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Vanderbilt Law Review

Welsh S. White

First Page

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Abstract

Professor Caplan yearns for the good old days "when the police enjoyed greater public confidence" and, in accordance with the tactics recommended in the police manuals, it was acceptable "for an investigator to talk sharply to the suspect or glare at him or sit too closely or withhold cigarettes, or, from the opposite vantage, to pretend to be a sympathetic friend or a concerned coreligionist."'Thus, Professor Caplan attacks the Miranda decision on the ground that "by introducing novel conceptions of the proper relationship between the suspect and authority," Miranda operates to subvert the principal function of the criminal process, the reliable identification of offenders. Professor Caplan concludes that Miranda should be overruled.

Although Professor Caplan presents his argument lucidly and forcefully, the doctrinal basis for his position is not entirely clear.He objects to Miranda's holding and analysis but does not specify whether his objections primarily center on the Court's conclusion that the fifth amendment privilege applies to police questioning at the station house or to the Court's determination that the Miranda warnings are necessary to protect that privilege. Professor Caplan does criticize the specific warnings required and intimates that the much maligned voluntariness test provides a preferable way to control police interrogation.' After examining the empirical data relating to Miranda's operation and finding that Miranda's adverse effect on law enforcement is much greater than generally has been recognized, he concludes that the rule established in Miranda is not an appropriate compromise between the competing interests of protecting individual rights and promoting the interests of law enforcement.

This Article deals briefly with Professor Caplan's principal arguments. Part II discusses the constitutional basis for the Miranda decision. Part III examines the viability of returning to the voluntariness test. Part IV addresses the question whether, in light of the empirical data on Miranda's practical effect, the decision rep-resents an appropriate compromise between the competing considerations of protecting individual rights and promoting the interests of law enforcement.

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