Abstract

On June 28, 2004, the Court decided Missouri v. Seibert, 124 S. Ct. 2601 (2004). At first glance, Seibert may look like a Miranda victory, but this is an illusion. Although Justice Souter's plurality decision condemns question-first police practices designed to circumvent Miranda, the case is governed by Justice Kennedy's concurrence, which requires that the defendant prove that the police officer acted in bad faith. Seibert shifts an impossible and inappropriate burden onto the defendant. The problem with Seibert is not that the new rule will ignore some epidemic of inadvertent Miranda violations; these are presumably rare. The real danger is that opportunistic Miranda foes will persuade judges to ignore Miranda violations whenever the defendant cannot prove that the police acted in bad faith or whenever the police have taken (what Justice Kennedy has described) as "curative measures."

This Article suggests an alternative future. If the police bad faith test is abandoned, Seibert's ban on unwarned pre-interrogation questioning could help transform Miranda into a more effective deterrent. Seibert implicitly supports the adoption of additional enforcement mechanisms, such as rules requiring the videotaping of custodial interrogations, because the Court has begun to acknowledge that Miranda alone does not work. More specifically, Seibert's explicit condemnation of pre-warnings questioning would make videotaping requirements a more potent deterrent by barring police from engaging in preliminary (off-camera) questioning. With more than fifteen states currently contemplating new videotaping requirements, the time is ripe for Seibert to play this important role.

How to Cite

Rights

47 Ariz. L. Rev. 395 (2005)