Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure [Symposium: The Future of Confession Law]

The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the self-incrimination clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part I, I introduce and define the terms "constitutional prophylactic rule," "constitutional safe harbor rule," and "constitutional incidental right," and attempt to legitimate their use. I further demonstrate that constitutional criminal procedure is so flush with such prophylactic and safe harbor rules and incidental rights that trying to eliminate them now, by either reversing a large number of criminal procedure cases or "constitutionalizing" all of those holdings, would do more harm than good. I propose that we accept the fact that these rules and rights are a fixed part of our constitutional landscape, and focus instead on minimizing their risks and maximizing their benefits. Thus, in Part II, I suggest that we can highlight their benefits; encouraging dialogue and cooperation between the federal judiciary and state and federal executive and legislative officers, fostering experimentation with new procedures that may work better, and providing the flexibility to respond to new empirical and social science data without reversing constitutional decisions; and cabin their risks; infringing on principles of federalism and separation of powers, hardening rules that should be flexible enough to respond to changing facts, and deflecting attention away from actual constitutional violations; by caution, deference, and what I call and "truth-in-labeling." Caution requires the Court to refrain from creating prophylactic or safe harbor rules and incidental rights except where it clearly identifies the mandate of the constitutional clause at issue and/or the values underlying that clause, and then explains why a rule or right is necessary to protect or adjudicate that clause. Deference requires the Court to warn the other branches of the federal government and all branches of the state governments that some action is necessary, and act itself only if the other actors fail to offer alternative procedures that are within an acceptable range of functionality. Truth-in-labeling requires the Court to identify each doctrinal rule it creates as being either an explicit constitutional rule or remedy, or a prophylactic or safe harbor rule or incidental right, so that there is a clear signal that modification may be permissible. Finally, in Part III, I examine Chief Justice Rehnquist's embarrassing failure, in Dickerson v. United States, to acknowledge much less resolve the Miranda conundrum. Inexplicably, Miranda is no longer a prophylactic rule (dashing all hopes for dialogue with other branches and improved alternatives), though neither is it "true" constitutional interpretation. Thus, an opportunity for a Court description of the status and justification for the Miranda warnings, as well as an acknowledgment of the status and justification for the host of other Court-created rules and rights that do not precisely track the constitutional clause that they concern, was squandered.