In the Stationhouse After Dickerson

Miranda v. Arizona established the high water mark of the protections afforded an accused during a custodial interrogation. During the decades that followed, the United States Supreme Court allowed Miranda’s foundation to erode, inviting a direct challenge to the landmark ruling. In Dickerson v. United States, the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing. This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse. As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct officers that they may continue to interrogate suspects in custody who have asserted their Fifth Amendment right to remain silent or right to counsel. Harris v. New York and Oregon v. Hass permit some statements taken in violation of Miranda to be used for impeachment purposes at trial. Michigan v. Tucker and Oregon v. Elstad permit some derivative use of such statements. These rulings together with other decisions labeling Miranda’s procedures as merely “prophylactic” – have created incentives for police to disregard Miranda and have led to a different way of thinking about its core holding. Proponents of this different view, which I have called the “new vision” of Miranda, have claimed that Miranda sets forth a nonconstitutional rule of evidence that need only be followed when officers seek a statement to introduce in the prosecution’s case-in-chief at trial. By transforming Miranda from an affirmative constitutional command governing conduct in the stationhouse into a weak rule of evidence, the new vision has encouraged officers to continue to question suspects who have asserted the right to counsel or the right to remain silent. During the last decade, the practice has become so pervasive in some jurisdictions that it has acquired its own moniker: questioning “outside Miranda.” This Article argues that Dickerson firmly rejects the “new vision” and asks whether the ruling may foster new respect for Miranda and adherence to its commands. The Article explores the Court’s reaffirmation of the constitutional basis for Miranda and discusses the efficacy of exclusionary rules and civil rights actions in enforcing Miranda’s procedures. Most police officers are not lawyers and do not read advance sheets. Court decisions can influence officers’ conduct only if the holdings are accurately transmitted to them. This Article thus examines how law enforcement officials are instructed following Dickerson and other recent Miranda cases, and explores whether officers are likely to follow their training.