§ 24.05 Criticisms of Miranda
| Jurisdiction | United States |
Although it did not seem so to critics at the time, Miranda constituted a compromise, of sorts.44 Although it apparently created a bright-line, per se rule of "involuntariness" to supplant the more flexible totality-of-circumstances standard, it did not eliminate uncounseled custodial interrogations, as some observers wanted. What follows is a brief survey of some of the criticisms of Miranda from "both directions," as well as arguments in its favor.
[A] "Miranda Did Not Go Far Enough"
What the critics say: The Court did not take the logic of Escobedo45 and Miranda to its logical conclusion, which is to prohibit custodial confessions altogether,46 permit questioning but only in the presence of a lawyer,47 or, at a bare minimum, prohibit interrogation until the suspect has consulted with counsel.48
If one takes seriously the principle stated in Miranda that the government must "shoulder the entire load" in an accusatorial system of justice, and that it must "respect the inviolability of the human personality," it follows from this that the government should not be permitted to establish guilt by use of admissions obtained in the "inherently coercive" environment described by the Supreme Court. Even if this is too extreme a position, the Court acted inconsistently in stating that custodial interrogations are inherently coercive, yet allowing suspects to "voluntarily" waive their rights in the same coercive environment. At a minimum, therefore, a lawyer needs to be present or consulted before a waiver can truly be effective.
What the defenders say: Defenders of Miranda do not necessarily disagree with the preceding criticisms, but they suggest that "these [critics] do not seem to appreciate the fact that in 1966 the Court was barely able to go as far as it did — that at the time it was probably not possible to persuade a majority of the Court to go one inch further. . . ."49
[B] "Miranda Went Too Far"
[1] "Miranda Lacks Historical and Textual Support"50
What the critics say: The holding of Miranda has "no significant support in the history of the privilege or in the language of the Fifth Amendment."51 Professor Albert Alschuler has stated that "neither the English nor the American version of the privilege afforded suspects and defendants a right to refuse to respond to incriminating questions."52 In England, the privilege against compulsory self-incrimination applied only to judicial interrogations. Wigmore, too, concludes that the American privilege against compulsory self-incrimination does not apply to police interrogations.53 Moreover, the most sensible reading of the text of the Fifth Amendment — "No person . . . shall be compelled to be a witness against himself" — is that the privilege was intended only to prevent the compulsion of oral testimony by the defendant at his criminal trial.
What the defenders say: The preceding criticism is not really directed at Miranda, but at the pre-Miranda proposition that the Fifth Amendment requires exclusion of statements secured by police coercion. Wigmore's historical view of the Fifth Amendment has been questioned by some legal historians.54 Beyond this, it is wrong to tie the Fifth Amendment privilege to an historical period in which investigatory and trial procedures differed so markedly from present-day processes. Divining the framers' intent is always a murky enterprise, but it is odd to think that they would have intended to allow modern-day police coercion while they barred judicial compulsion.55 Even the Office of Legal Policy in the Department of Justice, which called in 1986 for the Supreme Court to overrule Miranda, conceded that the applicability of the Fifth Amendment to custodial police interrogations is consistent with a historical understanding of the privilege.56
[2] "The Rule Is Unnecessary and Irrational"
What the critics say: The per se rule of Miranda is unnecessary. The "Due Process Clauses [of the Fifth and Fourteenth Amendments] provide an adequate tool for coping with confessions."57 The due process totality-of-the-circumstances voluntariness test is workable, effective, sophisticated, and sensitive. The claim that it provides inadequate guidance to the police is a "great exaggeration."58 Supreme Court case law makes clear that if the police engage in certain types of conduct (e.g., physical abuse of any kind, prolonged detention, food or sleep deprivation), they place resulting convictions at risk.
In contrast, the Miranda rule is formalistic.59 The premise that every custodial interrogation is coercive is counter-intuitive and empirically false. If a suspect in custody blurts out a confession, it is admissible despite the compulsion inherent in custody. Meanwhile, a single question — "Did you commit the crime?" — asked of the suspect in the absence of warnings and waiver supposedly renders the process coercive. "Common sense informs us to the contrary."60 It cannot be the case that any question of any person — regardless of the subject's internal fortitude, and regardless of the nature of the custodial interrogation — overbears the will.
What the defenders say: Only a person with "an extravagant faith" in the voluntariness test "could fail to see that the safeguards provided by [it] . . . were largely 'illusory.'"61 Even a critic of Miranda has conceded that the old test resulted in "intolerable uncertainty."62 As with other bright-line rules, Miranda sends a clearer message to the police than the totality-of-the-circumstances test could ever send.
Moreover, criticism of the per se nature of the rule is historically misguided: Miranda merely returned the law to the point at which it began.63 In Bram v. United States,64 the Supreme Court applied a similar definition of Fifth Amendment "compulsion." Although the Bram Court used the term "involuntary" in its analysis, it did not mean by this that the suspect's will had to be overborne in the due process sense for there to be a constitutional violation. Quite the contrary: Only later did the Court begin to use the term "involuntariness" interchangeably with "compulsion."65
In self-incrimination analysis, the amount of pressure required to invalidate a confession should be less than is required in the due process context, and should not be balanced against law enforcement interests, because the Fifth Amendment is linked to the anti-inquisitorial values of the Fifth Amendment's framers. The critical question should be, as in Miranda, whether the pressure was "imposed for the purpose of discouraging the silence of a criminal suspect."66
[3] "Miranda Is Anti-Confession and Pro-Fox Hunt"
What the critics say: The "obvious underpinning of [Miranda] . . . is a deep-seated distrust of all confessions." The "not so subtle overtone of the opinion [is] . . . that it is inherently wrong for the police to gather evidence from the accused himself."67Whatever else the Court may say, "the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all."68
The Miranda majority opinion seeks a pure adversary system, but the American system of justice is and should be one mixed with non-adversarial procedures. Miranda ignores the fact that, according to Justice White, "[t]he most basic function of any government is to provide for the security of the individual and of his property." Respect for the inviolability of the suspect is not all that is valued by the Constitution: "[T]he human personality of others in the society must also be preserved."69
Miranda treats criminal suspects as if they were underdogs, in need of lawyers to match wits with the police and to protect them against the pressures generated by custodial interrogation.70 Miranda places the suspect on an even playing field with the police,71 and thereby...
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