Florida Law Review
interrogation, self-incrimination, fair play, fifth amendment, sixth amendment
Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not share that motivating concern. But rather than overruling Miranda and Massiah, the Court is reanimating those doctrines according to the new principle of “fair play” in interrogations. This “fair play” rubric presupposes interrogation suspects who are autonomous agents, expected to know and protect their rights. Part I describes how the Roberts Court’s Fifth Amendment decisions are best explained by the new rubric of “fair play” in interrogations. Part II does the same for the Court’s Sixth Amendment decisions. Part III evaluates this new “fair play” rubric, concluding that it is not a fair and adequate principle for organizing constitutional interrogation doctrine. While the Warren Court’s specific rules and remedies for interrogation law have been criticized over the years from both the left and the right, its underlying premise—that suspects facing police interrogation are vulnerable to abuse and overreaching — has proven robust and continues to find support in decades of empirical work. The Roberts Court’s presumption that suspects in interrogation are autonomous agents capable of protecting their own interests is wrong. The resulting rules of “fair play” in interrogation fail to adequately protect the constitutional right against self-incrimination and the guarantee of the assistance of counsel in all criminal cases.
Jonathan Witmer-Rich, Interrogation and the Roberts Court, 63 Florida Law Review 1189 (2011)