Continental Ballroom 6 Hilton San Francisco and Towers Ballroom Level
Section on Criminal Justice Richard Daniel Klein, Touro College, Chair
The Reaffirmation of Miranda: What's Next?
Moderator:
Richard Daniel Klein, Touro College
Speakers:
Paul G. Cassell, University of Utah Yale Kamisar, The University of Michigan Susan R. Klein, The University of Texas Christopher Slobogin, University of Florida
Last term, Chief Justice Rehnquist (a surprising vote to "reaffirm" Miranda), speaking for an unexpectedly large 7-2 majority, told us that "Miranda, being a constitutional decision of the Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves." But the Chief Justice's opinion left much unsaid.
This Program will feature a "debate" between Professor Kamisar, a strong proponent of Miranda, and Professor Cassell, who argued the Dickerson case before the Supreme Court and maintained that the Congressional statute had nullified Miranda. Professors Klein and Slobogin will comment and discuss alternatives to a continuation of the exclusionary rule.
The Court in Dickerson seemed to agree that a legislative alternative to Miranda that provided an adequate substitute for the now-familiar warnings would pass constitutional muster. But it shed no light on what particular legislative alternative would constitute a suitable substitute for the Miranda warnings. For example, would a system videotaping (or at least audio-taping) the entire interrogation session (and informing the suspect of that fact) be suitable for the warnings? Or would such a system only permit a shortened version of the warnings?
An issue left unresolved, indeed not discussed, is whether the ruling in Dickerson that Miranda is a "constitutional decision" will lead the Court to reexamine certain Miranda-debilitating decisions which were based on the premise that Miranda is not a constitutional decision. Consider, e.g., Oregon v. Elstad (1985), which declined to apply the "fruit of the poisonous tree" doctrine to a second confession obtained from a suspect whose Miranda rights had not been honored the first time. Elstad seems to be based on the premise that a failure to administer the Miranda warnings is not a violation of a constitutional right. Now that Dickerson is on the books, is the basic premise of Elstad no longer operative and therefore should that case and others be overruled?
These and other issues will be explored by the panelists.