Regression to the mean: how Miranda has become a tragicomical farce.

• Author: Garcia, Alfredo
• Position: St. Thomas Law Review 25th Anniversary Issue

INTRODUCTION

Fifteen years ago, when I wrote an article for a symposium issue of this journal, rhetorically entitled, Is Miranda Dead, Was It Overruled, or Is It Irrelevant?, (1) I harbored no pretensions that it would ultimately have any significant impact. My thesis in the article was that there was not "much left to Miranda--the patient [was] either on life support or clinically dead." (2) Since that time, much has been written about Miranda, including my revision of the article in a book I wrote on the Fifth Amendment, (3) as well as a scholar's argument intended to "save" Miranda, (4) and his forlorn conclusion a decade later "mourning" Miranda. (5) More importantly, the preeminent scholar in the field, Yale Kamisar, has recently written an article aptly titled, The Rise, Decline, and Fall (?) of Miranda. (6) Professor Kamisar argues that the United States Supreme Court has, in essence, overruled Miranda "piece by piece." (7)

What can we add to the debate over Miranda's fate that has not been rehashed by the best scholars in the field? In reflecting on this question, I harked back to a chapter in the path breaking book by the prominent economic scientist Daniel Kahneman, Thinking Fast and Slow. (8) In that chapter, Kahneman illustrates the operation of the principle of "regression to the mean." The concept, espoused by Sir Francis Galton in the late nineteenth century, is captured in the adage that "what goes up must come down." (9) Similarly, and by analogy, my central theme is that the Court's Miranda jurisprudence has regressed to the mean. Although the Court affirmed the "constitutional" import behind Miranda in the Dickerson (10) case, it has in the past fifteen years further dismantled the holding and its underlying tenets. In effect, Miranda has metamorphosed into a tragicomical farce. It is tragic because the Court has undermined the protections embedded in Miranda while simultaneously encouraging the deceptive interrogation procedures the Miranda majority condemned. It is comical because the Court has pretended to embrace the doctrine while simultaneously eviscerating its core principles.

This truism is confirmed by one of the most noted Miranda scholars, Professor Richard Leo. He has concluded that "[p]olice interrogation in the American adversary system is firmly rooted in fraud." (11) The process is a confidence game in which the police lie to the suspect and pretend to befriend him in an effort to wrest a confession. Although Miranda was designed to prohibit such "deceptive stratagems," (12) the Court has sanctioned, even implicitly encouraged, their use in its effort to whittle down the doctrine's core elements. Indeed, one scholar has documented the training of police officers to question "outside Miranda." (13) To a large degree, as David Simon has observed, the detective(s) conducting an interrogation have come to regard Miranda as little more than "simply a piece of station furniture." (14)

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on a Miranda waiver to establish the voluntariness of a confession.

With the benefit of hindsight, I suppose my arguments and conclusions, however prosaic, have stood the test of time. Indeed, it seems in retrospect that most scholars have arrived at the same place. Therefore, I hope to elaborate on the piece by focusing, in Part I, on a couple of cases which illustrate the U.S. Supreme Court's ratification of deception as an integral part of interrogations, despite Miranda's admonitions. Then, in Part II, I will juxtapose those earlier cases with the Court's latest pronouncements on Miranda, which reflect the virtual dismantling of the doctrine. In Part III, I will focus on a case that, though based on the Sixth Amendment's right to counsel, threatens to turn Miranda on its head. The Conclusion provides a revision of my proposal to return to the voluntariness standard by focusing on factors that will provide better guidance to lower courts in assessing the putative "voluntariness" of a confession.

1. THE U.S. SUPREME COURT'S RATIFICATION OF DECEPTION

   Beginning with the landmark case of Brown v. Mississippi, (15) the U.S. Supreme Court outlawed violence as a means of securing a confession from a criminal suspect. In response, law enforcement shifted its focus to psychological ploys designed to extract a confession from the suspect. As I have noted, "[T]he effective interrogator relies on guilt, shame, minimization of culpability, and atonement as his fundamental psychological tools." (16) Under the voluntariness standard, the threshold criterion for determining the admissibility of a confession is whether the suspect's will was overborne by the police. (17) Miranda supplanted the voluntariness standard with the presumption that custodial interrogation is coercive absent effective warnings and a waiver by the suspect of her right to remain silent and not to be questioned without the assistance of a lawyer. The logical premise behind Miranda is that a suspect who invokes either the right to remain silent or the right to an attorney will not be subjected to the psychological games that will induce him to confess.

   Invoking Miranda's safeguards, as I have emphasized, deprives the police of the "three pillars for successful interrogation--isolation of the suspect (i.e., privacy), control over the process (a derivative of the first corollary), and the opportunity to preclude the suspect from saying anything without an attorney." (18) The heart of the matter is a function of two critical factors: first, the suspect must be in custody and questioned by the police in order to trigger the doctrine; and second, he must assert his rights under Miranda to enjoy its protective shield. If the court finds that either custody or interrogation is missing, Miranda's protections vanish. Similarly, if the suspect waives his rights, which the vast majority of suspects do, (19) then the police are not stripped of tripartite advantages of isolation, control, and deprivation of the assistance of an attorney. One of the most effective means of producing an admission is to lie to the suspect in order to make his predicament seem hopeless. Even in the case of an obstinate suspect, a clever lie will sometimes yield the desired result. Consider the police's frustration in the case of Mr. Rogers. (20) Even in the face of overwhelming evidence against him, Rogers refused to confess, despite enduring a six hour interrogation. (21) Then the chief of police, who was brought in to question the suspect, told Rogers he would arrest his wife, who was suffering from arthritis, unless he confessed. (22) That strategic lie prompted Rogers to confess. Justice Frankfurter observed that a confession induced by either psychological or physical coercion "cannot stand." (23) Decided in 1961, Rogers was a pre-Miranda case, and its holding a product of the voluntariness test. (24)

   Let us fast forward to an oft-neglected post-Miranda case that, although different factually from Rogers, nonetheless implicates the concerns highlighted in Rogers. While investigating a burglary, police uncovered a suspect after questioning the victim. As it turned out, the victim of the house burglary identified her son's "close associate," Carl Mathiason, as the sole potential suspect. (25) Mathiason was on parole and the investigating officer contacted Mathiason by leaving a card on his apartment door, requesting Mathiason reach the officer. When both parties spoke, Mathiason expressed no preference for a meeting place, and the officer suggested he come down to the station, which was located about two blocks from the suspect's apartment. (26)

   Eventually, the suspect met the officer at the station, where they spoke behind closed doors. The officer informed Mathiason that "he was not under arrest." (27) In addition, the officer told Mathiason he wished to discuss a burglary and that "his truthfulness would possibly be considered by the district attorney or judge." (28) Thereafter the officer relied on a strategic lie: He told Mathiason that his fingerprints were found at the scene. As the Court observed, these events "occurred within five minutes after the defendant had come to the office." (29) Predictably, the officer then read the Miranda warnings to the suspect and obtained a taped confession. (30)

   As contrasted with Rogers' resistance for a period of six hours before he confessed, Mathiason's confession was exactly a swift five minutes. (31) In both cases, however, deception played a critical role in triggering the suspect's confession. Contextually, the lies the police employed to induce the confessions were equally effective. In Rogers' case, his concern for his ill wife's condition overpowered his resistance; in Mathiason's, unimpeachable evidence of his guilt, coupled with his parole status, underscored the inevitability of his fate. (32) In both cases, it is extremely unlikely either suspect would have confessed absent the falsities purveyed by the police. Indeed, the Oregon Supreme Court reasoned that Mathiason's predicament, stemming from his parole status and the police falsely informing him that his prints were left on the scene, were not offset by the suspect's visit to the station upon a request or by the fact that he was told he was not under arrest. (33)

   Would Mathiason's confession be deemed...