Document Type

Book Chapter

Publication Date

1968

Abstract

The primary conceptual hurdle confronting the Miranda Court was the "legal reasoning" that any and all police interrogation is unaffected by the privilege against self-incrimination because such interrogation does not involve any kind of judicial process for the taking of testimony; inasmuch as police officers have no legal authority to compel statements of any kind, there is no legal obligation, ran the argument, to which a privilege can apply. See, e.g., the discussion and authorities collected in Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REv. 59, 65, 69, 77-83 (1966). In the course of toppling this "legal reasoning" the Court dwelt on the cases before it and many extracts from police interrogation manuals as the most obvious and graphic examples of the unreality, inadequacy and casuistry of the old reasoning. "The current practice of incommunicado interrogation" was so "at odd.s with" the principle that "the individual may not be compelled to incriminate himself," pp. 457-58; the coercive pressures generated when a defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation· procedures," p. 457; were so substantial, that the only tenable view, according to the Miranda majority, was that the privilege had to "apply to informal compulsion exerted by law-enforcement officers during in-custody questioning," p. 46I, had to be "available outside of criminal court proceedings," p. 467. But to limit the impact of Miranda to the most poignant examples of the need for the applicability of the privilege to non-judicial, informal confrontations- as some state cases seem to suggest, see, e.g.) State v. Meadows, 272 N.C. 327, I58 S.E.2d 638, 644 (I968); Commonwealth v. Ep~rjesi, 423 Pa. 455, 224 A. 2d 2I6, 223 (I966); Gaudio v. State, I Md. App. 455, 230 A. 2d 700, 707-08 (Ct. Spec. App., Md., I967); cf. People v. P. (Anonymous), 2I N.Y. 2d I, 233 N. E. 2d 255, 257-58, 26I ( I967)-mistakes, it is submitted, the "advocacy" in the Miranda opinion, if you want to call it that, for its scope.

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