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Miranda for the next Fifty Years: Why the Fifth Amendment Should Go Fourth

Dripps, Donald A., Miranda for the next Fifty Years: Why the Fifth Amendment Should Go Fourth (2017). Boston University Law Review, Forthcoming; San Diego Legal Studies Paper No. 17-270. Available at SSRN:

“This Article addresses the enduring controversy over the Miranda rules by comparing the Miranda jurisprudence with the Fourth Amendment jurisprudence. The Fourth Amendment cases express a strong preference for articulating doctrine in the form of rules. The critique of Miranda as judicial legislation therefore calls into question central elements of modern Fourth Amendment law, i.e., the warrant requirement, the deterrence-based exclusionary rule, and institutional reform injunctions aimed at preventing future, rather than remedying past, constitutional violations.  In contrast to the Miranda doctrine, Fourth Amendment law has been dynamic, adjusting to technological, social and doctrinal changes. The sweeping changes in law, technology and society since 1966 have made solving crimes without confessions more feasible. They also have prompted fresh concern about unreliable, as distinct from compelled, confessions. The Supreme Court should bring the Fourth Amendment’s preference for rules and sensitivity to change into Fifth Amendment doctrine. It can do this by mandating a recording requirement, but there are other promising alternatives. The Court might adjust the Edwards doctrine, and/or the Miranda exclusionary rule, to encourage police adoption of Miranda-plus safeguards such as recording requirements, time limits, and reliability-based questioning tactics. Articulating the law of interrogation in the form of dynamic rules would improve Fifth Amendment doctrine by aligning it with Fourth Amendment doctrine.”

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