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Requiem for Miranda: the Rehnquist Court's Voluntariness Doctrine in Historical Perspective

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Requiem for Miranda: the Rehnquist Court's Voluntariness Doctrine in Historical Perspective Washington University Law Review Volume 67 Issue 1 Symposium on the Reconsideration of Runyon v. McCrary January 1989 Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective Laurence A. Benner California Western School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Constitutional Law Commons, and the Criminal Procedure Commons Recommended Citation Laurence A. Benner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 WASH. U. L. Q. 59 (1989). Available at: https://openscholarship.wustl.edu/law_lawreview/vol67/iss1/5 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. REQUIEM FOR MIRANDA: THE REHNQUIST COURT'S VOLUNTARINESS DOCTRINE IN HISTORICAL PERSPECTIVE LAURENCE A. BENNER* TABLE OF CONTENTS I. INTRODUCTION ........................................ 61 II. REDISCOVERING THE "PRIVILEGE" AGAINST SELF- INCRIMINATION ........................................ 67 A. The First Stage of Development Under English Common Law ..................................... 68 L The Right to Fair Notice and Justified Suspicion Before Interrogation ............................ 70 2. Eclipse of the Privilege in the Prerogative Courts 73 B. The Second Stage of Development: The Right Against Compulsory Self-Incrimination .............. 79 1. Miranda's Heritage: The End of Pre-Trial Examination Under the Marian Statutes ........ 80 2 The Legacy of Star Chamber ................... 83 III. RECEPTION OF THE PRIVILEGE IN AMERICA ............ 84 A. Early Colonial Evolution ........................... 84 B. The Text of the Fifth Amendment: The Ambiguity of Elegance .......................................... 88 IV. A RULE OF EVIDENCE SWALLOWS THE PRIVILEGE: THE COMMON LAW VOLUNTARINESS DOCTRINE ....... 92 A. The Medieval Origins of the "Voluntariness" Concept 93 * J.D. University of Chicago, 1970; Associate Professor of Law, California Western School of Law. Previous publications in this field include: L. BENNER & E. NEARY, THE OTHER FACE OF JusTicE (1973) and Benner, Tokenism and the American Indigent, 12 AM. CRIM. L. REv. 667 (1975). This article is dedicated to the memory of Professor Soya Mentschikoff, who taught the value of the Hohfeldian concepts. Without their insight, the distinction between privilege and right would doubtless have remained forever blurred, and the thought would never have occurred to look beyond "compulsion" to discover the historical origins of the "privilege" which was the precursor of the fifth amendment. The author also wishes to express his gratitude to Professors Michael R. Bel- knap and Stephen J. Schulhofer for their insightful critique of earlier drafts, and to Professor Chin Kim and the staff of the CWSL library for their generous assistance. Washington University Open Scholarship 60 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 67:59 B. The Conflation of Voluntariness and the Privilege Against Self-Incrimination.......................... 95 V. VOLUNTARINESS AND THE FIFTH AMENDMENT: THE BRAM TEST FOR COMPULSION .......................... 101 A. The Definition of Voluntariness Priorto Brain ....... 101 B. Early Prohibitionof Police Interrogation: The British Experience ........................................ 102 C. The Bram Holding ................................ 107 D. The Subsequent Interpretationof Bran ............. 109 VI. THE FOURTEENTH AMENDMENT DUE PROCESS "VOLUNTARINESS" TEST ............................... 113 VII. TOWARD A BRIGHT-LINE SOLUTION: THE SIXTH AMENDMENT RIGHT TO COUNSEL ..................... 117 VIII. THE COMPROMISE ..................................... 119 IX. COLORADO V CONNELLY AND THE NEW VOLUNTARINESS DOCTRINE ............................ 122 A. The Due Process "Voluntariness" Claim ............ 124 L Due Process and Deterrence: The Legacy of Leon 125 a. The Lost Right to Self-Determination: History Revisited ........................... 127 b. Redefining the Concept of State Action ...... 128 i. The CausalNexus Requirement ......... 128 i& The Requirement that State Action be Coercive ................................ 129 2. Precedent Revisited ............................. 132 3. The Deterrence Rationale: Wagging the Dog by its Tail ........................................ 135 4. The Demise of Trustworthiness .................. 139 B. The Miranda Waiver Issue ......................... 143 C. The Final Assault Upon Miranda: Coercion Versus Compulsion ........................................ 147 X. FROM FAILED PRAGMATISM TO PIOUS FRAUD ......... 154 XI. CONCLUSION ........................................... 158 https://openscholarship.wustl.edu/law_lawreview/vol67/iss1/5 1989] VOLUNTARINESS DOCTRINE I. INTRODUCTION Hailed as one of the "great landmarks"' in humanity's struggle to make itself civilized, the privilege2 against self-incrimination has also been disparaged as a "mark of traditional sentimentality."' These dispa- rate viewpoints, echoing from a different era, remind us that the current controversy 4 surrounding the issue of self-incrimination is not new. In- deed, as even a casual glance at history discloses, freedom from self-in- crimination has been an embattled concept for centuries. Having sprung from the essential nature of accusatory Anglo-Saxon criminal procedure in the twelfth century, the privilege fell into eclipse during the religious persecutions of the sixteenth and early seventeenth centuries. With its restoration at the dawn of the eighteenth century, however, it acquired increased significance and became an established principle of justice.' The reason for this historical ebb and flow is not difficult to discern. Criminal procedure is after all but a reflection of a society's system of values, and the privilege against self-incrimination stands as an impor- tant determinant that shapes the moral relationship between the state and the individual. Although sometimes endangered to the point of ex- tinction by the inherent tendencies of governmental power, especially 1. E. GRISWOLD, THE FIFTH AMENDMENT TODAY 7 (1955). 2. It is important to note at the outset that this Article treats the "privilege" against self- incrimination as an analytically distinct legal relation, separate and apart from the "right" to free- dom from compelled self-incrimination guaranteed by the fifth and fourteenth amendments of the Constitution. See infra note 8. 3. 8 J. WIGMORE, WIGMORE ON EVIDENCE § 2251, at 317 (3d. ed. 1940). Although Wigmore is noted for his lack of sympathy for the privilege, he firmly supported its application in circum- stances where a suspect is questioned before being formally charged. See id. at 307-10. 4. See U.S. DEPARTMENT OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO THE ATroR- NEY GENERAL ON THE LAW OF PRE-TRIAL INTERROGATION (Feb. 12, 1986) [hereinafter MEESE REPORT] recommending that the Department seek to have Miranda v. Arizona, 384 U.S. 436 (1966) overruled. Endorsed by the former Attorney General, Edwin Meese III, the report has touched off a storm of protest and a flurry of academic debate. See Dripps, Against Police Interrogation, 78 J. CRIM. L. & CRIMINOLOGY 699 (1988); Grano, Miranda's Constitutional Difficulties: A Reply to ProfessorSchulhofer, 55 U. CHi. L. REv. 174 (1988); Markman, The Fifth Amendment and Custo- dial Questioning: A Response to "ReconsideringMiranda", 54 U. CHI. L. REv. 938 (1987); Ogletree, Are Confessions Really Good For the Soul?, 100 HARV. L. REV. 1826 (1987); Schulhofer, Reconsider- ing Miranda, 54 U. CHI. L. REv. 435 (1987); Schulhofer, The Fifth Amendment at Justice,A Reply, 54 U. CHI. L. REv. 950 (1987); Strauss, The Ubiquity of ProphylacticRules, 55 U. CHI. L. REv. 190 (1988); What Hogwashl, L.A. Times, Jan. 23, 1987, Part II, at 8, col. 1; Shenon, Meese Seen as Ready to Challenge Rule on Telling Suspects of Rights, N.Y. Times, Jan. 22, 1987, at 1, col. 2. This Article posits that the current debate is being conducted through a veil of ignorance because of our lack of understanding of the true origins of the privilege against self-incrimination. 5. See infra Part II. Washington University Open Scholarship WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 67:59 when left unchecked by an indifferent (or worse, intolerant) political ma- jority, protection against self-incrimination has nevertheless always re- emerged as a fundamental part of our system of criminal justice. The fifth amendment, its stylistic elegance masking its ambiguity, captures the drama of this turbulent history in its mandate that no person shall be "compelled in any criminal case to be a witness against himself."6 As grand statements often do, however, this phraseology obscures more than it reveals. This Article retraces the path of history back to the origins of the priv- ilege against self-incrimination and rediscovers a cluster of rights, em- braced by the historical "privilege," 7 which are today no longer 6. U.S. CONST. amend. V. 7. Seventy-five years ago, Professor Hohfeld recognized that the term "right" had been used as a generic concept to indiscriminately depict a wide variety of legal relations. Courts had used the words "right" and "privilege" as if they were synonymous; one court, for example, defined "privi- lege" as "the investiture with special or
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