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3 Miranda Issue Number 3 NORTHERN KENTUCKY LAW REVIEW NORTHERN KENTUCKY LAW REVIEW Volume 43 Miranda Issue Number 3 COPYRIGHT © NORTHERN KENTUCKY UNIVERSITY Cite as 43 N. KY. L. REV. (2016) Northern Kentucky Law Review is published three times during the academic year by students of Salmon P. Chase College of Law, Northern Kentucky University, Highland Heights, Kentucky 41099. Telephone: 859/572-5444. Facsimile: 859/572- 6159. Member, National Conference of Law Reviews. All sections which appear in this issue are indexed by the H.W. Wilson Company in its Index to Legal Periodicals. Northern Kentucky Law Review articles are also available on microfilm and microfiche through University Microfilms International, Ann Arbor, Michigan. Subscription rates are $35.00 per volume, $10.00 per individual issue. If a subscriber wishes to discontinue a subscription at its expiration, notice to that effect should be sent to the Northern Kentucky Law Review office. Otherwise, it will be assumed that renewal of the subscription is desired. Please send all manuscripts to the address given above. No manuscript will be returned unless return is specifically requested by the author. NORTHERN KENTUCKY AW EVIEW L R Volume 43, Number 3 Editor-in-Chief Executive Editor ELI KRAFTE-JACOBS WESLEY ABRAMS Lead Notes Editor Lead Articles Editor PHILLIP LIPSCOMB DYLAN MASCHMEYER Fall Symposium Editor Spring Symposium Editor BETH TAYLOR JONAH OTTLEY Managing Articles Editor OLIVIA EARLS MATT MOLONY CASEY WELCH Senior Associate Editors JOHNATHAN BROWN KATE PATTON DAN COLEMAN SIERRA RICHARDSON JOHN GRAY CASEY TAYLOR LAUREN MARTIN SEAN TURNER Associate Editors AUGUSTUS FLOTTMAN WILLIAM PARKER CHARLOTTE SPENCER AMY HEBBELER JESSICA POWELL BRENDEN SULLIVAN ELIZABETH LONG ANTHONY ROMEO JOHN WALTON KATELYN MARSHALL CHARLES RUST RYAN WHEELER EVAN MCFARLAND LISA SCHREIHART ZAK WHITEHEAD TYLER OLSON JABARI SHAW SHELBIE WILSON Symposium Collaborator Faculty Advisor PROFESSOR MICHAEL PROFESSOR JENNIFER J.Z. MANNHERIMER JOLLY-RYAN SALMON P. CHASE COLLEGE OF LAW JEFFREY STANDEN, A.B., J.D. ASHLEY GRAY, B.A., J.D. Dean & Professor of Law Director of Admissions LAWRENCE ROSENTHAL, B.A., J.D., LL.M. BECKY FITZSIMMONS, B.A., J.D. Associate Dean for Academics & Professor of Law Associate Dean for Administration JENNY YOUNG SHERRIE TURNER, B.S., M.P.A. Registrar of the College of Law Budget Analyst LISA MOORE, B.A., J.D. DAVID H. MACKNIGHT, B.S., J.D. Director of Career Services Associate Dean for Law School Advancement MICHAEL J.Z. MANNHEIMER, B.A., J.D. MICHAEL WHITEMAN, B.A., M.S.L.S., J.D. Associate Dean for Faculty Development Associate Dean for Library Services and & Professor of Law Information Technology & Professor of Law FACULTY ERIC ALDEN, B.A., M.A., J.D. JENNIFER JOLLY-RYAN, B.A., J.D. Assistant Professor of Law Professor of Legal Writing DONNA S. BENNETT, A.B., M.A., M.S.L.S. KENNETH D. KATKIN, A.B., J.D. Professor of Library Services & Professor of Law Assistant Director for User Services DONALD K. KAZEE, B.A., M.A., J.D. JOHN M. BICKERS, A.B., J.D., LL.M. Associate Professor of Legal Writing Assistant Professor of Law JENNIFER KINSLEY, B.A., J.D. ROGER D. BILLINGS, JR., A.B., J.D. Assistant Professor of Law & Field Placement Professor of Law Program Director SHARLENE BOLTZ, B.A., J.D. JENNIFER KREDER, B.A., J.D. Professor of Law Professor of Law CAROL BREDEMEYER, A.B., M.S.L.S. JEANNINE ABUKHATER LAMBERT, B.A., J.D. Professor of Law Library Services & Assistant Director of Advancement Centers & Assistant Director of Faculty Services Institutes ANTHONY E. CHAVEZ, B.S., J.D. BARBARA MCFARLAND, B.S., J.D. Assistant Professor of Law Assistant Professor of Law & Director of HARRY "HAP" DURKIN, B.S. Student Success Initiatives Director of Development LJUBOMIR NACEV, B.A., J.D., LL.M. URSULA DOYLE, B.A., M.A., J.D. Professor of Law Assistant Professor of Law DAVID SINGLETON, B.A., J.D. NANCY L. FIRAK B.S., J.D., LL.M. Assistant Professor of Law & Director of Professor of Law Constitutional Litigation & Indigent Defense CAROL FURNISH, B.A., M.L.S. Clinics Professor of Library Services & GERARD ST. AMAND, A.B., J.D., M.S. Assistant Director for Instruction & Outreach Professor of Law RICHARD GRAVES, B.A., J.D., LL.M., LL.M. MARK M. STAVSKY, B.A., J.D., LL.M. Assistant Professor of Legal Writing Professor of Law CHRISTOPHER GULINELLO, B.A., J.D., LL.M. HENRY L. STEPHENS, JR., B.A., J.D. Professor of Law & Director of The Lunsford Professor of Law Academy MATTHEW J. TOKSON, B.S., J.D. AMY HALBROOK, B.A., J.D. Professor of Law Director of Children’s Law Center Clinic & JANE UNDERWOOD, B.A., M.L.S., J.D. Assistant Professor of Law Assistant Professor of Law Library Services & JACK HARRISON, B.A., J.D. Assistant Director for User Services Assistant Professor of Law Coordinator for the Pro Bono Project THOMAS E. HEARD, B.A., M.L.S., J.D. JOHN T. VALAURI, B.A., J.D. Associate Professor of Library Services & Professor of Law Associate Director for Library Services BARBARA WAGNER, B.A. M.S.B.A., J.D. DENNIS HONABACH, A.B., J.D. Assistant Professor of Law & Director of Professor of Law Small Business & Nonprofit Law Clinic LINDSEY JAEGER, B.A., J.D., S.S.B.B. CARYL A. YZENBAARD, A.B., J.D. Director of Communication Professor of Law EMERITI FACULTY WILLIAM R. JONES, B.S., M.A., J.D. ADJUNCT FACULTY DONYETTA BAILEY, B.S., J.D. JOSEPH MORDINO, J.D. DAVID BARRON, J.D. FRANK MUNGO, B.S., J.D. HON. GREGORY M. BARTLETT, A.B., M.A., J.D. DANIEL MURNER, B.A., J.D. JOHN BENINTENDI, J.D. MARC PERA, J.D. VICTORIA BOGGS, B.A., J.D. WILLIAM A. POSEY, J.D. NAIMA CLARKE, B.B.A., J.D. STEVEN RAY, B.A., J.D. ERIN CORKEN, B.F.A., J.D. ERIC W. RICHARDSON, B.A., J.D. JOHN CRUZE, B.S., J.D. DEBRA ROTHSTEIN, B.A., M.A., J.D. PETER DEHAAN, B.S., J.D. THOMAS ROUSE, J.D. REBECCA DILORETO, B.A., J.D. ANN SCHOEN, B.S., J.D. ROBERT A. GOERING, JR., B.A., J.D. HON. DOUGLAS STEPHENS, B.A., J.D. ROBERT A. GOERING, SR., B.A., J.D. HON. AMUL THAPAR, B.S., J.D. WILLIAM GUSTAVSON, B.A., J.D. HON. KAREN A. THOMAS, B.A., J.D. SHERYL HEETER, J.D. BERNADINE C. TOPAZIO, B.A., M.B.A., J.D. PENNY HENDY, J.D. AL WEISBROD, J.D. NANCY HERBERT, J.D. ELIZABETH WINCHELL, J.D. HON. STEVEN R. JAEGER, B.A., J.D. JUSTICE DONALD C. WINTERSHEIMER, A.B., M.A., J.D. DAVID JEFFERIES, B.A., J.D. J. STEPHEN WIRTHLIN, JR., B.A., J.D. RICHARD KATZ, B.A., J.D. ELIZABETH ZINK-PEARSON, J.D. JOHN KROPP, J.D. NORTHERN KENTUCKY LAW REVIEW Volume 43, Number 3 ARTICLES Happy Birthday Miranda and How Old Are You, Really? George C. Thomas, III & Amy Jane Agnew ...............................................................................301 The Two Mirandas Michael J. Zydney Mannheimer .................................................................................................317 What does Edwards Ban?: Interrogating, Badgering, or Initiating Contact? Kit Kinports ................................................................................................................................359 Miranda, Berghuis, and the Ambiguous Right to Cut off Police Questioning Laurend Sacharoff ......................................................................................................................389 Miranda’s Truth: The Importance of Adversarial Testing and Dignity in Confession Law Meghan J. Ryan ..........................................................................................................................413 NOTES Do You Understand Your Rights as I Have Read Them to You? Understanding the Warnings Fifty Years Post Miranda Jessica Powell ............................................................................................................................435 Virtually Certain to Frustrate: The Application of the Private Search Doctrine to Computers and Computer Storage Devices John M. Walton, III ....................................................................................................................465 HAPPY BIRTHDAY MIRANDA AND HOW OLD ARE YOU, REALLY? George C. Thomas III* Amy Jane Agnew** I. INTRODUCTION Some folks (not my students) remember that the great comedian Jack Benny celebrated his 39th birthday every year until he died at the age of 80. Miranda v. Arizona,1 not much of a comedian, has pulled off the opposite trick. Though few have noticed, including Chief Justice Earl Warren when he wrote the Miranda opinion, a kind of Miranda warning first surfaced in the late 1700s in England. Miranda warnings appeared in almost modern form in an 1829 New York statute.2 The New York version was quickly copied by Missouri (1835) and Arkansas (1838).3 The mystery here is two-fold: (1) why Miranda warnings developed so early; and (2) why they disappeared only to re-appear in Miranda v. Arizona. In this paper, we will focus on the first mystery. II. MIRANDA’S EARLY ROOTS Beginning in 1554, English suspects named in a criminal complaint had to appear before a magistrate and had to answer questions about the crime.4 Those * Rutgers University Board of Governors Professor of Law & Judge Alexander P. Waugh, Sr. Distinguished Scholar. I wish to make clear the credit due for the ideas in this paper. As far as I know, Wes Oliver, Duquesne University School of Law, is the modern scholar who “discovered” the 1829 New York “Miranda” statute. See Wesley Oliver, Magistrate’s Examinations, Police Interrogations, and Miranda-Like Rules in the Nineteenth Century, 81 TULANE L. REV. 777 (2007). Richard Leo and I disagree with Wes’s interpretation of the motivation of the New York legislature in enacting the statute. See George C. Thomas III & Richard A. Leo, CONFESSIONS OF GUILT: FROM TORTURE TO MIRANDA AND BEYOND 78-80 (2012). What makes this paper an original contribution, however, is the proof that Edward Livingston is the probable originator of the notion that suspects examined by magistrates should be given the warning of the right not to answer questions and the right to the assistance of counsel.
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