In 1996, the U.S. Supreme Court redefined the direction of modern confession law in Miranda v. Arizona,(1) one of the most well-known and influential legal decisions of the twentieth century. Seeking to dispel the compelling pressures it believed to be inherent in the "police dominated atmosphere"(2) of custodial questioning in Miranda, the Warren Court promulgated the now familiar fourfold warnings(3) to silence and appointed counsel that must precede every interrogation before it can legally commence.(4) Absent a voluntary, knowing, and intelligent waiver of the prophylactic Miranda warnings, any admission or confession will be excluded from evidence in subsequent trial proceedings.(5)
While the Miranda opinion briefly noted both the history of the "third degree" in America(6) and the danger of false confessions,(7) it described the modem interrogation process as "psychologically rather than physically oriented."(8) Nevertheless, relying on standard police training manuals, the Miranda opinion characterized custodial police questioning as manipulative, heavy-handed, and oppressive - all of which threatened to overcome the rational decision-making capacity of suspects who were ignorant of their constitutional rights.(9) The fourfold warnings, according to the Court, were thus a necessary procedural safeguard to protect a suspect's underlying Fifth Amendment privilege against self-incrimination.(10)
Along with only a few other Supreme Court decisions, Miranda has generated enormous popular, political, and academic controversy.(11) In its immediate aftermath, the Miranda opinion was assailed by police, prosecutors, politicians, and media. Police officials complained indignantly that Miranda would handcuff their investigative abilities.(12) Politicians linked Miranda to rising crime rates. Richard Nixon publicly denounced Miranda and other Warren Court decisions as representing a victory of the crime forces, over the "peace forces" in American society, while individual congressmen called for Chief Justice Earl Warren's impeachment.(13) Congress as a whole responded to Miranda by attempting legislatively to invalidate its holding in the Omnibus Crime Control and Safe Streets Act of 1968.(14) Newspaper editorials deplored the Warren Court's "coddling of criminals," while cartoonists lampooned the logic of the Miranda decision.(15) Almost thirty years later, Miranda remains a symbol of controversy in American society and continues to be assailed by its many critics. The Supreme Court's confession decisions since 1966 have steadily chipped away at both the letter and the spirit of Miranda.(16) The U.S. Department of Justice's Office of Legal Policy under the Reagan Administration characterized the decision as illegitimate in a 120 page report recommending that the Department of Justice urge the Supreme Court to overrule Miranda altogether.(17) Police interrogation manual writers,(18) legal academics,(19) and newspaper editorials(20) continue to call for its abolition.
What has been lost in all the controversy, rhetoric, and calls for reform is any analysis of Miranda's actual effect on American police interrogation practices in routine felony cases. In the predecessor to this Article, I provided the first empirical study of American police interrogation practices in more than two decades.(21) In this Article, I will evaluate the long-term impact of the well-known Miranda decision on contemporary police attitudes, behavior, and culture. Both articles are based on extensive empirical research on the history and sociology of American police interrogation practices, including almost 200 police interrogations I observed in more than nine months of participant observation fieldwork inside the criminal investigation divisions of three police departments.(22) In Part II of this Article, I review the history and evolution of judicial attempts to regulate police interrogation methods through the constitutional law of criminal procedure. In Part III, I summarize and critique the empirical literature on the short-run impact of Miranda (1966-1973) In Part IV, I analyze the impact that Miranda continues to exert on contemporary police practices and ideology almost thirty years after its judicial creation. In Part V, I enter the debate about Miranda's continuing viability and reform, evaluating the ongoing desirability of Miranda as public policy. Finally, in Part VI, I argue for the adoption of a constitutional rule that requires as a matter of due the electronic videotaping of custodial interrogations in, all felony cases.
A Historical Overview of Confession Law
Since the late nineteenth century, police interrogation practices have been regulated by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.(23) In the mid-1880s, the Supreme Court began to evaluate the admissibility of confessions under the Due Process Clause of the Fourteenth Amendment.(24) According to this doctrine, confessions were admitted only if they had been given voluntarily, confessions were excluded if the suspect's will had been overborne by police pressures. Although a coerced (i.e., involuntary) confession has been inadmissible in federal cases since the late nineteenth century,(25) the Supreme Court did not proscribe physically coercive practices in state cases until 1936. In Brown v. Mississippi,(26) three black tenant farmers were whipped and pummelled by sheriff's deputies investigating the murder of a white planter. The deputies hung one of the suspects from a tree, let him up and down several times, and then whipped him (both while tied to the tree and subsequently on the roadside) until he confessed.(27) The deputies arrested the other two suspects, stripped and placed them over chairs, and then severely beat and bloodied both suspects with buckled leather straps until they confessed.(28) The U.S. Supreme Court unanimously reversed the convictions of all three suspects, holding that such police methods violated the Due Process Clause of the Fourteenth Amendment.(29)
Brown w. Mississippi established the basis for the Fourteenth Amendment voluntariness, doctrine as the due process test for assessing the admissibility of confessions in state cases.(30) Under this standard, the admissibility of a confession was evaluated on a case by case basis according to the "totality of the circumstances," which included the facts of the case, the personal characteristics and background of the suspect (e.g., age, intelligence, education, prior contact with authorities), and the conduct of the police during interrogation.(31) Only confessions that were the product of a free and rational will were admissible.(32) In the thirty-five confession cases the Supreme Court decided from 1936 to libra, it employed the due process voluntariness test not only to evaluate the admissibility of confessions, but also to circumscribe appropriate and inappropriate interrogation practices, typically by reducing the degree of psychological pressure permissible for a legally voluntary confession.(34) During these years, the Supreme Court designated certain police interrogation methods - including physical force, threats of harm or punishment, lengthy or incommunicado questioning, solitary confinement, denial of food or sleep, and promises of leniency - as presumptively coercive and therefore constitutionally impermissible.(34)
The initial rationale underlying the voluntariness standard was that overbearing police methods created too high a risk of false confession and were not likely to yield factually reliable information from the accused. Indeed, this rationale or guiding principle was consistent with the earlier common law rule that only trustworthy confessions could be admitted into evidence against a criminal suspect.(35) But in 1941 the Supreme Court introduced the criterion of substantive due process or fairness into the Fourteenth Amendment voluntariness analysis.(36) In subsequent confession cases, the Supreme Court ruled that confessions obtained by unfair police methods may be involuntary despite the confession's apparent veracity.(37) Whether in the context of searches or interrogations, evidence gathered by police methods that "shocked the conscience" of the community or violated a fundamental standard of fairness were to be excluded, regardless of its truth or. falsity.(38) As the Fourteenth Amendment voluntariness doctrine evolved, the Supreme Court sought both to guard against the conviction of the innocent as well as to deter offensive police interrogation methods. As Gerald Caplan has noted, the voluntariness test.
[B]ecame a vehicle for evaluating not only the effect of interrogative techniques on a suspect's will but also the propriety of police conduct, isolated from and unrelated to its impact on the suspect. . . . In short, after nearly thirty years of judicial development, the voluntariness test was an evolving moral inquiry into what was decent and for in police interrogation practices.(39)
The voluntariness test thus became the touchstone of due process in confession cases as the Supreme Court sought to strike an appropriate balance between protecting the rights of the criminally accused and allowing police to employ effective interrogation methods.
Since 1964, police interrogation practices have also been under the potential regulation of the Sixth Amendment's right to counsel. While Americans have enjoyed a constitutional trial right to counsel in federal cases since the ratification of the Bill of Rights in 1791, this right was first incorporated into state constitutions through the Fourteenth Amendment in capital offenses in 1932(40) and subsequently modified in 1963 to include all felony offenses.(41) The underlying rationale of the Sixth Amendment is to protect a suspect's right to a fair trial. Extending this Sixth Amendment trial right to an earlier stage in the criminal process, the Supreme Court in 1964...