The topics covered include an historical overview of the case law of pretrialinterrogation prior to Miranda , that barred use of a confession during a defendant's criminal trial ifhe had not been given certain warnings before confessing; the Miranda decision and related SupremeCourt cases; the McNabb/Mallory rule, that barred certain confessions made while the defendant wasbeing illegally held in custody; 18 U.S.C. (15) Under this standard, the admissibilityof a confession was evaluated on a case by case basis according to the "totality of thecircumstances," (16) surrounding each confession. (24)
Between the time of Brown v. Mississippi (25) and Miranda v. Arizona , (26) the due process standardwas applied in dozens of cases. (62) There were no decisions by the Courton this issue regarding the application of the FifthAmendment for the reason that the Amendment was not applicable to the States (63) until the Courtincorporated the Fifth Amendment and made it applicable to the states in Malloy v. Hogan (64) Duringthe following year, the Court addressed the Fifth Amendment in reviewing a State case (65) when itstruck down the provisions of California's constitution permitting comment by court and counselon a defendant's "...failure to explain or deny by his testimony any evidence or facts in the caseagainst him...." (66)

		A Right Not To Be Questioned

The accused could not cut off pretrial interrogation inasmuch as the right was not recognized by the Court prior to its decision in Miranda . (78) The Courtreasoned that the suspects needed the safeguardsbecause "[t]he circumstance surrounding in-custody interrogation can operate very quickly tooverbear the will of [the suspect] ..." (79) and withoutthem no statement can be considered the productof his/her free will. (121) However, the Court did notanswer the question. (200)
In United States v. Leong , (201) the Department of Justice, in response to an order from the U.S.Court of Appeals for the 4th Circuit, (202) directing it to state its views regarding the effect of 18 U.S.C.ï¿½3501 on the admissibility of Leong's confession, its constitutionality, and its possible effects on Miranda , (203) said that Miranda is the law and it would not be appropriate for a lower court to applythe statute in lieu of Miranda's requirements without the Supreme Court first reconsidering Miranda . On December 6, 1999, the Supreme Court granted certiorari in Dickerson v. United States . Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, in a plurality opinion, concluded that, the postwarning statements were not admissible. In the earliest cases, beginning in the late nineteenth century, issues of admissibility were decidedon the basis of the rule excluding involuntary confessions.
Although an involuntary confession has been inadmissible in federal cases since the nineteenth century, the Supreme Court did not denounce physically coercive abuses in State cases until itsdecision in Brown v. Mississippi . The Brown case established the basis for the FourteenthAmendment "voluntariness" standard as the due process test for assessing the admissibility ofconfessions in State cases. Under this standard, the admissibility of a confession was evaluated ona case by case basis which would be governed by the "totality of the circumstances," which includedthe facts of the case, the background of the accused, and the behavior of the police during theinterrogation.
In Miranda v. Arizona , the Court established several procedures to safeguard the Fifth Amendment rights of persons during custodial interrogations. The Court reasoned that the suspectsneeded the safeguards because "[t]he circumstances surrounding in-custody interrogation can operatevery quickly to overbear the will of [the suspect..." and without them no statement can be consideredthe product of his/her free will.
Miranda was controversial among policy-makers and academics who debated its legitimacy and desirability over thirty years after its judicial creation. One of the major arguments offered foroverruling Miranda was that it had caused great difficulty to law enforcement efforts in controllingcrime. The ruling in Dickerson v. United States , 530 U.S. 428 (2000), struck down 18 U.S.C. 3501,a federal law that allowed confessions elicited without a police advisory to be used at trial as longas the "totality of circumstances" demonstrated that they were given voluntarily.
Dickerson made Miranda 's constitutional status clear. The Miranda decisions announced duringthe Court's 2003-2004 term, however, suggest that continued vitality of seemingly confictingpre- Dickerson caselaw is less clear. United States v. Patane , divided the Court so that nosinglerationale united a majority of its members, although five Justices joined in a plurality decision thatdeclined to overrule its pre- Dickerson decisions concerning the admissibility of physical derivateevidence. On the other hand, Missouri v. Seibert likewise resulted in a plurality opinion, but in spiteof contrary suggestions in the pre- Dickerson caselaw five Justices found inadmissible a confessionintentionally wrung from the defendant before Miranda warnings and re-elicited thereafter. FiveJustices did agree in Yarborough v. Alvarado that the state courts did not unreasonably apply federallaw when -- without considering the inexperienced suspect's age (17 years old) -- they determinedthat Miranda 's custodial threshold had not been crossed. And they all agreed in Fellers v. UnitedStates , that the lower courts should not have addressed Miranda/Dickerson implications raisedoutof an interrogation that offended Sixth Amendment requirements.