Confessions and culture: the interaction of Miranda and diversity.

Author:Einesman, Floralynn
 
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  1. INTRODUCTION

    1. THE ADVENT OF MIRANDA

      In 1966, the Supreme Court issued one of its most significant rulings(2) when it decided the case of Miranda v. Arizona.(3) Recognizing that police officers often use sophisticated and devious techniques(4) to extract confessions(5) from vulnerable suspects,(6) the Court for the first time explicitly relied on the Fifth Amendment privilege(7) against self-incrimination(8) to provide protection for individuals subjected to custodial interrogation.(9) Extending the application of the Fifth Amendment privilege from the courtroom to the police station,(10) the Court ruled that to safeguard a suspect's privilege against self-incrimination and to dispel the compulsion in the inherently coercive environment of custodial interrogation,(11) a police officer must warn every suspect that he has a right to silence and a right to an attorney before subjecting him to custodial questioning.(12) Unless the suspect knowingly, intelligently, and voluntarily waives these rights,(13) his statements cannot be used against him at trial.(14)

      The Miranda decision was significant for a number of reasons. It openly recognized the inherent coercion of incommunicado police interrogation.(15) It acknowledged that police officers use sophisticated psychological ploys to encourage suspects to confess.(16) For the first time, it explicitly turned to the Fifth Amendment privilege against self-incrimination(17) rather than the Fifth/Fourteenth Amendment right to due process(18) or the Sixth Amendment right to counsel(19) to protect a suspect subjected to custodial interrogation.(20) Finally, it rejected a case-by-case approach(21) to evaluating confessions.(22) Instead the Court promulgated a standardized set of warnings that police officers were required to give suspects before subjecting them to custodial interrogation.(23)

    2. CULTURAL CHANGES IN THE UNITED STATES

      At the same time that the Court was shifting its perspective on the admissibility of confessions, the Legislature was shifting its perspective on immigration. In October of 1965, Congress passed the Immigration and Nationality Act of 1965,(24) which eliminated previous national origin quotas.(25) Additionally, it eliminated the "long-standing official discrimination against prospective immigrants from the so-called Asia-Pacific triangle."(26) Instead, it set a worldwide annual ceiling of 290,000 for legal immigration--170,000 per year for immigrants from the Eastern Hemisphere,(27) and 120,000 for immigrants from the Western Hemisphere.(28) The Government enacted a first-come, first-served basis to admit immigrants.(29) Applications from immediate relatives of U.S. citizens were not included in the annual ceilings.(30)

      As the United States was deluged with applications for immigration, the Government continued to reform its immigration policies. For example, in 1976, Congress extended the annual ceiling by 20,000 immigrants from Western Hemisphere countries.(31) In 1980, it reduced the annual ceiling of immigrants to 270,000(32) but established a distinct policy and category for refugees. It expanded the definition of "refugee" and set a separate worldwide annual ceiling of 50,000 for this category.(33)

      During the period of 1960 to 1990, the immigration of refugees deeply affected the composition of this country's population. For instance, between 1960 and 1980, the Government admitted more than 800,000 Cuban refugees into the United States.(34) Additionally, between 1975 and 1979, more than 200,000 Vietnamese immigrated to the United States after the fall of Saigon.(35) In all, between 1975 and 1984, more than 700,000 Indochinese refugees(36) settled here.(37)

      During this period, an explosion of illegal immigration also affected the growth and composition of the American population.(38) Seeking to address the issue of illegal immigration, Congress passed the Immigration Reform and Control Act in November of 1986.(39) This legislation authorized:

      amnesty and temporary resident status to all illegal aliens who had lived in the United States continuously since January 1, 1982; imposed sanctions on employers who knowingly hire illegal aliens; initiated a Special Agricultural Worker program to prevent possible labor shortages caused by employer sanctions; and increased inspection and enforcement at U.S. borders.(40) This legislation profoundly impacted the composition of this country's population. For example, more than 400,000 aliens applied for amnesty during the first eleven months of the program.(41) "By August of 1990, 1,300,000 aliens had applied for legalization under the provisions of this Act and only 341 were denied. Of these applications, 1,230,299 were Mexican nationals."(42) Additionally, over a half a million aliens sought legalization under the Special Agricultural Workers program.(43) "During the fiscal year of 1988, a total of 643,000 aliens were granted legal status under the provisions of this Act."(44)

      In sum, immigration to this country has grown significantly since 1965. Between 1969 and 1989, in excess of 12 million people legally immigrated into the United States.(45) Moreover, the source of those immigrants has changed significantly.(46) Before 1965, Europe provided the majority of America's immigrants. Since 1965, Latin America and Asia share that distinction.(47)

      Not surprisingly, this shift in the source of immigration has dramatically affected American society. By 1990, "32 million people living in the United States reported speaking a language other than English at home and more than 40 percent of them acknowledged that they did not speak English very well."(48) In addition to their native tongue, these immigrants also bring with them their culture--"their sense of self-identification and group identification, engendered by race, ethnicity, religion and language."(49) All these cultural attributes deeply influence American society, and perceptions of interrogated individuals.

      With this explosion in immigration, it was not long before the courts began to address the application of Miranda to those of different cultures. For if Miranda sought to provide protection for the vulnerable criminal suspect from the sophisticated official interrogator, who could possibly be more vulnerable than a suspect who does not speak English or who does not embrace American culture?(50)

  2. APPLICABILITY OF MIRANDA RIGHTS

    In addressing the issue of confessions and culture, it is first necessary to determine to whom Miranda applies. Repeatedly, the Supreme Court has explained that the Miranda warnings are not constitutionally mandated but, instead, are a judicially-created measure to protect the Fifth Amendment privilege against self-incrimination.(51) Because the warnings are merely a mechanism to protect the privilege against self-incrimination, it is important to examine specifically who is covered by this constitutional safeguard.

    1. CITIZENS AND LAWFULLY ADMITTED ALIENS

      The Court has not defined the term "person" as set forth in the Fifth Amendment.(52) There is no doubt that this constitutional provision protects a citizen of the United States who resides in this country.(53) It also protects a United States citizen stationed abroad.(54) It covers a lawful permanent resident of the United States who is physically present in the United States.(55) It also seems to encompass an individual who is lawfully present in the United States under parole status pursuant to 8 U.S.C. [sections] 1182(d)(5).(56) The Fifth Amendment, however, does not protect enemy aliens outside the United States.(57)

    2. UNDOCUMENTED ALIENS

      The application of the Fifth Amendment is less clear as to those who are physically, but not lawfully, present in the United States. In the past, the Court has held that an undocumented alien enjoys the protections of the Fifth and Fourteenth Amendments.(58)

      In a Fourth Amendment case, however, the Court ruled that a defendant whose home in Mexico was searched by American and Mexican officers may not challenge the search as constitutionally unreasonable.(59) The Court ruled that because the defendant was a Mexican citizen who had no voluntary attachment to the United States and the search was not conducted in this country, he enjoyed no Fourth Amendment protection.(60) In reaching this conclusion, the Court mentioned in dicta that "aliens receive constitutional protections when they have come within the territory of the United States and [have] developed substantial connections with this country."(61) Thus, the Court seemed to confirm that even if a person had entered the United States illegally, but was present voluntarily and had "developed substantial connections with this country," he would enjoy constitutional protection.(62) In addition, the Court stressed that "the Fifth Amendment ... speaks in the relatively universal term of `person,' [as opposed to] the Fourth Amendment, which applies only to `the people.'"(63)

      Although the Supreme Court has not decided whether an alien is protected by Miranda, every lower court that has considered the question has decided in favor of such protection.(64) For purposes of Miranda coverage, it is irrelevant whether the alien is at the border or within the country, or whether he is within the United States legally or illegally.(65)

  3. CUSTODY

    Miranda warnings need only be given to individuals who are subjected to custodial interrogation by government agents.(66) The Court in Miranda found that the interplay of custody and government interrogation is so inherently coercive that Miranda warnings are necessary to protect the suspect's privilege against self-incrimination.(67)

    1. THE MEANING OF CUSTODY

      For purposes of Miranda, a suspect is in "custody" "as soon as a suspect's freedom of action is curtailed to a `degree associated with formal arrest.'"(68) In contrast, a seizure under the Fourth Amendment is defined as a "meaningful interference, however brief, with an...

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