Is a Miranda waiver ever voluntary, if custody is presumptively coercive? Courts don't ask this question. They act as if the Miranda warnings make waivers both knowing and voluntary.

It took forever to rewrite this section from its original script.  I wasted tons of time trying to explain how the courts need to have it both ways here — on the one hand, presuming involuntariness because they don’t want to determine it on a case-by-case basis, but on the other hand presuming voluntariness because they don’t want to determine it on a case-by-case basis. If they want to allow any confessions, they need a prophylactic rule that tells you when the statement itself is voluntary despite custody: knowing and voluntary waiver. But then they’d also need a rule that tells you when the waiver was voluntary despite custody. Which would require a second layer of warnings or something. But then they’d need a third layer of warnings or whatever to ensure that the second one was all right. And so on, turtles all the way down. Or a snake eating its own tail as you keep coming back to the same question, pick your metaphor.

But that’s not how the law actually works. So going into all that ultimately seemed like a waste of time for our purposes (great topic for a law review article, though. And gee, I’ve got all this research and notes sitting right here…).

Of course the problem is the underlying preference for a “bright line” one-size-fits-all rule for analyzing people’s individual behavior, which by definition is going to sacrifice individual justice for bureaucratic efficiency. And in the end, that laziness is the explanation for how it really works: we just ignore the inherent problem and skip step 2. And I mean “we,” because lawyers are as much to blame for not mentioning DP voluntariness in the first place — everyone in the system tends to think Miranda makes everything voluntary, statements and waivers alike, so we’ve all just kinda let this happen.

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