Witmer-Rich Publishes Interrogation and the Roberts Court in the Florida Law Review

Professor Jonathan Witmer-Rich

Professor Jonathan Witmer-Rich recently published “Interrogation and the Roberts Court” in the top-50 ranked Florida Law Review.  In this work, he argues that 5 cases decided under the Roberts court are reshaping and limiting the rules for the interrogation of suspects by the police.  In particular, the Court is limiting the rules that would have been protective of suspects rights.  In Kansas v. Ventris, Montejo v. Louisiana, Florida v. Powell, Maryland v. Shatzer, and Berghuis v. Thompkins, the Roberts Court has created, but not yet articulated, a new principle of ‘fair play’ in interrogations.  Witmer-Rich explains that the Warren Court was moved by the idea that suspects under interrogation are, by their circumstances, under compelling pressures from which the Court must protect them.  To do this, the Warren Court created the rules in Miranda and Massiah and others.  In contrast, although it mentions concern in its opinions for the relative strength of position between the interrogator and suspect, the Roberts Court does not seem similarly influenced it.  Instead, it presupposes that each suspect understands and is protective of his or her own rights.

Witmer-Rich approaches his analysis of this assertion, that the Roberts Court has moved away from the suspect protective Warren Court position, by evaluating, independently, the Roberts Court’s cases on the 5th amendment and the 6th amendment.  In his section on the 5th amendment, Witmer-Rich studies three opinions–Powell, Thompkins, and Shatzer–and describes how each decision illustrates the Roberts Court’s movement towards a ‘fair play’ principle.  In his section on the 6th amendment, he does the same with respect to two additional cases, Montejo and Ventris.

Ultimately, Witmer-Rich decides that the Roberts Court’s ‘fair play’ rubric is not a fair and adequate principle for organizing constitutional interrogation doctrine.  He explains that the Roberts Court, in moving away from the Warren Court’s assumption that suspects need and are entitled to protection of their rights, towards the assumption that suspects are fully capable, autonomous, informed agents who can protect their own interests, takes an important step backward in terms of real fairness.  The Roberts Court’s ‘fair play’ concept is not fair at all and fails to protect the constitutional rights of suspects against self-incrimination and the guarantee of assistance of counsel in criminal cases.

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