Confessions, Truth, and the Law.

• Author: Chertoff, Michael

Who's afraid of Miranda v. Arizona?(1) In the almost thirty years since the Supreme Court decided Miranda, its decision has been praised, criticized, expanded, curtailed, and even threatened with extinctin. A decade ago the U.S. Attorney General identified Miranda as an insupportable decision ripe for abandonment;(2) over one year ago, the last member of the Miranda Court retired;(3) and in recent years, the Court itself has seemed to cast doubt upon the vitality of Miranda.(4) Nevertheless, Miranda has survived and even -- in this era of the Rehnquist Court -- flourished.

Why spill more ink then on the topic of Miranda? Who cares anymore?

Actually, we all do -- or should. Because, as Professor Joseph D. Grano(5) demonstrates in his comprehensive treatment of the policy and doctrinal roots of Miranda, the Miranda decision rests on principles that reflect general and profound attitudes toward confessions, policing, and the nature of the criminal process. At its most abstract level, Miranda heralded a dramatic and still-unresolved impulse to dismantle the traditional distinction between police investigation and the adversary courtroom process, treating the former as a species of the latter by inviting lawyers into the stationhouse. Although this impulse has never been given free rein, at its logical extreme it could obliterate important, well-accepted techniques of crime detection.

Much of the debate over the reach of Miranda stems from this embedded impulse to subsume policing within the adversary courtroom process. Ironically, the core of the Miranda decision itself need not have been so protean; whatever one thinks of the doctrinal foundation of Miranda, at most it supports only a fairly narrow result. The transforming possibilities of the decision emerge from subsequent embellishments of the Court's reasoning and from the prescription of a rule that ranges beyond both the question presented in the case and the logic of the answer. Put simply, Miranda goes a rule too far, and its overreaching has been the source of much of Miranda's troubled history.

Grano's book invites us to unpack Miranda. Let's identify the two strands of its rule and the bases of its reasoning. Let's imagine a world with a narrow Miranda rule, and then examine the tensions within the post-Miranda world as it actually exists. Grano points the Court toward overruling Miranda. But we need not revisit a constitutional decision that, for better or worse, has survived. The debate over the wisdom of that decision has now left the sphere of the Constitution and entered the sphere of disciplinary rulemaking that would enshrine Miranda as one of the canons of bar ethics.

THE ROOTS OF MIRANDA

Miranda claimed to rest on the Fifth Amendment's prohibition against compelled self-incrimination.(6) The Court acknowledged that the original concept of compelled self-incrimination relates to legal compulsion and thus engrafted on that concept the rule against involuntary confessions.(7) As Grano observes, one may challenge Miranda's assertion that the privilege against self-incrimination and the prohibition on coerced confessions are in fact connected as a matter of law and logic (pp. 131, 134-36). On the other hand, one may view the relationship between self-incrimination and involuntary confessions as dependent: in order to determine whether a suspect validly waived the privilege against compelled self-incrimination, one must determine whether the suspect's waiver was voluntary or not. But whatever the foundation of the connection between the self-incrimination privilege and the involuntariness rule, the real tour de force in Miranda is the Court's expansive redefinition of the concept of impermissible involuntariness.

The Court's analysis in Miranda begins by cataloguing a veritable horror show of interrogative misbehavior, ranging from beatings, hangings, and whippings through exhausting incommunicado questioning and forced sleeplessness, all the way to the threatened removal of children and the questioning of a "'near mental defective.'"(8) To the extent that such misbehavior offended traditional notions of due process, however, it was already explicitly forbidden by the Fifth or Fourteenth Amendments.(9) Miranda's novelty lay in extending the traditional due process limitations on police interrogation by suggesting that all custodial interrogation is inherently coercive, irrespective of its actual circumstances (pp. 135-36).

The law, however, simply did not support the proposition that mere custodial questioning is automatically coercive. So the Court went about seeking to establish this proposition indirectly. First, the Court hinted that the very privacy within which police interrogation occurs creates a presumption of impropriety.(10) Then, the Court seemingly upbraided the police for trying to obtain a confession.(11) Other techniques evidently viewed askance by the Court include "display[ing] an air of confidence in the suspect's guilt,"(12) obtaining a psychological advantage by confronting the suspect outside his home ground, and offering the subject sympathetic rationalizations for the suspected offense.(13) Finally, the Court condemned the familiar "Mutt and Jeff" routine and police officers' use of deception.(14) In short, the Court virtually equated involuntariness with "trad[ing] on the weakness of individuals."(15)

This reasoning comes perilously close to treating any confession as per se involuntary. The Court implicitly seemed to regard as voluntary only those confessions offered after polite police questioning in a setting comfortable for the suspect and after full disclosure by the interrogators. Indeed, it is hard to see why the criticisms of traditional interrogative methods should have been limited to custodial questioning, as the police are capable of using deceptiveness and psychological ploys to elicit admissions in a noncustodial setting.

This analysis pointed the Court toward a rule that would have excluded all confessions, or at least all custodial confessions, as evidence in criminal cases. Yet the Court drew back from an automatic invalidation of all confessions, and even suggested that citizens ought to respond to police inquiries made in a noncustodial setting.(16) The reason is not hard to see. A ruling that all confessions -- or all confessions induced by some form of pressure or influence -- are involuntary would have overthrown a substantial body of prior case law, including the very precedents that had adumbrated...