Constitutional Interpretation – Page 31 – Marquette University Law School Faculty Blog

The New Miranda Warning

Post author:Michael Cicchini
Post published:November 8, 2010
Post category:Constitutional Interpretation Criminal Law & Process U.S. Supreme Court

I never thought the Miranda warning was all that useful. In fact, it actually raises more questions than it answers. For example, the warning tells a suspect that anything he says can be used against him in court. But asking for an attorney is saying something, isn’t it? Could the prosecutor later use such a request against him? (After all, television teaches us that only guilty people “lawyer-up.”) And what if the suspect wants to remain silent? Could his silence be used against him in court? The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

Best of the Blogs: One Lump or Two?

Post author:Edward A. Fallone
Post published:October 25, 2010
Post category:Business Regulation Constitutional Interpretation Federalism Health Care Political Processes & Rhetoric

November 2 is fast approaching, and the nation is awaiting the election results to see whether the Tea Party Movement will be revealed to be a force in American politics or an over-hyped media sensation. This week’s “Best of the Blogs” feature provides everything a political junkie needs to learn more about the Tea Party Movement.

The obvious starting point might be Butch Cassidy’s (or Paul Newman’s) famous question, “Who are those guys?” Amy Gardner at the Washington Post tries to answer that question here (hat tip to Steven Easley). Despite her best efforts, a definitive picture of the Movement remains elusive:

[A] new Washington Post canvass of hundreds of local tea party groups reveals a different sort of organization, one that is not so much a movement as a disparate band of vaguely connected gatherings that do surprisingly little to engage in the political process.

Certiorari Granted in Material Witness Detention Case That Concerns the Iqbal Pleading Standard

Post author:Jessica E. Slavin
Post published:October 19, 2010
Post category:Civil Procedure Constitutional Interpretation Federal Law & Legal System

Yesterday the Supreme Court granted certiorari in Ashcroft v. Al-Kidd, the petition in which the United States Department of Justice seeks to establish, on behalf of former Attorney General John Ashcroft, that government officials have immunity from liability for claims that they used the material witness statute to detain a U.S. citizen, not, in reality, to ensure his availability as a witness in another case, but instead as a pretext for what was actually a preventative detention.

As the New York Times explains, the former detainee in question, Abdullah Al-Kidd, is a U.S. citizen born in Kansas as Lavoni A. Kidd; he was (I have read) a football star for the University of Idaho in the mid-90s. In rejecting Ashcroft’s argument for immunity, the Ninth Circuit (in a split three-judge panel decision) first held that, at best, qualified immunity might apply, explaining its reasoning this way: