Can We Do Better With the Right to Counsel?

posted by Judge_Burke @ 15:04 PM
July 3, 2017

David Rossman (Boston University – School of Law) has posted Resurrecting Miranda’s Right to Counsel (97 B.U. Law Review 1127 (2017)) on SSRN.

Here is the abstract:

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they have always provided.

2. The police would still operate under the same rules governing the legitimacy of a suspect’s decision to talk in the absence of an attorney. The waiver rules for Miranda rights won’t change, in other words.

3. If the police go ahead and obtain a statement from a suspect without the presence of an attorney, the jury would be instructed that there is a policy in the jurisdiction that the police should not interrogate suspects in the absence of a defense attorney and that the jury may take into account in evaluating the credibility of the statement the fact that the police did not follow this policy.

4. If the police do provide an attorney for the suspect during interrogation, the suspect would be permitted to consult with the attorney and the attorney would be given a reasonable opportunity to advise the suspect during the interrogation.

5. If the suspect does not answer questions that are reasonable for someone in the suspect’s position at the time to respond to, that information would be admissible as substantive evidence of the suspect’s guilt, subject to a ruling on the probative value of the suspect’s silence at the time of trial.

6. If the suspect at trial maintains that his or her silence during the interrogation was based on the advice of the attorney, that claim shall constitute a waiver of the attorney client privilege insofar as it would otherwise protect the contents of the conversation between the suspect and the lawyer. This paper explores the feasibility of the most contestable of these proposals, the one dealing with an adverse inference from silence. It makes the case for viewing the privilege against self incrimination as a doctrine directed at prohibiting compulsion to speak rather than a broad guarantee of a right to silence.


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