AuthorSundby, Scott E.

INTRODUCTION I. THE ELUSIVE MEANING OF VOLUNTARINESS II. THE RUGGED INDIVIDUAL AND POLICE INTERROGATION A. Introducing the Rugged Individual B. How the Rugged Individual Archetype Turns Voluntariness into a Special Circumstances Inquiry III. THE "EASILY SEDUCED" MIND AND THE SUSCEPTIBLE INDIVIDUAL A. The Rugged Individual Finds an Alterego B. Miranda v. Arizona: The Susceptible Individual Archetype Triumphant IV. THE RUGGED INDIVIDUAL'S RESURRECTION: RATIONALIZING CONFESSIONS THROUGH THE CALCULATING AND PENITENT SUSPECTS A. Giving One's Self Up to the Law: The Calculating Rugged Individual and the Battle of Wits B. Giving One's Self Up to the Law: The Interrogation Room As Confessional V. JUDGING THE STRUGGLE BETWEEN THE RUGGED AND SUSCEPTIBLE INDIVIDUAL A. Critiquing the "Battle of Wits" B. Critiquing the Interrogation Room as Confessional C. False Confessions D. Beyond False Confessions: Miranda and the Citizen-Government Relationship CONCLUSION INTRODUCTION

With each new Supreme Court opinion, Miranda v. Arizona (1) increasingly resembles an aging film star, making a major splash when first coming onto the scene, persevering through mid-career ups and downs, and then gradually losing vitality until finally receiving a Lifetime Achievement Award that tacitly suggests the best years belong to the past. (2) But even if Miranda's star power now appears to be fading, few doctrines have commanded such a vast number of legal paparazzi chronicling the case's every step or engendered such fervent arguments over whether Miranda's oeuvre should be judged a success or failure. (3) Miranda, in short, is one of those cases that lies at the convergence of so many flashpoint issues--ranging from views of judicial activism to concerns over police abuse--that we inevitably are tugged back to the most basic question that can be asked: What role should the Constitution play in regulating police interrogation?

To someone new to the area, that may seem like an exceedingly odd question to still be asking since the Supreme Court has had over a half-century to elaborate upon Miranda. (4) The strangeness only grows, however, when one realizes that Miranda is simply one episode in a far longer struggle by the Court. Indeed, it would be quite understandable if someone were to develop constitutional vertigo trying to trace the Supreme Court's approach to police interrogation practices through the various constitutional byways of the Due Process Cause, the Sixth Amendment right to counsel, and the Fifth Amendment privilege against self-incrimination. (5) At times the Court has adopted a strongly regulative approach toward individuals undergoing police questioning, only to then turn around and espouse a far more laissez-faire attitude toward what happens in the interrogation room.

As would be expected, a fair amount of attention has been devoted both to decrying and to attempting to explain these doctrinal mood swings. (6) However, while the scholarship is both insightful and thought provoking, this Article contends that a key inroad into understanding the Court's interrogation cases has largely been overlooked.

A tour through the Court's cases, beginning with the Court's early Due Process cases and proceeding through Miranda and beyond, reveals that much of the Court's muddled jurisprudence regarding police interrogation is a result of the Justices' differing views of why individuals confess. Whether approached as a Due Process inquiry, a Fifth Amendment privilege issue, or a Sixth Amendment right-to-counsel challenge, the Court has cast the critical inquiry as a question of historical fact: did the defendant "voluntarily" decide to confess or waive his rights? (7) It turns out, however, that answering the voluntariness question requires making assumptions that transform the decision maker into as much psychoanalyst as fact finder. And once we begin to pay close attention to the Court's various depictions of who is being interrogated, we begin to see how the Court's image of the way that an individual should react if subjected to police questioning strongly shapes the contours of the constitutional right that is fashioned.

This Article undertakes that examination and discovers that the Justices have espoused two basic characterizations of a suspect being interrogated: that of the "rugged individual" and that of the "susceptible individual." As the examination reveals, each characterization has had a period of ascendency and the protections that are afforded a suspect largely depend on which characterization a majority of the Court invokes. This framework, however, does more than help explain the confusion surrounding the case law. By bringing these two competing visions out into the open, a direct examination from both an empirical and doctrinal viewpoint can be made of their underlying assumptions about human behavior.

The Article proceeds in five parts. Part One looks at how the Court has struggled with the meaning of 'voluntariness' in the context of interrogation and introduces the idea that the Justices' vision of who is seated in the interrogation room heavily colors that determination. Part Two looks at how the Court has at times envisioned the suspect as the "rugged individual," an individual who knows his or her rights and can stand up to the pressures of interrogation absent exceptional circumstances. Part Three explores the rise of a different characterization, that of the "susceptible individual" in the interrogation room, and how at its zenith this characterization resulted in the landmark decision of Miranda v. Arizona, an ascendency that has now largely been replaced by the return of the rugged individual as the primary archetype. Part Four analyzes the Court's recent resurrection of the rugged individual perspective and how it rationalizes confessions as either the product of a "calculating rugged individual" who mistakenly believed that he could win a battle of wits with the police, or as the decision of a "penitent rugged individual" choosing to confess as a first step towards redemption. In Part Five, the Article looks at the rugged individual and susceptible individual models in light of empirical and doctrinal critiques, as well as their implications for false confessions and government-citizen relations. The empirical evidence and DNA-exoneration cases show that the rugged individual archetype is out-of-step with the realities of the interrogation room and puts minority and poorer defendants at a distinct disadvantage in exercising their rights.


    The Court's voluntariness doctrine is deceptively easy to state:

    Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confessions offends due process. (8) However, as those familiar with the Court's struggle to give meaning to the doctrine are well aware, the Court's efforts to expound upon the voluntariness question offer up a ready pinata at which to take a swing. Even the Court itself has taken a swing, observing with apparent agreement that commentators have critiqued the voluntariness doctrine as "'useless' ... '[p]erplexing' ... and 'legal double-talk.'" (9)

    The crux of the critique is that the doctrine at bottom is simply too amorphous to be effective; as one commentator pithily noted, "virtually everything is relevant and nothing is determinative." (10) Professor Paul Marcus has catalogued a number of factors that courts have considered in trying to assess if an individual's will was overborne: deception (specifically, deceptions about the legal process), fabricated physical evidence, threats, promises, length of interrogation, and a defendant's age, health, and intelligence. (11) However, no ready algorithm exists for how those factors should be weighed or viewed, or even counted at all. (12) The result, as Judge Richard Posner candidly observed in one interrogation case, is that:

    [T]he proposition that a confession, to be admissible, must be the product of free choice ... leads nowhere. Taken seriously it would require the exclusion of virtually all fruits of custodial interrogation, since few choices to confess can be thought truly 'free' when made by a person who is incarcerated and is being questioned by armed officers without the presence of counsel or anyone else to give him moral support. The formula is not taken seriously. (13) The first step to unraveling the puzzle of how the courts are approaching confessions, therefore, is to acknowledge that the "voluntariness" determination is not a factual determination but a judicial and societal construct. This is an observation that the Supreme Court itself has acknowledged, describing the inquiry as an "amphibian" (14) with a "hybrid quality" that, "because it subsum[es] a 'complex of values,' ... militates against treating the question as one of simple historical fact." (15) Judge Posner likewise has observed that:

    [W]hether a confession is voluntary is not really a fact, but a characterization. There is indeed no 'faculty of will' inside our heads that has two states, on and off, such that through careful reconstruction of events the observer can determine whether the switch was on when the defendant was confessing. (16) Yet, despite these critiques, when confronted with the question of whether to admit a confession, courts must make their dutiful pilgrimage back to the Court's formally stated voluntariness test with its impossible demand that the judge determine whether the "voluntariness switch" was in fact on or off. (17) And unsurprisingly this amorphousness carries over to the voluntariness inquiries throughout the area of police interrogation, such as the question of whether the suspect voluntarily waived his Miranda rights or...

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