NCJ Number
52650
Journal
Vanderbilt Law Review Volume: 31 Issue: 4 Dated: (MAY 1978) Pages: 1069-1076
Date Published
1978
Length
8 pages
Annotation
THE IMPLEMENTATION OF A STRICT WAIVER TEST IS VIEWED AS NECESSARY TO SECURE A SUSPECT'S RIGHTS IN THE ABSENCE OF THE PER SE RULE ON THE BASIS OF FIFTH AND SIXTH AMENDMENT PROTECTIONS FOR SUSPECTED CRIMINALS.
Abstract
UNCOERCED INCRIMINATING STATEMENTS ARE NOT PER SE EXCLUDED AT A TRIAL WHEN CUSTODIAL SUSPECTS ASSERT BUT SUBSEQUENTLY WAIVE THEIR SIXTH AMENDMENT RIGHT TO COUNSEL IN RESPONSE TO QUESTIONS SEEKING CLARIFICATION OF THEIR ASSERTION OF THAT RIGHT. THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND THE SIXTH AMENDMENT RIGHT TO COUNSEL PROVIDE VITAL PROTECTIONS FOR SUSPECTED CRIMINALS. TO PRESERVE THESE CONSTITUTIONAL RIGHTS, THE SUPREME COURT ESTABLISHED SPECIFIC STANDARDS FOR POLICE CONDUCT IN THE LANDMARK CASE OF MIRANDA VERSUS ARIZONA. ALTHOUGH MIRANDA EXPLICITLY OUTLINED PROCEDURAL REQUIREMENTS FOR PROTECTING A SUSPECT'S RIGHTS, THE DECISION LEFT UNCERTAIN THE PROPER STANDARD FOR DETERMINING WHEN SUCH RIGHTS ARE EFFECTIVELY WAIVED. OTHER COURT DECISIONS HAVE SIGNIFICANTLY LIMITED THE SCOPE OF THE MIRANDA DOCTRINE. THE SUPREME COURT HAS IMPLICITLY REJECTED THE BASIC MIRANDA ASSUMPTION THAT ALL CUSTODIAL INTERROGATIONS ARE INHERENTLY COERCIVE BY DISTINGUISHING BETWEEN FLAGRANT VIOLATIONS REQUIRING THE EXCLUSION OF EVIDENCE AT TRIAL AND MINOR VIOLATIONS THAT DO NOT DEPRIVE SUSPECTS OF THEIR CONSTITUTIONAL RIGHTS. ALTHOUGH REJECTION OF THE EXCLUSIONARY PER SE RULE MAY DIMINISH THE NUMBER OF REVERSALS OF FACTUALLY CORRECT CONVICTIONS, RELEGATING PROTECTION OF THE RIGHT TO COUNSEL TO THE SAME ANALYSIS EMPLOYED IN RIGHT TO SILENCE CASES IMPOSES AN INJUSTICE ON CRIMINAL SUSPECTS. WITH THE REJECTION OF THE PER SE RULE, A STRICT APPLICATION OF THE WAIVER TEST REMAINS AS THE ONLY EFFECTIVE PROTECTION OF A SUSPECT'S RIGHTS. CASE LAW IS REVIEWED WITH EXTENSIVE FOOTNOTES. (DEP)