Miranda, Dickerson, and the puzzling persistence of Fifth Amendment exceptionalism.

• Author: Schulhofer, Stephen J.

Dickerson v. United States(1) preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed -- that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be restricted.

To evaluate the Miranda safeguards and determine whether they should be replaced by some other regime, it is essential to focus first on that normative premise. And for present purposes I will restrict myself to its constitutional dimension. I will focus on a surprisingly neglected question -- that of determining which restrictions on police interrogation are mandated by ordinary Fifth Amendment principles. My thesis is that the Court, even as it reaffirmed Miranda, perpetuated an extraordinarily confusing and illogical notion of what the Fifth Amendment means. Both the Court's majority in Dickerson and its dissenters share a conception of the Fifth Amendment that can be right only if the constitutional principles governing police interrogation differ from those that determine Fifth Amendment compulsion in every other setting. In other words, the Court (and all its Justices) apparently accept a kind of Fifth Amendment exceptionalism, under which the standards applicable to police interrogation are kept distinct from the standards applicable to all other official questioning of witnesses and suspected offenders.

Part I of this Article defends that thesis. Part II then explores conceivable alternatives to Miranda, and Part III suggests several ways to supplement the Miranda regime in order to bring it more closely into conformity with the Fifth Amendment principles that are accepted, largely without controversy, in every interrogation setting outside the police station. But first one preliminary: Are there any alternatives that the Court would tolerate as replacements for Miranda?

Opponents of Miranda often complain that the Court eliminated promising alternatives, "blocked" experimentation, and locked us into a straitjacket of rigid rules.(2) That was never a plausible reading of Miranda, and the Dickerson opinion re-emphasizes that the Court is perfectly willing to uphold alternatives to the Miranda system (that is, the system of police-delivered warnings, an express waiver prior to questioning, and respect for a suspect's request to cut off questioning at any time). The only limitation stated in Dickerson is one that appears almost verbatim in Miranda itself: any alternative must include "procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored."(3)

That is a reasonable and fairly minimal limitation. It's easy to imagine procedures that would meet it. Police could, for example, be excused from the warnings part of Miranda whenever warnings were given by a magistrate or by duty counsel at the stationhouse. There are many other ways to protect Fifth Amendment rights as effectively or more effectively than Miranda does, and if an alternative does that, there is no reason to worry that the Supreme Court would overturn it.

That brings us to choosing among alternatives, which means figuring out what problems a substitute for Miranda should seek to solve.

I am going to set aside Professor Cassell's complaint that Miranda puts tens of thousands of violent criminals on the streets every year by lowering clearance and conviction rates. He and I have debated that claim many times, and it's hard to imagine that there could be anything more to say about it.(4)

I think it's fair to say that Professor Cassell's position has not won overwhelming agreement from criminal justice scholars. And in Dickerson, after reams of paper had been devoted to raising the issue, no member of the Supreme Court nibbled at it. There's no hint, even from Chief Justice Rehnquist, that any Justice sees lost confessions as a serious problem,(5) and there's no hint that the Court will give that concern any weight in future decisions.

That in itself does not prove that Professor Cassell is wrong what does, in my opinion, is the data. In any case, for practical purposes the lost-convictions issue is now moot. Professor Cassell is free to continue flogging that very dead horse if he wants to, but there's no reason why anyone else should devote energy to trying to solve what looks like a nonexistent problem. Miranda probably prevents some confessions, but it also helps the police obtain others. The great weight of the evidence suggests that the Miranda system, as currently administered, causes no net reduction in confession rates, clearance rates, or conviction rates.(6)

The problems with Miranda lie almost entirely in the other direction -- the Miranda system is too weak. That claim will sound odd to anyone used to hearing that Miranda mandates overinclusive prophylactic rules and that it "sweeps more broadly than the Fifth Amendment itself."(7) So it is essential that I begin with first principles and consider why and to what extent the Constitution restrains police interrogation in the first place. Then I will specifically address where Miranda falls short and propose several remedies.

1. POLICE INTERROGATION AND THE FIFTH AMENDMENT

   Much as I welcomed the Dickerson result and nearly all of the opinion's language, I was disappointed that the Court perpetuated confusion about the constitutional basis for restrictions on police interrogation. The Fifth Amendment, as everyone knows, says that no person shall be "compelled" to be a witness against himself in a criminal case. Two misperceptions about "compulsion" are commonly voiced. They are echoed in such Supreme Court opinions as Elstad, Tucker and Quarles,(8) and to a lesser extent carried forward in Dickerson itself: (1) that a statement isn't really compelled unless it is judged "involuntary" within the meaning of Fourteenth Amendment due process, and (2) that judgments about real compulsion must consider the totality of the circumstances in the particular case.

   Conservative unease about Miranda and the perception of its dubious legitimacy, not to mention temper tantrums like the one on display in Justice Scalia's Dickerson dissent, rest directly on these two premises -- that compulsion means involuntariness and that judgments about compulsion must consider the totality of the circumstances. Yet both of these premises are dead wrong.

   It may seem presumptuous for me to pronounce a legal assertion dead wrong when it appears over and over in opinions of the U.S. Supreme Court. But, nonetheless, as the next section explains, those two premises are indisputably wrong. Or -- to put the point more politely -- those two premises can be right only if the constitutional principles governing police interrogation differ from those that determine Fifth Amendment compulsion in every other setting. In other words, those two premises imply a kind of Fifth Amendment exceptionalism, under which the standards applicable to police interrogation, even under Miranda, remain distinct from the standards applicable to all other official questioning of witnesses and suspected offenders.

   1. The Concept of Fifth Amendment Compulsion

      Consider the first premise -- that compulsion means the kind of involuntariness barred by Fourteenth Amendment due process. This premise simply cannot be true. Compulsion cannot mean involuntariness. Outside the context of police interrogation at least, it is impossible to equate compulsion with involuntariness because courts that consider themselves barred from ever admitting an involuntary statement nonetheless routinely admit and use statements that are unambiguously compelled.

      A statement that is truly involuntary, one that has been coerced by "breaking the suspect's will," is never admissible for any purpose.(9) But witnesses are routinely required to give statements under subpoena. Even when a person is a criminal suspect, he can, after a grant of immunity, be forced to give statements under subpoena.(10) Such statements are clearly and literally compelled. Yet, far from being inadmissible, as involuntary statements are, these compelled statements are unquestionably admissible; they are the bread and butter of virtually all judicial proceedings. Consider the Supreme Court's comment, the essential underpinning for its decision in United States v. Nixon,(11) that "it is imperative to the function of courts that compulsory process be available...."(12) Indeed, the Sixth Amendment grants the accused a constitutional right to compulsory process to call witnesses in his favor; the Constitution mandates the admissibility of these compelled (but not involuntary) statements.(13)

      Waiver doctrine underscores the same point. When it comes to Fourteenth Amendment safeguards against involuntariness, against being subjected to coercion that breaks the will, talk of "waiver" is inapt. One can never waive the right not to have one's will overborne by intolerable pressure, by conduct that "shocks the conscience."(14) But Fifth Amendment rights can be waived; once a witness testifies under oath, the court can compel her to answer questions under cross-examination. Not by lashes or electric shock of course -- that would overbear her will in violation of the Fourteenth Amendment. But after a valid waiver, she can be subpoenaed, held in contempt, and sent to jail until she talks, even when her answers may incriminate her. Such measures obviously involve compulsion and are impermissible against a suspect who properly claims the Fifth Amendment, but they do not "overbear the...