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It took forever to rewrite this section from its original script. \u00a0I wasted tons of time\u00a0trying to explain how the\u00a0courts need<\/em>\u00a0to\u00a0have it both ways here — on the one hand, presuming involuntariness\u00a0because they don’t want to determine it\u00a0on 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.\u00a0If they want to allow\u00a0any<\/em> confessions, they need a prophylactic rule that tells you when\u00a0the statement itself is voluntary despite custody: knowing and voluntary waiver. But then\u00a0they’d\u00a0also<\/em> need a rule that tells you when the waiver was voluntary despite custody. Which would require a\u00a0second<\/em> 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.<\/p>\n But that’s not how the law actually works. So going into all that ultimately seemed\u00a0like 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…).<\/p>\n Of course the problem is the underlying preference\u00a0for 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\u00a0ignore<\/em> the inherent problem and skip step 2. And I mean “we,” because lawyers are as much to blame for not mentioning DP voluntariness\u00a0in the first place\u00a0— everyone in the system tends to think\u00a0Miranda<\/em> makes everything voluntary, statements and waivers alike, so we’ve all just kinda let this happen.<\/p>\n","protected":false},"excerpt":{"rendered":" It took forever to rewrite this section from its original script. \u00a0I wasted tons of time\u00a0trying to explain how the\u00a0courts need\u00a0to\u00a0have it both ways here — on the one hand, presuming involuntariness\u00a0because they don’t want to determine it\u00a0on a case-by-case … Continue reading