Hastings Law Journal


For over two centuries, Anglo-American law used a test of “voluntariness” to determine the admissibility of confessions. The twentieth century saw increasing skepticism that law can determine which conscious utterances are “voluntary” and which are not. Suspects who speak to police do so because they choose to speak rather than the alternative. If the alternative is torture, that feels involuntary. But if it is merely a lengthy interrogation, who can “prove” that the choice to answer is involuntary? Miranda v. Arizona was, in part, the Court’s response to this skepticism. If judges cannot tell which utterances are voluntary, why not give control of the interrogation over to the suspect? By telling the suspect that he has a right to silence and a right to consult with counsel, police provide the suspect with choices beyond answering or not answering questions. Thus, any subsequent choice to talk to police is likely voluntary. But Miranda’s apparently elegant “free choice” principle has metastasized into a dizzying array of formalistic doctrines and subdoctrines. This Essay documents the lower court confusion over one of the subdoctrines— the exception for so-called “booking questions.”

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