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On June 13, Miranda v. Arizona turns 50. Perhaps no other decision of the U.S. Supreme Court has become such a fixture in our popular culture. Television and movies have consistently misconstrued the effect of not reading a suspect the “Miranda rights.” Criminal defense lawyers are constantly explaining to clients that “He didn’t read me my rights” only makes a difference if there was a custodial interrogation and doesn’t require immediate dismissal of the charges.
The requirement of informing a suspect of a litany of rights before beginning custodial questioning has been maligned by many, including the likes of Dirty Harry Callahan and Justice Scalia. Clint Eastwood’s character in the movie Dirty Harry scowled in indignation at the law professor who offered the opinion that standing on Harry’s suspect’s wounded leg until his suspect confessed, and, by the way, not reading him his Miranda rights, rendered the confession invalid. “What about the [victim’s] rights?” he snarled. Justice Scalia, in his own snarl mode in his dissent in Dickerson v. United States, observed: “Preventing foolish (rather than compelled) confessions is likewise the only conceivable basis for the rules that courts must exclude any confession elicited by questioning conducted, without interruption, after the suspect has indicated a desire to stand on his right to remain silent, or initiated by the police after the suspect has expressed a desire to have counsel present.”1
A great deal of the criticism heaped on Miranda is directed toward its supposed impact on our nation’s ability to catch and convict criminals. One noted critic of the opinion offered the assertion that “Miranda may be the single most damaging blow inflicted on the nation’s ability to fight crime in the last half century.”2 Others have argued that the consequences of Miranda, in terms of the number of willing confessors persuaded to remain silent by being informed of their Miranda rights, represents a mere 0.78 percent of loss of convictions.3 Also, the argument has been put forth that, in some cases, the Miranda warnings are actually a contributing factor to a suspect’s decision to talk with police interrogators. The interrogator who administers the warnings may be perceived as fair and reasonable and this may serve to establish candor with the suspect.4
If we examine the effect of the Miranda decision in terms of its net effect (positive minus negative) on the criminal justice system, other factors should be considered besides the prosecution’s winning percentage. Occasioned by the 40th anniversary of the Miranda decision, Yale Law School professor Steven B. Duke delivered remarks and authored a law review article examining the unintended consequences of the required warnings.5 Professor Duke argued that while the intent of Miranda was to prevent involuntary confessions by warning individuals of their rights to silence and counsel, the converse is certainly not true: namely, that all confessions occurring after warnings are voluntary. Unfortunately, juries and judges seemingly assume that administering the warnings almost conclusively establishes the voluntariness of the confession regardless of what transpires between the warnings and the suspect’s incriminating statement to law enforcement interrogators.
It is difficult to quantify the effect on juries of a defendant having received Miranda warnings as it relates to their determination of whether the confession was voluntary. Professor Duke cites a case involving a confession obtained from a suspect with a congenital brain defect during a nine and a half hour interrogation after which the interrogators wrote out the confession for him. The jury convicted and the appellate court determined the confession to be voluntary.6 We can all insert here our most egregious example. It is impossible to separate the effects of the warning from juries’ proclivity to believe a confession anyway. Of course, jurors equate voluntariness with reliability, so whatever effect the Miranda warnings may have on a juror’s opinion of the voluntariness of the confession will influence the verdict. As the numerous exonerations involving false confessions have confirmed, the result of coercive interrogation techniques may be the conviction of the wrong person while the true perpetrator remains free.
More easily demonstrated is Professor Duke’s position that the Miranda warnings have had an effect on judges’ determinations of the voluntariness of confessions. He asserts that not only have the warnings and waivers helped to persuade jurors that confessions are reliable, but also they have provided a basis for trial judges to overrule motions to suppress when the challenge is not to a Miranda violation, but the voluntariness of the statement. He concludes: “Miranda is a substantial factor in the 21st century reality that the suppression of confessions by trial judges on involuntariness grounds is almost as rare today as four-legged chickens.”7 He cites, among others, a 1983 study of 7,035 cases in three states that found five (.07 percent) were lost as a result of suppression of a confession.8
Basically, the concern in the courts for whether a confession is, in fact, voluntary, seems to have diminished since the Miranda decision. Professor Duke points out that in three decades before Miranda, the Supreme Court held that confessions were involuntary in 23 cases.9 As of 2007, the Court had decided only three voluntariness cases post-Miranda, as opposed to those involving the application of the Miranda warnings.In two of those cases, Mincey v. Arizona10and Arizona v. Fulminante,11the Court determined the confessions to be involuntary. An updated search indicates that the Supreme Court since 2007 still has decided only confession cases involving the application of the Miranda warnings. One commentator cited by Professor Duke wrote that because the Supreme Court has not seemed interested in reviewing voluntariness cases, “lower courts have adopted an attitude toward voluntariness claims that can only be called cavalier.”12
In the third case decided since Miranda having to do with voluntariness of confessions, Colorado v. Connelly,13the Court moved away from including in the voluntariness determination any consideration of the reliability of a confession or of whether it was the result of subjective “free choice.” Instead, the Court decided that “[t]he sole concern of the Fifth Amendment, on which Miranda was based, is government coercion. Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’”14 The suspect in Colorado v. Connelly suffered from psychosis and confessed because “the voice of God” told him to. The Supreme Court decided that there was no Fifth Amendment or Due Process concern that prevented this confession from becoming the basis of a conviction. If the confession was, in fact, false, then the only recourse would be to convince a jury of that fact.
What the analysis put forth by Professor Duke and our own experiences have shown is that while Miranda certainly is an important part of our legal structure that in many instances serves to enforce the mandate of the Fifth Amendment, it hasn’t been effective in greatly diminishing the number of involuntary confessions. In fact, it may have had the unintended consequence of making it more difficult to prevail in suppressing confessions coerced by lengthy interrogations using psychological techniques or involving suspects with diminished mental faculties. Further safeguards are needed to eliminate compelled statements to the police.
Some jurisdictions have addressed these issues by requiring that interrogations be recorded. The practice should be universal. This is the only effective way to allow experts and ultimately the trier of fact to examine the techniques used to determine if the totality of the circumstances, including the particular characteristics of the suspect, were conducive to an involuntary confession, and one that was unreliable. Because the courts appear reluctant to take on the task of establishing any further safeguards in addition to the requirements of Miranda, it is up to legislative policy makers to prohibit practices that are inherently coercive and lead to false confessions.
Practitioners must continue to urge that the voluntariness inquiry does not end with the suspect having been warned of the Miranda rights. Unfortunately, we have real-world examples to cite of innocent men and women having been convicted as a result of false confessions resulting from coercive interrogations.
- Dickerson v. United States, 530 U.S. 428, 449 (2000) (Scalia, J., dissenting) (internal citations omitted).
- Paul G. Cassell & Richard Fowles, Handcuffing the Cops?A Thirty-Year Perspective on Miranda’sHarmful Effects on Law Enforcement, 50 Stan. L. Rev. 1055, 1132 (1998).
- See Stephen J. Schulhofer, Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500, 502 (1996).
- See Steven B. Duke, Does Miranda Protect the Innocent or the Guilty? 10 Chap. L. Rev. 551, 559 (2006-2007) [hereinafter Duke], also available at Faculty Scholarship Series, Paper 828, http://digitalcommons.law.yale.edu/fss_papers/828.
- See Duke, at 551-567.
- Id. at 561, citing State v. LaPointe, 678 A.2d 942, 949, 964 (Conn. 1996).
- Id. at 562.
- Id., citing Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 Am. B. Found. Res. J. 585, 601 (1983).
- Id. at 563, citing Welsh S. White, Miranda’s Failure to Restrain Pernicious Interrogation Practices, 99 Mich. L. Rev. 1211, 1220 (2001).
- 437 U.S. 385, 401 (1978).
- 499 U.S. 279, 282 (1991).
- Duke, at 563, citing Louis Michael Seidman, Brown and Miranda, 80 Cal. L. Rev. 673, 745-46 (1992).
- 479 U.S. 157 (1986).
- Id. at 170 (internal citations omitted).
About the Author
A certified criminal law specialist, E.G. “Gerry” Morris has been practicing criminal defense law for 37 years. His practice focuses primarily on trials in state and federal courts, but he also handles state and federal appeals as well as post-judgment actions. He is a frequent lecturer at continuing legal education programs.
E. G. Morris
Law Office of E.G. Morris
2202 Lake Austin Blvd.
Austin, TX 78703
Cover Photographs: Earl Warren & William Douglas | Harris & Ewing Photography; Abe Fortas | Supreme Court Collection; Hugo Black & William Brennan | Library of Congress