Have you heard of the “14-Day Clause” of the Constitution? If not, you should take a look at the Supreme Court’s opinion today in Maryland v. Shatzer. Shatzer is an intriguing example of how the Supreme Court makes rules in the area of criminal procedure. It’s particularly notable in that it introduces a very rare (but not unprecedented) numerical rule to implement constitutional protections.
Shatzer is a case on the law of police interrogations when a suspect is in police custody. It’s one of the dozens of spinoff decisions from the 1966 blockbuster Miranda v. Arizona, also known as the “you have a right to remain silent” case. The specific question in Shatzer is whether a detained criminal suspect who has asked to speak with a lawyer can ever be questioned again without a lawyer present. In a 1981 case, Edwards v. Arizona, the Supreme Court held that when a detained suspect asks to speak with a lawyer, the police cannot try to persuade him to change his mind. They have to stop the questioning, and they cannot restart the questioning, even after time passes and the suspect has met with his attorney, unless the suspect reinitiates the questioning on his own.
The issue in Shatzer was whether that rule continues to apply if the suspect has been released from police custody and is then rearrested. In particular, do the police have to honor the earlier request for a lawyer? The Miranda protections don’t apply when a suspect is no longer in custody. When the suspect is arrested again, however, he regains his Miranda rights. The question is, does the break in custody reset the clock on the effect of the suspect’s earlier request to speak with a lawyer? Or does the fact that the suspect is released from custody make no difference at all, such that the police are forever barred from approaching the suspect without a lawyer whenever he is in custody?
Two practical points make answering this question unusually hard. Point One is that the police need clear rules that answer the question with certainty. It doesn’t work to give the police complex legal tests to apply on the fly: They need clear rules to know what they can and cannot do. Point Two is that the two obvious candidates for clear rules each create absurd results. If you say that any break in custody, however short, resets the clock, then the protections are meaningless. If a suspect asks to speak to an attorney, the police will just “release” the suspect for 30 seconds, re-arrest him, and then restart the interrogation. That doesn’t work. On the other hand, if you say that the break in custody has no effect at all, then all sorts of strange consequences follow. A request to speak with an attorney in one case will inoculate the suspect from police interrogations for the rest of his life for all of his unrelated crimes. A request to speak to an attorney at the age of 18 in one case would bar questioning a half-century later for something entirely different. That doesn’t work, either.
So what to do? What clear rule on how long the break must be to reset the clock is workable here? Enter the 14-day rule, announced today in Shatzer in a majority opinion by Justice Scalia:
We think it appropriate to specify a period of time [at which time the clock is reset]. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.
The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.
As a matter of policy, I think that’s a pretty good rule. But why precisely 14 days? That is, 336 hours, or exactly 20,160 minutes? There is no 14-day Clause in the Constitution. (I checked.) Why not 15 days? Or 13.491 days?
As far as I can guess, the only reason 14 days was chosen is that it’s easy to remember and seemed in the right ballpark. Jews started measuring seven days as a time period in the 6th Century BC; the Romans then adopted it, measuring time in 7-day weeks; and two-thousand-odd years later, on February 24, 2010, a majority of the Justices on the Supreme Court though that one of those was too short, three was too long, and two seemed about right. And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.
If you’re wondering how Justice Scalia could end up writing an opinion that sounds so legislative — picking 14 days out of thin air — you need to know Justice Scalia’s history with Miranda. Justice Scalia intensely dislikes the entire line of Miranda cases. The Court has sometimes referred to the Miranda rules as “prophylactic.” That is, they are rules created to protect the Constitution, and enforced as constitutional law, but not necessarily constitutional rules themselves. In his dissent in Dickerson v. United States, Justice Scalia argued that this entire approach was illegitimate. He would overthrow the entire line of cases as an illegitimate power grab.
It’s not clear how many Justices continue to see Miranda as just “prophylactic” after Dickerson. But Justice Scalia still does. And he has long had a special dislike for the Edwards rule in particular. (Remember, that’s the rule that the police have to stop interviewing someone, and can’t restart questioning, if he asks for a lawyer.) In a 1990 dissent, Scalia described the Edwards line of cases as “prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.”
But if you can’t beat ‘em, join ‘em. Or at least join ‘em if that means you get to write the opinion that substantially limits the effect of the Edwards rule. And if you’re going to write an opinion that you see as merely “prophylactic,” presumably you’re not bound by your usual approach to constitutional interpretation. With apologies to Chief Justice Marshall, it is not a Constitution you are expounding. So explicitly policy-based rulemaking becomes more understandable, even if it’s jarring coming from Justice Scalia.
Malvolio says:
My question is, could a legislature — Congress or a state legislature — over-ride that rule by statute? Could they change the limit to, say, 13 days? If not (and I suspect not), why not?
February 25, 2010, 2:43 amJ. Aldridge says:
Pretty amusing how the Supreme Court got into making police policies within states. The 14A’s first section is nothing more than a nullity against certain states acts that provides zero regulatory or legislative powers over state police matters. Far as I know the court never used the prohibition against impairing the obligation of contracts to invent contract policies and conduct within states.
February 25, 2010, 2:54 amOff Kilter says:
Nothing in this discussion refers to the crime one is being interrogated about. Why wouldn’t the obvious rule be: “Once you invoke your Miranda right concerning crime A, you can no longer [ever] be questioned by police regarding crime A. However, if you are later arrested regarding crime B, you need to invoke your Miranda rights again.”
IANAL, but this approach would superficially seem to handle both the “too short” and “too long” concerns that Orin mentions.
February 25, 2010, 2:57 amMonty says:
Off Kilter, that approach appeals to me too, but what happens when you are not talking about two totally distict crimes? If I’m arrested today for burglary, invoke, am released, and then arrested in 1 week for a totally different burglary? Or someone who turns out to be involved in a complex criminal enterprise arrested for two separate facets of it? Does it matter if I committed both crimes before the first ivocation of miranda?
February 25, 2010, 3:12 amOrin Kerr says:
Off Kilter,
You’d have to overrule a lot of cases to do that. As the Court stated in McNeil v. Wisconsin, “The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.” (emphasis in original) There are a bunch of reasons for that, but the key point here is that the fact that the Court has settled the issue the other way explains what wasn’t a considered alternative in Shatzer.
February 25, 2010, 3:42 amKen Brooks says:
I am pretty sure that is was the Assyrians that commenced the 7 day week.
February 25, 2010, 3:52 amTim says:
I nominate this post as the best yet by Professor Kerr. Humorous, yet substantive at the same time. Nicely done!
February 25, 2010, 4:16 amFub says:
Prof. Kerr wrote:
I see that result as no more absurd than a rule which says that police cannot interrogate anybody in custody ever without the arrestee’s lawyer present.
Such a rule would obviously not be to the convenience of police. But it would not be absurd. It would be no different than an arrestee under the present Miranda rule who had memorized the mantra “I want to speak with my lawyer” and repeated it whenever he was arrested and questioned. Police do encounter such people, and they manage to get them convicted regardless.
“Less convenient for police” is not a synonym for “absurd”, at least in my dictionary.
February 25, 2010, 5:17 amJohn Herbison says:
I haen’t read the decision, but is it
February 25, 2010, 5:19 ampossiblerespectable now for anyone to blather about Justice Scalia being an “originalist”?Shag from Brookline says:
I understand that in an earlier draft of his opinion Justice Scalia used the British “fortnight” instead of “14 days;” that a clerk suggested the change because it might reflect upon Justice Scalia’s views on foreign laws in SCOUTUS decisions.
February 25, 2010, 5:59 amBrett Bellmore says:
I don’t know why it was, ever, except as a way to attack originalists as inconsistent. Scalia has never made any secret of holding a bunch of things to be more important than originalism, when it comes to interpreting the constitution.
February 25, 2010, 6:48 amCornellian says:
Scalia has never made any secret of holding a bunch of things to be more important than originalism, when it comes to interpreting the constitution.
Chief among those “more important” things being getting the result he wants.
February 25, 2010, 7:01 amAnderson says:
My first guess was that 14 days is longer than 11 days and thus eliminates (?) any issue whether intervening weekend/holiday days count, but I don’t know if the crim pro rules have such a provision. 14 days would be the shortest “natural” period (two weeks) that wouldn’t raise that issue.
February 25, 2010, 7:17 amDavid Nieporent says:
Well, see Dickerson. Miranda itself is just a made-up Supreme Court rule, but when Congress tried to overrule it, the Court declared that it was a “constitutional rule” and said that Congress couldn’t do so.
February 25, 2010, 7:17 amBrett Bellmore says:
Well, somewhat. Like the President and Congress would ever permit onto the Court somebody who’d uphold the Constitution without fear or favor. They LIKE the Court putting a thumb on the scale, and it’s in the nature of hiring somebody to do that, that it’s going to be their thumb. Better than having to actually obey the Constitution, they figure.
February 25, 2010, 7:26 amBuddy Hinton says:
I am with Justice Scalia. Miranda is mostly protection for the guilty. Put the focus back on whether the conditions and techniques of the interrogation itself are de facto coercive. That area of the law has fallen into disrepair, as evidenced by the fact that a lot of factually innocent people confess these days. That is the elephant in the drawing room and it should be considered as a Fifth Amendment problem. GOOGLE “West Memphis Three.” Miranda, and its expanding line of nonsense, is a big dog and pony show.
February 25, 2010, 7:36 amtbaugh says:
The “14-day rule” could cause some very strange results. Defendant is arrested for a minor crime, given Miranda, asks for a lawyer, is released without charge. He decides to move to another state several days later, and to get himself started when he gets there robs a gas station but gets caught. Police give him Miranda warnings, he waives and confesses. But because it hasn’t been 14-days since he invoked the “Miranda-counsel right” when arrested in the other state on the minor offense, something this state and these officers have no idea about, the confession, though voluntary, is suppressed. This strikes me as an odd result under the Fifth Amendment, especially since involuntariness itself is supposed to be the result of “coercive police conduct.”
February 25, 2010, 7:51 amAnonymous says:
14 days sounds like it could be too short a time limit in some cases, but too long in others, to avoid anomalous results. Given the facts of Shatzer, which involved a 2.5 year break in interrogation, they could have declined to set a flat time limit while indicating that a 2.5 year break in custody wasn’t a close case; that a break measured in weeks would almost always be okay; and that shorter breaks in custody would be viewed as more problematic. Everyone who has watched a couple of episodes any of police procedural has seen demonstrations of prison inmates telling police investigators or prosecutors that they’re not interested in talking and calling for the guards to take them back to their cells. (In Dickerson, Chief Justice Rehnquist was obviously influenced by the fact that Miranda warnings are seen constantly on every television show about police in concluding that it would be difficult to fathom holding that the warnings were never required — at least as a matter of constitutional law — all along.)
February 25, 2010, 7:54 amFuture Barista says:
Great exposition. In classic style, I’m going to respond without first reading Scalia’s opinion. It seems to me that this particular “prophylaxis on prophylaxis” isn’t necessary from a practical point of view, because if the suspect invoked his constitutional right to remain silent just a few days prior, wouldn’t he remember (and couldn’t the law expect him to remember) that he could invoke it again? In other words, the suspect who’s been arrested twice — and already asked for a lawyer once — is the last person who needs an additional layer of constitutional protection.
February 25, 2010, 8:02 amtom says:
your inference regarding the arbitrary nature of the new “Shatzner Period” sounds remarkably like the Holy Hand Grenade bit from Monty Python. Suitably modified it would become:
February 25, 2010, 8:19 amJoshua House says:
I think that the historical consensus is that the “Creation week” seen in the Bible was taken by the Jews from earlier Mesopotamian literature (pre-Babylonian). Others believe it was given to pre-Babylonian Mesopotamia from the Jews. Either way, the seven day week is much older than 6th century. Many, including myself, think the seven day week is “Epic of Gilgamesh” old, if not older. That’s really old – circa 1200 B.C.
I may be a law student, but I’ll bust out my Middle Eastern History degree if I need to.
February 25, 2010, 8:41 amAnderson says:
Put the focus back on whether the conditions and techniques of the interrogation itself are de facto coercive.
Right. Because that worked so well.
February 25, 2010, 8:49 amWidmerpool says:
I will gladly allow you to question me two weeks from Tuesday if you release me today.
February 25, 2010, 8:56 amKen Arromdee says:
By that reasoning the police could just keep questioning him five minutes after he invokes his right to remain silent, on the grounds that since he already knows he has a right to remain silent, he can always invoke it again after five minutes.
The point of not continuing to question the suspect is that questioning is coercive, even if he knows that he has a right to remain silent. In fact, it’s especially coercive after the guy already said he wanted to remain silent, because it suggests the police aren’t going to take silence for an answer. Perhaps if he knew the law perfectly, he might know the police can’t legally keep him detained for being silent, but that’s the kind of thing a lawyer would know, and he hasn’t been given his lawyer yet
February 25, 2010, 9:02 amCognitive Dissonance says:
Scalia = activist judge
Scalia = Legislator from the bench
“Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.” — Scalia’s dissent in Morrison v. Olson.
Scalia = just like all the other politicians. When it works for you, claim adherence to a strict, objective, above-the-fray ideology. But when you want to get a result you like, justify an exception to your ideology.
February 25, 2010, 9:09 amPatHMV says:
fub, as tbaugh notes, the rule you propose WOULD lead to some absurd results. Once a suspect has invoked Miranda, no police can question him, whether the officer in question knows that the suspect had invoked or not. A “forever” rule would then operate to throw out questioning by another officer in another jurisdiction 10 years later, even though the officer had no way of knowing that the offender had invoked Miranda once on an old, long-ago case. The purpose of Miranda is to provide a procedural mechanism for guarding against coercive interrogations in violation of the 5th Amendment, not to prevent any police questioning of a suspect under any circumstances. How can one reasonably say in such a scenario that the 2nd questioning, 10 years later, is “compelled” in any sense of the word, just because the individual once upon a time invoked Miranda in some much earlier crime?
If you don’t think such a scenario is an absurd result, then you’re not living on the same planet as most of the rest of us.
February 25, 2010, 9:09 amPintler says:
A strong willed, mentally capable person intimately familiar with their rights and the permissible limits of police interrogations doesn’t need Miranda et al. protections at all. You have to consider the innocent person with a room temperature IQ who is getting pressured to confess to a high profile crime. Sadly, false confessions in those situations are not unheard of.
February 25, 2010, 9:14 amLou Gots says:
The “14-day Clause” is as much a part on the Constitution as the so-caled “Miranda Rule” itself. These are judge-made mechanisms of enforcement of the Constitution, not the Constitution itself. They are no more parts of the Constitution than are Weeks and Mapp. A stroke of a pen from five justices might place us on another path of enforcement of Constitutional rights.
February 25, 2010, 9:18 amFuture Barista says:
Right. My point is, the guy we’re talking about doesn’t need to know the law perfectly, because he had a lawyer — someone who does know — advise him of his rights, just a few days prior. Just like he did then, he could say “get me my lawyer” and stop the interrogation.
I hear your coercion point — the reason for the Miranda/Edwards rules — but given institutional pressures post-Miranda (i.e., the likelihood that a statement will be suppressed after a court finds out a defendant was compelled/coerced to continue talking after he requested his lawyer), that justification might be overblown.
February 25, 2010, 9:20 amCognitive Dissonance says:
Miranda is a protection for the INNOCENT.
I am proud to live in a country where innocence in a criminal prosecution is a presumption.
Or maybe it’d be preferable to live in a country where the accused don’t have rights? E.g. China, where you can be sentenced to a labor camp for three years w/out trial? http://www.chinaeconomicreview.com/dailybriefing/2009_12_03/5_Chinese_church_leaders_sentenced_to_labor_camp.html
February 25, 2010, 9:34 amAlast says:
We need more bright-line tests. There — I said it. Let the pummeling begin. I know it is heresy, as it has the potential to close the doors to some well-worn hallways of legal manoeuvrings.
What is magic about the age of 18? One day before, and I can’t be held to a contract… one day after and I can.
Without the age 18 bright-line test, every time we would have to delve into the ability to form the contract, maturity, etc. While it might find some 17 year olds are capable, and some 18 years olds are not, the result would be, overall, a huge negative.
Bright-line tests are of course not perfect — but the overall salutary effects of efficiency and understanding of the law for everyone far outweighs any negatives, given that there is no constitutional defect. In many cases where an act is constitutionally permitted/prohibited after/before some “reasonable” period of time, I’m in favor of the Court adopting a bright-line test for the time period…. or an upper and lower bound.
While I agree such tests should preferably come from the legislative branch, I am not against them coming from the Court when the subject matter is appropriate (as it is in this case).
February 25, 2010, 9:35 amT. Gracchus says:
Are there some references at hand about the Romans adopting a seven day week from the Jews? Curious is all, as I have the impression that a Roman seven day week predates Roman/Jewish interactions.
February 25, 2010, 9:40 amShelbyC says:
Why don’t they just leave prophilacting to the legislature, like the constitution says they have to do? How can creating a 14 day rule be described as deciding cases and controversies about the consititution?
February 25, 2010, 9:41 amB.D. says:
With respect to an overprotective interpretation of the Edwards rule, you wrote: A request to speak with an attorney in one case will inoculate the suspect from police interrogations for the rest of his life for all of his unrelated crimes.
Contained in that sentence is an important word, unrelated. Is it not “bright-line” enough to make the standard relatedness? That is, why not extend the Edwards protections to all arrests that are related, but not to unrelated arrests? Are police too stupid to understand this? Is the potential of further litigation to test this kind of standard too worrisome?
February 25, 2010, 9:41 amShelbyC says:
Did you even read the comment you were responding to?
February 25, 2010, 9:44 amAllan says:
I do not like this 14 day thing, it is too arbitrary.
My proposed rule would be: when you are born, you have a right to an attorney and that right continues until you die. In between, no-one, not even your parents, siblings, children, boss, co-workers, or subordinates (let alone the police) can question you without your attorney present,
February 25, 2010, 9:49 amOren Kir says:
I find this case, and others related to the fourth amendment’s potection against self-incriminaton, particularily interesting.
February 25, 2010, 9:50 amConstitutional Doubt says:
It is not, as you suggest, surprising to see Justice Scalia “legislate” from the bench. For example, in Boyle v. United Tech., writing for the majority, Justice Scalia invoked federal common law to fashion a Government Contractor Immunity defense to State Tort claims. As Scalia put it “In most fields of activity, to be sure, this Court has refused to find federal pre-emption of state law in the absence of either a clear statutory prescription, or a direct conflict between federal and state law. But we have held that a few areas, involving uniquely federal interests, are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts-so-called federal common law.” Just like any other Justice, Scalia does not mind legislating from the bench and he does not need constitutional or statutory text to do so.
February 25, 2010, 9:50 amLi'or says:
Could someone explain how this decision comports with Article I? Granting the idea that courts can develop the “common law”, this appears very different. What is the doctrine that distinguishes this rule from the kind of rules that only Congress can make?
For comparison, the court commonly declines to rule on issues it believes should be decided by the Executive, and I assume this approach rests on Article II.
February 25, 2010, 9:52 amDave N. says:
I am guessing the Conference unanimously agreed that the Maryland Court of Appeals had reached an absurd result (suppressing a confession after a 2 1/2 year break between the original request for an attorney and the later confession).
The Court being unanimous on that point, I am guessing there was then dickering over how long the period would be. Someone started at a few days, someone else suggested a month, and 14 days became the compromise. 14 days might not be in the language of the Constitution, but it does provide a bright line rule — and it forecloses another decade of litigation as various courts create their own conflicting rules that the Supreme Court itself would have to resolve.
February 25, 2010, 9:53 amjccamp says:
OK -
Thanks for a very informative post. I see the decision also cleared up the definition of “custodial”, as in “custodial interrogation.”
A seemingly odd result, but exactly the kind of instructions that law enforcement can appreciate, since investigators of every educational stripe can read and say “Right, got it.” From a strictly operational POV, it’s less about the actual delimitation and more about unambiguous mechanics – maybe the ability of cops to comprehend and articulate the mechanics.
February 25, 2010, 9:56 amDave N. says:
Um, because that wasn’t the issue before the Court. On both occassions, Shatzer was being questioned about the SAME crime.
February 25, 2010, 9:57 ammaurer less says:
The Miranda Fortnight enters American jurisprudence. And there was much rejoicing.
-ml
February 25, 2010, 10:05 amB.D. says:
So what? That’s kinda my point. The Court could have decided to apply a relatedness standard to the Edwards protections, which would have meant a different result in this case.
I’m not sure why you think it wasn’t an issue before the Court; it seems to have been as much an issue before the Court as some arbitrary 14 day standard. Maybe you can explain it to me.
February 25, 2010, 10:05 amLior says:
How does the 14-day rule operate when the interrogating police are unaware of the earlier arrest? How can local police in one jurisdiction be sure that the suspect has not recently invoked his Miranda rights in any other jurisdiction?
February 25, 2010, 10:11 amAndrew L says:
Prof. Kerr,
I see your point, but what should Scalia have done instead? Refused to rule on this case on the grounds that the entire premise is ridiculous?
Also, the criticism that Scalia is “legislating from the bench” strikes me as at least somewhat unfair. It’s sort of like when Democrats accuse Republicans of hypocrisy for filibustering judicial candidates. While it may, indeed, be inconsistent with their professed ideology, it’s quite unfair to say that one side should get to use a particular legislative tool to the great disadvantage of the other side, while the other side should be bound to abstain from using such a tool, also to their great disadvantage. In a perfect world, Republicans shouldn’t and wouldn’t filibuster – but once the other side does so, it becomes a vicious cycle.
I’m not sure if any of this made much sense, but it’s just my gut feeling…
February 25, 2010, 10:11 amProfane says:
So what is the over/under on the creation of the Good Faith Exception to the 14-day rule?
February 25, 2010, 10:18 amCircumlocutions » Thoughts on Maryland v. Shatzer says:
[...] he Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights. Scott Greenfield has written about it, as has Orin Kerr. [...]
February 25, 2010, 10:23 amMike McDougal says:
And then the police will simply learn to ask whether the suspect was in custody within the last two weeks. If the suspect lies and says no, I think that should vitiate the 14-day rule.
February 25, 2010, 10:27 amDave N. says:
B.D.,
Other commentors on this thread have pointed out the potential problems for the rule you propose: Suspose Suspect A is arrested on a Burglary and invokes his Miranda rights. There not being enough evidence to hold him, he is released. A month later he is arrested on a second Burglary and Mirandized again. This time he agrees to talk. During the course of his interrogation, he is asked, “Are there any other Burglaries you committed?” and he starts describing the FIRST Burglary.
Under your rule, some but not all of the second interrogation would be excluded, which in itself is absurd since the purpose of Miranda is to deter police misconduct. Additionally, a smart defense attorney might argue that even questioning about the second, otherwise unrelated Burglary , is tained since they are “related” in terms of the perpetrator, modus operandi, etc.
The other problem is that the Supreme Court has differentiated between the Fifth Amendment Right to Counsel which is not offense specific, and the Sixth Amendment Right to Counsel, which is. An awful lot of 5th Amendment caselaw would have to be overruled to make it offense specific as well.
February 25, 2010, 10:30 amShelbyC says:
The courts aren’t supposed to be forclosing litigation, they’re supposed to be examining every case in which there is a controversey about whether or not the defendant is being compelled to testify against himself, and determining whether or not he is being so compelled.
February 25, 2010, 10:40 amBuddy Hinton says:
I sed:
Anderson sed:
This time is different. This time we have cheap, small, ubiquitous video cameras. Which gives me a gr8 idea for a much, much more sensible 5A prophylactic rule. Can you guess what it is, Anderson?
February 25, 2010, 10:50 amAnderson says:
In between, no-one, not even your parents, siblings, children, boss, co-workers, or subordinates (let alone the police) can question you without your attorney present,
You left out “spouse,” which seems to me like the #1 selling point.
February 25, 2010, 11:02 amDave N. says:
ShelbyC,
What I meant in the sentence you referenced is that the Court obviously decided it was better to create a bright line rule (14 days) than have years of litigation where various appellate courts create their own, perhaps contradictory rules (a month in State A; 10 days in Circuit B; 2 years, 5 months in the 9th Circuit, etc.).
I agree with the Court that if the purpose of Miranda is to provide the police with bright-line rules to deter misconduct, it might be best to supply them with a bright-line rule (14 days).
February 25, 2010, 11:09 amDave N. says:
Anderson, for the win.
February 25, 2010, 11:19 amyankee says:
Why is it any stranger for the Supreme Court to invent a bright-line rule than for it to invent a multi-prong test? There’s no “average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest” clause in the Constitution either. Why can they only look at the work as a whole, rather than at parts of the work? Why community standards rather than state or national standards? Why “appeals to the purient interest” rather than “would tend to sexually arouse?”
Why three tiers of scrutiny rather than two or four? Why must a law be narrowly tailored rather than precisely targeted? Why must it be justified by a compelling government interest rather than an important government interest or a vital government interest?
None of these tests are in the text of the document: the Supreme Court made them up and picked them because they were in the right ballpark. And if it’s completely normal for the Supreme Court to make up a standard because it’s about right, why can’t it also make up a rule because it’s about right?
February 25, 2010, 11:22 amDavid Chesler says:
I also wondered what’s wrong with no questioning without a lawyer, as Fub and Allan mention. (Police could still question you, but things you said couldn’t be held against you, which I’d like to see anyway, given the unreliability of hearsay. Since IANAL I don’t understand the “against interest” exception.)
How close to a capital case can defendants get without an attorney? How coercive or untruthful may prosecutors be in encouraging defendants to waive their right to assistance of counsel at trial?
February 25, 2010, 11:25 amDave N. says:
I don’t understand your point. Do you have capital litigation experience? I can GUARANTEE that if someone is charged with a capital crime that person will either have counsel or the trial court will conduct the Faretta canvass from Hell before the court lets the capital defendant represent himself.
February 25, 2010, 11:31 amGuest14 says:
Get rid of the hearsay exception that allows confessions to be admitted as evidence, and this all goes away. To the extent the police find it useful in their fact-finding mission to question people, they can, but if the prosecutor wants a conviction, he’ll need to find actual evidence.
February 25, 2010, 11:32 amDave N. says:
Guest 14,
It is not a hearsay exception. An admission is not hearsay at all. FRE 801(d)(2).
February 25, 2010, 11:39 amPatHMV says:
Guest14… so you want the law to be that a killer can brag about killing someone, say something even like: “yeah, I killed him, I’d do it again, and what are you going to do about it?!?”, and the entire legal system would have to pretend he never said that, and the jury would never be allowed to know that he said it?
Not a likely rule to be adopted. Confessions ARE evidence. Not always conclusive evidence, it’s true, but usually pretty darn good evidence.
February 25, 2010, 11:39 amJames B. says:
This was part of the “twist” on the L&O episode with William Kuntsler. Kuntsler represented an activist bankrobber in the 60s, she fled and went undergorund. 25 years later she’s found and confesses, but K has the confession thrown out arguing that she was already represented so the police couldn’t quetsion her.
February 25, 2010, 11:44 amDave N. says:
James B,
You are confusing the Sixth Amendment right to counsel with the Fifth Amendment right to counsel. The L & O episode was about the former; Shatzer is about the latter.
Under the Sixth Amendment right to counsel (which is offense specific), police may not question a defendant who has counsel without the permission of his attorney (which no attorney in his right mind will allow).
February 25, 2010, 11:46 amSCOTUSblog » Does the Constitution Have a 14-Day Clause? says:
[...] The following commentary is cross-posted on The Volokh Conspiracy. [...]
February 25, 2010, 11:46 amGuest14 says:
Sure. Why not? If, even with the help of the bragging killer telling him who to investigate, the prosecutor can’t find any other evidence to secure a conviction, maybe he shouldn’t be convicted.
February 25, 2010, 11:47 amShelbyC says:
Isn’t that pretty much what the Miranda decision does, in some circumstances?
February 25, 2010, 11:56 amAlexia says:
“A request to speak with an attorney in one case will inoculate the suspect from police interrogations for the rest of his life for all of his unrelated crimes. A request to speak to an attorney at the age of 18 in one case would bar questioning a half-century later for something entirely different. That doesn’t work, either.”
Works for me. For the record, I’ve never been arrested, been to jail, or even had a speeding ticket
February 25, 2010, 11:57 amDavid Drake says:
I think that a legislature could change this period. Justice Scalia says that the original “no further interrogation” rule after a suspect invokes Miranda ( Edwards v. Arizona, 451 U. S. 477) was not constitutional but prophylactic, and the 14 day break rule is a further elaboration of that “prophylactic” rule.
Because the “no further questioning” rule is not a constitutional command, as the Miranda rule is, it seems to me that a legislature could clearly expand the “break in custody waiting period” from fourteen days to a longer period, and could probably specify a shorter period as long as it was reasonable.
Justice Stevens, concurring in the opinion, says that fourteen days is too short, but that the 2 1/2 year time break in Shatzer itself was enough time.
February 25, 2010, 12:00 pmSuperSkeptic says:
Nice. Do you mean when SCOTUS declares it? or when a district court or appellate court declares it? That could shift our over/under time frame significantly. If you mean when SCOTUS so holds, we’d have to add 14 or so days from now (give or take a few days) plus the average time a case would take to wind it’s way up the system minus the eagerness of SCOTUS to declare the good-faith exception.
My wager awaits more specificity… but I’m leaning toward the under.
[edit: whoops, this assumes that there is no such language in the opinion arguably creating one already.]
February 25, 2010, 12:04 pmPintler says:
How does that work here: the long running serial killer investigation focuses on Mr. Smith. While being interrogated, he confesses and accurately describes the location of many bodies, or provides other information known only to the killer. Given that years have passed, there is no forensic evidence to tie Mr. Smith to the bodies. What evidence do you have other than that only the killer could have known the exact locations? Does Mr. Smith walk?
February 25, 2010, 12:14 pmDavid Chesler says:
Neither as a litigator, a vitctim, nor a defendant.
February 25, 2010, 12:19 pmMy point was stated poorly — I understood (from watching lots of TV lawyer shows) that the defendant is NOT going to be allowed to go it alone, to waive that right, in a capital case. And I suspect that unlike police interrogations, prosecutors don’t say things like “Your buddy has already been convicted, if you insist on having assistance of counsel you will be held in pre-trial detention for the next year, so you should just waive your right to counsel.” (I have had a cop use the threat of detention to get me to waive my right to remain silent. I was the first detainee to ever answer “No, I do not understand these rights” after he read the litany, probably one of the first to even listen to the actual words. He couldn’t understand how I couldn’t understand, but if I’ve learned one thing from the net.lawyers, it’s that I’m ignorant of legal matters. He kindly gave me the legal advice that I didn’t have to understand the ramifications to understand the rights, but then when I attempted to exercise that right, he told me I’d be held three days before the next step. [I didn't believe that, but I figured that dirtied the waters enough, not that there was anything I could have said in this chicken-excement matter that could have been held against me. I was released about an hour later, and a few years later received 2/3 of a settlement.])
Jeff R. says:
It would be extremely difficult for the prosecutor and investigating officers to present to the jury a narrative of the investigation under these rules, wouldn’t it?
(And eventually savvy jurors would begin to draw conclusions from investigation narratives with no beginning, which would present other problems…)
February 25, 2010, 12:25 pmDjDiverDan says:
I would like to propose a rule for comments on Supreme Court Justices – No individual Justice (Scalia, in this case) can be called an “Activist Judge” for writing any opinion in which all 9 of the Justices concur in the judgment. Yes, technically, this wasn’t a “Unanimous” opinion – Thomas and Stevens both had problems with Scalia’s rule (they both asserted that it was arbitrary, but proceeded to admit that ANY “bright-line” rule would be arbitrary), but both concurred in the judgment. So, let us assume that both Thomas and Stevens, who agreed that the 2-1/2 year break in custody in this case was long enough to take it out of the Edwards rule, would have rejected any arbitrary line, and left all of these types of cases up to a case by case analysis under a “totality of the circumstances” test. We have 7 Justices who, for entirely practical reasons, think that a bright-line rule, however arbitrary, will reduce future litigation and unnecessary uncertainties among law enforcement personnel. I think in these particular circumstances it’s hardly fair to accuse Scalia of being “Activist”, unless by that you mean he’s willing to reach a decision that reduces further litigation.
February 25, 2010, 12:29 pmDavid Chesler says:
Please consult for example Melissa Weintraub, The Bar against Self-Incrimination as a Protection against Torture in Jewish and American Law quoting Irene M. Rosenberg and Yale L. Rosenberg, “In the Beginning: The Talmudic Rule Against Self-Incrimination,” 63 New York University Law Review 955, p. 965:
February 25, 2010, 12:30 pmlosantiville says:
The week is the only major measure of time that is arbitrary. Year, month, and day are all related to natural cycles a week could be any length (shorter than a month and longer than a day, presumably).
As for the issue in the case, a 1994 episode of Law and Order (White Rabbit) starred William Kunstler as himself. A circa 20-year-old robbery and cop killing by Lefty radicals is reopened and one of the participants is arrested living under an assumed name. She confesses to the crime but the judge throws her confession out because Kunstler was not present at the questioning and he had represented her at the time of the original investigation.
This was a case of the same suspect, lawyer, and crime and involved actual representation.
February 25, 2010, 12:35 pmJeremyKidd says:
While there are legitimate debates to be had as to whether Scalia is consistent in his originalism, this case shouldn’t be part of those debates. I’m not aware of any tenet of originalism that addresses judicially-created rules. On page 11 of the opinion, Scalia is clear that the rules at play here are not statutory or constitutional. They are creations of the Court, and can be changed as easily by the Court as easily (perhaps more so) as the legislature amends statutory law. Therefore, it isn’t a question of whether Scalia was abiding by the “original meaning” of the Court’s previous rule; he just changed the rule so it has a new meaning.
February 25, 2010, 12:36 pmAnonsters says:
I hope further contortions are attempted in order to justify Scalia’s approach to this case. It’s fun seeing the Scalia-lovers twisting in the wind.
February 25, 2010, 12:38 pmConstitutional Doubt says:
A better rule would be to just stop using the term activist judge. It is a politically charged term that does nothing to elucidate a Judge’s jurisprudence. All judges are activists, even Scalia and Thomas. They are just activists for different reasons. Originalists are activist in that they seek to overturn precedents and laws based on their conception of the constitution, just as aspirationalists overturn precedents and laws based on their conception of the constitution. The real argument is about what is the correct way to conceive the Constitution. Calling a Judge an activist merely reveals your conception of the constitution, and says little if anything about the the Judge’s jurisprudence. [See my above post for a an example of Scalia's activism. In the case I cite to, Scalia creates a Federal Contractor Immunity out of thing air - with no grounding in statutory or constitutional text.]
February 25, 2010, 12:40 pmShelbyC says:
Tell me, what is the originalist approach to this question?
February 25, 2010, 12:42 pmSuperSkeptic says:
Overrule Miranda – HA!
February 25, 2010, 12:44 pmAnonsters says:
There isn’t one. I think originalism is, root and branch, not only a terrible idea, but purely a fiction, a mere patina covering for the preferences of those who brandish it. Therefore, I don’t think there’s an “originalist approach” to any question.
February 25, 2010, 12:46 pmConstitutional Doubt says:
Originalism simply has it that if the Court – under the original understanding of the Constitution – has the power to make the rule at hand, than it is a legitimate exercise of the Court’s power to tinker with it. If not, then it is not. That would be how originalism addresses judicially created rules. There certainly are many areas where the Court has “created” its own rules under the guise of federal common law, and originalists would not deny that the Court has the power to do this. It would be impossible for it to function without this power.
February 25, 2010, 12:49 pmEarly Bird says:
Just yesterday in Admin Law we read the Hoctor case, in which Judge Posner said that an administrative rule that an 8ft. perimiter fence was required for keeping big cats (lions tiger, etc.) was arbitrary and therefore “legislative” in character, not interpretive. Thus, in order for the USDA to make this rule, they’d have to go through notice and comment rulemaking. And then this case comes down the same day. It would seem more “judicial” for the court to say that a “reasonable” period of time has to elapse before someone can be questioned again w/out a lawyer, that 2.5 years is a reasonable time, and then let states make rules. That would of course lead to more litigation, but as others have pointed out, the court’s job is to decide cases or controversies before it, not write prospective legislation. The court could even say in dicta that “14 days is probably the minimum for a reasonable time” instead of making this really silly ruling. That would still give guidance but would avoid the court, and Scalia especially, looking like the stereotypical “legislator from the bench.”
But as Orin points out, this whole line of cases is more legislative than many people consider proper. Still, this case is an interesting juxtaposition with Hoctor.
February 25, 2010, 12:53 pmJeremyKidd says:
Constitutional Doubt:
I agree. My point was that the question is not one of originalism, per se. We agree that the Court, so long as it has authority to create the rule in the first place, can alter that rule without concerns about abiding by the “original intent” of the rule.
February 25, 2010, 12:55 pmSuperSkeptic says:
But seriously, about all of this talk about prophylaxis and Miranda and Dickerson (and now Shatzer): It’s important to remember that law enforcement was solidly behind Miranda by the time of Dickerson. It remains to be seen how law enforcement will embrace Shatzer as well as the efficacy of its bright-line rule; however, should there be a legislative response (or backlash) sooner (as opposed to some 30 years after, as in Dickerson), then the rule espoused in Shatzer is more likely to be admitted to be non-constitutional prophylaxis (and therefore permitted to be struck down by the Court) than quasi-constitutional-Miranda-like-untouchable prophylaxis (and stubbornly upheld by the Court).
Having now read the opinion, Justice Scalia (who dissented in Dickerson after all) seems to have written his words mindful of such an inter-branch relationship.
February 25, 2010, 12:59 pmAnonsters says:
Where in the Constitution do you originalists find the S. Ct.’s power to make state criminal procedural rules?
February 25, 2010, 1:01 pmSuperSkeptic says:
Well “living constitutionalism” could equally be considered a “mere patina” by those favoring “originalism” – as well as a “pure fiction”. Those same people would likely also argue that there is no “living constitutionalist approach” to any question.
However, originalists have repeatedly explained – Scalia in particular ad nauseum – why “living constitutionalism” is a “terrible idea”. Why do you think “originalism” is such a “terrible idea”?
February 25, 2010, 1:05 pmFub says:
I concede the point about police determining recent arrest records across jurisdictions. But the absurdity would only result because police refuse to do the rational thing and never interrogate anybody in custody without counsel present.
I don’t think prohibiting all custodial interrogation in the absence of counsel would be absurd, only inconvenient.
Whether that state of affairs would occur because police stopped trying to figure out whether someone had been arrested previously, or because of a statute or SCOTUS interpretation doesn’t matter.
Maybe there is good argument from empirical evidence that such inconvenience would result in making convictions impossible or even broadly less likely, but I haven’t heard one.
A blanket rule would also bring false confessions due to intimidation or coercion to a screeching halt.
But none of that is going to happen.
February 25, 2010, 1:05 pmSuperSkeptic says:
Nowhere. But incorporation happened (the civil war also happened). It doesn’t do to not support its revocation (which I assume you do not – nobody really does) and then castigate originalists, does it?
[edit: for the record, on a good day, I can see both sides as simply "trying to get it right".]
February 25, 2010, 1:07 pmAnonsters says:
This really isn’t the place to go into it in the depth required to have a useful conversation about it.
But I’ll tell you that my views on why originalism is, and must be, so much poo have to do with my views of the nature of language and of human cognition. I didn’t form my view of how to interpret the Constitution by thinking about how to interpret constitutions or other laws. My view on interpreting the Constitution flows from my views about how to interpet anything couched in human language, which seems to me to be the only sensible way to approach the question. What sense does it make to come up with a theory for interpreting the Constitution without specifying your theory of language and interpretation?
If you want to get a glimpse at one major source of influence on how my views have developed, though, read Hans-Georg Gadamer’s Truth and Method.
February 25, 2010, 1:12 pmAnonsters says:
So now we’re back to this decision being a constitutional one, not merely a decision resulting from some inherent power of courts to create rules?
You can’t say that this case depends in part on interpreting provisions of the Constitution that have been incorporated against the states, while saying at the same time that originalism doesn’t have a role to play here. Originalism is supposed to be in play any time you interpret the Constitution. It’s supposed to be the only legitimate way of interpreting the Constitution.
February 25, 2010, 1:16 pmSteve says:
And then the police will simply learn to ask whether the suspect was in custody within the last two weeks. If the suspect lies and says no, I think that should vitiate the 14-day rule.
What if the suspect exercises his right to remain silent?
February 25, 2010, 1:20 pmSuperSkeptic says:
It’s obviously constitutionally-based to some extent – and at the same time, the ultimate prophylactic rule isn’t constitutional. I don’t think I ever went away from that position.
My point in mentioning incorporation in that comment was simply meant to echo comments already made above (and that I’ve made here before) about the double-standard going on here. Living Constitutionalists shouldn’t call originalists like Scalia a hypocrite simply for living in the world they’ve created.
February 25, 2010, 1:43 pmConstitutional Doubt says:
Ahhh. I undertand. That actually raises a very interesting question. To what extent does precedent bind the originalist. Does precedent handed down shortly after the enactment or amendment of the Const. carry a lot of weight as to the Orig. Understanding of the const. I would assume yes. I think Scalia addresses this issue in his famous article “Originalism: The Lesser.”
February 25, 2010, 1:45 pmProfane says:
Profane: So what is the over/under on the creation of the Good Faith Exception to the 14-day rule?
I skimmed the opinion and did not find any, although Thomas makes the following point in his concurrence, which gets to the heart of the problem:
“Determining whether a suspect was previously in custody, and when the suspect was released, may be difficult without questioning the suspect, especially if state and federal authorities are conducting simultaneous investigations.”
Or, I might add, if a suspect is taken into custody in multiple states. The rub here is how the 14-day rule is checked. Is a line of decisions akin to Arizona vs. Evans and Herring in the future of Miranda jurisprudence?
February 25, 2010, 1:46 pmMahan Atma says:
Am I misreading the opinion? It looks to me like the defendant was never released and rearrested. He was in prison the whole time. The so-called “break in custody” was being released into gen. pop.
February 25, 2010, 1:52 pmCognitive Dissonance says:
Not that it really matters, but this statement isn’t (entirely) correct.
In Pennsylvania state courts (and some other states’ courts), an admission comes in under an *exception* to the hearsay rule. PA R.E. 803(25).
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
(25) Admission by Party-Opponent.
Here’s the Comment on the rule (available at, among other places, http://www.pacode.com/secure/data/225/chapter8/s803.html ):
The federal rules call an admission by a party-opponent an exception to the definition of hearsay, and place it in Rule 801 under the heading of ‘‘Definitions.’’ The Pennsylvania rules, like the common law, call an admission by a party-opponent an exception to the hearsay rule. The Pennsylvania rules, therefore, place admissions by a party opponent in Pa.R.E. 803 with other exceptions to the hearsay rule in which the availability of the declarant is immaterial. The difference between the federal and Pennsylvania formulations is organizational. It has no substantive effect.
February 25, 2010, 1:52 pmAnonsters says:
Of course they can, b/c Scalia and the like argue that originalism is the only legitimate way to interpret the Constitution, and that non-originalists are wrong.
If you believe it’s the only legitimate way, then it is surely hypocritical to deviate from originalism.
It’s not much of an argument to say, “Well, we don’t have to be consistent originalists, because non-originalists aren’t originalists at all!” Either you believe originalism is the right way to do it, and you do it that way, or you don’t.
So it seems to me that what you’re really arguing is that originalists aren’t required to have integrity, simply because originalism is not the dominant interpretive method (regardless of whether that last claim is true; in my view, there’s already far, far too much talk about “original intent” or “original understanding” or “original or crispy” or any other flavor of it).
February 25, 2010, 2:10 pmShelbyC says:
Hasn’t Scalia argued that it’s perfectly OK to say things like, well, we shouldn’t have this rule, but if we’re going to have one it should be two weeks? How’s that hypocritical? Maybe he thinks that originalism is the only legitimate way to interpret the constitution, but do you think he believes that what he’s doing now is interpreting the constitution?
February 25, 2010, 2:27 pmJohn Herbison says:
Scalia is a result-oriented scold. Justices in the mold of, say, William Brennan, are just as result-oriented. The difference is that Scalia is not man enough to admit it, and pretends to be what he manifestly is not.
Kind of like those who pretend that Justice Uncle Thomas was not an affirmative action appointment.
February 25, 2010, 2:32 pmtim baughman says:
I don’t see how this is regarded as a prosecution win (“Miranda dealt one-two punch by high court,” National Law Journal), other than for the holding that the assertion of the Miranda right to counsel is not eternal, which hardly seems earthshaking.
Officers should now be instructed, when questioning someone newly arrested, to advise the suspect of his Miranda warnings, and also ask:
“Have you been in custody of any police department anywhere in the last 14 days? If so, were you ever given the warnings I just gave you? If so, did you ever request a lawyer?”
Mosley allows subsequent questioning after the assertion of silence if the circumstances show that the police “scrupulously honored” the assertion. If the police stopped questioning when defendant asked for a lawyer–”scrupulously honored” that assertion by ceasing questioning without a lawyer’s presence—and defendant is released from custody, he knows that if arrested again and given warnings that questioning will cease if he asks for an attorney. Certainly a pretext shouldn’t be allowed–”he’s asked for a lawyer, we’ll release him and arrest him on the sidewalk after he gets out and try again,” but a “scruplously honored” assertion followed by a nonpretextual break in custody shouldn’t be that hard to administer. We ask juries to hear lots of evidence, consider lengthy instructions, and reach a verdict beyond a reasonable doubt every day. Surely judges can determine on the totality of circumstances whether the assertion of the Miranda right to an attorney was “scrupulously honored” and the release from custody nonpretextual.
February 25, 2010, 2:57 pmDave N. says:
Projecting racism much?
Because, you know, a Black can’t be conservative — a thought I find just as noxious as any other stereotype.
And I also thought it was amazingly clever to make the play on “Uncle Tom” with “Uncle Thomas”.
Bottom line, John Herbison, is that you are an ass.
February 25, 2010, 2:58 pmAni V. Atah says:
I think it’s gematria, with the number 1 being assigned to each English letter. For example, Grutter v. Bollinger = affirmative action programs will not be needed 25 years from date of opinion. “Affirmative action programs” = 25 letters. Shatzer v. Maryland = 14 day time period for Miranda. “Michael Shatzer” = 14 letters. Just a coincidence? Or the newest theory of constitutional interpretation?
February 25, 2010, 3:17 pmJohn Herbison says:
Dave N., Since Thurgood Marshall was confirmed in 1967, there have been twenty-three persons nominated for eighteen vacancies on the Court (double counting William Rehnquist, who was first appointed as Associate Justice and later elevated to Chief Justice, and also double counting John Roberts, whose initial nomination was to succeed Sandra O’Connor as Associate Justice but who was nominated for Chief Justice when Rehnquist died).
Exactly one black person has received serious, short-list consideration for any of the eighteen vacancies that have occurred during that time. The first President Bush claimed, quite implausibly, that he regarded Clarence Thomas as the best qualified person that he could nominate. (In the pantheon of presidential dissemling, “I am not a crook”, “I didn’t inhale”, and “I did not have sexual relations with that woman, Miss Lewinsky” each pales by comparison.)
How did then-Judge Thomas gain favor with that president? Could it have had anything to do with his history of toadying to Republicans while fortuitously having a dark complexion?
Dave N., do you contend that Justice Thomas is anything other than an affirmative action hire? How much consideration did he get from the same president just a year earlier when Justice Brennan retired?
February 25, 2010, 3:34 pmShelbyC says:
Why don’t you just call him Justice N*****, you racist SOB?
February 25, 2010, 3:38 pmShelbyC says:
John, just STFU and take your racist crap somewhere else.
February 25, 2010, 3:39 pmZeebo says:
You seem to be suggesting that the presumption of innocence is rooted in Miranda, which of course is incorrect. Delete Miranda and its progeny from the books, and we would still have the presumption of innocence, right to counsel, right to due process, right to trial by jury, etc. Miranda requires that the government inform suspects of these rights. It is not the source of those rights.
February 25, 2010, 3:43 pmJohn Herbison says:
ShelbyC, vulgar invective is sawdust filler substituting for reasoned thought and expression. And as a matter of fact, my dear mother is quite sweet-tempered.
February 25, 2010, 3:46 pmShelbyC says:
Nobody wants to try to have a civil converstation with a bigot. STFU with your racist crap.
February 25, 2010, 4:05 pmJohn Herbison says:
ShelbyC, at the risk of engaging in a duel of wits with an unarmed person, I am puzzled. I have been harshly critical of a caucasian of Italian ancestry and of a black southerner. Whence do you read racism or bigotry into my comments?
February 25, 2010, 4:09 pmJB says:
I will join the people who say that it is reasonable to adopt the bright-line rule “Information gathered from questioning someone in custody without a lawyer is inadmissible whenever.” Just assume the person is saying “I won’t talk unless my lawyer is present” until a lawyer is present.
February 25, 2010, 4:10 pmShelbyC says:
Right where you intended it. Now go away, Archie Bunker.
February 25, 2010, 4:18 pmJohn Herbison says:
ShelbyC, trying to get a straight answer from you reminds me of trying to nail Jell-o to the wall.
I have long enjoyed the intelligent discussion from people with differing viewpoints that ordinarily occurs in the comment threads on this blog, especially with Professor Kerr’s posts. If you can’t cut it on a higher plane of reasoned discourse, perhaps you are the one who should go away.
You have accused me of racism and bigotry. Now defend this accusation, or admit that you are unable to support it.
I will readily admit being a partisan and a (sometime) curmudgeon. That is far different from being a racist.
February 25, 2010, 4:31 pmShelbyC says:
I quoted it in my first reply to you, I won’t do it again. Bigotry like yours stopped being acceptable in polite company a long time ago. Now go comment on some Klan site or something.
February 25, 2010, 4:53 pmJohn Herbison says:
Thank you for admitting that you have nothing substantive to say.
But, this “polite company” that you speak of? How would you and your potty mouth know about that?
February 25, 2010, 4:58 pmShelbyC says:
Begone, bigot.
February 25, 2010, 5:07 pmJohn Herbison says:
A typical Karl Rove tactic. Repeat a big lie often enough, and people believe it to be true. Of course, that didn’t originate with Mr. Rove.
February 25, 2010, 5:22 pmDave N. says:
John Herbison,
I found your comment offensive because you made a gratuitous slap at Clarence Thomas by using a play on a term that you knew was highly offensive. Had you commented that he wasn’t the most qualified person at the time he was appointed or that GHW Bush’s comment at the time of Thomas’ appointment was silly or some such, I might have disagreed, but I would likely not have responded.
However, you chose to use pejorative against Justice Thomas, and rather gratuitously at that, since he didn’t even join the main part of Justice Scalia’s opinion.
I called you out because you did not keep your own comment civil. You chose to use a play of Justice Thomas’ last name to insult him purely on the basis of his race. And that, my friend, is racist.
February 25, 2010, 6:18 pmJohn Herbison says:
Well, as Piter Finley Dunne’s Mr. Dooley said, “Politics ain’t beanbag.” As I pointed out in my 3:34 p.m. comment, then-Judge Thomas’s racial heritage was central to his elevation from the Court of Appeals to the Supreme Court. He is the one who played the race card (especially when his confirmation appeared to be in jeopardy in early October 1991). Exploitation of race in service of Republicans has been central to the man’s career. His qualifications for the Court in 1991 were at best marginal. To point that out is hardly racist, even if I did so in colorful language (no pun intended).
I think it is shameful that no black person has been seriously considered for any of the eight other seats on the Supreme Court. That fact reflects badly on Presidents Ford, Reagan, Bush I, Clinton, and Bush II. (No vacancies occurred during President Carter’s term, and I am reserving judgment on President Obama, whose sole appointment to this point has been a caucasian from a minority group.) That, however, does not excuse George H. W. Bush’s dissembling about how broadly he searched for a successor to Justice Marshall. In my 54 years, I cannot recall any president telling so egregious a lie–and when the competition there includes Richard Nixon and Bill Clinton, that is quite an achievement (albeit a shameful one).
February 25, 2010, 7:30 pmShelbyC says:
@DaveN, see what happens when you feed the bigot? Now it wants to engage. Take your racial slurs elsewhere.
February 25, 2010, 7:34 pmDave N. says:
John Herbison,
So let me get this straight. It’s ok to use racist terms against Blacks because “politics ain’t beanbag”?
So if I called the President something on the basis of the color of his skin, that would be hunkey-doory? Or does your rule only apply to liberals when they gratuitiously attack Blacks who are also conservative?
February 25, 2010, 7:36 pmJohn Herbison says:
Dave N. and ShelbyC, does either of you dispute that Clarence Thomas was an affirmative action appointment, at least at the Supreme Court level in 1991?
February 25, 2010, 7:37 pmJohn Herbison says:
I hadn’t given it much thought before now, but political figures who exploit race deserve to be called out on it, regardless of skin color or political philosophy. Al Sharpton and George Wallace (before he repented of his racial pandering) alike deserve condemnation. (Just as Governor Wallace deserved praise for his change of heart)
February 25, 2010, 7:43 pmDave N. says:
John Herbison,
That is not my point and you know it. My point is that you purposefully chose to use a racially offensive term against Clarence Thomas because “politics ain’t beanbag.”
I notice you didn’t call Justice Scalia names based on his Italian heritage but you did against Justice Thomas based on his.
You also chose to drag Justice Thomas into the discussion even though he wrote a concurrence that disagreed with Justice Scalia’s opinion.
So stick the reason for the call-out. You, sir, decended into the racist gutter and now want to make excuses for your conduct.
February 25, 2010, 7:45 pmJohn Herbison says:
Perhaps that is because Justice Scalia’s conduct prior to his confirmation did not resemble that of a Mafioso anywhere nearly to the degree that Justice Thomas’s conduct was that of a toady. Do you like the race-neutral characterization better?
February 25, 2010, 7:54 pmJohn Herbison says:
Again, Dave N. Do you dispute that Clarence Thomas was an affirmative action appointment, at least at the Supreme Court level in 1991? Does that question give you heartburn?
February 25, 2010, 7:56 pmDave N. says:
John Herbison,
I stand by my original conclusion. You are an ass. I don’t give a damn whether Thomas was or was not qualified in 1991, was or was not the best candidate or any other BS that you are trying to deflect with. I am calling out YOU for diving into the racist gutter which you deliberately did because “politics ain’t beanbag”.
Shame on you for doing so and even more the shame for not recognizing how disgusting your conduct actually is.
February 25, 2010, 8:20 pmJohn Herbison says:
Why am I not surprised that you “don’t give a damn whether Thomas was or was not qualified in 1991″?
February 25, 2010, 8:22 pmDave N. says:
ShelbyC,
You were right. It’s like wrestling with a pig. You both get dirty and the pig likes it.
February 25, 2010, 8:27 pmJohn Herbison says:
Apparently, fifty-two Senators didnt give a damn then, either.
February 25, 2010, 8:34 pmKen Arromdee says:
Whether hiring Clarence Thomas is affirmative action depends on your exact definition. If it is it’s a very atypical case, because among other reasons it
February 25, 2010, 8:40 pm– is a very short term policy. Normally affirmative action doesn’t mean hiring one person (or even several people) and then dismantling the policy.
– is for a job where we actually expect the person to be hired based on political and subjective reasons.
– does not have the primary purpose of giving black people more opportunities, both because it only benefits one person, and because it has other purposes such as “appealing to black voters” or “making it harder for Democrats to complain”.
I would suggest that it’s not affirmative action in any meaningful sense regardless of whether it fits the definition.
John Herbison says:
I would agree that Justice Thomas’s appointment does not fit the traditional framework of affirmative action. It would appear, though, that taking the history of Supreme Court nominations since Thurgood Marshall, that no black person has been seriously considered for any of the seats on the Court except upon the occasion of Justice Marshall’s retirement. That at least suggests a de facto quota of one black member of the Court for the presidents who have made nominations to the Court. (Every president since Nixon, except for Carter)
The first President Bush made two appointments to the Court, including Justice Thomas. William Brennan retired in 1990, one year before Justice Marshall. There is no indication that the president seriously considered Clarence Thomas or any other black person to fill Justice Brennan’s seat.
Then-Judge Thomas may well have been the most qualified black conservative Republican that President Bush could find in 1991. For Bush to pretend he was looking outside that set of demographic criteria, however, was beneath the dignity of either office.
February 25, 2010, 9:08 pmOrin Kerr says:
Folks, I just stopped in to see why it was lasting so long, and I’m pretty shocked at how the thread has developed.
John Herbison, ShelbyC, I am both giving you warnings: If you’re not civil to each other I will ban you. One more uncivil comment and you’re out. And I don’t want to here any of this juvenile “he started it” baloney. Geez, guys. Please grow up, both of you.
February 25, 2010, 10:34 pmJohn Herbison says:
Thank you, Professor. I shall take heed.
February 25, 2010, 10:38 pmOren Kir says:
fair ’nuff.
February 26, 2010, 12:27 amBen Winograd says:
Isn’t it obvious?
February 24, 2010 = 2/24/2010.
((2 + 2)4 – 2 + 0)1 + 0 = 14
February 26, 2010, 2:44 amMarco says:
I agree that one could read ‘the Romans then adopted it’ as more than a simple time-line sequence. According to: http://en.wikipedia.org/wiki/Roman_calendar
March 1, 2010, 12:00 pm