The end of the road for Miranda v. Arizona? On the history and future of rules for police interrogation.

• Jurisdiction: United States
• Date: 01 January 2000
• Author: Thomas, George C., III

The Street

Here is what it might feel like to be a suspect who is arrested for murder and given Miranda warnings:

You are a citizen of a free nation, having lived your adult life in a land of guaranteed civil liberties, and you commit a crime of violence, whereupon you are jacked up, hauled down to a police station, and deposited in a claustrophobic anteroom with three chairs, a table, and no windows.... "You have the absolute right to remain silent." Of course you do. You're a criminal. Criminals always have the right to remain silent.... [W]e're talking sacred freedoms here, notably your Fifth Fucking Amendment protection against self-incrimination.(1) The Court

It is 10:00 A.M., June 13, 2000,(2) and nine black-robed figures emerge from the red velvet curtain behind the mahogany bench. The marshal bangs his gavel and welcomes "all persons having business before the Honorable, the Supreme Court of the United States" to "draw near and give their attention and ye shall be heard...." The gavel hits home one last time, the Justices take their seats, and the business of the Court begins. Today, the Court will deliver an opinion. Justice Scalia picks up a stack of papers and begins to read with his customary force:

In response to Miranda v. Arizona, 384 U.S. 436 (1966), the Congress of the United States enacted 18 U.S.C.A. [sections] 3501, with the clear intent of restoring voluntariness as the test for admitting confessions in federal court. Although duly enacted by the United States Congress and signed into law by the President of the United States, the United States Department of Justice has steadfastly refused to enforce the provision. In fact, after initially "taking the Fifth" on the statute's constitutionality, the Department of Justice has now asserted, without explanation, that the provision is unconstitutional. With the issue squarely presented, we hold that Congress, pursuant to its power to establish the rules of evidence and procedure in the federal courts, acted well within its authority in enacting [sections] 3501. As a consequence, [sections] 3501, rather than Miranda, governs the admissibility of confessions in federal court. Accordingly, the district court erred in suppressing Dickerson's voluntary confession on the grounds that it was obtained in technical violation of Miranda. An Essay

Are the prior paragraphs fiction? Not really. The first excerpted paragraph is from David Simon, who offered a composite description of interrogation based on a year of observing Baltimore homicide detectives. The second excerpt is the opening paragraph from the Fourth Circuit opinion in United States v. Dickerson.(3) The Supreme Court has scheduled oral argument in Dickerson for April 2000. Given the solid core of conservatives on the Court,(4) it is hardly fanciful to expect the Court to uphold 18 U.S.C. [sections] 3501.(5) Though Section 3501 affects only federal courts and federal defendants, upholding it would put pressure on state legislaturesto adopt parallel legislation. Given the strength of the prosecutor and police lobbies in most states, and the current general appeal of the "crime control" model of criminal justice, it seems likely that state analogs would spring up. It is thus no exaggeration to say that Miranda--the Supreme Court's boldest and most famous criminal procedure case--for the first time in decades hangs in the balance.

This Essay considers the issues raised by Section 3501 in the context of the history, logic, and inherent tensions of Miranda. Unlike Paul Cassell,(6) I conclude that Section 3501 cannot be upheld unless the Court modifies Miranda. My Essay then balances the benefits and liabilities of Miranda, and offers a tentative prediction of the outcome of Section 3501 at the Supreme Court level.

But the Essay is more importantly about the failure of judicial solutions to control police interrogation. The Miranda majority thought it was leveling the playing field--making the poor, ignorant suspect more equal to police officers (and more affluent suspects) by requiring the routine of warning suspects that they need not cooperate with police and could have counsel to assist them if they wished to respond to questions. One view of the evidence of the thirty-four years since Miranda was decided, however, is that most suspects still talk to police and still incriminate themselves but that guilty suspects occasionally walk free because of Miranda. Perhaps the egalitarian procedure created by the Court did not go far enough to solve the power imbalance between suspects and police and has made matters worse by freeing guilty criminals to commit more crimes. If so, this is the worst of all worlds.

More cynically, perhaps procedure always fails to remedy systemic problems because procedure cannot change the substance that is causing the problem. If the police continue to perceive a need for confessions, and suspects continue to perceive (however incorrectly) an advantage in talking to the police, the best system of warnings in the world will not reduce the confession rate. Perhaps the system always adjusts to restore the balance demanded by the interests, needs, and roles of the actors. In the words of William Stuntz, "[c]riminal procedure rules and remedies are embedded in a larger system, a system that can adjust to those rules in ways other than obeying them. And the rules can in turn respond to the system in a variety of ways, not all of them pleasant."(7)

The history, policies, and purposes of the law of confessions, most recently dominated by Miranda, are a concrete illustration of Stuntz's thesis. As this Essay will detail, judges have, over time, created obstacles to the use of confessions, and the interrogators have always adjusted in proportion to their perception of how much they need confessions. The Warren Court's Miranda holding, for example, was a reaction to the system's eagerness to obtain confessions from mostly poor, mostly ignorant suspects. The Court mandated a rigid routine that warns suspects not to cooperate with the police.

The system has responded by finding clever ways to encourage suspects to waive their Miranda "rights" and by a generous interpretation of what waiver means. Moreover, one systemic response to Miranda and other cases expanding the rights of suspects and defendants is decreased funding for public defender systems, which acts to increase pressure to plea bargain rather than go to trial. Valid Miranda claims are probably lost in the rush to plea bargain. That Miranda has largely failed should come as no surprise to observers who understand the history of confessions.

It is here, at the level of real world effect of doctrine, that Paul Cassell and I have our most fundamental disagreement. He believes that Miranda discourages police from interrogating suspects while encouraging suspects not to answer police questions.(8) No one has yet presented evidence that persuades me of that empirical claim,(9) and it runs counter to much anecdotal evidence and to what little we know about human nature.(10) In the absence of coercion, which everyone agrees is barred by the Due Process Clause, guilty suspects who see no benefit in talking to the police will refuse to cooperate whether they receive Miranda warnings or not. Guilty suspects who think they can outsmart police would have talked in the "old days" and today gladly waive their Miranda rights and talk to the police. Guilty suspects who can be tricked into making damaging statements by the police can also be tricked into waiving their Miranda rights.(11)

Has the process by which confessions are obtained changed markedly since the pre-Miranda days? Probably not. Would the process change in any meaningful way if Section 3501 were upheld and Miranda either modified or overruled? Perhaps not. If the system has adjusted to Miranda, are there reasons to modify or overrule its narrow holding? Perhaps. These questions form the subject of my Essay.

1. MOVING FROM VOLUNTARINESS TO RULES FOR INTERROGATION

   1. The Pre-Miranda Stage

      In the mid-eighteenth century, the common law was so solicitous of a defendant's right to decide for himself whether to testify that Blackstone could caution that "hasty, unguarded confessions ... ought not to be admitted as evidence" under a treason statute.(12) Blackstone urged this construction of the statute because "even in cases of felony at the common law" confessions made out of court are "the weakest and most suspicious of all testimony; even liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence."(13)

      By 1836, however, the pendulum had begun to swing in the direction of admitting confessions. Consider a later commentator's footnote to the Blackstone language just quoted:

      It seems to be now clearly established that a free and voluntary confession by a person accused of an offense, whether made before his apprehension or after, whether on a judicial examination or commitment, whether reduced into writing or not,--in short that any voluntary confession made by a prisoner to any person, at any time or place,--is strong evidence against him, and, if satisfactorily proved, sufficient to convict without any corroborating circumstance.(14) By the early twentieth century, courts seemed to harden further against criminals, probably because of rising crime rates and cultural dislocations. Though surely an extreme example, Brown v. Mississippi(15) may be illustrative of the trend toward admission. One suspect was hanged, let down, hanged again, let down, tied to a tree and whipped. Still proclaiming his innocence, he was released, only to be picked up later by a deputy sheriff and severely whipped, the deputy saying the whippings would continue until he confessed.(16) Two other suspects were whipped until their backs were...