Mourning Miranda:
Berkeley lawprof Charles Weisselberg has posted a fascinating new draft article, Mourning Miranda, on how the police in California currently implement the Miranda warnings. Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework. Although Weisselberg has long been a noted defender of Miranda, he finds himself concluding that the Miranda experiment has been a failure:
. . . Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation.
I hope to post some substantive reactions to Weisselberg's provocative and important new paper when I get the chance. In the meantime, if you're interested in criminal procedure generally or Miranda specifically, definitely check this one out.