed, Justice Harlan's concurring opinion in Bivens even used the phrase "prophylactic measures" to describe the
Bivens remedial device, the same phrase that the Court would later use to describe the Miranda rules. n38

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Under this view of Miranda, Congress can replace the Miranda rules provided it leaves in place "meaningful
safeguards." Section 3501 meets this test. As explained more fully below, 3501 fully protects against the admission of
compelled statements in violation of the Fifth Amendment. n39 Congress, of course, has no authority to modify the
content of constitutional rights either directly or under the guise of its remedial powers. n40 By the same token, it could
not abrogate a judicially-devised protective measure necessary to the survival of a constitutional right. But that is very
different from saying that Congress has no authority to modify a ruling that "overprotects" a constitutional right, as
Miranda's automatic rule excluding all unwarned custodial statements clearly does. n41 Overprotection means
protection beyond what the Constitution requires. It is in precisely that area that Congress [*906] must be free to
fashion or modify rules as it thinks wisest. n42 Indeed, if Congress had no role in making independent judgments about
what the law should be once constitutional requirements are satisfied, it is difficult to see that it would have any role at
all. Rules required by the Constitution and rules beyond those required by the Constitution together exhaust the universe
of rules. If the judicial branch is empowered to establish for all time the latter as well as the former, then there is
nothing left for Congress to do. n43
This line of argument was presented in my brief. n44 Yet the majority opinion does not explain why it preferred
instead to repudiate, sub silencio, the rationale of Tucker, Quarles, Elstad. Nor does the Court explain why it relies on
ambiguous implications from dicta in Miranda to trump specific discussions in the Court's later opinions explicating
Miranda. Instead, the Court's response was essentially to cloud the distinction between constitutional requirements and
nonconstitutional protective measures. The Court carried out this strategy through a virtual army of seemingly refined
phrases - "constitutionally rooted," "of constitutional dimension" and the like - to characterize Miranda's status. But
these characterizations do nothing to resolve, and in fact seem designed to obscure, the fundamental incoherence of the
Court's position: admitting that confessions obtained in violation of Miranda do not always amount to compelled
self-incrimination, but maintaining nonetheless that it is unconstitutional for Congress to permit the admission of such
statements even if they have been shown to be voluntary under conventional Fifth Amendment principles. n45
[*907] Dickerson implicitly assumes that, in order to provide an additional shield for the exercise of a
constitutional right, the Court has the authority to invalidate an act of Congress even if that act alone adequately protects
against actual violations of that right. That, however, is precisely the authority the Court refused to exercise in Bush and
Chilicky. In those cases, the Court found that Congress was in a better [*908] position than the courts to evaluate the
costs and benefits of differing approaches, n46 and that the Court had "no legal basis that would allow [it] to revise
[Congress's] decisions." n47 The same is true with custodial questioning. It is not possible through any feasible set of
rules to assure that interrogations never become coercive. The only way to foreclose that possibility completely is to
prohibit custodial questioning altogether, just as the only way to prevent any violations of defendants' rights at trial
would be to prohibit all prosecutions. The Miranda Court declined to impose this prohibition, and with good reason.
Because perfection is impossible, estimating the effectiveness of laws intended to decrease the number of
constitutional violations, how many there are to be decreased, and the cost to other values that one preventive rule or
another is likely to impose, are necessarily matters of judgment and degree. "Congressional competence at "balancing
governmental efficiency and the rights of [individuals],' ... is no more questionable" in the context of custodial
interrogations than in other settings. n48 Accordingly, there was no sounder basis for disturbing Congress's judgment as
to what measures are best designed to effectuate that balance fairly in this instance than there was in Bush or Chilicky.
To the extent that Dickerson answers any of these concerns, it is through two, very briefly developed arguments
that are misplaced as an answer to the constitutional common law approach. First, the Court notes that, "with respect to
proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution.' " n49
Of course, if the Court can "enforce" constitutional commands with nonconstitutional prophylactic rules, as cases like
Tucker, Quarles, and Elstad squarely held, then this statement provides no basis for concluding that the Miranda rules
are constitutionally required. Moreover, the proposition that the Court has some authority to impose on the States
measures that are not strictly constitutionally necessary, but are designed to assist in enforcing constitutional rights, is
hardly revolutionary. It is consistent with what the Miranda Court itself said on the subject. Whatever else is in dispute
about the Miranda decision, it is clear that the Court believed its specific rule could be legislatively superceded by

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others. Nor is Miranda the only instance in which the Court has claimed this power. The Court has engaged in a similar
task in several other areas. n50 For example, [*909] the Court has applied the act of state doctrine to the states as a
judicially created, nonconstitutional rule that is not compelled by the Constitution n51 and subject to congressional
modification. n52 Similarly, under the dormant commerce clause doctrine, Congress is free to validate state actions that
would otherwise be prohibited by the Court's decisions. n53
Yet another example of the Court applying extraconstitutional rules to the states was discussed during oral
argument in Dickerson, but did not find its way into the Court's opinion. The rule of Chapman v. California, n54 is a
clear counter-example to Dickerson's claim that rules applied to the states may not be superseded legislatively by
Congress. n55 Chapman involved a state constitution provision which established a standard for deciding reversible
versus harmless error. n56 The Court held that federal law overrode the state standard, but was unclear about the basis
for the rule it announced. n57 It is clear, however, that the Chapman standard is not mandated by the Constitution. n58
Indeed, as the Chapman opinion itself states, the responsibility, and presumably the authority, of the Court to fashion
such a rule exists only "in the absence of appropriate congressional action." n59 A court-made rule, like that in
Chapman, that overrides a state constitutional provision yet is subject to revision by Congress, can only be explained as
federal common law. n60
Justice Scalia pursued this issue at oral argument, explaining to Solicitor General Waxman that: "In Chapman v.
California, which was decided the term after Miranda and which also involved a procedural [*910] rule, we said: "We
have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth Amendment
right is a Federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by
fashioning the necessary rule.' " n61 This statement demonstrates the Justices' awareness of the statement in Chapman
about fashioning a constitutional rule, applicable to the states, that is nonetheless subject to congressional modification.
Yet the Dickerson majority choose not to explain why it would not view Miranda, decided just one year before
Chapman, in the same way.
The only other explanation the Court gave for concluding that Miranda was a constitutionally based rule was
Miranda's application in habeas proceedings. In a footnote, the Court recounted the federal habeas statute, which makes
relief available for claims that a person "is in custody in violation of the Constitution or law or treaties of the United
States." n62 The Court then asserted, in a single sentence, that "since the Miranda rule is clearly not based on federal
law or treaties, our decision allowing habeas review for Miranda claims obviously assumes that Miranda is of
constitutional origin." n63 The truth is that nothing could be less clear or obvious. The Court had never said any such
thing in the prior habeas cases. Moreover, another straightforward inference was possible to explain Miranda's
application on habeas. Miranda could be viewed as part of the "law of the United States," which, for purposes of
2254(a), includes not only federal statutes, but also decisional law designed to help effectuate the federal Constitution or
statutes. The Court had taken a similar view of the same phrase used in a similar context in the federal question
jurisdictional statute n64 and had attached such a construction to the words "laws of the several States" to include state
court decisions in Erie Railroad Co. v. Tompkins. n65 This is the approach of not only Larry Yackle, a leading habeas
commentator, n66 but of the Department of Justice. In the 1993 case Withrow v. Williams, n67 when a Miranda issue
[*911] was before the Court on habeas, the Deputy Solicitor General told the Court that Miranda could indeed be
viewed as a "law" of the United States under the habeas statute. n68 In Dickerson, however, the Department of Justice
simply reversed its position, n69 without even acknowledging (much less explaining) the about face. n70 Interestingly,
during the oral argument in Withrow, at least one Justice appeared to agree with this position, going so far as to concur
with the idea of constitutional common law:

QUESTION: Do you think that the exclusionary rule is a "law" of the United States that was involved in Stone?

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MR. ROBERTS: I think it is what's been described as constitutional common law.

QUESTION: Yeah, I think so, too. n71
As this colloquy illustrates, the answers to such questions are, at a minimum, far from "clear" and "obvious."

* * * * * In short, what the Court could have said in upholding 3501 was this: In considering 3501, Congress balanced
the costs and benefits of a rule excluding all unwarned confessions against the costs and benefits of allowing the trial
court to decide on the facts of each case whether the suspect spoke voluntarily. It knew the obvious, namely, that a court
is distinctly less likely to find an unwarned statement to have been voluntary, but that sometimes the court would decide
that other circumstances proved the statement's voluntary character. It also knew that there would be some cases where
allowing the jury to hear that statement would prove the difference between a successful and unsuccessful prosecution
of a dangerous criminal. Finally, it understood the damage to public confidence in the criminal justice system, not to
mention the risk to public safety, that results when the jury reaches the wrong result because it is not allowed to hear
highly probative evidence. Weighing all these considerations, Congress concluded that the cost of slightly less police
deterrence - that is, marginally diminished deterrence resulting from the significant risk (as opposed to the certainty) of
excluding an unwarned confession - was [*912] outweighed by the benefits of admitting such a confession, so long as
it is voluntary. Because Congress's modification of Miranda's extraconstitutional and overprotective exclusionary rule
continues to forbid in all instances the government's use of involuntary statements, it fully affords defendants their
rights under the Fifth Amendment, and thus is constitutionally sound.
II. The Path Not Taken: 3501 as an Adequate Alternative to Miranda
The second way Dickerson could have been resolved hinges on the issue of alternatives to Miranda. The Miranda Court
itself invited - indeed "encouraged" - Congress and the states to craft alternative approaches to the Miranda rules. n72
The Miranda Court promised that "our decision in no way creates a constitutional straitjacket which will handicap
sound efforts at reform." n73 This was one reason that Congress in 1968 chose to adopt 3501. n74
Section 3501 creates far stronger incentives for police officers to deliver Miranda-type warnings than existed before
1966. The press and academic commentators have written about Dickerson as though the issue were the "overruling" of
Miranda or "the end of Miranda warnings." By doing so, they overlook an important and obvious feature of 3501,
namely that all of the Miranda warnings remain part of the voluntariness determination. The truth is that the warnings
themselves were never at stake in Dickerson.
Police officers would have generally continued to give Miranda warnings if the Fourth Circuit had been affirmed
and if 3501 had been upheld. Section 3501 directs the courts to consider the following when making voluntariness
determinations:

The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding
the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the
confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the
offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or
not such defendant was advised or knew that he was not required to make any statement and that any such statement
could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the
assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and

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when giving such confession. n75
[*913] The prominence that Miranda warnings enjoyed under 3501 means that, if the Court had upheld the statute,
federal law enforcement officers would almost certainly have continued to give them. They would have done so because
it would assist in obtaining a favorable ruling on the admissibility of a statement a trial. n76
This was not merely my view. The Department of Justice specifically stated in its brief in Dickerson that federal
agents would continue to deliver Miranda warnings. n77 Indeed, it is a little discussed fact that federal agents gave
Miranda warnings even before they were required to do so by the Miranda opinion. n78 Their doing so provides a
real-world confirmation of the Fourth Circuit's view that "nothing [in 3501] provides those in law enforcement with an
incentive to stop giving the now familiar Miranda warnings." n79
Section 3501's encouragement to agents to give Miranda warnings might alone have been viewed as creating a
viable alternative to Miranda. n80 But 3501 cannot be assessed in splendid isolation. n81 Since 1966, Congress and the
courts have greatly expanded the civil, criminal, and administrative penalties against federal officers who coerce
suspects. For example, in 1966, it was as a practical matter impossible for a suspect to sue a federal officer who coerced
a confession. That changed in 1971, with Bivens v. Six Unknown Agents, which recognized a federal civil rights suit
against individual federal agents for violations of constitutional rights. n82 Bolstering the Bivens suits against
individual agents, Congress in 1974 passed amendments to the Federal Tort Claims Act. These amendments waived
sovereign immunity for suits against the federal government arising out of acts or omissions by [*914] federal law
enforcement agents involving "assault, battery, false imprisonment, abuse of process" and the like. n83 In addition to
civil suits, the federal government now has in place a much more developed system of criminal and administrative
penalties against its officers who coerce suspects into confession. For example, the Civil Rights Division of the
Department of Justice now routinely investigates allegations of police brutality during interrogation. n84
My amicus brief advanced this position, explaining why it provided greater protection against truly coerced
confessions than the Miranda framework. n85 The Court responded to this issue in five sentences. The five sentences
(with numbers inserted for ease of reference) are:

[1] We agree with the amicus' contention that there are more remedies available for abusive police conduct than there
were at the time Miranda was decided (citing cases). [2] But we do not agree that these additional measures supplement
section 3501's protections sufficiently to meet the constitutional minimum. [3] Miranda requires procedures that will
warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right
will be honored. [4] As discussed above, section 3501 explicitly eschews a requirement of pre-interrogation warnings in
favor of an approach that looks to the administration of such warnings as only one factor in determining the
voluntariness of a suspect's confessions. [5] The additional remedies cited by amicus do not, in our view, render them,
together with section 3501, an adequate substitute for the warnings required by Miranda. n86
These five sentences exemplify the "nine headed Caesar" that Justice Scalia decried. The first sentence describes the
position I advanced. The second sentence says that my position was rejected. The third and fourth sentences briefly
describe Miranda and 3501, and the fifth sentence repeats the conclusion that my argument is rejected - that Caesar has
given a "thumbs down" to my position. But why the thumbs down? The Court, after all, had relied on similar remedies
in refusing to extend the Fourth Amendment exclusionary rule to immigration proceedings in INS v. Lopez-Mendoza.
n87 Yet here the Court offers no explanation for refusing to find the alternative remedies adequate.
An interesting omission from this part of the opinion is any reference to Miranda's requirement that any alternative
be shown to be "at [*915] least as effective [as Miranda] in apprising accused persons of their right of silence and in
assuring a continuous opportunity to exercise it." n88 Perhaps the Dickerson Court omitted it because, as a matter of
precedent, the "equally effective" language obviously is not necessary to Miranda's holding. n89 Moreover, the

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language could not be reconciled with the Court's later descriptions of Miranda. Miranda's various statements about the
need for equally effective alternatives all occur in those parts of the opinion where the Court seems to say that any
statement police obtain without explaining to the defendant his rights is necessarily compelled. But as noted earlier, n90
cases such as Quarles make clear that those portions of Miranda cannot be read that way. In Quarles and similar cases,
suspects' statements were found admissible despite having been obtained without either compliance with Miranda or
any "equally effective" alternative. Once those portions of Miranda are properly understood, the force of the "equally
effective" dicta disappears. The Court can insist on warnings or their equivalents only if the admission of a statement
obtained without these measures would violate the Constitution. Dickerson, as Justice Scalia pointed out, makes no such
assertion. n91 Nor could any such assertion be reconciled with Quarles and related cases. The surviving justification for
a "warnings or equivalent" requirement is instead to help prevent future Fifth Amendment violations. This is the way
that Dickerson describes Miranda. Dickerson explains that the old voluntariness test "raised a risk of overlooking an
involuntary custodial confession, a risk that the Court found unacceptably great when the confession is offered in the
case in chief to prove guilt." n92 In briefly mentioning the "equally effective" language in an earlier part of the opinion,
the Court "clarified" that it means a "procedure that is effective in securing Fifth Amendment rights." n93 If this is true,
however, other prophylactic measures that provide equivalent protection against the use of actually compelled
statements are constitutionally sufficient even if they do not provide equivalent assurance that the suspect was informed
of his rights so long as they sufficiently reduce the "risk" of a violation and [*916] "secure" the underlying Fifth
Amendment right to be free from giving an involuntary statement. n94

* * * * * In short, what the Court could have said in upholding 3501 was this: Miranda itself invited Congress and the
states to adopt reasonable alternative procedures for protecting suspects during custodial interrogation. Section 3501,
when considered against the backdrop of other statutory and judiciary protections against police coercion, provides
sufficient protection to comply with the Constitution.
III. Section 3501 as a Modification of Miranda's Irrebuttable Presumption
So far, this Article has focused on unresolved inconsistencies between Dickerson and the rest of Miranda doctrine. But
Dickerson's doctrinal problems extend into other areas as well. Perhaps the most glaring deficiency is the latitude that
the Court has given itself in promulgating constitutional "rules" as opposed to the constraints it has imposed on
Congress, an ostensibly co-equal branch of government. In particular, in its landmark 1997 decision, City of Boerne v.
Flores, n95 the Court demarcated clear limits on the power of Congress to promulgate prophylactic rules protecting
constitutional rights. Yet in Dickerson, the Court refused to abide by the same rules.
Here it useful to recall the developments leading up to the Boerne decision. n96 The Supreme Court had decided in
Employment Division v. Smith n97 that government decisions burdening religious practices need only survive a rational
basis test, not the more demanding compelling interest test. Under rational basis scrutiny, the Court upheld Oregon's law
prohibiting the use of peyote in Native American religious ceremonies. Congress then held extensive hearings on the
subject, concluding that the rational basis test inadequately protected First Amendment free exercise rights. At the
behest of Senators Orrin [*917] Hatch and Ted Kennedy, among others, Congress passed the Religious Freedom
Restoration Act ("RFRA") requiring all state and federal laws burdening religion to satisfy the compelling interest test.
In City of Boerne, the Supreme Court struck down RFRA as unconstitutional. The Court concluded that, even
though Congress has the power to "enforce" constitutional rights under Section 5 of the 14th Amendment, Congress
lacked the power to mandate the compelling interest test across the states for all laws. The Court was concerned that
Congress might use its "enforcement" power effectively to rewrite the Constitution. To prevent such rewriting under the
guise of remediation, the Court required that there be "congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end." RFRA, the Court concluded, could not survive that test
because it effectively changed the First Amendment standard, dictating a new constitutional rule that states were
required to follow. n98

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With those limits on Congress in mind, it may be useful to employ a thought experiment to see how the Boerne
limitations might apply in the Miranda context. Imagine for a moment that the Supreme Court had never adopted the
Miranda procedures. Congress, however, decided to step in and require those procedures. Assume that Congress passed
a federal statute requiring state police officers to recite the Miranda warnings and - this is the most important part mandated that state courts could not admit into evidence any confession obtained without these warnings. Under City of
Boerne, such a sweeping enactment would be beyond the powers of Congress. The enactment would effectively
"rewrite" the Fifth Amendment's prohibition of involuntary statements and require a vast reworking of state police
operations around the country. The enactment would make "a substantive change in constitutional protections." n99 It is
hard to see how such a change would be a "congruent and proportionate" n100 enforcement device for protecting Fifth
Amendment rights.
The obvious application of this exercise is to consider how Boerne's limitations on Congress would apply to the
Court's decision in Miranda. Miranda goes beyond the Fifth Amendment in requiring the suppression of voluntary but
unwarned confessions, like the confession given by Dickerson. Miranda's rules are out of proportion because they
"prohibit ... substantially more" police practices than would "likely be held unconstitutional under the applicable" Fifth
Amendment standard. n101 To be sure, confessions obtained without [*918] complying with Miranda's procedures
may sometimes be involuntary. But there is little reason to believe that this will be true all the time or even most of the
time. As Justice O'Connor observed a few years before Dickerson:

In case after case, the courts are asked ... to decide purely technical Miranda questions that contain not even a hint of
police overreaching. And in case after case, no voluntariness issue is raised, primarily because none exists. Whether the
suspect was in "custody," whether or not there was "interrogation," whether warnings were given or were adequate,
whether the defendant's equivocal statement constituted an invocation of rights, whether waiver was knowing and
intelligent - this is the stuff that Miranda claims are made of. While these questions create litigable issues under
Miranda, they generally do not indicate the existence of coercion ... sufficient to establish involuntariness. n102
In Dickerson, for example, the district court found Dickerson's unwarned statements voluntary under the Fifth
Amendment. The voluntariness of the statements in this case is typical of Miranda violations that have reached the
Court over the years. n103
Miranda's lack of proportionality is shown not only by its overbroad reach in particular cases, but also by its
unlimited application. Miranda's automatic exclusionary rule applies to every episode of custodial questioning
conducted by every level of government, federal, state, and local, numbering in the hundreds of thousands each year. It
is not limited to a particular period of time or to jurisdictions with a particular history of abuse. It contains no
mechanism for a jurisdiction to extricate itself by showing that it has had a long history of compliance with the
Self-Incrimination Clause. n104 The "indiscriminate scope" of the rules is itself strong evidence that they are
disproportionate. n105
The Court has also looked to the scope of the problem Congress is addressing when considering the breadth of
prophylactic rules. The scope of the problem to which Miranda was responding remains unclear, but the evidence of
epidemic police abuse was, and is, quite limited. Miranda did refer to "anecdotal evidence" concerning abusive [*919]
police interrogation, n106 which no doubt was a problem in exceptional cases before Miranda - just as it remains a
problem in some exceptional cases today. But the bulk of the justification in the opinion came from an examination of
"police manuals and texts" on techniques for questioning suspects. n107 The difficulties with this material as evidence
of pervasive coercion in custodial interrogations are legion. n108 In fact, the Miranda majority acknowledged that it had
little idea about typical practices. n109 Moreover, while the tactics in the police manuals were offered as evidence of
compulsion, the Miranda Court concluded only that the tactics created the "potentiality for compulsion." n110 Thus, the
opinion in effect admits its failure to demonstrate that the techniques and circumstances it characterized as giving rise to
potential compulsion pervasively resulted in actual compulsion. n111 Nor is that particularly surprising, for it is clear

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that the Miranda Court's true concern was with the potentially coercive circumstances themselves, not with actual
compulsion - just as it is clear that, in passing RFRA, "[the 103d] Congress's concern was with the incidental burdens
imposed" on religion by neutral laws, not with deliberate persecution. n112
Dickerson rests on an understanding of the Court's power that extends it far beyond Congress's. The Court is
entitled, of course, to the last word in interpreting the Constitution in the Marbury v. Madison sense. But questions of
"constitutional rules" are of a different order. As Justice Scalia's dissent pointedly notes, Dickerson in no way equates a
violation of Miranda's "constitutional rule" with a violation [*920] of the Constitution. n113 Instead, Dickerson
describes Miranda as rejecting the old, totality-of-the-circumstances voluntariness test because it "raised a risk of
overlooking an involuntary custodial confession, a risk that the Court found unacceptably great when the confession is
offered in the case in chief to prove guilt." n114 But this, of course, was precisely the type of protection Congress
sought to extend to First Amendment freedoms in City of Boerne. n115 In refusing to apply a Boerne analysis to its own
rule, the Court is asserting greater authority to craft such protective devices than Congress possesses. Yet, if anything,
congressional power in this area should be broader than judicial power. The Constitution explicitly confers on Congress
the power to "enforce" constitutional rights in Section 5 of the 14th Amendment and the power to adopt "necessary and
proper" legislation in Article I, Section 8. In contrast, any power that the Constitution confers on the Court to enforce
rights is purely an inferential one, presumably no greater than the power possessed by Congress, and perhaps even
lesser. n116
Dickerson's rigid adherence to rules that lack congruence and proportionality is particularly suspect in light of a
modest modification that was proposed in Dickerson. The lack of congruence and proportionality between Miranda's
rules and Fifth Amendment violations could have been cured by changing Miranda's irrebuttable presumption to a
rebuttable one. Under Miranda doctrine, the "failure to administer Miranda warnings creates a presumption of
compulsion" which is "irrebuttable for purposes of the prosecution's case in chief." n117 In other contexts, such rigid
presumptions are typically justified on the ground that they "avoid the costs of excessive inquiry where a per se rule will
achieve the correct result in almost all cases." n118 The Miranda presumption, however, operates to achieve incorrect
results in many cases.
[*921] The Court has acknowledged that "per se rules should not be applied ... in situations where the
generalization is incorrect as an empirical matter; the justification for a conclusive presumption disappears when
application of the presumption will not reach the correct result most of the time." n119 Under Boerne, the irrebuttable
presumption creates a jarring lack of "congruence and proportionality." Indeed, to apply an irrebuttable presumption is
effectively to change the Fifth Amendment's compulsion standard to a new, warnings-and-waiver standard, thus
"altering the meaning" of the Fifth Amendment n120 and "substantively redefining the State's legal obligations" during
custodial interrogation. n121
The simple way to avoid flagrant inconsistency with the Boerne principle would have been for the Court to have
modified Miranda so that it operated as a rebuttable presumption - that is, confessions taken without following the
Miranda procedures would have been presumed involuntary unless the state could prove otherwise. Justice Clark
suggested this approach in his dissent in Miranda as an intermediate position between the majority and the other
dissenters. He proposed that "in the absence of warnings, the burden would be on the State to prove ... that in the totality
of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary." n122
This allocation of burdens, superimposed on 3501 (which can easily be read in this fashion n123), would have
brought 3501's prophylactic effect even closer to that of Miranda's exclusionary rule by explicitly conferring a preferred
status to confessions obtained in compliance with Miranda. At the same time, it would have eliminated the single
feature of Miranda's irrebuttable presumption most objectionable under Boerne: the imposition of a standard for the
admissibility of custodial confessions more stringent than the constitutional voluntariness standard, and the attendant
automatic exclusion of many statements that in fact comply with the constitutional standard. In contrast, [*922] a
rebuttable presumption would have been a proportionate response to the various risks identified by the Miranda Court.
It would also have preserved the assistance the Miranda factors provide to the courts in structuring the voluntariness

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inquiry, while ending the irrational mechanical application of those factors to exclude unwarned confessions, even when
the confession is unquestionably voluntary.
In Illinois v. Gates, n124 the Court performed a similar modification to a test it previously suggested but came to
regard as overly rigid. In Gates, the Court rejected the two-pronged "Spinelli-Aguilar" test for determining probable
cause in favor of a totality-of-the-circumstances approach. Raising a concern that applies equally to the Miranda
doctrine, the Court explained that "the "two-pronged test' has encouraged an excessively technical dissection of
informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other
facts." n125 Yet, in restoring the totality-of-the-circumstances approach, the Court emphasized that the Spinelli-Aguilar
factors remained "highly relevant" in determining probable cause, n126 and later cases have examined them. n127 Thus,
just as the Spinelli-Aguilar factors now serve "not as inflexible, independent requirements applicable in every case," but
rather as "guides to a magistrate's determination of probable cause," n128 so too the Miranda factors would have guided
determination of voluntariness issues.
Making the Miranda presumption rebuttable would not have returned the law to its pre-Miranda state. When
Miranda was decided, the constitutional assignment of the burden for establishing voluntariness was unclear. n129 A
rebuttable Miranda presumption could have been crafted that would place the burden on the government to establish
voluntariness while making delivery of Miranda warnings an important part of the calculus.
The Dickerson majority's response to this possibility was astonishing. The idea of viewing Miranda as a rebuttable
presumption was presented to the Court not only in my brief on behalf of the Fourth [*923] Circuit, but was also
suggested in separate briefs filed by the United States House of Representatives, by a number of United States Senators,
and nineteen states. n130 The majority said only - in a single sentence in a concluding footnote - that it would not
consider the various suggestions that had been advanced by the various amici because of "the procedural posture of this
case." n131 The Court's reasoning here is quite strained. In its concluding footnote, the Court cites three cases standing
for the proposition that the Court generally will not reach arguments that have not "been urged by either party in this
Court." n132 But, in Dickerson, both of the parties were attacking the decision below - the very reason that various
amici organizations were compelled to file briefs defending the decision. In those circumstances, refusing to consider
the amici's arguments because they were not presented by the parties effectively allowed a stipulated outcome, the very
thing that the Court has long held impermissible. n133 With a case in this posture, it also meant that the Court departed
from the normal rule that respondents (in this case, amicus respondents) could raise any argument in support of the
judgment below. n134 Instead, on the Court's view, only the Fourth Circuit's arguments could be considered as a basis
for sustaining 3501, even though the Court's ruling would preclude any other supportive arguments from ever being
raised.
In Dickerson, with institutional representatives from Congress and a significant number of states asking for
clarification on an important point of Miranda, it is hard to understand why the Court would not say something about
the issue. n135 Moreover, the Court reached the [*924] larger issue of whether Miranda should be overruled in its
entirety - an issue not squarely presented in any amicus brief. It is difficult to understand why the Court would reach, on
its own initiative, this broader question of whether to overrule Miranda, but not the narrower question subsumed within
it of whether to modify one particular facet of Miranda.

* * * * * In short, what the Court could have said in upholding 3501 was this: The power to promulgate prophylactic
rules protecting constitutional rights is not unlimited. The Court, no less than Congress, is bound by the principle of
City of Boerne that prophylactic rules must be "congruent and proportionate" to the underlying constitutional right. To
make Miranda's procedures congruent and proportionate to the Fifth Amendment, the failure to follow the procedures in
obtaining a confession will raise a presumption of involuntariness, a presumption that can be rebutted by appropriate
evidence of voluntariness.

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IV. Section 3501 as Reflecting Congressional Factfinding on Miranda's Harm
This Article has thus far sketched three alternative resolutions of the Dickerson case, resolutions that would have
largely reconciled the Court's varying pronouncements on Miranda doctrine without requiring the Court to abandon the
Miranda framework. But, because Dickerson itself ultimately reached the broader question of whether to retain
Miranda, it is appropriate for this Article to say a few words about the stare decisis issue. On this question, too,
Dickerson jarringly departed from other Court holdings.
A. Failing to Consider Miranda's Costs
Stare decisis requires a consideration of the arguments for and against retaining a legal rule, with the balance tipped
from the start in favor of retention. n136 When considering whether to modify other precedents, the Court has routinely
assessed cost as part of the inquiry. n137 In the Miranda context, a critical issue would be the cost of [*925] the
decision, measured in terms of its harms to law enforcement. Indeed, the legitimacy of inquiring into cost can be traced
to Miranda itself, where the Court promised that its decision was "not intended to hamper the traditional function of
police officers in investigating crime." n138 In later rulings, too, the Court has described Miranda as "a carefully crafted
balance designed to fully protect both the defendants' and society's interests," n139 further underscoring the need to
consider Miranda's effect on prosecution.
This question of Miranda's costs is a purely empirical one, requiring calculation of how many dangerous criminals
go free as a result of the Miranda rules. In our system of government, Congress is the branch charged with reviewing
such issues. As the Court has acknowledged, Congress has superior fact-finding powers because it is not "bound by the
parties' submissions; rather, it can conduct hearings, canvass constituents, and obtain information from a broad range of
sources." n140 Congress "is far better equipped than the judiciary to amass and evaluate the vast amounts of data
bearing upon legislative questions." n141 Academic commentators have also recognized Congress's comparative
advantage. n142
Because of Congress's comparative advantage in assembling information, the Court has routinely given great
weight to congressional factual findings in evaluating the constitutionality of federal statutes. A prime illustration comes
from United States v. Morrison, n143 decided just five weeks before Dickerson. There, the Court invalidated the civil
suits provision in the Violence Against Women Act (VAWA) on grounds that they exceeded Congress's power under
the Commerce Clause. Both the five justices in the majority and the four justices in dissent prominently discussed the
existence and effect of congressional findings on the effect of violence against women on interstate commerce. The
majority acknowledged, and did not question, the congressional finding "regarding the serious impact that
gender-motivated violence has on victims and their families." n144 The dissent asserted that [*926] "the business of
the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that
a jurisdictional basis exists in fact." n145
The same kind of findings that confronted the Court in Morrison existed in Dickerson. As ably recounted in
Professor Michael O'Neil's recent article, n146 the Senate Judiciary Committee held a series of hearings on how the
Miranda rules were affecting day-to-day law enforcement. The Committee ultimately concluded that the "rigid and
inflexible requirements" established in Miranda were "unreasonable, unrealistic, and extremely harmful to law
enforcement." n147 The Committee cited various studies demonstrating Miranda's harmful effect on prosecuting
crimes. n148 These conclusions impelled Congress to pass 3501.
Perhaps one might argue that the Congressional factfinding process was flawed in various ways. For example,
Professor Yale Kamisar's interesting and extended analysis of the "tone" of the legislative process leads him to believe
that Congress acted without careful deliberations. n149 Whatever the merits of Kamisar's view, it is hard to see how the
quality of the congressional debate has a bearing on the weight to be given to the findings. Within our scheme of
separated powers, the Court has no role in kibitzing on the way in which Congress reaches its decisions. n150
Moreover, Kamisar's review focuses primarily, if not exclusively, on Congress's legal determinations about the

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constitutionality of 3501 - not Congress's factual determinations about the underlying harm to law enforcement. n151
Because of his focus on jurisprudential issues, Kamisar does not appear to dispute that, in 1968, Congress had ample
evidence from police administrators and prosecutors that Miranda was hampering their efforts to bring dangerous
criminals to book. n152 Kamisar's article does not substantively discuss [*927] statistical presentations made to the
Senate Judiciary Committee by, among others, District Attorney Frank Hogan of New York County, n153 then-District
Attorney Arlen Spector of Philadelphia, n154 and District Attorney Aaron Koota of Kings County, New York. n155
While one might draw different conclusions from this data, n156 Congress's determination does seem to be, at the very
least, one quite reasonable interpretation. Traditionally, reasonableness is all that the Court has required of Congress in
evaluating the factual underpinnings of legislation. n157
Alternatively, the Court might have concluded that the congressional determinations had become outdated by the
time Dickerson arrived at the Court in 2000, since Congress reached its conclusions in 1968. Yet it is hard to understand
how congressional findings could be made to have any sort of expiration date, particularly where more recent
congressional hearings have tended to reaffirm Congress's earlier action. n158 More importantly, Miranda itself was
predicated on the promise that its rules would not "constitute an undue interference with a proper system of law
enforcement." n159 Miranda's predictive claim - made, of course, in 1966 without the benefit of real world evaluation
of the new rules n160 - would have to give way to congressional factfinding based on their actual operation.
Faced with such unattractive grounds for dealing with the congressional findings, Dickerson adopted a remarkable
approach: it ignored [*928] them. In deciding to retain Miranda, the Court simply offered its own independent
determination that Miranda had not been so harmful as to require modification. In brief concluding paragraphs on this
issue, Dickerson first quoted Chief Justice Burger's concurring view, in a 1980 case, that "the meaning of Miranda has
become reasonably clear and law enforcement practices have adjusted to its stricture; I would neither overrule Miranda,
disparage it, nor extend it at this late date." n161 Dickerson next asserted that "Miranda has become embedded in
routine police practices to the point where the warnings have become part of our national culture" n162 and that the
Court's "subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming
the decision's core ruling ... ." n163 Finally, the Court maintained that a totality-of-the-circumstances, voluntariness test
"is more difficult than Miranda for law enforcement officers to conform to ... ." n164
What is obviously missing from Dickerson's analysis is any acknowledgment - let alone analysis - of congressional
fact-finding on these very issues. This was a dramatic departure from the approach of Morrison and many other cases
recognizing congressional primacy on factfinding. n165 Moreover, taken on their own merits, the Court's articulated
reasons for finding Miranda not to be harmful are remarkably weak. With respect to Chief Justice Burger's conclusion
that "law enforcement practices have adjusted to [Miranda's] strictures," was the Chief Justice asserting that law
enforcement had accommodated to Miranda, thereby avoiding harmful effects? Or, as seems more likely, was he saying
that law enforcement had reconciled itself to the harmful effects? This latter interpretation of Chief Justice Burger's
remarks would square his views with those of, for example, the nation's largest law enforcement organization, the
Fraternal Order of Police. n166 When deciding how to interpret his remarks, it is instructive that Chief Justice Burger,
after retiring from the Court, held the view that [*929] Miranda should be overruled. n167 With respect to the Court's
subsequent cases reducing any harmful impact from Miranda, the Court did not acknowledge that these modifications
have been around Miranda's edges. While the Court has created impeachment, derivative use, and public safety
exceptions, Miranda's basic rule excluding non-Mirandized statements from the state's case-in-chief remains intact. The
available empirical evidence suggests that these exceptions have marginal effects at best. The public safety exception,
for instance, appears to apply in fewer than 1% of all cases. n168 Moreover, while it is true that some post-Miranda
issues have been resolved in favor of law enforcement, it is equally true that others have been resolved in favor of
criminal defendants. No less a defender of Miranda than the redoubtable Yale Kamisar has acknowledged that "it must
also be said that the new Court has interpreted Miranda fairly generously in some important respects." n169 Those
important respects include the waiver rules dealing with the circumstances in which police can even ask questions of
suspects. In 1981, the Court in Edwards v. Arizona created an absolute bar to questioning a suspect who requests
counsel. n170 In later decisions, the Court applied this "second layer of prophylaxis" n171 to questioning about even

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unrelated crimes n172 and even to questioning after counsel had been provided. n173 It is precisely these rules that law
enforcement agencies like the FBI have identified as producing most of Miranda's harm. n174 It is thus entirely possible
that [*930] the Court's recent modifications have increased, not decreased, Miranda's societal costs. Dickerson makes
no attempt to assay the net effect of the Court's varying decisions.
Finally, Dickerson's claim that it is more difficult for law enforcement officers to comply with a voluntariness test
than deliver Miranda warning demolishes a strawman. Federal officers were planning to deliver Miranda warnings even
if 3501 had been upheld, n175 which means that whatever useful effect they provided law enforcement would have
been continued. In addition, the brightness of Miranda's "bright-line" rule has also been oversold. Justice O'Connor, for
example, wrote just a few years before Dickerson that "Miranda creates as many close questions as it resolves" n176 - a
position that she simply abandoned (without explanation) in joining the Dickerson opinion. n177 But in the final
analysis, the overarching issue remains not how bright the rule is, but the costs of the rule. Dickerson simply fails to
offer any assessment of these costs.
Setting aside the particular problems with Dickerson's specific authorities, a more fundamental point is the Court's
judicial vantage point on Miranda. The Brethren all are handicapped in assessing the harmful effects of restraints on law
enforcement practices. By definition, the Justices receive information only about cases that were successfully
prosecuted - that is, cases in which police and prosecutors were able to amass sufficient evidence to pursue the case (and
ultimately have it find its way to the Supreme Court). In other words, only cases that are formally charged fall within
the ken of the judicial system. The bulk of Miranda's costs lie hidden elsewhere - in cases where Miranda prevents
police from ever obtaining confessions vital to successful prosecutions. In a trilogy of recent articles, I have offered
three different ways of calculating these hidden costs of Miranda: through "before-after" studies of confession rates,
analysis of the drop in crime clearance rates after Miranda, and comparison of contemporary confession rates with those
that prevailed at the time of Miranda n178 In 1968, the Senate Judiciary Committee looked at these [*931] very same
types of information in reaching its factual conclusion about Miranda's harms. n179 Dickerson does not explain what to
make of the social science data on Miranda's effects. n180
B. Law Enforcement Experience with Miranda
Perhaps the Court could have compensated for the inadequacies in its judicial vantage point by relying on other sources
of information. In some Miranda cases, for example, the Court has alluded to law enforcement experience as a basis for
sustaining the Miranda rules. n181 Dickerson, however, does not mention the numerous law enforcement amicus briefs
in the case - no doubt because these briefs flatly contradicted its position. In fact, what may have been the largest
collection of law enforcement groups ever to file briefs in a Supreme Court case supported 3501. Briefs urging
affirmance of the Fourth Circuit were filed by seventeen State Attorneys General, the National District Attorneys
Association, the FBI Agents Association, the nation's largest rank and file law enforcement organization (the Fraternal
Order of Police), the nation's second largest rank and file law enforcement organization (the National Association of
Police Organizations), the International Association of Chiefs of Police, and a number of other groups. n182 On the
other side, not even a [*932] single prominent law enforcement group would support Dickerson's position. n183
The Court did have one brief from a law enforcement agency claiming that Miranda was not harmful. The
Department of Justice's brief claimed that "federal law enforcement agencies have concluded that the Miranda decision
itself generally does not hinder their investigations." n184 But this statement had been so thoroughly discredited by the
time of the oral argument that the Court understandably gave it no weight.
After the Department filed its brief containing these representations, Senators Orrin Hatch and Strom Thurmond
wrote to the Attorney General that they had received information that the Drug Enforcement Administration had
reached the opposite conclusion and requested that the Attorney General "provide to us at your earliest convenience an
explanation for the seemingly misleading statements" contained in the Department's brief. n185 With its hand forced,
the Department of Justice released documents from federal law enforcement agencies about the effects of Miranda and
lodged them with the Court. The lodged materials came from a number of federal agencies, including some (like the

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Internal Revenue Service) that presumably only rarely conduct custodial interrogations and therefore only rarely suffer
any harm from the Miranda rules. Buried at the end of the lodging were several memos from the Drug Enforcement
Administration, the federal agency that probably conducts a higher percentage of custodial interrogations than any other
federal law enforcement agency. As had apparently been reported to Senators Hatch and Thurmond, these memos
indicated that the DEA had suffered serious harms from Miranda. In an undated memo written in 1998 by the DEA's
Deputy Chief Counsel, the DEA explained that it was in favor of the Department attempting to obtain a favorable ruling
on 3501. n186 In a memo dated October 13, 1999, the DEA's Chief of [*933] Operations reported that the agency's
experience "highlights the need to reform the formal, prophylactic requirements of Miranda." n187 Joining the DEA,
the FBI also reported that offshoots of the Miranda requirements, such as the rule of Edwards v. Arizona, have had "an
impact on numerous FBI investigations." n188 As Senators Hatch and Thurmond concluded after reviewing these
materials, they seriously undermine the impression created by the United States' merits brief "that federal law
enforcement agencies uniformly support the Justice Department's decision in this case to challenge the constitutionality
of 18 U.S.C. 3501." n189
Yet the Department was not finished with its misleading effort to minimize Miranda's damaging effects on federal
law enforcement. The Department came up with new statistics in its reply brief - filed shortly before the oral argument.
The Department's reply brief asserted that, between 1989 and 1999, "according to the Justice Department's records,
federal courts suppressed approximately 78 statements under Miranda - i.e., one out of every 9,300 federal
prosecutions." n190 This representation must have come as something of a surprise to Senators on the Judiciary
Committee. Several Senators had previously requested from the Department comprehensive information about federal
cases in which Miranda problems had prevented prosecution so that they could illustrate the harms from Miranda. In a
1997 response to the Senators, the Justice Department had answered that "the Department's filing system and records do
not readily yield a definitive list of such cases." n191 The Department therefore provided to the Senators only a list of
cases in which "adverse [*934] Miranda rulings made by the federal courts have been reviewed by the Solicitor
General," an incomplete list which "no doubt excludes a number of cases in which confessions were suppressed under
Miranda ... ." n192 It was this same incomplete list that the Department was now attempting to pass off to the Court as a
firm accounting of Miranda's harm to law enforcement. A few days after the Department filed its reply brief, Senators
Orrin Hatch and Strom Thurmond sent a letter to the Attorney General (with a copy to the Supreme Court) powerfully
challenging the accuracy of those figures. The Senators' letter included more than eighty additional cases of statements
suppressed under Miranda that were not included in the Department's calculations (more than doubling the figures the
Department itself had come up with!) and explained how the Department's representations were seriously misleading.
n193 Two days later, the Solicitor General sent a letter to the Supreme Court admitting that dozens of the cases
identified by the Senators were not included in the Department's calculations. n194
While the misrepresentations in the Department's brief to the Court are very troubling, perhaps even more
disturbing was the Department's refusal to give weight to the congressional findings of harm. While the Department's
brief tersely mentioned the congressional findings, n195 the Department nonetheless believed it was free to revisit the
evidence on its own rather than follow its traditional role of defending congressional laws and conclusions. n196 It was
only because of Senators Hatch and Thurmond's prompt response that this strategy did not succeed in keeping from the
Court considerable evidence of Miranda's harm.
This evidence of harm posed a dilemma to the Dickerson majority on the stare decisis question. It was no doubt
aware that the potential costs of the Dickerson decision were crucial to any stare decisis calculus. At the same time, the
Court was confronted with a congressional determination that Miranda's costs were substantial, findings supported
[*935] by numerous social science studies, law enforcement amicus briefs, and the recent conclusions of the DEA and
FBI. In the face of this evidence, any serious effort by the Court to grapple with the stare decisis issues would have
required the Court to acknowledge that Congress could have reasonably concluded that dangerous criminals were going
free because of Miranda. Instead, the Court took the easy way out - it dodged the issue.

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* * * * * In short, what the Court could have said in Dickerson was this: There is a factual question about whether
Miranda has harmed legitimate law enforcement efforts. Congress is the branch of government charged with resolving
such questions. Congress held hearings on this subject and reasonably concluded that Miranda was seriously hampering
police efforts to solve crime and convict criminals. As a result, ... . .
V. Alternatives to Miranda
... what would have been the result of Dickerson properly acknowledging that there was harm to law enforcement from
Miranda? Does it necessarily follow that Miranda should have been overruled?
Such harm would, at a minimum, be relevant to the Court's calculation whether to retain Miranda or return to the
earlier voluntariness regime. The Court's stare decisis jurisprudence explicitly acknowledges the relevance of real-world
effects. In deciding whether to overrule Roe v. Wade, for instance, the controlling opinion from the Court described the
decision to overrule as "customarily informed by a series of prudential and pragmatic considerations ... ." n197 These
considerations include "the respective costs of reaffirming and overruling a prior case." n198 On this view, the "costs"
of the Miranda rules are indisputably part of the stare decisis calculation. n199
[*936] Starting from the proper premise that Congress reasonably found Miranda to entail significant costs, it
would have been interesting to see how the Court then assessed the competing issues. n200 Just exactly how many
murderers and armed robbers would the Court find it worth setting free in the interests of retaining the Miranda rule?
The Court has not proven particularly adept at assessing such tradeoffs. n201 In Miranda itself, for example, the Court
appeared to balance competing concerns in ways that most Americans found objectionable. Rather than linger over such
difficult issues, it is understandable that the Court simply chose to toss off cursory assertions about Miranda's limited
harm before galloping off to its disposition, leaving the hard questions to be answered in, ... er ... , later law review
symposia. n202
But assuming that the Court had recognized Miranda's harms, would overruling the decision have necessarily
followed? Against Miranda's disadvantages, the Court would have needed to assay the advantages. Defenders of
Miranda have claimed, for example, that Miranda entails such benefits as reducing police coercion during the
questioning of suspects n203 and communicating to suspects "our societal commitment to restraint in an area in which
emotions easily run uncontrolled." n204 Balancing these advantages against Miranda's disadvantages would have been
difficult not only because of disagreement about the existence of these benefits, but more generally because of a
commensurability problem - these concerns are not susceptible to evaluation on a common scale.
A critique of Dickerson for reaching one conclusion or the other on such contentious issues would probably never
command broad assent. n205 [*937] But it seems to me that an alternative critique is available, which might draw
wider approval. Even assuming that the Court properly struck down 3501, the Dickerson opinion is deficient in failing
to discuss possible alternatives to Miranda that Congress could adopt. Dickerson's silence on reasonable alternatives
starkly contrasts with City of Chicago v. Morales, n206 a case from the preceding Term. In Morales, the Court struck
down Chicago's gang-loitering ordinance essentially on vagueness grounds. But the swing justices - Justice O'Connor
joined by Justice Breyer - wrote a concurring opinion explaining how Chicago could cure the defects. This led Chicago
to adopt a new ordinance conforming precisely to the requirements spelled out in the concurring opinion. Justice
O'Connor's Morales concurrence illustrates what Professor Erik Luna has helpfully called a "constitutional roadmap."
n207 The controlling justices on the Court gave guidance to Chicago so that Chicago's city council could pass an
ordinance that complied with the Constitution.
Dickerson should have followed Justice O'Connor's approach in Morales - offering some instruction about why
3501 and related enactments were defective and what the Congress needed to do to supplement them. Perhaps some
constitutional purists will demur. Touting passive virtues and the like, n208 they will suggest that the Court should take
the cases one at a time, leaving the possibility of alternatives to be resolved in a proper case and controversy. In many
circumstances, such arguments for judicial restraint might have considerable force. But in the particular context of

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Miranda, the case for roadmapping becomes compelling. n209 Miranda is "a decision without a past" n210 - an opinion
without foundation in the previous court precedents. n211 As a result, in contrast with other bodies of law,
conscientious legislators lack authoritative guidance for any effort to determine what alternatives might satisfy the
constitutional requirements. Dickerson offers [*938] no help to the legislature, since it merely offers an unexplained
"thumbs down" to the alternative before it, 3501. Perhaps uncertainty might be tolerable if the legislature could simply
authorize a test case to explore the acceptability of alternatives to Miranda. But the ability to test alternatives before the
Court is limited. A decision by a police agency to depart from Miranda and try some different device risks suppression
of a confession. If applied more widely - as might be necessary to obtain appellate review of the issue n212 - it runs the
risk of wholesale reversal of criminal convictions, years after the fact.
Dickerson was clearly an "opportunity missed" n213 to make positive reforms, and will continue the "petrification"
of the law of pretrial interrogation in this country. n214 For those who think Miranda is the be-all and end-all of rules
for this area, perhaps this result will be applauded. But it would be odd if a 1966, 5-4 decision by the Supreme Court
embodied the best possible resolution of the competing concerns. Indeed, this Symposium provides considerable
evidence of dissatisfaction with Miranda from various quarters. For instance, Professor Laurie Magid and I are
concerned that Miranda unduly harms law enforcement. n215 But setting such concerns aside for the moment, it is
interesting to hear from Professor Welsh White that Miranda fails to restrain pernicious interrogation practices, n216
from Professor Richard Leo that Miranda has few significant benefits, n217 and from Professor Susan Klein that
Miranda fails to provide any real guidance on what kinds of compulsion are permissible during police questioning. n218
Given these complaints, it is hard to fault Professor William Stuntz's conclusion that "Miranda should attract support
from neither right nor left." n219
This Symposium also provides considerable evidence for the solution to Miranda defects - the proverbial "win-win"
solution that properly protects both suspects and society's legitimate interests. Dickerson should have suggested to
Congress that it consider replacing Miranda with a system of videotaping police questioning. Videotaping of
interrogations improves on Miranda by providing an objective [*939] record of what happened inside the stationhouse.
n220 Videotaping thus allows courts to police the lines between proper and improper tactics, rather than leaving that job
to others. n221 Videotaping would also help reduce the number of wrongful convictions from false confessions by
revealing those rare cases where suspects (particularly the mentally retarded) are led to confess to crimes they did not
commit. n222 I have argued elsewhere that videotaping could largely replace the Miranda regime. n223 Other
commentators - including prominently Stephen Schulhofer, Welsh White, and Richard Leo - have urged that
videotaping should supplement the Miranda regime. n224 And between these varying positions there certainly are a
range of possibilities for using videotaping in combination with various parts of the Miranda regime. n225 Yet the
Court's opinion in Dickerson contains not even the briefest discussion of this (or other) alternatives n226 - it gives no
roadmap for legislators to follow. The result, not surprisingly, has been inaction in Congress and legislatures on possible
alternatives to Miranda. n227
Reasonable people can disagree about exactly which of these various alternatives would have been preferable. But
if this Symposium suggests nothing else, it is that society has compelling reasons [*940] constantly to examine how to
improve its regulations of police interrogation. Miranda itself recognizes this point. Miranda went out of its way
pointedly to "encourage Congress and the States to continue their laudable search for increasingly effective ways of
protecting the rights of the individual while promoting efficient enforcement of our criminal laws." n228 The Miranda
Court explained that "we cannot say that the Constitution necessarily requires adherence to any particular solution" to
the issues lurking in police questioning of suspects. n229 "Our decision," promised Miranda, "in no way creates a
constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have that effect." n230
Thirty-four years later, the Dickerson Court chose not to repeat this encouragement to Congress and the states; nor
did it renew Miranda's promise to avoid creating a constitutional straitjacket. Instead, making a virtue out of vice,
Dickerson tells us that the Miranda procedures have become part of our "national culture" n231 - a cultural straitjacket
presumably not susceptible to reform.

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99 Mich. L. Rev. 898, *940

Miranda needs reform - a point many in this Symposium have advanced. The true tragedy of Dickerson is, then, not
the path that the Court chose - but the paths that it seemingly foreclosed.

Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental RightsSearch & SeizureExclusionary RuleCriminal Law &
ProcedureInterrogationMiranda RightsGeneral OverviewCriminal Law & ProcedureInterrogationVoluntariness
FOOTNOTES:

n1. United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999). For background of the litigation leading to the
Fourth Circuit's decision, see Paul G. Cassell, The Statute that Time Forgot: 18 U.S.C. 3501 and the
Overhauling of Miranda, 85 Iowa L. Rev. 175, 208-23 (1999).

n2. I was interrupted for questions approximately sixty-two times in my thirty minute argument.

n3. Dickerson v. United States, 120 S. Ct. 2326, 2329-37 (2000).

n4. See 120 S. Ct. at 2332-37.

n5. Id. at 2334.

n6. Id. at 2337 (Scalia, J., dissenting).

n7. Others in this Symposium have articulated at great length reasons for believing Dickerson does not
change Miranda doctrine. See Yale Kamisar, Foreword: From Miranda to 3501 to Dickerson to ..., 99 Mich. L.
Rev. 879, 893-94 (2001) ("What has been reaffirmed, at least as far as the Chief Justice is concerned, is not the
Miranda doctrine as it burst on the scene in 1966, but Miranda with all its exceptions attached ... ."); Susan R.
Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional
Criminal Procedure, 99 Mich. L. Rev. 1030, 1071 (arguing that Dickerson "holds that the law is to stay exactly
as it was pre-Dickerson"); George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the
Due Process Notice Cases, 99 Mich. L. Rev. 1081, 1112 (2001) (arguing that Dickerson leaves exceptions to

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99 Mich. L. Rev. 898, *940

Miranda in place, but locating Miranda rule in the Due Process Clause); see also Charles D. Weisselberg, In the
Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1162 (2001) (noting that Dickerson "left Miranda
standing, but with all of the exceptions and modifications that have been crafted during the last thirty-four
years"). This conclusion seems unassailable, although an intermediate appellate court from Colorado disagrees.
See People v. Trujillo, 2000 WL 1862933 (Colo. App. 2000). Both the text and rationale of Dickerson require
leaving the pre-Dickerson exceptions in place, as the Tennessee Supreme Court has explained in a carefully
reasoned decision. See State v. Walton, 41 S.W.3d 75 (Ten. 2001) (pre-Dickerson exceptions to Miranda remain
good law).

n8. 417 U.S. 433 (1974)

n9. Id. at 444.

n10. Id. at 445-446

n11. See, e.g., Davis v. United States, 512 U.S. 452, 457 (1994) (noting that Miranda is "one of a series of
recommended procedural safeguards" that are "not themselves rights protected by the Constitution"); Oregon v.
Elstad, 470 U.S. 298, 307 & n.1(1985) (holding that "a simple failure to administer Miranda warnings is not in
itself a violation of the Fifth Amendment"); New York v. Quarles, 467 U.S. 649, 655 n.5 (1984) ("The failure to
provide Miranda warnings in and of itself does not render a confession involuntary.").

n12. See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 17 (1st Cir. 1995); DeShawn
v. Safir, 156 F.3d 340, 346 (2d Cir. 1998); Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); United States
v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997); United States v. Abrego, 141 F.3d 142, 168-70 (5th Cir. 1998),
cert. denied, 119 S. Ct. 182 (1998); United States v. Davis, 919 F.2d 1181, 1186 (6th Cir. 1990), reh'g en banc
denied, 1991 U.S. App. Lexis 3934; Clay v. Brown, 1998 U.S. App. Lexis 17115, reported in table format, 151
F.3d 1032 (7th Cir.); Winsett v. Washington, 130 F.3d 269, 274 (7th Cir. 1997); Warren v. City of Lincoln, 864
F.2d 1436, 1441-42 (8th Cir. 1989) (en banc), cert. denied, 490 U.S. 1091 (1989); United States v. Lemon, 550
F.2d 467, 472-73 (9th Cir. 1977); Lucero v. Gunter, 17 F.3d 1347, 1350-51 (10th Cir. 1994); Bennett v. Passic,
545 F.2d 1260, 1263 (10th Cir. 1976).

n13. Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled
Testimony, 93 Mich. L. Rev. 929, 970 (1995) [hereinafter Kamisar, "Fruits"] ("According to a majority of the
present Court, [failure to follow Miranda] does not seem to violate a constitutional right at all."). In a more
detailed discussion of these issues, Kamisar explained (accurately, it turns out!) why Miranda nonetheless has

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99 Mich. L. Rev. 898, *940

constitutional foundations. See Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev.
883, 936-50 (2000) [hereinafter Kamisar, Congress].

n14. Dickerson v. United States, 120 S. Ct. 2326, 2335 (2000).

n15. Id.

n16. See, e.g., Kamisar, supra note 7, at 895 ("I usually discount criticism of a case when made by losing
counsel, but this time I am sympathetic when Paul Cassell complains [about] the "skimpy, jerry-built opinion....'
"); Klein, supra note 7, at 1071 (characterizing the "terrible" Dickerson opinion as a "squandered opportunity to
rationalize contradictory case law."); David A. Strauss, Miranda, the Constitution, and Congress, 99 Mich. L.
Rev. 958, 958 (2001) ("It is not clear that the majority opinion ever really answered" the central questions posed
in the case.); see also Barry Friedman & Michael C. Dorf, Shared Constitutional Interpretation After Dickerson,
N.Y.U. Law School Public Law and Legal Theory, Research Paper No. 13 (Fall 2000) (concluding "a Court
brimming with its own importance has paid insufficient attention to its core obligation: to explain the basis for
its decisions. That shortcoming is nowhere more obvious than in the line of post-Miranda cases culminating in
Dickerson.").

n17. E.g., Nardone v. United States, 308 U.S. 338, 340-43 (1939).

n18. Oregon v. Elstad, 470 U.S. 298, 306 n.1 (1985).

n19. 120 S. Ct. at 2335.

n20. This point is pursued in more detail, and in more powerful prose, in 120 S. Ct. 2326, 2342-43 (Scalia,
J., dissenting).

n21. See New York v. Quarles, 467 U.S. 649, 658 n.7 (1984) (justifying holding on the ground that "absent
actual coercion by the officer, there is no constitutional imperative requiring the exclusion of the evidence that
results from police inquiry of this kind").

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99 Mich. L. Rev. 898, *940

n22. 120 S. Ct. at 2342 (Scalia, J., dissenting).

n23. Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 89 n.212 (2000).

n24. See supra note 16.

n25. 521 U.S. 507 (1997).

n26. Henry P. Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 42 (1975).

n27. 403 U.S. 388 (1971).

n28. 367 U.S. 643 (1961).

n29. E.g., Bivens v. Six Unknown Agents, 403 U. S. 388, 391-95 (1971); Mapp v. Ohio, 367 U.S. 643,
655-60 (1961). See also Bush v. Lucas, 462 U.S. 367, 374-75 (1983) (discussing application of enforcement
measures to the states).

n30. The search and seizure exclusionary rule is different from Miranda's exclusionary rule because it is a
remedy for actual violations of the Fourth Amendment. Adopting an analogous approach in the Fifth
Amendment context would mean suppressing evidence only in cases in which a defendant's constitutional right
against compelled self-incrimination has actually been violated. This is precisely the approach of 3501.

n31. 462 U.S. 367 (1983).

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99 Mich. L. Rev. 898, *940

n32. Id. at 372-73, 377.

n33. Id. at 368, 386-90; see also Schweiker v. Chilicky, 487 U.S. 412, 425 (1988) (remedial regime
replacing judicially-devised one upheld because it contained "meaningful safeguards" for the constitutional
rights at issue even though it failed to provide as "complete relief" as a Bivens remedy).

n34. See Smith v. Robbins, 528 U.S. 259 (2000).

n35. 386 U.S. 738 (1967).

n36. Smith, 528 U.S. at 273.

n37. Id. at 276.

n38. E.g., Connecticut v. Barrett, 479 U.S. 523, 528 (1987).

n39. See infra notes 72-94 and accompanying text (discussing safeguards against coerced confessions
provided by 3501 and other measures).

n40. City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997).

n41. Oregon v. Elstad, 470 U.S. 298, 306 (1985) (Miranda "sweeps more broadly than the Fifth Amendment
itself"); Duckworth v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring) ("The Miranda rule
"overprotects' the value at stake.").

n42. See Smith, 528 U.S. at 284 ("We address not what is prudent or appropriate, but only what is

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99 Mich. L. Rev. 898, *940

constitutionally compelled.") (quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)); cf. Palermo v.
United States, 360 U.S. 343, 353 n.11 (1959).

n43. Professor Strauss's interesting article in this Symposium takes the view that Miranda should be viewed
as part and parcel of ordinary constitutional jurisprudence, akin to the interpretation of the First Amendment
rights found in, for example, New York Times v. Sullivan, 376 U.S. 254 (1964). See Strauss, supra note 16, at
960-66. On this view, Strauss argues, the Court properly struck down 3501 because it was not "as good or
better" than the constitutional Miranda rules. Id. at 969-70. The difficulty with this argument from analogy,
however, is that it requires a justification for analogizing Miranda to the "constitutional" interpretation
exemplified by Sullivan rather than to the "prophylactic" interpretation exemplified by Bivens. If I read him
correctly, Strauss fails to offer any explanation for viewing Miranda as akin to Sullivan rather than to Bivens. As
I have tried to argue here, the case for the Bivens analogy is strong. Unlike the Sullivan analogy, a Bivens
analogy fits both the terminology of Miranda doctrine (e.g., "prophylactic rule") and its practical effects
("overprotection" of the right, replacement by Congress, etc.). Of course, if the Bivens analogy is correct,
Congress was free to replace the Miranda rule not with a rule that was, in Strauss's terms, "as good or better"
than Miranda, but rather with one that satisfied the constitutional minimum. See supra notes 32 - 33.

n44. See Brief of Court-Appointed Amicus Curiae Urging Affirmance of the Judgment Below at 4-28,
United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) (No. 99-5525). This document, and many others
related to the Dickerson case, are available on my website at www.law.utah.edu/cassell [hereinafter Cassell
website].

n45. Professor Schulhofer's provocative contribution to this Symposium argues that all of the Justices in
Dickerson share some misconception that Fifth Amendment rights during custodial police questioning are
somehow distinct from "ordinary" Fifth Amendment rights. See Stephen J. Schulhofer, Miranda, Dickerson, and
the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 Mich. L. Rev. 941 (2001). The cases
Schulhofer cites for the "ordinary" principle, however, illustrate only the special point that imposing a penalty
on a person for exercising the Fifth Amendment is constitutionally forbidden. See Hoffman v. United States, 341
U.S. 479 (1951) (criminal contempt); Griffin v. California, 380 U.S. 609, 614 (1965) ("Comment on the refusal
to testify ... is a penalty imposed by courts for exercising a constitutional privilege."); Garrity v. New Jersey, 385
U.S. 493 (1967) (penalty of loss of public employment); Gardner v. Broderick, 392 U.S. 273, 278-79 (1968) (the
"privilege against self-incrimination does not tolerate the attempt ... to coerce a waiver ... on penalty of the loss
of employment"); Brooks v. Tennessee, 406 U.S. 605, 611 (1972) (striking down rule because it "imposed a
penalty for petitioner's initial silence"); Lefkowitz v. Turley, 414 U.S. 70, 83 (1973) (viewing disqualification
from public contracting as an impermissible "penalty for asserting a constitutional privilege" (internal quotation
omitted)); Lefkowitz v. Cunningham, 431 U.S. 801, 805-06 (1977) ("Government cannot penalize assertion of
the constitutional privilege against compelled self-incrimination by imposing sanctions."); New Jersey v.
Portash, 440 U.S. 450, 455-56 (1979) (explaining that the rule considered in Brooks v. Tennessee was found
unconstitutional because it "imposed a penalty on the right to remain silent"); Carter v. Kentucky, 450 U.S. 288,
301 (1981) (explaining that no adverse-inference instruction must be given to jury because "the penalty" for not
testifying "may be just as severe [as in Griffin] when ... the jury is left to roam at large with only its untutored
instincts to guide it ... "). Since Schulhofer's cases reflect only a prohibition of penalizing the exercise of the
privilege of silence, they provide no rational support for Schulhofer's notion that merely questioning a suspect in

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99 Mich. L. Rev. 898, *940

custody automatically violates the Fifth Amendment unless an elaborate set of protective procedures is followed.
See generally Joseph D. Grano, Confessions, Truth and the Law 137-39 & n.151 (1996).
Schulhofer further argues that Fifth Amendment exceptionalism is of recent origin, attributable purely to the
Tucker-Elstad-Quarles lines of cases which "drained Fifth Amendment compulsion of its distinctive content" by
equating it with Fourteenth Amendment voluntariness. See Schulhofer, supra, at 949-50. But Court precedent
before Miranda specifically recognized the congruence of the voluntariness standard and the self-incrimination
standard in the specific context of custodial questioning. See Malloy v. Hogan, 378 U.S. 1, 7 (1964) (stating that
voluntariness standard and Fifth Amendment standard for admission of confessions are "the same standard").
Schulhofer also claims that the fact that Fifth Amendment precedent condemns certain practices as
"impermissibly compelling per se" demonstrates that the voluntariness standard is "entirely foreign to the Court's
Fifth Amendment jurisprudence ..." Schulhofer, supra, at 947-48. But per se prohibitions were recognized under
the voluntariness standard as well. See, e.g., Stein v. New York, 346 U.S. 156, 182 (1953) (holding that where
suspect is threatened with violence, there "is no need to weigh or measure its effects on the will of the
individual," because such confessions are "too untrustworthy to be received as evidence of guilt"). It is therefore
unsurprising to find the Court's cases routinely treating compulsion under the Fifth Amendment and
involuntariness as the same standard in substance. See Portash, 440 U.S. at 458-59 (treating compulsion in the
Fifth Amendment sense as an interchangeable concept with coercion and involuntariness); Garrity, 385 U.S. at
495-98 (same).
Of course, as a final problem, Schulhofer's position would require repudiating numerous post-Miranda
cases, such as Tucker, Quarles, and Elstad. Small wonder, then, that, although he advanced this position to the
Court in Dickerson, see Brief for Amicus Curiae The American Civil Liberties Union in Support of Petitioner at
7-11, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525) (authored in part by Schulhofer), not a
single Justice even nibbled on it. At least I got two votes!

n46. Bush v. Lucas, 462 U.S. 367, 387-90 (1983).

n47. Schweiker v. Chilicky, 487 U.S. 412, 429 (1988).

n48. Chilicky, 487 U.S. at 425 (quoting Bush, 462 U.S. at 389) (internal citation omitted); see also Palermo,
360 U.S. at 343, 353 n.11 (discovery rules for criminal defendants).

n49. Dickerson, 120 S. Ct. at 2333 (quoting Mu'Min v. Virginia, 500 U.S. 415, 422 (1991)).

n50. See supra notes 27-38 and accompanying text (discussing Mapp, Bivens, and similar cases).

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99 Mich. L. Rev. 898, *940

n51. See e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-28 (1964).

n52. See Banco Nacional de Cuba v. Farr, 383 F.2d 166, 180-81 (2d Cir. 1967), cert. denied, 390 U.S. 956
(1968). For further discussion of the act of state analogy to Miranda, see Cassell, supra note 1, at 238-39.

n53. The doctrine furthers the constitutional "right to engage in interstate trade," Dennis v. Higgins, 498
U.S. 439, 448 (1991) (internal quotations omitted), by invalidating state laws that unduly burden or interfere
with such commerce. The Court's decisions in this area are certainly "constitutionally based" on the Commerce
Clause, but Congress is free to modify them. See, e.g., Northeast Bancorp v. Board of Governors, 472 U.S. 159,
174-75 (1985); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 436 (1856).

n54. 386 U.S. 18 (1967).

n55. The following discussion draws heavily on the amicus brief from the Criminal Justice Legal
Foundation, which presented this argument to the Court. See Brief of Amicus Criminal Justice Legal
Foundation, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525).

n56. See Chapman, 386 U.S. at 20 & n.3.

n57. See Daniel Meltzer, Harmless Error and Constitutional Remedies, 61 U. Chi. L. Rev. 1, 2, 24-26
(1994).

n58. 386 U.S. at 24-26.

n59. 386 U.S. at 21.

n60. Meltzer, supra note 57, at 26 ("The harmless error rule should be seen as constitutional common law.").

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99 Mich. L. Rev. 898, *940

n61. Tr. of Oral Argument at 14, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525) (quoting
Chapman v. California, 386 U.S. 18, 21 (1967) (emphasis added)).

n62. Dickerson, 120 S. Ct. at 2333 n.3 (quoting 28 U.S.C. 2254(a)).

n63. 120 S. Ct. at 2333 n.3 (emphases added).

n64. See Nat'l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 850-51 (1985)
(providing that federal common law as articulated in rules that are fashioned by court decisions constitutes
"laws" as that term is used in 28 U.S.C. 1331).

n65. 304 U.S. 64 (1938).

n66. See Larry W. Yackle, Post Conviction Remedies 97, at 371 (1981 & 1996 Supp.) (concluding Miranda
rules can be viewed as "federal "law' which, under the [habeas] statute, may form the basis for habeas relief").

n67. See Tr. Of Oral Argument at 15-16, Withrow v. Williams, 507 U.S. 680 (1993) (No. 91-1030). While
the transcript of oral argument does not identify the justices who are speaking, I have listened to the tape and
believe the justice is Justice Stevens.

n68. 68.Tr. of Oral Argument at 14-15, Withrow v. Williams, 507 U.S. 680 (1993) (No. 91-1030).

n69. 69.See Brief of the United States at 24, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No.
99-5525).

n70. 70.Curiously, in Withrow, the prisoner was represented by Seth Waxman. When Mr. Waxman became

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99 Mich. L. Rev. 898, *940

Solicitor General, he apparently directed the Department to reverse, without explanation, its earlier position.

n71. 71.Tr. of Oral Argument at 18, Withrow v. Williams, 507 U.S. 680 (1993) (No. 91-1030) (quotation
marks inserted around "law").

n72. 384 U.S. 436 (1966).

n73. Miranda, 384 U.S. at 467.

n74. See S.Rep No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N 2112.

n75. 18 U.S.C. 3501(b) (1994).

n76. See Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) (noting that Mirandized statements rarely
found involuntary), quoted with approval in Dickerson, 120 S. Ct. at 2336; see also Welsh S. White, Miranda's
Failure to Restrain Pernicious Interrogation Practices, 99 Mich. L. Rev. 1211, 1219 (2001) (noting that a survey
of cases suggests that successful challenges to Mirandized confessions are rare).

n77. See Brief of Amicus Dep't of Justice, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No.
99-5525).

n78. See infra note 174 (discussing FBI practice). United States v. Dickerson, 166 F.3d 66 (4th Cir. 1999).

n79. 9. United States v. Dickerson, 166 F.3d 66 (4th Cir. 1999).

n80. Section 3501 also extended additional protections to suspects in at least one other way. See Cassell,

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99 Mich. L. Rev. 898, *940

supra note 1, at 243 (noting 3501's requirement that courts consider the suspect's awareness of the nature of the
charges against him, a requirement that extends further than Miranda doctrine found in Colorado v. Spring, 479
U.S. 564, 577 (1987)).

n81. See generally William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L Rev. 1479,
1483-1538 (1987) (courts should consider entire legal landscape in construing statutes).
Several critiques of the constitutionality of 3501 appear to suffer from the problem of analyzing the statute
alone without considering the supplemental devices bolstering 3501. See, e.g., Kamisar, Congress, supra note 13
(discussing only 3501); Klein, supra note 7, at 1057; Strauss, supra note 16, at 969.

n82. See supra notes 27-33 and accompanying text.

n83. 28 U.S.C. 2680(h) (1994).

n84. See 28 C.F.R. 0.50 (1994) (establishing Justice Department's Civil Rights Division).

n85. See Brief of Court-Appointed Amicus at 28-40, Dickerson v. United States, 120 S. Ct. 2326 (2000)
(No. 99-5525). Other commentators have also raised this issue. See, e.g., Harold J. Krent, The Supreme Court as
an Enforcement Agency, 55 Wash. & Lee L. Rev. 1149, 1184-87, 1203-04 (1998).

n86. 120 S. Ct. at 2335.

n87. 468 U.S. 1032, 1044-45 (1984).

n88. Miranda v. Arizona, 384 U.S. 436, 467 (1966).

n89. Cf. Harris v. New York, 401 U.S. 222, 224 (1971) ("Some comments in the Miranda opinion can

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99 Mich. L. Rev. 898, *940

indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that
issue was not at all necessary to the Court's holding and cannot be regarded as controlling.").

n90. See supra notes 11-13 and accompanying text.

n91. 120 S. Ct. at 2337-38 (Scalia, J., dissenting).

n92. 120 S. Ct. at 2335 (emphasis added) (internal citation omitted).

n93. 120 S. Ct. at 2334 n.6 (emphasis added).

n94. Cf. Smith v. Robbins, 120 S. Ct. 746, 759 (2000) (upholding against constitutional challenge an
alternative to Anders procedure that provided protection for constitutional right at issue at least as good as
contained in Anders). Bolstering this point is the congressional judgment that 3501 would effectively secure
suspects' rights, a point pursued at greater length in Part III, infra. Cf. Bush v. Lucas, 462 U.S. 367 (1983);
Schweiker v. Chilicky, 487 U.S. 412 (1987) (deferring to congressional judgments on effectiveness issues).
Also, during the sixteen months 3501 was in effect in the Fourth Circuit, it appeared that, in practice, 3501 has
indeed been at least as effective as the Miranda regime at protecting Fifth Amendment rights.

n95. 521 U.S. 507 (1997).

n96. See generally Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S.
Code, 56 Mont. L. Rev. 249 (1995).

n97. 494 U.S. 872 (1990).

n98. For trenchant criticism of Boerne, see Michael W. McConnell, Institutions and Interpretation: A
Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997).

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99 Mich. L. Rev. 898, *940

n99. Boerne, 521 U.S. at 532.

n100. Id. at 520. See Kimel v. Florida Board of Regents, 120 S. Ct. 631, 644-50 (2000).

n101. Kimel, 120 S. Ct. at 647.

n102. Withrow v. Williams, 507 U.S. 680, 709-10 (1993) (O'Connor, J., dissenting) (citations omitted)
(collecting numerous illustrations).

n103. See, e.g., United States v. Green, 592 A.2d 985, 986 n.2 (D.C. 1991) (statement specifically found to
be voluntary below), cert. granted, 504 U.S. 908 (1992) (No. 91-1521) and cert. dismissed, 507 U.S. 545 (1993);
Oregon v. Elstad, 470 U.S. 298, 315 (1985) ("It is ... beyond dispute that respondent's earlier [un-Mirandized]
remark was voluntary."); Oregon v. Hass, 420 U.S. 714, 722 (1975) ("There is no evidence or suggestion that
Hass' statements to [police] ... were involuntary or coerced."); Michigan v. Tucker, 417 U.S. 433, 445 (1974)
("the interrogation in this case involved no compulsion sufficient to breach the right against compulsory
self-incrimination").

n104. Cf. Boerne, 521 U.S. at 533 (commenting favorably on the presence of such devices as a means of
assuring proportionality).

n105. See Kimel, 120 S. Ct. at 650.

n106. See Miranda v. Arizona, 384 U.S. 436, 445-46 (1966). Interestingly, Miranda did not cite any
contemporary cases in which the police had extracted a confession through threatened force. For this point, it
relied on such dated information as the Wickersham Report in 1931 and a few Supreme Court cases in the 1940s
and early 1950s. 384 U.S. at 445-46. Miranda went on to conclude that police coercion "is not, unfortunately,
relegated to the past or to any part of the country," id. at 446, resting this assertion on a few additional isolated
and dated reports. Id. The Court conceded, however, that "the examples given above are undoubtedly the
exception now." Id. at 447.

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99 Mich. L. Rev. 898, *940

n107. Miranda, 384 U.S. at 448.

n108. See generally id. at 532-33 (White, J., dissenting).

n109. Id. at 448.

n110. Id. at 457.

n111. Id. at 645. It is also noteworthy that both the executive and legislative branches reached their own
conclusions, contemporaneously with Miranda, that coercion as traditionally understood was not pervasive in
custodial interrogations. See President's Comm'n on Law Enforcement and Admin. of Justice, The Challenge of
Crime in a Free Society 93 (1967) (stating, based on pre-Miranda data, that "today the third degree is almost
nonexistent"); S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2134 (reviewing
congressional testimony from expert witnesses on lack of coercive techniques and concluding Miranda's
contrary findings were based on an "overreaction to defense claims that police brutality is widespread"); see
generally Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 473-78
(1996) [hereinafter Cassell, Social Costs] (collecting evidence on limited number of involuntary confessions in
1966).

n112. Boerne, 521 U.S. at 531-32.

n113. 120 S. Ct. at 3227 (Scalia, J., dissenting); see also discussion at supra note 91 and accompanying text.

n114. 120 S. Ct. at 2335 (internal citation omitted).

n115. See S. Rep. No. 103-111, at 8 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1897 ("By lowering the
level of constitutional protection for religious practices, [Smith] has created a climate in which the free exercise
of religion is jeopardized.").

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99 Mich. L. Rev. 898, *940

n116. Compare Katzenbach v. Morgan, 384 U.S. 641, 649-50 (1966) (upholding congressional ban on
literacy tests), with Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51-54 (1959) (refusing to
strike down literacy tests under Court's authority to enforce the Equal Protection Clause).

n117. Oregon v. Elstad, 470 U.S. 298, 307 (1985).

n118. Coleman v. Thompson, 501 U.S. 722, 737 (1991). Per se rules are also sometimes justified on the
grounds that exceptions are not sufficiently "important to justify the time and expense necessary to identify
them." Id. (internal citation omitted). This rationale has no application when considering 3501. Congress has
determined to the contrary that the judiciary should devote such additional energy as may be needed (if any) to
making accurate (rather than presumptive) voluntariness determinations in federal criminal cases. Moreover,
because confessions are "essential to society's compelling interest in finding, convicting, and punishing those
who violate the law," Moran v. Burbine, 475 U.S. 412, 426 (1986), individualized voluntariness determinations
would appear to be time well spent.

n119. Coleman, 501 U.S. at 737.

n120. Cf. Boerne, 521 U.S. at 519 ("Legislation which alters the meaning of the Free Exercise Clause
cannot be said to be enforcing the Clause.").

n121. Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, 648 (2000). See generally J. Grano, supra note 45, at
198 (arguing that Miranda "substituted for the constitutional rule a new substantive rule of its own making").

n122. 384 U.S. at 503 (Clark, J., dissenting).

n123. Section 3501(a) provides that a confession "shall be admissible in evidence if it is voluntarily given"
(emphasis added), implying that the presumption is against admissibility unless and until voluntariness is
established. The Court, of course, has a duty to read congressional enactments so as to comply with the
Constitution.

n124. 462 U.S. 213 (1983).

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99 Mich. L. Rev. 898, *940

n125. Id. at 234-35 (footnote omitted).

n126. Id. at 230.

n127. See, e.g., Alabama v. White, 496 U.S. 325, 328 (1990).

n128. Gates, 462 U.S. at 230 n.6.

n129. See Developments in the Law - Confessions, 79 Harv. L. Rev. 935, 1069-70 (1966) (noting majority
rule that prosecution proves voluntariness and minority rule that defendant proves involuntariness). After
Miranda, the issue has been clarified, but has not been definitively resolved. Lego v. Twomey, 404 U.S. 477,
489 (1972), definitely suggests that the prosecution must prove voluntariness. See generally 3 Wayne R. LaFave
et al., Criminal Procedure 10.3(c) at 429 (2d ed. 1999) (noting Lego "raises serious doubts" about placing burden
on defendant to prove involuntariness). But some states continue to place the burden on the defendant to show
involuntariness. See, e.g., Chambers v. State, 742 So.2d 466, 468 (Fla. Dist. Ct. App. 1999).

n130. Brief of Amicus Curiae of the Bipartisan Legal Advisory Group of the United States House of
Representatives in Support of Affirmance at 15-16, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No.
99-5525); Brief for the States of South Carolina et al. as Amici Curiae Urging Affirmance at 5-16, Dickerson,
120 S. Ct. 2326 (2000) (No. 99-5525); Brief of Amicus Curiae of Senators Orrin G. Hatch et al. Urging
Affirmance at 7-9, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525).

n131. Dickerson, 120 S. Ct. at 2336-37 n.8.

n132. Bell v. Wolfish, 441 U.S. 520, 532 n.13 (1979) (emphasis added); see also United Parcel Service, Inc.
v. Mitchell, 451 U.S. 56, 60 n.2 (1981) (declining to reach issue "since it was not raised by either of the parties
here or below"); Knetsch v. United States, 364 U.S. 361, 370 (1960) (declining to reach argument that "has
never been advanced by petitioners in this case").

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99 Mich. L. Rev. 898, *940

n133. See Young v. United States, 315 U.S. 257, 259 (1942) ("The proper administration of the criminal
law cannot be left merely to the stipulation of the parties.").

n134. The Court allows greater freedom in responding to a question presented, because a respondent may,
without cross-petitioning, "urge any grounds which would lend support to the judgment below," Dayton Board
of Education v. Brinkman, 433 U.S. 406, 419 (1977), including "grounds different from those upon which the
court below rested its judgment." McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434
(1940).

n135. Presumably the House of Representatives could have intervened in Dickerson to defend the statute, an
action which would seem to have given it "party" status for purpose of having its arguments considered. See,
e.g., Bowsher v. Synar, 478 U.S. 714 (1986); see generally, Note, Executive Discretion and the Congressional
Defense of Statutes, 92 Yale L.J. 970 (1983). It truly elevates form over substance to refuse to consider the
arguments by the House because they were instead presented in the form of an amicus brief.

n136. I should emphasize that I in no way question stare decisis doctrine. Cf. Gary Lawson, The
Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y. 23 (1994); Michael Stokes Paulsen,
Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109
Yale L.J. 1535 (2000).

n137. See, e.g., Payne v. Tennessee, 501 U.S. 808 (1991).

n138. Miranda, 384 U.S. at 477.

n139. Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).

n140. Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. Rev. 185, 281 [hereinafter O'Neill,
Undoing]; see also Michael Edmund O'Neill, Miranda Remediated, 3 Greenbag 149 (2000) [hereinafter O'Neill,
Remediated].

n141. Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (quoting Turner Broadcasting Sys.,

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99 Mich. L. Rev. 898, *940

Inc. v. F.C.C., 512 U.S. 622 (1944); accord Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 331
n.12 (1985).

n142. See, e.g., Klein, supra note 7, at 1066-68 (2001) (taking this view and collecting supporting citations).

n143. 120 S. Ct. 1740 (2000).

n144. Id. at 1752. Nonetheless, for the majority these findings could not be given decisive weight on the
ultimate question of effect on interstate commerce because "they rely so heavily on a method of reasoning that
we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers." This
mixed question of fact and law was, the majority concluded, for the judiciary.

n145. Id. at 1760 (Souter, J., dissenting).

n146. O'Neill, Undoing, supra note 140, at 210-33.

n147. S. Rep. No. 90-1097, at 46 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2132.

n148. See id. at 42, 45, reprinted in 1968 U.S.C.C.A.N. 2112, 2128, 2131-32.

n149. Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev. 883, 894 (2000).

n150. Cf. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 558-59 (1993) (Scalia, J.,
concurring).

n151. See Kamisar, supra note 149, at 910 (giving five reasons for disbelieving Committee's analysis on the

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99 Mich. L. Rev. 898, *940

constitutionality of 3501).

n152. Professor Kamisar does point to a "conspicuous absence of any law professors at subcommittee
hearings" as one reason for not crediting the Senate Judiciary Committee's report. Id. at 902. While I am sure
many of us in the academy will find merit in Kamisar's suggestion that academics are vital to congressional
deliberations, this is no requirement for crediting legislative findings. Also, other defenders of Miranda did
testify at the hearings. See, e.g., Controlling Crime Through More Effective Law Enforcement: Hearings Before
the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 90th Cong. 1159 (1967)
(hereinafter Controlling Crime Hearings) (statement of Vincent L. Broderick on behalf of the American Civil
Liberties Union).

n153. See id. at 1120-23.

n154. Id. at 200-02.

n155. Id. at 223.

n156. Compare, e.g., Cassell, Social Costs, supra note 111, at 395-418 (using the studies as reason for
finding significant harm from Miranda), with Stephen J. Schulhofer, Miranda's Practical Effect: Substantial
Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500, 516-47 (1996) [hereinafter Schulhofer,
Practical Effect] (reading the same studies differently).

n157. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 82-83 (1981) (in evaluating the constitutionality of a
statute, "the District Court was quite wrong in undertaking an independent evaluation of this evidence, rather
than adopting an appropriately deferential examination of Congress' evaluation of that evidence").

n158. See, e.g., Cassell, supra note 1, at 208-09 (noting congressional hearings urging the Justice
Department to enforce 3501); see also infra notes 185-196 and accompanying text (noting efforts of Senators
Hatch and Thurmond to support 3501).

n159. Mapp v. Ohio, 367 U.S. 643 (1961).

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99 Mich. L. Rev. 898, *940

n160. The Court claimed that the FBI had operated under similar rules, but this claim was transparently
flawed. See Office of Legal Policy, U.S. Dep't of Justice, Report to the Attorney General on the Law of Pretrial
Interrogation 48-49 (1986), reprinted in 22 Mich. J.L. Reform 437, 501-02 (1989) [hereinafter OLP Report].

n161. Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Burger, C.J., concurring).

n162. 120 S. Ct. at 2336.

n163. Id.

n164. Id.

n165. See supra notes 143-145 and accompanying text.

n166. See The Clinton Justice Department's Refusal to Enforce the Law on Voluntary Confessions:
Hearings ... of the Senate Comm. on the Judiciary, 106th Cong. (1999) (statement of Gilbert G. Gallegos,
President of the Grand Lodge, Fraternal Order of Police) ("Sometimes we hear the claim that police have
"learned to live with Miranda' as an argument against any change in the rules used in our courts. If what is meant
by this is that police will do their very best to follow whatever rules the Supreme Court establishes, it is true
police have "teamed [sic] to live with Miranda' ... But if what is meant by this is that police "live with' and do
not care about the harmful effects of these Court rules, nothing could be further from the truth ... too often these
rules interfere with the ability of police officers to solve violent crimes and take dangerous criminals off the
streets.").

n167. Interview with Timothy Flannigan, biographer of Chief Justice Burger, in Washington, D.C. (Apr. 6,
2001). Part of his reasoning may have been that, contrary to his 1980 position that Miranda should neither be
"disparaged" nor "extended," the Court had in fact extended Miranda in various ways, including in particular the
line of cases originating with Edwards v. Arizona, 451 U.S. 477 (1981), which significantly restricts the ability
of law enforcement officers to question suspects. It is this line of cases that has been identified by federal law
enforcement agencies as creating the most harmful effects from Miranda. See infra note 188 and accompanying

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99 Mich. L. Rev. 898, *940

text (noting FBI difficulties under Edwards line of cases).

n168. See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the
Effects of Miranda, 43 UCLA L. Rev. 839, 884-85 (1986).

n169. Yale Kamisar et al., Modern Criminal Procedure: Cases, Comments, and Questions 509 (9th ed.
1999); see also Kamisar, Congress, supra note 13, at 951 ("Not all the opinions written in confession cases over
the past thirty years have saddened the hearts of Miranda's friends.").

n170. 451 U.S. 477 (1981).

n171. McNeil v. Wisconsin, 501 U.S. 171, 176 (1991).

n172. See Arizona v. Roberson, 486 U.S. 675 (1988).

n173. See Minnick v. Mississippi, 498 U.S. 146 (1990).

n174. See Brief of the Federal Bureau of Investigation's Agents Association as Amicus Curiae, Dickerson v.
United States, 120 S. Ct. 2326 (2000) (No. 99-5525); supra note 167 (noting concern of FBI about Edwards).
Edwards has been arguably weakened in one small respect. In Davis v. United States, 512 U.S. 452 (1994),
the Court held that a request for counsel had to be unambiguous to trigger the questioning cutoff rules once a
suspect had waived his right. Here again, however, the empirical evidence suggests that this modification has
not been particularly useful for law enforcement. Cassell & Hayman, supra note 168, at 860 (explaining that
only 2.3% of cases involved post-waiver invocations of rights, and all of those cases involved suspects who had
previously given incriminating information). The three cases involved suspects who had already given
incriminating information. Id. See generally William J. Stuntz, Miranda's Mistake, 99 Mich. L. Rev. 975, 988
(2001) (discussing infrequency of those who invoke rights after waivers - "Conditional Talkers" in his lexicon).

n175. See supra notes 76-78 and accompanying text.

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99 Mich. L. Rev. 898, *940

n176. Withrow v. Williams, 507 U.S. 680, 711 (1993) (O'Connor, J., dissenting).

n177. See 120 S. Ct. at 2347 (Scalia, J., dissenting) (noting politely this unexplained reversal by Justice
O'Connor).

n178. Cassell, Social Costs, supra note 111; 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);
Cassell & Hayman, supra note 168. Three additional reasons for believing that Miranda harmed law
enforcement are the contemporary reports of law enforcement officers to that effect, see Paul G. Cassell, Reply,
All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. Rev. 1084, 1106-10 (1996);
the higher confession rates found in Britain and Canada, see Cassell, Social Costs, supra note 111, at 418-22;
Cassell & Hayman, supra note 168, at 876-80; and the decline in innocent suspects who are exonerated through
confessions, see Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And
From Miranda, 88 J. Crim. L. & Criminology 497, 551 (1998). These positions, of course, have not been
universally accepted by legal academics. Compare, e.g., Schulhofer, Practical Effect, supra note 156, George C.
Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L.
Rev. 821 (1996), and John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 Stan. L. Rev. 1147
(1998), with, e.g., Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, 36 Hous. L. Rev.
1251, 1286 (1999) (book review) ("Professor Cassell's research is important because it does remind us that
Miranda imposes a cost on thousands of cases.").

n179. See, e.g., Controlling Crime Hearings, supra note 152, at 199, 726, 1092.

n180. See Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L.
Rev. 1000, 1010-11 (2001); Klein, supra note 7, at 1075-76.

n181. See, e.g., Withrow, 507 U.S. at 713 (citing amicus brief from law enforcement agency as a reason for
not contracting Miranda).

n182. The briefs are available on the Cassell website, supra note 44. The brief from the IACP was
nominally "in support of neither party" but was in substance fully supportive of the Fourth Circuit's opinion.
Brief of Amici Curiae for Americans for Effective Law Enforcement, Inc., Joined by the International
Association of Chiefs of Police, Inc., the National Sheriffs' Association, and the Virginia Association of Chiefs

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99 Mich. L. Rev. 898, *940

of Police, in Support of Neither Party, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525),
available at Cassell website, supra note 44.

n183. A brief was filed by individual police officers supporting Dickerson, which also contained two minor
law enforcement groups: the Police Foundation and the National Black Police Association (not to be confused
with the National Organization of Black Law Enforcement Executives, the far more prominent representative of
African-American law enforcement officers). Brief of Griffin B. Bell et al. as Amici Curiae in Support of
Petitioner, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525). But the attorneys working on this brief were
unable to secure the assent of even a single major law enforcement organization for their position, despite the
fact (I have been reliably informed) that they called many of the same nationally prominent groups that
ultimately supported the Fourth Circuit.

n184. Brief for the United States at 34, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525).

n185. Letter from Senators Orrin G. Hatch and Strom Thurmond to Attorney General Janet Reno (Feb. 15,
2000) (available on Cassell website, supra note 44); see also 146 Cong. Rec. S760 (daily ed. Feb. 24, 2000)
(statement of Sen. Thurmond).

n186. Letter from Robert C. Gleason, Deputy Chief Counsel, Drug Enforcement Agency, to Patty Stemler,
Chief, Dep't of Justice Criminal Div., Appellate Section (undated) (available on Cassell website, supra note 44).

n187. Letter from Richard A. Fiano, Chief of Operations, Drug Enforcement Agency, to Frank A.S.
Campbell, Deputy Assistant Attorney General, Office of Policy Development, Drug Enforcement Agency (Oct.
13, 1999) (available on Cassell website, supra note 44). In a curious attempt to undercut these memos written in
the ordinary course of business, the DEA's politically-appointed General Counsel wrote a memo on February 22,
2000 (just two days before the Department's lodging with the Court and after the request from Senators Hatch
and Thurmond), that attempted to "clarify" some of the statements made in the earlier memos. Letter from
Cynthia R. Ryan, Chief Counsel, Drug Enforcement Agency, to Seth P. Waxman, Solicitor General, Dep't of
Justice (Feb. 22, 2000) (available on Cassell website, supra note 44).

n188. Letter from Larry R. Parkinson, General Counsel, Federal Bureau of Investigations, to Eleanor D.
Acheson, Assistant Attorney General, Office of Policy Development, Drug Enforcement Agency (Oct. 19, 1999)
(available on Cassell website, supra note 44).

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99 Mich. L. Rev. 898, *940

n189. Letter from Senators Orrin G. Hatch and Strom Thurmond to Attorney General Janet Reno, supra
note 185.

n190. Reply Brief for the United States at 17-18, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No.
99-5525).

n191. Letter from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, Dep't of Justice,
to Senator Fred Thompson (Nov. 5, 1997), reprinted in The Clinton Justice Department's Refusal to Enforce the
Law on Voluntary Confessions: Hearing before the Senate Subcomm. on Crim. Justice Oversight of the Senate
Comm. on the Judiciary, 106th Cong. at 124 (1999).

n192. Id.

n193. Letter from Senators Orrin G. Hatch and Strom Thurmond to Attorney General Janet Reno and
Solicitor General Seth P. Waxman (Apr. 18, 2000) (available on Cassell website, supra note 44).

n194. Letter from Solicitor General Seth P. Waxman to General William K. Suter, Clerk, United States
Supreme Court (Apr. 20, 2000) (available on Cassell website, supra note 44).

n195. Brief for the United States at 19-20, Dickerson, 120 S. Ct. 2326 (2000) (No. 99-5525).

n196. See generally Cassell, supra note 1, at 223-25 (criticizing the Department for failing to defend 3501).
Cf. Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by
Reconsidering Miranda, 149 U. Pa. L. Rev. 251 (2000) (discussing whether courts should have considered the
statute without Justice Department prompting); Erwin Chemerinsky, The Court Should Have Remained Silent:
Why the Court Erred in Deciding Dickerson v. United States, 149 U. Pa. L. Rev. 287 (2000) (same).

n197. Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (plurality opinion).

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99 Mich. L. Rev. 898, *940

n198. Id. (emphasis added).

n199. As the Court's references to "costs" makes clear, the Court's own stare decisis jurisprudence directly
supplies an answer to Professor Susan Klein's query as to why data on lost convictions should be relevant to
Miranda jurisprudence. See Klein, supra note 7, at 1076 n.204. But Miranda doctrine as well has long made
costs and benefits directly relevant. See, e.g., Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986) (describing
Miranda as "a carefully crafted balance designed to fully protect both the defendant's and society's interests").
Even Miranda's most ardent supporters seem to agree. See, e.g., Yale Kamisar, The "Police Practice" Phases of
the Criminal Process and the Three Phases of the Burger Court, in The Burger Years 143, 150 (Herman
Schwartz ed., 1987) (noting that striking a balance "is the way Miranda's defenders - not its critics - have talked
about the case for the past twenty years"); Schulhofer, Practical Effect, supra note 156, at 505 (agreeing that "the
size of a legal problem does matter"); see generally Tracey L. Meares & Bernard Harcourt, Transparent
Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. Crim. L. & Criminology
733 (2000).

n200. To be clear, my argument is that the Court should have accepted Congress's factual findings on harm
(criminals going free), not that it should have deferred to the congressional determination that interrogations are
not inherently coercive. This latter conclusion, a mixed question of fact and law, presents a more difficult case
for deference to congressional findings than the purely factual findings discussed in the text. See generally
Cassell, supra note 1, at 249 n.355 (collecting authorities on the not-inherently-coercive argument).

n201. Cf. Paul G. Cassell, Barbarians at the Gates? A Reply to the Critics of the Victims' Rights
Amendment, 1999 Utah L. Rev. 479 (discussing failures of the criminal justice system in recognizing victims'
rights).

n202. Cf. Kamisar, supra note 7, at 897 (stating that Dickerson basically said, "Let the professors figure it
out.").

n203. See, e.g., Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621, 678
(1996). For a competing view of the evidence on this point, see, e.g., Cassell, supra note 111, at 473-78.

n204. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 460 (1987). For competing
views of the message sent by Miranda, see, e.g., Joseph D. Grano, Confessions, Truth and the Law (1996);
Stephen J. Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering
Miranda," 54 U. Chi. L. Rev. 938, 948 (1987).

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99 Mich. L. Rev. 898, *940

n205. For this reason, among others, I have argued for replacing Miranda rather than overruling it.

n206. 119 S. Ct. 1849 (1999).

n207. Erik Luna, Constitutional Roadmaps, 90 J. Crim. L. & Criminology 1125 (2000).

n208. See Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L Rev. 40 (1961). See generally
Luna, supra note 207, at 1173-85 (discussing various theories of interbranch dialogue).

n209. To be clear, Professor Luna reserves "for another day" the question of whether the Court's
"disinclination toward hearing political alternatives can serve as a constitutionally legitimate motivation for
judicial decisionmaking and opinion writing." Luna, supra note 207, at 1236 n.543. I want to argue here that, at
least in the context of replacements for Miranda, such disinclination is illegitimate, or at least inadvisable.

n210. OLP Report, supra note 160, reprinted in 22 U. Mich. J.L. Reform 564 (1989).

n211. See Paul G. Cassell, Miranda's "Negligible" Effect on Law Enforcement: Some Skeptical
Observations, 20 Harv. J.L. & Pub. Pol'y 327, 328 (1997) (collecting authorities on this point).

n212. Cf. Cassell, supra note 1, at 200-19 (reviewing protracted litigation involved in getting 3501 before
the Supreme Court).

n213. Stuntz, supra note 174, at 976.

n214. See OLP Report, supra note 160, at 99, reprinted in 22 U. Mich. J.L. Reform 548-49.

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99 Mich. L. Rev. 898, *940

n215. See Laurie Magid, Deceptive Police Interrogation Practices: How Far is Too Far?, 99 Mich. L. Rev.
1168 (2001); supra Parts IV.A-B.

n216. White, supra note 76, at 1220-21

n217. Leo, supra note 180, at 1027.

n218. Klein, supra note 7, at 1035.

n219. Stuntz, supra note 174, at 976.

n220. See Cassell, Social Costs, supra note 111, at 486-92.

n221. See Stuntz, supra note 174, at 999.

n222. See Cassell, Social Costs, supra note 111, at 488-89; 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, 582-84 (1999).

n223. See Cassell, Social Costs, supra note 111, at 486-98; Cassell & Fowles, supra note 178, at 1130.

n224. See Leo, supra note 180, at 1028-29; Richard A. Leo & Richard J. Ofshe, The Consequences of False
Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88
J. Crim. L. and Criminology 429, 494-96 (1998); Schulhofer, Practical Effect, supra note 156, at 503; Welsh S.
White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv.
C.R.-C.L. L. Rev. 105, 154-55 (1997).

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99 Mich. L. Rev. 898, *940

n225. For interesting arguments along these lines, see Friedman & Dorf, supra note 16; Donald Dripps,
Constitutional Theory for Criminal Procedure: Dickerson, Miranda , and the Continuing Quest for
Broad-But-Shallow (2000) (arguing that videotaping could replace the Edwards rules). My proposed videotape
replacement for Miranda also retains parts of the Miranda regime. See Cassell, Social Costs, supra note 111, at
486-98.

n226. Another often-discussed alternative to Miranda is the questioning of suspects by magistrates rather
than police officers. See Akhil Reed Amar, The Constitution and Criminal Procedure 77 (1997); see also Paul G.
Kauper, Judicial Examination of the Accused - A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932).

n227. See Luna, supra note 207, at 1236-38 n.544.
The only post-Dickerson response in Congress was the introduction of a bill by Senator Leahy that would
have repealed the operative provisions of 3501. S. 2830, 106th Cong., 2d Sess. (2000). The bill went nowhere in
the 106th Congress. Presumably the majority in Congress prefers the approach of 3501, as evidenced by the
amicus briefs in Dickerson, see supra note 130 and accompanying text.

n228. 384 U.S. at 467 (emphasis added).

n229. Id.

n230. Id.

n231. 120 S. Ct. at 2336.

 

 

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