68 CBJ 305. MIRANDA V. ARIZONA REVISITED AND EXPANDED: NO CUSTODIAL INTERROGATION WITHOUT THE PRESENCE OF COUNSEL.

Author:By EDWARD GREGORY MASCOLO*
 
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Connecticut Bar Journal

Volume 68.

68 CBJ 305.

MIRANDA V. ARIZONA REVISITED AND EXPANDED: NO CUSTODIAL INTERROGATION WITHOUT THE PRESENCE OF COUNSEL

305MIRANDA V. ARIZONA REVISITED AND EXPANDED: NO CUSTODIAL INTERROGATION WITHOUT THE PRESENCE OF COUNSELBy EDWARD GREGORY MASCOLO*1. THE CENTRAL ISSUE AND CONCERN

The Bible teaches us that a confession (of sin) will lead to salvation.(fn1) Under the law of man, however, a confession is 11 rewarded" with punishment. A criminal defendant, therefore, does not cleanse his soul by confessing his transgressions, but only imperils his liberty. Moreover, the key to a confession is the interrogation process, which pits interrogator against suspect, and thus becomes, by its very purpose, adversarial in nature. The 44 contest," however, is not even, for the setting of the interrogation and the procedures of the interrogation process, as reinforced by the resources available to the police, have been devised by law enforcement authorities to isolate the suspect, deprive him of any outside support from family and friends, undermine his will to resist, and eventually wear him down and extract from him a confession or other self-incriminating statements. (fn2)

Beginning with Brown v. Mississippi,(fn3) in 1936, and culminating with Miranda v. Arizona,(fn4) in 1966, the United States Supreme Court showed a heightened interest in the procedures of custodial police interrogation and their cumulative impact upon the Fifth Amendment privilege against compulsory self-incrimination.(fn5) More specifically, the crucial issue during this period was the admissibility of statements obtained from suspects who were subjected to custodial police interrogation, and the primary concern was the necessity for procedures which would assure that the suspect, during the interrogation process, would be accorded his privilege under the Fifth Amendment not

306 to be compelled to incriminate himself. (fn6) The search for those procedures was completed in Miranda, where the Supreme Court held that the government could not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant, unless it established the use of procedural safeguards effective to secure the privilege against compulsory self-incrimination.(fn7) Further, the Miranda Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.(fn8)

Those procedures, commonly referred to as "the Miranda warnings," have now been in place for nearly thirty years, and the time has come to examine their continued efficacy and determine the need for their revision and expansion. The warnings were devised by the Supreme Court as "auxiliary protections"(fn9) of the Fifth Amendment privilege against compulsory self-incrimination by securing the rights to remain silent and to have the presence of counsel.(fn10) Although the Miranda Court acknowledged the importance of having the presence of counsel during the interrogation process,(fn11) it did not require the continuous presence of defense attorneys at police stations at all times to advise suspects.(fn12) Thus, with respect to the presence of defense counsel, Miranda requires only that a suspect be informed that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.(fn13)

This limitation, as will be developed in the article, is both short-sighted, for focusing on the interplay between suspect and interrogator, and unrealistic, for failing to appreciate the intimidating circumstances surrounding in-custody interrogation. This atmosphere carries its own badge of compulsion which can operate very quickly to overbear the will of a suspect merely made aware of his privilege to remain silent by his interrogators.

307 Accordingly, the article will show that this limitation has prevented Miranda from having a meaningful impact upon police interrogation practices and the rate of confessions in criminal cases, and will propose not only the continuous presence of defense counsel at police stations at all times to advise suspects, but also that there can be no custodial interrogation of suspects outside of the presence of counsel, either retained, appointed, or standby. In this way, the privilege against compulsory self-incrimination, one of this nation's most cherished principles,(fn14) will be fully protected from overzealous police practices, and the right of the accused to a fair trial will remain a timely promise. Providing a defendant with a fair trial comes too late in the criminal process under the present procedure, for once the police have extracted a confession by means of the intimidating and compulsive pressures of the current unsupervised interrogation practices, the contest between citizen and government is, for all practical purposes, over before his trial even commences. One should not overlook the facts of life with respect to criminal proceedings. Confessions, after all, rank high on the scale of incriminating evidence,(fn15) and have been described by justice Harlan as "the most compelling possible evidence of guilt . . ..(fn16)

  1. THE MIRANDA WARNINGS

    1. General Principles In Miranda v. Arizona,(fn17) the United States Supreme Court ruled that, before a suspect may be subjected legally to custodial interrogation, he must be given the following warnings: (a) that he has the right to remain silent; (b) that anything he says can be used as evidence against him in a court of law;(c) that he has the right to the presence of counsel; and (d) that if he cannot afford the services of an attorney, "one will be appointed for him prior to any questioning if he so desires."(fn18)

      If the suspect "indicates in any manner" that he does not wish to be interrogated, the police will not be permitted to question 308him.(fn19) Moreover, the suspect will retain the right to terminate an interrogation at any time to consult with an attorney.(fn20) Thus, the Miranda Court, "for the first time," made the Self-Incrimination Clause of the Fifth Amendment applicable to state interrogations at a police station.(fn21) In so doing, the Court perceived the privilege against compulsory self-incrimination as the principal protection for an individual facing interrogation by the police,(fn22) and declared that a suspect has the constitutional rights under the Fifth and Fourteenth (fn23) Amendments to remain silent and to have counsel present during custodial interrogation.(fn24)

      Miranda, however, does not require that attorneys be producible on call, but only that a suspect be informed that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. If the police are unable to provide appointed counsel, Miranda then requires that they not question a suspect unless he first waives his right to counsel.(fn25)

      The purpose of the required warnings is to counteract the coercive atmosphere attendant upon custodial interrogation by the police, so as to accord added protection to the privilege against compulsory self-incrimination under the Fifth Amendment and to reduce the risk of involuntary statements.(fn26) This premise, that the danger of coercion results from the interplay between official interrogation and police custody, defines the need for the Miranda warnings. Conversely, the absence of the essential ingredients of a police-dominated atmosphere and compulsion - the interaction of custody and official interrogation - negates Miranda's concerns. Thus, the presence of coercion will be determined from the perspective of the suspect.(fn27)

      309 For example, ploys employed by the police to mislead a suspect or lull him into a false sense of security, that do not rise to the level of compulsion or coercion to speak, will not trigger the required Warnings. One such ploy has recently withstood constitutional scrutiny. In the Perkins case, the United States Supreme Court held that conversations between incarcerated suspects, not yet formally charged, and undercover agents do not implicate the concerns underlying Miranda. The Court reasoned that in this setting, albeit a prison, the requisite coercive atmosphere is absent when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. There is no fear, therefore, that a suspect speaking to those who he assumes are not police officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.(fn28) This relaxed atmosphere prompted the Supreme Court to observe that "Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner."(fn29)

      Perkins affirms several significant principles that are relevant to Miranda analysis. First, the location of a particular interrogation, without more, will not dictate a rendering of the warnings. Perkins itself embodies this teaching, when it recognized that a jailhouse setting is not sufficient per se to trigger the need for the warnings.(fn30) While physical confinement may be restrictive of one's bodily motions and activities, it is not, in and of itself, sufficiently coercive with respect to a suspect's mental faculties to overcome his will to...

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