Article I, 1018 UTBJ, Vol. 31, No. 5. 18

Position::Vol. 31 5 Pg. 18

Article I

Vol. 31 No. 5 Pg. 18

Utah Bar Journal

October, 2018

September, 2018

The Miranda Decision is Showing Its Age and Should Be Replaced And Prosecutors Now Have an Argument They Can Make to that Effect


A little over fifty years ago, the Supreme Court handed down what may be its most controversial criminal law decision ever -Miranda v. Arizona. The decades since then have revealed Miranda to be not only bad constitutional law but also bad public policy. With the benefit of recent experience and modern technology, it is possible to design rules that not only more effectively protect legitimate interests of suspects but also insure that police are not unduly handcuffed as they investigate crimes.

Contrary to the prevailing myth that is often peddled, Miranda's rules have significantly impeded law enforcement's ability to prosecute dangerous criminals. University of Utah Economics Professor Richard Fowles and I have recently assembled all the relevant data on the subject. See Paul G. Cassell & Richard Fowles, Still Handcuffing the Cops? A Review of Fifty Years of Empirical Evidence of Miranda's Harmful Effects on Law Enforcement, 97 Bost. U.L.Rev. 685 (2017). One source of information comes from the "before-and-after" studies of confession rates in the year or two after the decision. For example, a study in Pittsburgh revealed that confession rates fell from 48% before the decision to 29% after. Similar results were reported in Manhattan, Philadelphia, Kansas City, Brooklyn, New Orleans, and Chicago. The few studies to the contrary were done almost immediately after Miranda in jurisdictions where police did not in fact follow all of the decision's procedural rules.

It might be argued that this data about Miranda's harmful effects comes in the immediate wake of the decision and that, since then, police have learned to "live with" Miranda. But surprisingly little hard data has been collected on Miranda's effects. One of the rare exceptions is a study that Bret Hayman and I conducted in the mid-1990s of confession rates in Salt Lake County. Relying on data collected at the Salt Lake District Attorney's Office, we concluded that police collected incriminating statements from suspects in only about 33.3% of criminal cases in Salt Lake County - a rate well below confession rates generally reported in the country before Miranda. Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L.Rev. 839,871 (1996).

Some have argued that this individual study might be an outlier because it would be impossible to say whether Salt Lake County's experience was typical of the nation's. Unfortunately, data on confession rates is not routinely collected in this country to confirm or dispel this argument. But a surrogate measure for confession rates can be found in clearance rates - the...

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