ABSTRACT
What the Court did in taking the provisions of the Bill of Rights that apply against the federal government and applying them in the same way to the states ignores the fact that the federal system and state systems are very different. This chapter goes into some of those differences in the volume of cases and differences in the kinds of cases. The federal system, for example, has very few misdemeanor cases but 75 or 80 percent of state cases are misdemeanors. States also have many crimes that are interpersonal—the defendant knew the victim. The federal system chooses its defendants, which is not true for the states. In short, what works for the federal system—a limited criminal jurisdiction—can be deeply problematic if applied to the states. The chapter takes Miranda v. Arizona and shows that its impact on states is far more dramatic than in the federal system because many arrests in state systems—especially for violent crimes—take place when the investigation has barely begun. This chapter uses England’s system of warnings to show a very different conception of what police questioning should be and what the role of counsel should be during such questioning.
