More on Miranda

Sandy Levinson

First, I thank Professor Mazzone for his completely courteous reply to my critique of his earlier post.  We do have a disagreement about the best interpretation of Miranda.  Although he is certainly correct that the case involved the question of the exclusionary rule, it would make no sense if there weren't a preceding constitutional norm against potentially abusive police interrogation.  I agree with him that Miranda is a prophyactic rule, and that it therefore prevents, through the exclusionary rule, non-abusive interrogation as well.  But adoption of that prophyactic rule presumably rests on an inference that police interrogation is sufficiently likely to be abusive that it's worth the cost to "handcuff the police" more generally. 

I suspect that most of the critics of the "read him his MIranda rights" position--I have no reason to think this is true of Professor Mazzone, incidentally--are not all that fastidious in how they would limit the police interrogation.  I would not be surprised if some of the "Fox News crowd"--and I am happy to withdraw my own snark with regard to linking Prof. Mazzone with such crowd--would be amenable, say, to threatening the withdrawal of pain-killing drugs in the absence of testimony about the planning of the event and so on.  As a practical matter, as Marty Lederman has suggested elsewhere, it is quite unlikely that Dzhokhar Tsarnaev is unaware that he has a right to remain silent, either because of his knowledge of American culture or because his alleged terrorism-masters in Chechnya would surely have had the wit to say (something like) "if you're captured, remember that those wimp Americans will accord you a right to remain silent."  Also, as Marty has suggested, it is almost certainly the fact that a smart defense lawyer would not necessarily advise taking the fifth, precisely because there is so much evidence against him and the smart thing to do would be to strike a deal for, say, life imprisonment in return for singing like a canary (and verifying what he says by tracking down his leads). 

Finally, with regard to Prof. Hyman's article, I certainly agree it is an interesting question in the sociology of the legal profession why so many trained adepts in constitutional law believed (and, for that matter, continue to believe) that the argument against the mandate is frivolous (unlike the argument re Medicaid).  Perhaps one has to be a political liberal to believe the argument is frivolous, but there were certainly many others, including, say, Charles Fried, who thought that it was a losing argument as well.  (OK, he's at Harvard, but the fact is that there were astonishingly few "leading law professors" who joined Randy Barnett's attack and/or predicted its near-success (or, if one adds Roberts and the Scalia 4 votes, success in stating radical new dicta).  They might have wished him well, but I think that most thought the New Deal cases and their successors had really settled the question.


Posted 7:15 PM by Sandy Levinson [link]