Decade of Constitutional Revision (From Criminal Justice 1981-1982, P 124-133, 1981, Donal E J MacNamara, ed. - See NCJ-86314)

• NCJ Number: 86317
• Author(s): S Zion
• Date Published: 1981
• Length: 10 pages
• Sale Source: Dushkin/McGraw Hill Publishing Group, Inc
• Language: English
• Country: United States of America
• Note: Reprinted from The New York Times Magazine, (November 11, 1979)

Annotation

Although the 'Burger Court' has not specifically reversed the major decisions of the 'Warren Court' in the areas of confessions, search and seizure, and the right to counsel, it has constrained their application by reinterpretation.

Abstract

In Miranda v. Arizona, the Warren Court held that when police have a suspect in custody, they may not interrogate him/her without first advising the suspect of his/her rights under the circumstances. This ruling was designed to secure for suspects the right against self-incrimination and the guarantee of the assistance of counsel. In Harris v. New York, the Burger Court ruled that if statements have been obtained from a suspect in violation of the Miranda safeguards, those statements can be used to impeach the defendant's credibility should the defendant testify at the trial. In Mapp v. Ohio, the Warren Court required State judges to bar from trials any evidence that had been seized in violation of the fourth amendment's proscriptions against unreasonable searches and seizures. The Burger Court has undermined the effect of this exclusionary rule by (1) sharply limiting the meaning of 'probable cause,' (2) a dramatic expansion of the concept of consent searches, (3) narrowing the scope of the exclusionary rule by holding that it does not protect grand jury witnesses, (4) depriving defendants of the right to test the legality of searches in Federal habeas corpus proceedings once State courts have ruled against them, and (5) holding that some things are outside the purview of the fourth amendment. In United States v. Wade, the Warren Court ruled that an arrested suspect has a constitutional right to have his/her lawyer present when the suspect is paraded in a police lineup. The Burger Court ruled that the presence of counsel at such a lineup is only required after the suspect has been indicted (Wade had already been indicted). In response to the Burger Court's undercutting of fundamental constitutional rights, a number of State courts have begun using long-ignored State bills of rights to foreclose reversal by the Burger Court.