THIS IS FASCINATING: Miranda warnings in 1748?

Professor Oliver and his co-authors argue that Miranda v. Arizona was more a return to Framing-era interrogation practices than something entirely novel. Around the time of the Framing, he claims, the common law voluntariness test for the admission of confessions was much more restrictive than it became in the 20th century. In the Framing era, magistrates routinely gave legal warnings to a person about to be interrogated that he had a right to remain silent and that their evidence would be used against them. The warnings were thought necessary, Oliver argues, as a way to meet the very strict voluntariness rule then in place. Only when a person was told of his rights, the thinking went, could a subsequent statement be deemed truly voluntary.

This thinking will ring a bell to modern criminal procedure ears: It’s the basic theory of Miranda. What happened, Oliver argues, is that courts loosened the voluntariness test in the late 19th and early 20th centuries. Warnings were then dropped, as they were no longer needed to make sure statements were voluntary. (Almost everything was voluntary under the new voluntariness test; who needs warnings?) But the new looser voluntariness test then led to brutal interrogation practices in the 20th century. And then the Warren Court, entirely unaware of this history, responded to those brutal interrogation practices by devising what it thought was a new idea for how to ensure the voluntariness of confessions: Introduce the requirements of legal warnings.

As Oliver tells it, Miranda inadvertently returned the law to something akin to what it was in the Framing era without actually realizing it.

Everything old is new again.