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Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect
Chapman Law Review (2007)
  • Lawrence Rosenthal

In the four decades since the decision in Miranda v. Arizona, two point of consensus have emerged about that decision. The first area of agreement is that Miranda’s rationale for requiring its now-famous warnings is wrong, or at least dramatically overstated. In Michigan v. Tucker, the Court first labeled Miranda warnings as “prophylactic standards.” For their part, Miranda’s advocates do not spend much time defending its conception of unwarned custodial interrogation as inherently coercive. The second point of agreement is that Miranda has turned out to be a failure combating the coercive nature of custodial interrogation. Despite Miranda, coerced confessions are said to be ubiquitous. Thus, we are told that stronger medicine is needed, such as videotaping custodial interrogation, requiring counsel during interrogation, strengthening constitutional regulation of the admissibility of confessions, forbidding interrogation techniques thought to be particularly likely to produce false or coercive confessions, or abolishing custodial interrogation entirely.

This article's task seeks to demonstrate that both points of consensus are wrong. On the first, I will argue that Miranda was quite right to conclude that custodial interrogation inherently involves compulsion within the meaning of the Fifth Amendment. Thus, Miranda is not prophylactic – its warnings are required only when a suspect is compelled to incriminate himself, and they ensure that incriminating statements are received in evidence only when a suspect has validly waived the right to be free from compelled self-incrimination. On the second, I will argue that Miranda should be measured by whether it has produced greater compliance with the Fifth Amendment, and on that score, Miranda is a resounding success. Miranda’s required warnings succeed in producing valid waivers of Fifth Amendment rights, and therefore prevent what would otherwise be unconstitutional interrogations. Although suspects may frequently misgauge their own interests in deciding whether to submit to custodial interrogation, the Fifth Amendment does not protect suspects from themselves – it is not aimed at “[p]reventing foolish (rather than compelled) confessions,” to use Justice Scalia’s typically memorable formulation. Perhaps Miranda is a failure from the standpoint of those who think that the Constitution condemns any tactic that might smack of overreaching or risk convicting the innocent, but Constitution does not demand perfection. For constitutional purposes, a confession obtained after a valid waiver of Fifth Amendment rights is good enough.

  • Miranda,
  • Interogation,
  • Wrongful Convictions,
  • Confessions
Publication Date
Spring 2007
Citation Information
Lawrence Rosenthal, Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect, 10 Chap. L. Rev. 579 (2007). Available at: