A group of prominent legal historians has filed this amicus brief in the pending Supreme Court case Vega v. Tekoh, contending that there are eighteenth-century foundations for the “Miranda warning” rule from Miranda v. Arizona. From the summary of argument:

Miranda v. Arizona, 384 U.S. 436 (1966), resurrected the historical practice of cautioning suspects before questioning.

Decades before the Bill of Rights was ratified, interrogating magistrates had begun to warn suspects that they were not required to answer questions and that answers could be used against the suspects in a criminal prosecution. The first-known warning prior to an interrogation occurred in London in 1748.

Judges in the 1740s began raising concerns about the voluntariness of confessions and expressed concerns about the promises or threats that might have led a suspect to provide a statement. Magistrates, who were conducting interrogations in the 1700s, started to provide these cautions as a way of demonstrating that a prisoner’s statement was not the product of any such improper inducement.

By the 1760s, what we now call the voluntariness rule was very often a bar to a confession’s admissibility. Eighteenth-century judges very readily excluded statements that were the product of a threat or promise of any kind. Cautioning a suspect of his right to remain silent, and the consequences of making a statement, however, could demonstrate the confession was not the product of an improper inducement.

The readiness of late eighteenth-century courts to exclude statements was akin to this Court’s conclusion that there were inherently coercive pressures present in custodial interrogations. Miranda, 384 U.S. at 468. And like this Court, judges of the late eighteenth century found that warnings were sometimes sufficient to demonstrate that the coercive pressure of the interrogation did not produce the defendant’s statement.

Post-Framing Era documents confirm that the warning scheme was a very well-established part of interrogation practice. By the early 1800s, treatise writers began to recognize that it was the custom of magistrates to give these warnings. The warning scheme was so well-entrenched as a practice as to be largely uncontroversial in the first half of the nineteenth century. Four American state legislatures, during codification movement of the 1820s and 1830s, formally required warnings to be provided prior to an interrogation. The British Parliament codified the warnings in Sir John Jervis’ Act of 1848, 11 & 12 Vict. ch. 42.

Via Orin Kerr at Volokh Conspiracy, who has further thoughts: Miranda Warnings . . . in 1748? A Fascinating Amicus Brief.  He concludes:

Although the brief doesn’t put it this way, the picture drawn hints at a rich irony.  The living constitutionalists behind Miranda stumbled upon a rule similar to what was employed in the Framing era, while the originalists who excoriate Miranda are unknowingly advocating a modern judge-made rule very different from that used when the Bill of Rights was ratified.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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