Questioning the relevance of Miranda in the twenty-first century.

• Author: Leo, Richard A.

INTRODUCTION(1)

Miranda v. Arizona(2) is the most well-known criminal justice decision -- arguably the most well-known legal decision -- in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately.(3) As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language.(4) Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known to school children than the Gettysburg address,(5) foreshadowing the Supreme Court's statement in Dickerson v. United States that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."(6) But even this may be an understatement: beyond the borders of the United States, the Miranda warnings may be more well known than virtually any other feature of the American criminal justice system.

From all this attention, one might reasonably infer that the impact of the Miranda decision -- on police, on criminal suspects, on confession and conviction rates, on the American public -- continues to be enormous. The purpose of this Essay is to question assumptions about the effects of Miranda and to suggest that legal scholars devote more energy to the empirical study of other, more significant, aspects of police interrogation and confessions. While it may have initially exerted a substantial impact on police interrogation practices and the criminal justice system, Miranda may no longer be as relevant as it once was to understanding how police interrogate, why suspects do or do not confess, and which legal reforms best serve the imperatives of crime control, due process and justice. In Part I, I review two generations of studies assessing Miranda's impact to set forth what we know and do not know about the ongoing macro-level impact of Miranda. In Part II, I take a more micro-level view to analyze the probable impact of Miranda on the central actors in the criminal justice system in the twenty-first century. Both Parts I and II conclude that Miranda has had a very limited impact (positive or negative) on the criminal justice system in the last two decades. Finally, in Part III, I conclude with some observations about the importance of mandatory video-taping of police interrogations and the future of legal scholarship on police interrogation practices and confession law. It is not the purpose of this Essay to provide any hard and fast answers to enduring and difficult questions, but rather to question our assumptions about Miranda's real world relevance in the twenty-first century and to suggest less popular, but arguably far more important, directions for policy innovation and future scholarship in this area.

1. THE MIRANDA IMPACT STUDIES

   1. First Generation Studies (1966-1973)

      In the three decades prior to Miranda, there had been relatively little field research on police interrogation practices in America.(7) It was thus hardly surprising that the Warren Court in 1966 relied on police training manuals -- rather than empirical studies -- to describe the techniques and methods of police interrogation in America. Emphasizing the absence of first-hand knowledge of actual police interrogation practices at the time, the Warren Court in Miranda noted that: "Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation room."(8)

      In the years immediately following the Miranda decision, scholars published approximately a dozen empirical studies that sought to fill in this gap.(9) These studies relied on a variety of methodologies (e.g., participant observation, survey research, interviews, analysis of case files) and were undertaken in a variety of locations (e.g., Pittsburgh, New Haven, Washington, D.C., Los Angeles, Denver, Madison, and elsewhere). In the main, these studies sought to identify and analyze police implementation of, and compliance with, the new Miranda requirements; police attitudes toward Miranda; the effect of the Miranda warning and waiver regime on police and suspect behavior during interrogation; and the impact of Miranda on confession, clearance, and conviction rates.

      Several scholars have catalogued and analyzed the findings of the first generation Miranda studies.(10) Although an in-depth discussion of these studies is beyond the scope of this Essay, several general patterns are worth briefly noting. First, in the initial aftermath of Miranda, some police began immediately complying with Miranda,(11) while others ignored the decision or failed to recite part or all of the required warnings to suspects in custody.(12) After a brief adjustment period, however, virtually all police began to regularly comply with the letter, though not always the spirit, of the fourfold warning and waiver requirements.(13) Despite their compliance, however, many detectives resented the new Miranda requirements.(14)

      Second, despite the fourfold warnings, suspects frequently waived their Miranda rights and chose, instead, to speak to their interrogators. Some researchers attributed this largely unexpected finding to the manner in which detectives delivered the Miranda warnings,(15) while others attributed it to the failure of suspects to understand the meaning or significance of their Miranda rights.(16)

      Third, once a waiver of rights had been obtained, the tactics and techniques of police interrogation did not appear to change as a result of Miranda. For example, Wald et al. observed in New Haven that Miranda appeared to have little impact on police behavior during interrogation, since detectives continued to employ many of the psychological tactics of persuasion and manipulation that the Warren Court had deplored in Miranda.(17) Stephens reported that while most detectives in Knoxville, Tennessee, and Macon, Georgia, issued formalized warnings, Miranda did not change the nature and role of the interrogation process.(18)

      Fourth, suspects continued to provide detectives with confessions and incriminating statements. In some studies, however, researchers reported a lower rate of confession following the Miranda decision than prior to Miranda. For example, Seeburger and Wettick reported that in Pittsburgh, the confession rate dropped from 54.4% prior to Miranda to 37.5% after Miranda, though the specific amount varied by the type of crime reported.(19) Yet other researchers reported only a marginal decrease in the confession rate. For example, Witt reported that in "Seaside City" (a pseudonym for a beach city in Los Angeles) the confession rate dropped only two percent (from 69% before the Miranda decision to 67% after the Miranda decision).(20) And one researcher even reported an increase in the confession rate of approximately 10% after Miranda.(21)

      Fifth, researchers reported that clearance and conviction rates had not been adversely affected by the new Miranda requirements. For example, even though Seeburger and Wettick found a 17% decline in the confession rate of suspects in Pittsburgh, they did not find a corresponding decline in the conviction rate.(22) Other researchers reported significant, if temporary, declines in clearance rates, but also noted that conviction rates remained relatively constant.(23) Moreover, even where conviction rates dropped along with clearance rates, the drop was not significant. For example, in his study of "Seaside City," Witt reported a 3% decline in the clearance rate and a 9% decline in the conviction rate (from 92% to 84%) after Miranda became law.(24) If there was a significant cost to Miranda according to first generation impact researchers, it appeared to be that Miranda may have caused the interrogation rate to drop and may also have been responsible for lessening the effectiveness of the collateral functions of interrogation such as identifying accomplices, clearing crimes and recovering stolen property.(25)

      Regardless, the consensus that emerged from the first generation of Miranda impact studies was that the Miranda rules have had only a marginal effect on the ability of the police to successfully elicit confessions and on the ability of prosecutors to win convictions, despite the fact that some detectives continued to perceive that Miranda's impact was substantial.(26) The general view of these studies is not merely that Miranda has failed to adversely affect the ability of police to control crime, but also that, in practice, the requirement of standard Miranda warnings failed to achieve the goal or impact originally envisioned by the Warren Court.

      The first-generation Miranda impact researchers are to be commended for the efforts they expended in gathering data on Miranda's real world impact in the immediate years after the case was decided. However, as I have argued elsewhere, the generalizability and contemporary relevance of these findings are undermined by two key factors. First, these studies are largely outdated. The data in each of the first-generation Miranda impact studies was gathered during the first three years following the Miranda decision in the mid-to-late 1960s. Therefore, these studies arguably captured only the initial effects of Miranda before police officers and detectives had fully adjusted to the new procedures.(27) Second, many of these studies are methodologically weak, perhaps because they were virtually all conducted by lawyers or law professors without any training in the research methods of social science.(28)

   2. Second Generation Studies (1996-Present)

      The first generation of Miranda impact studies had run their course by 1973. For the next two decades, the social science and...