Confessions, Truth, and the Law.

• Author: Thomas, III, George C.

Everyone who has an interest in the criminal justice system should read Joseph Grano's new book, Confessions, Truth, and the Law. In laying the foundation for analyzing the law of confessions, Grano first presents a thoughtful discussion of the American criminal justice system, concluding that while the system has many objectives, the search for truth is a dominant objective (not the dominant objective, he assures the reader, only a dominant objective).(1) The objective of seeking truth through the justice system informs the rest of the book.

Everyone who has thought about the law of confessions, the Fifth Amendment privilege against self-incrimination,(2) or Miranda v. Arizona(3) will read Grano's book with great interest. He thinks and writes clearly. He skillfully canvasses the dialectic about confessions that has persisted in Anglo-American law for at least three centuries. The book thus serves as an invaluable reference - the Table of Authorities, the Table of Cases, and the rich endnotes are alone worth the price of admission.(4)

But Grano's book is muck more than a reference work. He does not shy away from controversial positions, and his attack on the rather smug, self-satisfied current attitude toward the law of confessions comes as a breath of fresh air. It also comes as an assault on the temple of Miranda. Though I have sought to defend Miranda's philosophical premises,(5) I recently published a tentative criticism of Miranda,(6) and am in the process of examining the empirical hypothesis that Miranda may ultimately make little or no difference in the percentage of suspects who incriminate themselves during interrogation.(7) Thus, I approached Grano's book as a test of my fidelity to Miranda, This review contains the results of that test.

1. Grano's Ethical Premise

   Grano begins with an ethical premise: Far from being ethically or normatively bad (as many critics seem implicitly to believe), police interrogation is an important adjunct to the justice system's ascertainment of truth. To ascertain the truth about who committed a particular crime is ethically good in two related ways: it avoids having the wrong person charged with a crime, while simultaneously identifying someone who deserves punishment and may need to be incapacitated. Thus, as long as the method of conducting the interrogation comports with whatever are the appropriate standards, the system should not disable police interrogators.

   This ethical premise cuts through some of the foggy thinking that attends the Miranda debate, but ultimately it merely restates the crucial question: what are the appropriate standards for police interrogation? Grano notes that two standards were subsumed under the common-law rubric of "voluntariness." One is the right not to be coerced into confessing; Grano calls this a volitional or mental freedom concern.(8) The other standard is the right not to have police use tactics that result in "unfair advantage or improper exploitation."(9)

   The "unfairness" standard captures a dimension of voluntariness quite different from coercion. Consider Grano's example of an unfair procedure that would not be coercive: "a police officer may not procure a suspect's confession by pretending to be a chaplain or a defense lawyer."(10) Because coercion requires an overbearing of the will of the coerced party,(11) this kind of trickery is the antithesis of coercion; it depends on the suspect not perceiving the hand of the police in the charade.(12)

   Grano would admit any confession that met this two-pronged voluntariness standard.(13) If the police neither coerced nor took unfair advantage of the suspect, the resulting confession is almost certainly some version of the truth. Given the importance of truth-seeking in the criminal justice system, on what ethical grounds should courts suppress this confession?

   The constraints on interrogation emanating from the Constitution may, of course, be more intrusive than those suggested by an ethical analysis. There is no perfect congruence between ethics and law. On the other hand, ethics and law are more closely related than many traditionalists seem to think.

   Indeed, on Ronald Dworkin's account of interpretation, ethics play a major role in deciding what constitutional provisions mean.(14) In Dworkin's view, interpretation requires two stages. If more than one interpretation survives the threshold test of fit, the judge at the second stage must decide which interpretation "shows the community's structure of institutions and decisions - its public standards as a whole - in a better light from the standpoint of political morality."(15) Though this concept is a bit fuzzy in the abstract, its application is less mysterious.

   For example, Wigmore identified two ways of deciding which confessions to suppress: (1) whether the confession was trustworthy; (2) whether the confession was the free choice of the confessor.(16) The trustworthiness test asks whether the facts surrounding the confession suggest that it was false; though this test is probably more restrictive than the coercion prong of Grano's voluntariness test, it is similar. The free-choice test asks whether the suspect gave the confession freely, without inducement or improper influence.(17) This is close to the Miranda view; indeed, the Miranda opinion contains similar language.(18)

   Assume that both tests pass Dworkin's test of fit as eligible interpretations of the Fifth Amendment privilege against compelled self-incrimination.(19) Now consider a hypothetical: the police interrogate a suspect (S) for several hours while she is being held in detention and not permitted to see her lawyer. Under the free-choice test, this confession might be inadmissible. Under the trustworthiness test however, S's confession seems admissible; the facts do not suggest pressure of the sort that would make a suspect give an untrue confession.

   Because both eligible interpretations of the privilege give a different answer in S's case, it is necessary to decide which interpretation shows the criminal justice system in a better light from the standpoint of political morality. At this second stage of Dworkin's analysis, it is necessary to characterize the police interrogation as either ethically good or ethically bad. To broaden the analysis beyond S's case, this ethical issue will arise whenever interrogation produces different answers under the two eligible interpretations.

   Both tests would find a violation when the interrogation is likely to produce false confessions; it is difficult to imagine a suspect making a free choice when facing a set of constraints likely to produce a false confession. Similarly, the presence of a free choice means that the false-confession test is always satisfied. On these assumptions, the ethical inquiry is required by the category of police interrogation which produces a response that is trustworthy but unfree.(20) Is this category of police interrogation ethically good or ethically bad? The answer will determine which of the two eligible interpretations is better.

   On this view of interpretation, an ethical inquiry cannot be avoided when more than one interpretation is eligible. Thus, the next task is to examine Grano's ethical premise in more detail and consider whether constitutional limitations on interrogation beyond those inherent in the voluntariness doctrine can survive Grano's ethical critique. Finally, Part IV contains the perhaps surprising argument that not much would change if the Supreme Court overruled Miranda.

2. Grano's Ethical Premise Examined

   After finding truth to be a dominant objective of the criminal justice system, Grano attacks the various arguments offered to support hostility toward police interrogation. Part I argues that an ethical inquiry is central to arriving at the best interpretation of the law of confessions. The debate about whether police interrogation should be tightly controlled or encouraged is precisely that ethical inquiry.

   Perhaps it is the growing conservatism in the country in the 1990s, perhaps it is my own middle-age crisis with conservatism, but Grano's counter-arguments on this point seem more persuasive than Fred Inbau's from a generation ago.(21) There is value in having the police solve crimes; there is value in permitting the police to talk to suspects. On the surface, therefore, it seems wrong to suggest that police interrogation which produces a trustworthy, voluntary confession causes a greater harm (to the system, to the country, to notions of fair play and equal treatment) than would a non-trivial loss of confessions resulting from additional limitations on interrogation.

   Grano is correct that some of the traditional arguments against police interrogation do not withstand an ethical scrutiny. For instance, the Court and commentators have stated that the Constitution should protect, suspects from making an ill-advised choice in the interrogation room because this choice can effectively deprive those suspects of their chance to succeed at trial.(22) But Grano wonders why guilty suspects should succeed at trial. Calling this the "fox-hunter's" argument, or sporting theory of justice, Grano exposes its weakness. Nothing - not even the tired cliche that the United States has an accusatorial and not an inquisitorial system of justice - will make this argument work once it is exposed as a call to give guilty suspects a better chance at acquittal.(23)

   A more sophisticated variant of the fox-hunter's argument exists, the classic expression of which is in Yale Kamisar's pre-Miranda paper, "Equal justice in the Gatehouses and Mansions of American Criminal Procedure."(24) The idea is that affluent white suspects will have access to lawyers as well as some notion of the usefulness of a lawyer, while poor minority suspects will be at the mercy of police interrogators. Creating a right to silence and a right to counsel would begin to equalize these groups.

   Focusing, as...