Can the holding in Miranda v. Arizona, as well as the numerous exceptions to its dictates, be adequately justified after the Supreme Court's latest pronouncement in Dickerson v. United States? Chief Justice Warren in Miranda held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguard effective to secure the privilege against self-incrimination." While this holding appeared to enshrine the four warnings into the Fifth Amendment itself, this interpretation was short-lived. Chief Justice Burger, in crafting an impeachment exception in Harris v. New York, began a series of exceptions based upon the premise that a Miranda violation does not necessarily violate the constitutional violation. Conservative legal scholars responded to the deconstitutionalization of Miranda by suggesting that the Court had no authority, pursuant to Article III of the federal Constitution, to reverse state criminal convictions absent an actual constitutional violation. A rogue Assistant United States Attorney and a conservative law professor convinced the Fourth Circuit that a largely ignored statute Congress enacted in 1968 to overrule Miranda had done just that. Finally, Chief Justice Rehnquist, in the terribly disappointing Dickerson case reversing the Fourth Circuit, opined that Miranda has "constitutional underpinnings," yet its exceptions remain in force. Professor George Thomas and I, in a symposium issue at 99 Michigan Law Rev. 1030 (2001), reach the same general conclusions regarding both the justification of Miranda (it can be satisfactorily explained), and the fate of the pre-Dickerson exceptions to Miranda (they healthily survive). However, we reach these conclusions by radically different routes: Professor Thomas utilizes the malleable due process clause, while I rely upon the flexibility of prophylactic rules. While this difference may not seem striking when focusing solely upon the Miranda warnings, it is stark when attempting to justify the Warren Court revolution as a whole. In this brief commentary, I respond to Professor Thomas' thoughtful and creative but, in my opinion, ultimately unpersuasive attempt to relocate the Miranda warnings from the Fifth Amendment's self-incrimination clause to the Fourteenth Amendment's due process clause. The warnings do not fit comfortably in either substantive or procedural due process, nor does the relocation fully resolve what he calls Miranda's mysteries. On the other hand, my more conceptually pleasing proposal not only resolves all aspects of Miranda, but also accounts for many similar doctrinal devices (what I call prophylactic rules and incidental rights) throughout criminal procedure. It does this by sharing power with the other branches of the federal and state governments, and by stimulating social science research that may general alternative improved procedures.
Susan R. Klein, Miranda's Exceptions in a Post-Dickerson World, 91 Journal of Criminal Law & Criminology 567 (2001).