Stories about Miranda.

• Author: Thomas, III, George C.

TABLE OF CONTENTS I. YALE KAMISAR'S CREATION II. MY STUDY III. GETTING INFORMATION ABOUT INTERROGATION IV. THE PROBLEM WITH THE MIRANDA DOCTRINE V. THE STUDY EXPLAINED VI. THE INTERROGATION HYPOTHESES EXAMINED A. Miranda Compliance Hypotheses B. Claims of Coercion, Trickery, and Involuntariness 1. General Claim (6 claims; 11% of total challenges) 2. Credibility (2 claims; 4% of total challenges) 3. Deception/Promises (9 claims; 16% of total challenges) 4. Capacity (23 cases; 41% of total challenges) 5. Coercion (16 claims; 29% of total challenges) 6. Findings on Coercion, Trickery, and Involuntariness VII. How PROSECUTORS USE THE MIRANDA DOCTRINES CONCLUSION I. YALE KAMISAR'S CREATION

It is no exaggeration to say that Yale Kamisar was present at the creation of Miranda v. Arizona. (1) To be sure, the seeds of Miranda had been sown in earlier cases, particularly Escobedo v. Illinois, (2) but Escobedo was a Sixth Amendment right to counsel case. Professor Kamisar first saw the potential for extending the theory of Escobedo to the Fifth Amendment right against compelled self-incrimination. Escobedo theorized that a healthy criminal justice system requires that the accused know their rights and are encouraged to exercise them. The Escobedo Court read history to teach

that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. (3) Justice White, dissenting in Escobedo, read the Court's opinion to demonstrate concern about "the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him." (4) The majority's intuition that information about rights is critical to a fair interrogation process is a powerful one. But the Sixth Amendment right to counsel was an odd place to attach that intuition to the Constitution. The right to counsel had never been thought to apply to police interrogation before, and Escobedo was but a baby step in that direction. The Escobedo Court required counsel when

the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent. (5) But few suspects would benefit from a right defined that narrowly. Few suspects have lawyers and only some of them request a lawyer in the face of police interrogation. If information is power, a broader basis for requiring it had to be found.

As Kamisar recognized in 1965, and the Court the next year, informational concerns in the interrogation context are more appropriately centered on the right not to be compelled to incriminate oneself. The criminal justice system makes much of the privilege not to testify in court and other judicial proceedings, requiring a formal waiver. The courtroom right is not very valuable, of course, if the accused has already confessed in the interrogation room. Kamisar put it this way:

The courtroom is a splendid place where defense attorneys bellow and strut and prosecuting attorneys are hemmed in at many turns. But what happens before an accused reaches the safety and enjoys the comfort of this veritable mansion? Ah, there's the rub. Typically he must first pass through a much less pretentious edifice, a police station with bare back rooms and locked doors. (6) As everyone knows who has watched television in the last thirty-five years, Miranda sought to level the playing field by giving suspects at least formal control over the interrogation. Miranda required that all suspects who are subjected to custodial interrogation be given two critical pieces of information--that the suspect has a right to remain silent and a right to have a lawyer present during the interrogation. The Court assumed that suspects who felt incapable of dealing with police would invoke the right to silence or to counsel. And it seems clear that the Court (the majority and the dissents) expected lots of suspects to do just that, making interrogation a much smaller part of the American police station procedure than it had become by the mid 1960s. (7)

Now we are closing in on Miranda's fortieth birthday. The available, albeit somewhat sketchy, evidence suggests that the police have adapted very well to the Miranda regime. Moreover, the Burger and Rehnquist Courts have failed to apply the Miranda informational theory with much enthusiasm, creating several avenues for prosecutors to use statements made without warnings or based upon what the Warren Court would have considered questionable waivers. (8) Together, these cases potentially undermine the Miranda protections or at least "lessen the desirable clarity" of the doctrine?

In honor of Yale Kamisar, I seek in this paper to shed light on three sets of questions. The first set concerns police compliance with Miranda. Do they give warnings when the rules say they should, do they honor invocations of the right to remain silent or to have counsel present, and do they secure waivers of the Miranda rights in ways that courts accept? Judges tell us that, at least as a formal matter, police comply quite routinely with Miranda's warning and waiver requirements. A related set of questions is whether, having secured a waiver, police use coercion and trickery to obtain confessions. The evidence here is murkier though overt coercion and elaborate trickery seem relatively rare. The third set of questions, which has never been the subject of an empirical study, concerns how prosecutors use the various Miranda loopholes to get statements admitted that might be inadmissible under a robust interpretation of Miranda. The ironic answer here is that the "loopholes" prosecutors use most often to admit statements taken without warnings or waiver are built into the Miranda doctrine itself and are not the result of later courts tinkering with the Miranda rules.

2. MY STUDY

   I sought answers in the stories that prosecutors and defendants tell in court about interrogation. One admittedly imperfect source of those stories are court opinions drawn from one of the web-based legal services (I used Westlaw). To be sure, listening to suspect stories in a sample of (mostly) appellate cases--198 of the 211 cases, or 94%, arose on appeal or in habeas (10)--has a set of potentially distorting limitations. Police have an incentive to tell a story that emphasizes compliance with Miranda and the voluntariness of the defendant's responses, while defendants have an even stronger incentive to emphasize precisely the opposite aspects of the interrogation. Moreover, since very few cases go to trial and fewer still are appealed, the pool of appellate cases is unlikely to be a representative sample. More than 90% of convictions result from guilty pleas, (11) and guilty pleas waive any objection to the admission of a confession. (12) The stronger the argument for suppression, all else equal, the less likely a defendant is to plead guilty and waive the argument. Thus, it seems likely that the pool of convictions on appeal will contain stronger arguments for suppression than the 90% of all convictions that result from guilty pleas. (13)

   A more troublesome distorting effect in my study is the series of "filters" that distort the reality of what happened in the interrogation room. The suspect's story is filtered through his lawyer. The police story is filtered through the prosecutor. The lawyers' arguments presumably appear verbatim in the transcript of the hearing on the motion to suppress but are inevitably filtered as they make their way to the court where the issues are ultimately resolved. My study uncovered one case in which the latter filter seems particularly distorting. (14)

   But I believe examining a sample of cases from Westlaw is useful. These data suggest several truths about interrogation. On a more rigorous note, the data permit a test of five hypotheses drawn from two studies: one by Richard Leo (15) and one by Paul Cassell and Bret Hayman. (16) First, police almost always give Miranda warnings as required by the Miranda Court's own set of rules. Second, suspects overwhelmingly waive their rights. Third, police usually cease questioning when the suspect invokes the right to silence or to counsel. Fourth, police rarely use overtly coercive tactics to get waivers. Fifth, police rarely use overtly coercive tactics to obtain confessions following waiver. If my study, using a different methodology, confirms any of these hypotheses, that would suggest that whatever the limitations of the earlier studies, they are reflecting something close to the reality of police interrogation on these points. (17)

   To conclude that there is general compliance with Miranda and little evidence of overt coercion, even if true, is not to say that police never break the rules about interrogation. Presumably, some police are capable of intentionally violating the rules about interrogation. And one assumes police would be most likely to violate rules about interrogation when they perceive they most need a confession--where the crime is horrendous, the police believe they have the guilty party, and the investigation has turned up little evidence. My random sample contained one case like this. (18) If there is one such case in every 211 cases, that...