Gideon, Miranda, and the Downside of Incorporation

The U.S. Supreme Court decisions in Gideon v. Wainwright and Miranda v. Arizona are cut from the same cloth. Each was the result of the Court’s frustration with the tedium of case-by-case analysis, and so each represents a broad, bright-line rule. Gideon dictated that in all serious criminal cases, the defendant is entitled to counsel, ending the muddled, multi-factor analysis of Betts v. Brady. Miranda dictated that in all custodial interrogations, the suspect is entitled to counsel and to be informed of that right and his right to remain silent, purporting to settle three decades of lack of clarity in the jurisprudence of coercive interrogations. And both Gideon and Miranda are widely perceived as failures. Miranda, a contentious 5-4 decision once decried by conservatives as having gone too far, has spawned a jurisprudence widely recognized by liberals as anemic. In the overwhelming majority of cases, warnings are given and a waiver obtained, and courts in such cases are highly unlikely to rule that a confession was coerced irrespective of what occurred following warnings and waiver. Gideon, once a warmly greeted unanimous decision, is now almost uniformly looked upon as representing a promise unfulfilled. In large part, this is a result of Strickland v. Washington, whose test to determine whether counsel was constitutionally ineffective prevents courts from disturbing convictions except in the most extreme cases, where counsel’s actions can have no conceivable strategic justification. This Article argues that the perceived failings of these two doctrinal lines spring from the same source: the use of very strong presumptions that sharply constrain judicial discretion. Miranda evolved into a rule establishing a virtually irrebuttable presumption that statements resulting from a custodial interrogation are uncoerced if they are preceded by warnings and waiver. Gideon evolved into a rule establishing a virtually irrebuttable presumption that if the defendant had an attorney, that attorney performed adequately to protect the defendant’s rights. As a result of each rule, judges are largely prevented from sifting through the messy facts of individual cases. This Article further argues that these later developments cannot be explained exclusively in crass political terms, as the result of more conservative Courts cutting back on rights granted by the liberal Warren Court. Rather, they were largely the result of the incorporation agenda of the Warren Court itself. By its nature, incorporation favors bright-line rules, as contrasted with the nebulous standards of fundamental fairness analysis. Gideon and Miranda represent two such rules. But bright-line rules typically do not entirely replace nebulous, multi-factored standards. Rather, rules often either move standards to other places in the analysis or generate the need for entirely new standards. Thus, multi-factored standards persisted after Gideon and Miranda, in the form of the tests used to determine whether counsel was reasonably effective and whether an interrogation was coercive despite the provision of Miranda warnings. But because the Court had fully bought into incorporation by the end of the Warren Court era, and because incorporation exerts a strong preference for rules over standards, the Court was required to erect further rules to support the structure it had begun to build in the 1960s. These “scaffolding” rules, in the form of the heavy presumptions mentioned above, were advanced by liberal and conservative members of the Court alike.