Using the innocent to scapegoat Miranda: another reply to Paul Cassell.

• Author: Leo, Richard A.
• Position: Reponse to article by Paul G. Cassell in this issue, p.497

1. INTRODUCTION

   In Protecting the Innocent from False Confessions and Lost Confessions--And From Miranda,(1) Paul Cassell advances several logically flawed and empirically erroneous propositions. These propositions appear to stem from Cassell's ideological commitments,(2) and they continue his seemingly empirical and virtually single-handed assault(3) on the Warren Court's ruling in Miranda v. Arizona.(4) Cassell's readers are accustomed to a steady stream of speculative accusations that Miranda causes tens of thousands of guilty suspects to escape conviction every year.(5) This time, however, Cassell attacks the constitutionally--based warnings on the grounds that they harm innocent suspects.(6) Not only is Cassell's thesis that "Miranda affirmatively harms the innocent"(7) unsupported by any evidence, it also flies in the face of reason.

   Protecting the Innocent advances three points in particular. First, Cassell suggests an "alternative" methodology for estimating the annual frequency of wrongful convictions arising from false confessions.(8) This proposal rests on empirically untenable assumptions, and it ignores the formidable methodological barriers to estimating the harms of improper police interrogation methods. Ultimately, Cassell's method for quantifying the frequency of wrongful convictions following from false confessions amounts to no more than grand speculation masquerading as a reasoned estimate of fact. Hence, it has no credible empirical foundation, and it should not be used as the basis for any factually-informed analysis.

   Second, Cassell claims that Miranda warning and waiver requirements "present more risks to the innocent [false confessor] than they would prevent."(9) Supposedly, Miranda harms the innocent because it inhibits police from gaining confessions from truly guilty suspects that would therefore exonerate innocents who have been wrongfully convicted. As with Cassell's first position, this claim too has no empirical foundation and should not be the basis for any policy-making jurisprudence.

   Finally, Cassell speculates that substituting the videotaping of police interrogation for the Miranda rules would "produce tens of thousands of truthful confessions that would help protect the innocent."(10) Although space limitations prevent us from fully discussing this claim, Cassell's proposal to scale back the Miranda warnings--and thereby undermine custodial suspects' abilities to resist the pressures of interrogation--might actually increase the number of false confessions police elicit from innocent suspects.(11)

   In this commentary, we focus primarily on Cassell's first two claims.(12) In Part II, we briefly explain why neither social scientists nor legal scholars presently possess the requisite information to make empirically sound quantitative estimates of the annual frequency of false confessions or the number of wrongful convictions they cause.(13) In Part III, we address Cassell's implausible claim that Miranda harms the innocent more than it helps them. Finally, in Part IV, we argue that Cassell's essay represents less of an effort to seriously explore optimal ways of protecting the innocent than a continuation of his scapegoating of Miranda for many of the real and imagined problems of the American criminal justice system.(14) Cassell's claim that Miranda harms the innocent not only strains credulity, but also is an unhelpful diversion from much needed reforms that would improve police investigation practices and protect the innocent from wrongful conviction.

2. ESTIMATING THE FREQUENCY OF FALSE CONFESSIONS AND WRONGFUL CONVICTIONS(15)

   1. IS QUANTIFICATION POSSIBLE? IS IT NECESSARY? IS A HOUSEOF-CARDS REALLY BETTER THAN A HUMBLE "I DON'T KNOW?."

      To the extent that Cassell suggests that he is providing an "alternative" methodology to our procedures for quantifying the frequency of false confessions his analysis is misleading.(16) We have never suggested or advocated any particular methodology for estimating the frequency of false confessions. To the contrary, we have repeatedly pointed out that the methodological problems inherent in arriving at a sound estimate are formidable and unsolved, and we have concluded that no well-founded estimate has yet been published.(17) Although Cassell is well aware of our analysis of the barriers to estimating false confession rates, he suggests no solutions to these fundamental problems. Instead, he uses our paper (in this volume of The Journal of Criminal Law and Criminology) as another opportunity to engage in Miranda-bashing.(18)

      There are at least three major reasons why it is not presently feasible to estimate validly the incidence of police-induced confessions or the number of wrongful convictions they cause. First, American police typically do not record interrogations in their entirety. Therefore, it is not possible to ascertain the ground troth of the interrogation (i.e., what really happened) or the validit of certainty. Second, because no criminal .justice agency keeps records or collects statistics on the number or frequency of interrogations in America, no one knows how often suspects are interrogated or how often they confess, whether truthfully or falsely. Third, many, if not most, cases of false confession are likely to go entirely unreported by the media and therefore unacknowledged and unnoticed by researchers.

      For these reasons, it is not possible to reach a sound estimate of the incidence of false confession, or to estimate how often false confessions lead to wrongful convictions. Yet Cassell criticizes the false confession literature for failing to provide "a ballpark estimate of the frequency of false confessions,"(19) as if empirical researchers somehow bear this burden. However, one might view the absence of any such estimates as resulting from most researchers preference for an honest "I don't know" to the use of guesswork to arrive at specious estimates of real world facts. Until it becomes possible to draw a random sample of confession cases from a definable universe and accurately determine both the ground truth of the interrogation and the validity of the confession statement in each case, it will not be possible to arrive at a methodologically acceptable estimate of the annual frequency of false confessions or the number of wrongful convictions they cause.

      We reject not only Cassell's assertion that reasonable quantification is presently possible, but also his insistence that this is somehow necessary to make considered public policy decisions about the regulation of interrogation methods.(20) It is well established that psychologically-induced false confessions occur frequently enough to warrant the concern of criminal justice officials, legislators and the general public.(21) Whether or not Cassell wishes to acknowledge this(22)--and regardless of the advocacy numbers(23) he conjures up to speculate about the importance of other issues--police-induced false confessions, and the miscarriages of justice they spawn, remain serious policy problems in the American criminal justice system.(24)

      The project of quantification is Cassell's, not ours or any other researchers studying interrogation and false confessions. If Cassell were able to solve the methodological problems we have identified, or if he were able to explain why our methodological concerns are misplaced, then we would welcome quantification. If, however, Cassell's quantification scheme is merely a rhetorical device to permit him to argue for the superiority of his policy preferences, we must necessarily reject his conclusions as ideologically driven and the products of a commitment to the advocacy of a particular value position rather than to the empirical ascertainment of truth.

      Whenever Cassell attempts to give the appearance of quantitatively demonstrating the supposedly tragic consequences of Miranda, he uses a simple and formulaic approach. First, Cassell argues that the existing literature emphasizes one side of the problem(25) and thus a narrow set of policy solutions.(26) He then proposes that there are really two sides to the problem and, in an age of finite resources, policy decisions must be made in light of competing trade-offs.(27) Next, Cassell proclaims that researchers must quantify the dimensions of the problem in order to assess its importance and make informed policy judgments about competing tradeoffs.(28) Cassell then criticizes his opponents for failing to adhere to his standard.(29) He then conjures up severely flawed or simplistic estimates of the effects of the policy alternatives through a series of arcane numerical manipulations that supposedly measure the costs and benefits of competing policy proposals on a common...