The attitudes of police executives toward Miranda and interrogation policies.

• Author: Zalman, Marvin

1. INTRODUCTION A. FRAMEWORK OF THIS STUDY B. CONSTITUTIONAL CONFESSIONS LAW: A BRIEF OVERVIEW C. IMPACT AND COMPLIANCE RESEARCH II. PRIOR RESEARCH AND POLICY ISSUES A. REACTIONS TO MIRANDA: RECENT RESEARCH B. INTERROGATION "OUTSIDE MIRANDA" C. FALSE CONFESSIONS AND PSYCHOLOGICAL INTERROGATION PRACTICES D. REFORMING INTERROGATION PRACTICES: SPOTLIGHT ON VIDEOTAPING E. LEGAL AND ADMINISTRATIVE CONTROLS ON POLICE INTERROGATION III. METHODOLOGY A. SAMPLE AND SURVEY INSTRUMENT B. RESEARCH ISSUES IV. RESULTS AND DISCUSSIONS A. ATTITUDES AND PRACTICES CONCERNING MIRANDA B. INTERROGATION OUTSIDE MIRANDA AND MIRANDA-MINIMIZATION C. FALSE CONFESSIONS: ATTITUDES AND PRACTICES D. ELECTRONIC RECORDING OF INTERROGATIONS AND CONFESSIONS E. CIVIL AND ADMINISTRATIVE CONTROLS ON INTERROGATION V. CONCLUSIONS A. CONTRIBUTIONS OF THIS STUDY B. THE "GAP PROBLEM" AND THE RULE OF LAW C. WHITHER MIRANDA? APPENDIX I. INTRODUCTION

   1. FRAMEWORK OF THIS STUDY

      Important issues of confessions law and police interrogation practices are presently on the constitutional and public agendas. The Supreme Court's recent decisions have left confessions law almost as confused today as it was before 2000, when the Court was on the verge of overruling Miranda v. Arizona. (1) The stage is set for additional judicial refinement. (2) Long-standing questions about the impact of legal rules on police interrogation practices have become more urgent with the knowledge that a number of police departments have taken advantage of Miranda "loopholes" to flout some Miranda rules. Is knowledge and practice of interrogation "outside Miranda" widespread or is it confined to its apparent region of origin? (3) Questions about the effectiveness of legal controls on police behavior are even more pointed now that it is known that police interrogation, with some regularity, generates false confessions that contribute to wrongful convictions. (4) Are police administrators aware of or concerned about false confessions? Knowledge that abusive interrogation causes some false confessions has led to calls for reform, chief among them the videotaping of interrogations. How prevalent is the recording of interrogations by police departments?

      Answers to such questions are important to legal and criminal justice scholars and to policy-makers, including legislators, judges, and law enforcement administrators. (5) Supreme Court rulings, of course, are implemented by the police, and an understanding of the "law in action" includes knowledge of police attitudes and opinions as well as descriptions of interrogation practices. This study explores these issues concerning interrogation practices through a survey of administrators of large police agencies. A variety of related issues are examined, including executives' global attitudes toward Miranda, their knowledge of and attitudes toward evasion of Miranda rules (a practice known as interrogation "outside Miranda"), their beliefs about links between aggressive psychological interrogation and false confessions, their support for the electronic recording of interrogations, and their views on legal and administrative sanctions for abusive interrogations. This legal impact research study (6) is designed to explore policy issues rather than to advance or test theories of legal impact, although impact theory helps to illuminate some of our findings.

      The importance of this subject, indeed of most aspects of criminal procedure, transcends its specific boundaries and raises fundamental questions about the relationship of individuals and the state in our constitutional order. (7) The enormous power held by police officers over confined suspects during routine interrogation sessions was adumbrated in Chief Justice Earl Warren's classic Miranda opinion. (8) He initiated his comments on the isolation, secrecy, and concomitant lack of knowledge about what transpires in the interrogation room and on the various techniques recommended by proponents of psychological interrogation (9) with the reminder that "[t]he cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime." (10) An appreciation that the most mundane interrogation session involves the application of state power, even at the retail level, raises questions about whether deviations from courts' rulings by police officers undermine the values of legality that undergird our constitutional system. We comment on this subject in the Conclusion. (11)

      The complexities of the subject at hand and the nature of the institutions being studied ensure that a single study will never be comprehensive. For example, Miranda law is a composite of many rules, is in flux, and, as a result of the Supreme Court's ideological divisions, is somewhat self-contradictory. After four decades, compliance with Miranda cannot be measured simply by the frequency with which the warnings are read prior to interrogation. (12) These factors preclude a simple causal model in which legal rules have a direct and unidirectional effect on police practices. Police behavior will be the result of multiple social and administrative causes, and it is likely that some level of mutual causation is at work. (13) In a notable example, Chief Justice Burger, appointed to the Supreme Court by President Nixon in part to unravel the Miranda decision, stayed his hand as it became clear that police enforced Miranda in a manner that weakened its effectiveness. (14) While the Supreme Court's post-Miranda decisions have been influenced in part by the Court's reactions to and perceptions of police behavior, evidence also supports the view that when implementing the law, the police have reacted in complex ways based on their own perceptions of the mixed signals sent by the Court. (15) Research into American policing is further complicated by the great diversity in size, experience, and professionalism among the approximately twelve thousand local law enforcement agencies in the United States. (16) Finally, law compliance is never perfect and is influenced by a number of cultural, situational, and administrative or structural factors. The behavior we study--police interrogation--is far from a simple, discrete event and, as noted, raises a number of pressing legal and policy issues. A single study based on one survey can illuminate the subject and provide helpful policy information but has to be triangulated with other relevant research to provide a full understanding of the subject.

      With these limitations in mind, the survey research reported in this Article amplifies existing knowledge regarding interrogation policies, including the link between interrogation and false confessions, and procedures that tend to undermine the effectiveness of Miranda. It supplements empirical studies of police interrogation published in the past decade. (17) The survey asked attitude and fact questions. In addition to questions on specific policy issues (such as false confessions), the survey also asked questions about knowledge of recent developments in confessions law and interrogation practices. Finally, we explore the drop-off in law compliance that may result from confusing and oft-changed rules. If following the Supreme Court's gyrations on confessions law is challenging to practicing lawyers, it is likely to be even more so for police administrators, given their broad responsibilities and lack of specialized legal training. Having information regarding administrators' knowledge, as well as their opinions, is important in the formulation of sound policy.

      Section I.B presents a brief overview of aspects of confessions law relevant to the research issues addressed in this study. Section I.C sets this study in the context of impact research that has been conducted mainly by political scientists. In Section II, we review prior research concerning the policy questions addressed by the survey. Section II.A reviews the second wave of major empirical studies of the impact of Miranda on police interrogation practices that were conducted since 1996. This literature grounds our survey questions, which inquire into the general attitudes of police officials toward Miranda. Sections II.B-II.E review the relevant research in regard to specific policy issues that form the basis of the remaining questions in our survey: interrogation "outside Miranda," false confessions and psychological interrogation practices, the videotaping of interrogations, and legal and administrative controls on police interrogation. Section III describes our research methodology and specifies the research-policy questions addressed by this study. Section IV presents the results of the survey and includes policy-oriented discussions of the findings. Finally, Section V reviews the contributions that our findings make to better understand the policy issues presently surrounding Miranda and discusses the meaning of the results for the rule of law.

   2. CONSTITUTIONAL CONFESSIONS LAW: A BRIEF OVERVIEW

      Prior to Miranda, the Supreme Court constitutionalized the common law rule that excluded involuntary confessions from trial evidence. The voluntariness test was applied in federal cases under the Fifth Amendment privilege against self-incrimination (18) and in state cases under the Fourteenth Amendment Due Process Clause. (19) Over the next three decades, the Court decided a series of due process cases finding that overbearing police practices, short of torture, violated the voluntariness test. (20) The Supreme Court was more proactive in federal cases, using its supervisory authority to strike down confessions obtained after prolonged interrogation. (21) In the 1960s, an invigorated and liberal Supreme Court incorporated the Fifth Amendment privilege against self-incrimination (22) and ruled that an interrogated suspect has a fight to counsel...