Essay by Catherine Hancock
Due Process doctrine for confessions is commonly viewed as being concerned with case-by-case measurement of police coercion during interrogations, not with the development of prophylactic safeguards to reduce such coercion. This Essay examines the Due Process cases decided before Miranda's adoption of such safeguards, and proposes that there are two distinctive universes of such cases. In the small number of cases approving confessions, the Court employed limited definitions of “coercion,” which were viewed as acceptable under a Due Process theory of “parallel fairness.” In the larger number of cases disapproving confessions, the Court expanded the definitions of coercion, and evolved a theory of “parallel safeguards.” The Essay finds that the characteristics now identified with Miranda are exhibited in the disapproving cases, including the concept of inherent coercion, the recognition of the coercive effects of the lack of access to counsel during interrogation, and the commitment to the protection of the privilege against self-incrimination for ordinary people undergoing interrogation. The Essay concludes that Due Process was not a monolith before Miranda. It was a complex body of overlapping and inconsistent methods of analysis, and Miranda's rules were an outgrowth of the doctrine in the Due Process cases disapproving confessions.
About the Author
Catherine Hancock. Professor of Law, Tulane University. A.B., Stanford University; J.D., University of Chicago.
Citation
70 Tul. L. Rev. 2195 (1996)