Howard University Digital Howard @ Howard University School of Law Faculty Publications School of Law Confessing in the Human Voice: A Defense of the Privilege Against Self-Incrimination Andrew E. Taslitz Howard University School of Law,
[email protected] Follow this and additional works at: http://dh.howard.edu/law_fac Part of the Law Commons Recommended Citation Taslitz, Andrew E., "Confessing in the Human Voice: A Defense of the Privilege Against Self-Incrimination" (). School of Law Faculty Publications. Paper 8. http://dh.howard.edu/law_fac/8 This is brought to you for free and open access by the School of Law at Digital Howard @ Howard University. It has been accepted for inclusion in School of Law Faculty Publications by an authorized administrator of Digital Howard @ Howard University. For more information, please contact
[email protected]. CONFESSING IN THE HUMAN VOICE: A DEFENSE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION by Andrew E. Taslitz* I. Introduction A. Miranda’s Crumbling Foundations Miranda v. Arizona1 famously mandates that those subjected to custodial interrogation be entitled to counsel during that process and be warned of that right and of their right “to silence.” Custodial interrogation can proceed absent compliance with these mandates only if the suspect knowingly, voluntarily, and intelligently waives his rights.2 To the surprise of many commentators, the United States Supreme Court recently reaffirmed Miranda’s constitutional status in Dickerson v. United States.3 Yet this supposed civil libertarian victory in Dickerson was a pyrrhic one. The Dickerson Court’s reaffirming Miranda rested largely on stare decisis, for Miranda had “become embedded in routine police practice to the point where the warnings have become part of our national culture.”4 Yet the Court offered no serious defense of Miranda’s inherent wisdom as a constitutional rule, indeed arguably expressing some skepticism about that wisdom, or at least pointedly steering clear of defending it.