Farewell to Miranda: Knowing and Intelligent Waiver after Moran v. Burbine, A

Abstract

INTRODUCTION|Whether the police should provide information to a suspect regarding the availability of a specifically retained attorney before a suspect can "knowingly and intelligently" waive fifth amendment rights is a question of paramount importance. The United States Supreme Court was confronted by this question in Moran v. Burbine, and answered that the police do not have a duty to provide a suspect with attorney availability information. The Court conceded that such a rule "might add marginally to Miranda's goal of dispelling the compulsion inherent in custodial interrogation." However, the Moran Court was persuaded that "overriding practical considerations counsel against" adopting a rule requiring the police to give attorney availability information to a suspect. Central to the Moran Court's decision was the Court's interpretation of "knowingly and intelligently" to mean simple awareness and minimal understanding by the suspect of fifth amendment rights. To reach its interpretation, the Moran Court virtually resurrected the "old" voluntariness standard developed over fifty years ago under the due process clause of the fourteenth amendment...