Publication Date

3-2019

Journal

Boston University Law Review

Abstract

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just as a Fourth Amendment violation occurs in the field.

I rest this argument on the interrogation manuals relied on by the Miranda Court, modern interrogation manuals, and actual interrogation practice as described by Richard Leo. The key to this argument is the fact that there is a difference in kind between coercion and compulsion. Neither courts nor scholars have heeded this difference in interpreting Miranda, and have instead spoken incoherently of coercion under the Self Incrimination Clause. This results in the duplication of the Due Process clauses and also raises a bar to showing a Miranda violation, or obtaining relief for one, that virtually no one can clear. In interpreting and applying Miranda, courts ought to distinguish compulsion from coercion, and recognize that the interrogators’ effective invocation of the duty to give evidence is compulsion under Miranda, and also under the Self Incrimination Clause itself. To recognize that a Miranda violation is a violation of the Self Incrimination Clause has profound implications for Miranda doctrine; principally, the application of a robust exclusionary rule that includes a fruit of the poisonous tree doctrine.

Volume

99

First Page

523

Publisher

Boston University School of Law

Keywords

Miranda, custody, compulsion, coercion, interrogation, confession Self Incrimination Clause, Fifth Amendment

Disciplines

Constitutional Law | Criminal Law | Criminal Procedure | Fourth Amendment | Law

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