Confessions - The Continuing Controversy

Although Miranda no longer excites the strong emotions that it did in the 1960s, the controversy over its holding has not entirely dissipated. Scholars continue to debate the effect of the decision. For example, Paul Cassell, a strong Miranda opponent comprehensively reviewed empirical data about the decision's impact. He concluded that approximately 3.8 percent of all criminal cases are lost due to the Miranda rule. Stephen Schulhofer, a strong Miranda defender, reviewed the same data and concluded that the attrition rate was only.78 percent. Even if this empirical disagreement could be settled, it is doubtful that empirics alone can resolve the underlying dispute. Any judgment about whether "too many" convictions are lost because of Miranda will depend upon normative judgments about the investigatory techniques that would have secured those convictions, and no empirical study can settle this disagreement.

There is also a lingering controversy over the legal question. Shortly after Miranda was decided, Congress enacted 18 U.S.C. section 3501, which provides that a confession "shall be admissible in evidence if it is voluntarily given." For thirty years, this statute remained dormant, with successive Justice Departments declining to invoke it, presumably because of a belief that it was unconstitutional. However, in 1999, the Fourth Circuit Court of Appeals ordered briefing on the effect of the statute. Relying upon language in Miranda itself suggesting that other techniques might displace the warning requirement and on post-Miranda decisions holding that the warnings were not, themselves, constitutionally required, the Court upheld the statute and concluded that it had the effect of "overruling" Miranda. In a 7-2 decision written by Chief Justice Rehnquist, the Supreme Court reversed this judgment and strongly reaffirmed Miranda in Dickerson v. United States, U.S. (2000). Emphasizing that "Miranda is a constitutional decision," the Court noted that it has become embedded in routine police practice to the point where the warnings have become part of our national culture."