Is the Miranda caselaw really inconsistent? A proposed Fifth Amendment synthesis.

In Miranda v. Arizona(1) the Supreme Court held that custodial interrogation amounts to unconstitutional compulsion to be a witness against oneself, unless the interrogation is preceded by the famous warnings or "equally effective" measures to reduce the pressure to confess. Two years later, in a season of rising crime rates, riots, and assassinations, Congress responded by adopting Title II of the Omnibus Crime Control and Safe Streets Act.(2) Title II provides that confessions will be admissible in federal courts so long as they were voluntarily made. In other words, Congress mandated a return to the pre-Miranda voluntariness standard based on due process, rather than the self-incrimination clause of the Fifth Amendment.

Because Congress declined to require any alternative procedures to reduce the compulsion attending custodial questioning, Title II purports to repudiate, rather than to implement, Miranda. If Miranda is good law, the statute is unconstitutional, as was long supposed by the Department of Justice, which refused to invoke the statute in federal cases. In the years since Miranda, however, majority opinions of the Supreme Court have characterized the Miranda rules as "not themselves rights protected by the Constitution" but as "measures to insure that the right against compulsory self-incrimination was protected,"(3) a "prophylactic rule."(4)

The Fourth Circuit's recent decision in United States v. Dickerson(5) relied on the Court's characterization of Miranda as merely prophylactic to sustain the constitutionality of Title II and admit a confession made by a suspect who was not warned of his. As the Justice Department pointed out in a brief supporting the defendant's petition for certiorari,(6) however, the Court's characterization of Miranda as prophylactic collides with an extensive line of cases reversing state conviction because of Miranda violations.(7) If Miranda's safeguards are not "themselves required by the Constitution," the Court has no authority to reverse state convictions on Miranda grounds. Yet the modern Court has gone so far as to hold not only that it can reverse state convictions, but also that Miranda claims are cognizable in federal district court on habeas petitions filed by state prisoners.(8)

The prevailing academic view, one that spans the ideological spectrum, is that the "prophylactic rules" cases are flatly inconsistent with the cases reversing state decisions.(9) The commentators do not agree on how to resolve the tension between the state Miranda cases and the prophylactic-rules cases. Proponents of suspects' rights urge an equation of Miranda violations with pristine compulsion of testimony under a subpoena and an immunity order.(10) Critics of Miranda suggest overruling that landmark decision for want of any legitimate constitutional basis.(11) The only unanimous point is that the Supreme Court is in an embarrassing position.

This essay challenges that conventional wisdom about the Miranda caselaw. At the level of dicta or rationale, there is indeed an embarrassing inconsistency between those opinions characterizing Miranda as merely prophylactic and those decisions reversing convictions coming out of state courts. The former dicta cannot be squared with the latter holdings. But American lawyers learn in the first year of law school that holdings count for more than language in the opinions. Dicta matter, especially from a Court whose every pronouncement is scanned with care. But holdings matter still more.

At the level of holdings, decisions taking a narrow view of what constitutes custody or interrogation, or a broad view of what constitutes a valid waiver of Miranda rights, do not impugn Miranda's constitutional grounding. Admitting evidence because the police complied with Miranda cannot tell us that Miranda is not constitutional.(12) All that can be drawn from such holdings is that the Court's careful scrutiny of state police practices in some of th...

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