<em>Miranda</em>, <em>Dickerson</em>, and the Puzzling Persistence of Fifth Amendment Exceptionalism

Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police.

But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be restricted. To evaluate the Miranda safeguards and determine whether they should be replaced by some other regime, it is essential to focus first on that normative premise. And for present purposes I will restrict myself to its constitutional dimension. I will focus on a surprisingly neglected question - that of determining which restrictions on police interrogation are mandated by ordinary Fifth Amendment principles.

My thesis is that the Court, even as it reaffirmed Miranda, perpetuated an extraordinarily confusing and illogical notion of what the Fifth Amendment means. Both the Court's majority in Dickerson and its dissenters share a conception of the Fifth Amendment that can be right only if the constitutional principles governing police interrogation differ from those that determine Fifth Amendment compulsion in every other setting. In other words, the Court (and all its Justices) apparently accept a kind of Fifth Amendment exceptionalism, under which the standards applicable to police interrogation are kept distinct from the standards applicable to all other official questioning of witnesses and suspected offenders.