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Eve Brensike Primus - One of the best experts on this subject based on the ideXlab platform.
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disentangling miranda and massiah how to revive the sixth Amendment right to counsel as a tool for regulating confession law
Social Science Research Network, 2017Co-Authors: Eve Brensike PrimusAbstract:Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda’s protections. One underappreciated aspect of Miranda’s demise is the way it has affected the development of the pre-trial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects’ Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pre-trial right to counsel would support such an importation. This development is unfortunate given that the Fifth Amendment Miranda right and the Sixth Amendment right to counsel have different foci and serve different purposes. Miranda has always been focused on dispelling the inherent compulsion in the custodial interrogation environment in order to ensure that suspects are not being compelled to give testimony against themselves in violation of the Self-Incrimination Clause. In contrast, the Sixth Amendment pre-trial right to counsel is grounded in concepts of fundamental fairness and equality and is designed to ensure that criminal defendants have attorneys to help them navigate the procedural and substantive complexities of the law and face the prosecutorial forces of organized society.It is not too late to disentangle these two constitutional rights. In this essay, I discuss how to achieve such disentanglement at both the federal and state levels. I also highlight a couple of areas – fruits doctrine and warning and waiver principles – where such disentanglement could result in significant doctrinal distinctions that would create more robust Sixth Amendment protection for criminal defendants going forward.
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disentangling miranda and massiah how to revive the sixth Amendment right to counsel as a tool for regulating confession law
Boston University Law Review, 2017Co-Authors: Eve Brensike PrimusAbstract:INTRODUCTIONFifty years after Miranda v. Arizona,1 many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections.2 Miranda warnings are only required when a suspect is in custody and is being interrogated,3 but the Supreme Court has interpreted custody so narrowly that the police can easily avoid triggering application of the Miranda doctrine by simply telling a suspect that he is free to go4 or suggesting that he "volunteer" to come to the police station for questioning. 5 And police questioning is not always interrogation. There are routine booking questions,6 questions that do not ask for incriminating information, 7 and questions addressed to public safety concerns,8 none of which trigger the required Miranda warnings.Even when the police must give warnings, they need not read the actual Miranda warnings. Any words that are close enough to reasonably convey the concepts in the Miranda warnings will suffice.9 Once those words are uttered, waiver will be presumed from the mere fact that the suspect then gives a statement, assuming that the police do not beat the suspect or do something particularly egregious to coerce him into talking.10A person who wants to assert her Miranda right to an attorney must do so clearly and unequivocally; saying that she thinks she wants a lawyer is not good enough and will allow the police to keep questioning her.11 If she wants to invoke her right to remain silent, she cannot do that by remaining silent.12 She has to actually speak and clearly state that she wants to be quiet or the police can keep questioning her.13 Even a person who is able to overcome the fear and intimidation of the environment and clearly assert her rights is not entitled to end the questioning; she only gets a brief respite before the police will return to start the inquisition again.14To make matters worse, there are myriad incentives for the police to violate a suspect's rights under Miranda. They can use any statements that they get from the suspect to impeach her if she dares to testify at trial,15 and if they are lucky enough to discover physical fruits as a result of her statements, those will be admissible to prove the State's case at trial.16 For these reasons, officers are often trained to question "outside Miranda."17 In other words, they are told to ignore the Miranda rights and just question suspects until they get a confession or learn about the location of physical fruits of the crime.18Many scholars have mourned this dilution of suspects' Miranda rights.19 Even Yale Kamisar, the father of Miranda himself and one of its most fervent supporters, has lamented that the Miranda doctrine has taken "a bullet in the shoulder"20 and suffered a "heavy blow"21 as a result of recent Supreme Court decisions.One underappreciated aspect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel. There are three different constitutional provisions that regulate pretrial police interrogation practices-the Due Process Clause's voluntariness test,22 the Sixth Amendment right to counsel, 23 and the Fifth Amendment privilege against selfincrimination. 24 The Supreme Court's blockbuster Miranda decision brought the Self-Incrimination Clause to center stage and relegated the due process and Sixth Amendment right to counsel tests to supporting roles. To accomplish this Fifth Amendment revolution, the Miranda Court integrated its Sixth Amendment precedent into the decision and included an admonition of the right to counsel in its famous Miranda warnings.25 As a result of this entanglement, much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases.26 This development is unfortunate given that the Fifth Amendment Miranda right and the Sixth Amendment right to counsel have different foci and serve different purposes. …
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the future of confession law toward rules for the voluntariness test
Michigan Law Review, 2014Co-Authors: Eve Brensike PrimusAbstract:Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this article, I argue that if voluntariness is going to be the framework for confession law going forward, courts will need to disentangle the complex of values that is discussed under that heading and then use their clarified understanding as the basis for a judicially administrable rubric for regulating interrogation practices. As a matter of history and current practice, I argue that there are two different strands within voluntariness doctrine – one deontological strand that focuses on the offensiveness of the police methods used and one consequentialist strand that is concerned with the problem of false confessions. Courts could profit from disentangling those strands and creating different tests for each. Once the two strands are separated, voluntariness doctrine can move toward rules that are tailored to the distinctive values animating each strand. Toward that end, I propose different tests for determining the voluntariness of confessions going forward depending on which of the two strands is implicated in a given case.
Robert J Smith - One of the best experts on this subject based on the ideXlab platform.
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interrogations and the guiding hand of counsel montejo ventris and the sixth Amendment s continued vitality
Social Science Research Network, 2009Co-Authors: Ben G Cohen, Bidish Sarma, Robert J SmithAbstract:The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana1 and Kansas v. Ventris. Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves. Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment prophylactic rule with the Sixth Amendment right to counsel. The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda framework. This short essay explains why the Court should resist the temptation to do so.
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interrogations and the guiding hand of counsel montejo ventris and the sixth Amendment s continued vitality
Northwestern University Law Review (Colloquy), 2009Co-Authors: Ben G Cohen, Bidish Sarma, Robert J SmithAbstract:The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana and Kansas v. Ventris. Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves. Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment prophylactic rule with the Sixth Amendment right to counsel. The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at inter-
Joseph W Yockey - One of the best experts on this subject based on the ideXlab platform.
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the case for a sixth Amendment public safety exception after dickerson
Social Science Research Network, 2004Co-Authors: Joseph W YockeyAbstract:Following the events of September 11, 2001, the Department of Justice promulgated a new Bureau of Prisons (BOP) rule that authorizes the government to monitor certain attorney-client conversations in the interests of public safety and national security. Because the BOP rule arguably will not survive scrutiny under traditional Sixth Amendment jurisprudence, the Department of Justice may wish to argue for the creation of a Sixth Amendment public-safety exception akin to that found in the context of the Miranda warnings. In this note, the author posits that support for such an exception under the Sixth Amendment can be premised on the Supreme Court's holding in Dickerson v. United States that Miranda warnings are constitutionally based within the framework of the Fifth Amendment. Because the Court has carved out a public-safety exception for Miranda warnings, which are now viewed as stemming from a constitutional rule, it stands to reason that the Court could do the same in the context of the Sixth Amendment. The author ultimately argues, however, that neither the Court’s uncertain Fifth Amendment jurisprudence nor the policy considerations behind the Sixth Amendment justify creating a public-safety exception to the Sixth Amendment.
Lynsey R Johnson - One of the best experts on this subject based on the ideXlab platform.
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arkansas game and fish commission v united states dam if you do dam if you don t
Social Science Research Network, 2013Co-Authors: Lynsey R JohnsonAbstract:This case note provides a detailed description of the facts, procedural history, and the overall issues presented in Arkansas Game and Fish Commission v. United States. It covers the rules and precedents for takings under the Fifth Amendment, both permanent and temporary, and discusses the ramifications and impacts of the Court's decision on local, state, and federal government officials.
Andrew R Varcoe - One of the best experts on this subject based on the ideXlab platform.
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arkansas game and fish commission v united states dec 4 2012 rejecting bright line rule u s supreme court holds that temporary government caused flooding may be a compensable taking at least in some circumstances
Social Science Research Network, 2012Co-Authors: Andrew R VarcoeAbstract:Thus far in the October 2012 Term, the U.S. Supreme Court has decided to hear two cases presenting takings law issues. This brief report focuses on the first of these two cases, Arkansas Game and Fish Commission v. United States, which was decided in December 2012. The question presented in Arkansas Game was whether government actions that temporarily result in flooding can amount to takings of private property that trigger the right to just compensation under the Fifth Amendment.