The Practical Consequences of the Miranda Rule
Before exploring more of the Miranda doctrine—defining “interrogation,” learning what counts as a “waiver” of Miranda rights, and so on—we pause here to consider the practical effects of the doctrine. The Miranda Rule is now more than 50 years old, and debate rages on straightforward questions such as: (1) does the rule reduce the ability of police to obtain voluntary confessions,56 (2) does it provide any real benefits to suspects, or to society as a whole, such as by promoting meaningful free choice and protecting the dignity of suspects under interrogation, (3) has it affected the crime rate?
For example, Professor Paul Cassell has argued that Miranda has increased the crime rate while providing no compelling benefits to compensate.57 Challenging a perceived academic consensus that Miranda’s practical effects on crime-fighting have been “negligible,” Professor Cassell offers an empirical analysis of the number of confessions police never obtain because of Miranda. He includes a corresponding analysis of lost convictions—as well as lenient plea bargains necessitated by missing evidence. He begins with the “common sense” premise that “[s]urely fewer persons will confess if police must warn them of their right to silence, obtain affirmative waivers from them, and end the interrogation if they ask for a lawyer or for questioning to stop.” He also quotes the Miranda dissent of Justice White: “In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”
While acknowledging that any empirical analysis must be a “sound estimate” rather than an exact calculation, Cassell argues that the costs are severe—well in excess of the insignificant harms commonly imagined by scholars and judges.58 He concludes that each year, Miranda results in tens of thousands of “lost cases” for violent crimes, along with tens of thousands more for property crimes. His numbers are based on an estimated loss of 3.8 percent of convictions in serious cases.
Replying to Cassell, Professor Stephen Schulhofer reached the opposite conclusion.59 After adjusting for what he describes as Cassell’s faulty data analysis and biased selection of samples, Schulhofer concludes, “For all practical purposes, Miranda’s empirically detectable harm to law enforcement shrinks virtually to zero.” Schulhofer then offers a robust defense of Miranda’s benefits, noting that “[t]o carry the day, an alternative to Miranda not only must promise more convictions, but also must preserve justice and respect for constitutional values in the 99% (or perhaps only 96.2%) of convictions that will be obtained successfully under either regime—and in all the arrests that will not produce convictions under either regime.”60
Noting that—according to his own analysis—police have managed to obtain confessions under Miranda at rates similar to those of the old days, Schulhofer confronts the question of why then we should care about Miranda. That is, if it doesn’t reduce confessions, why bother? He replies that the Court’s goal in Miranda was not “to reduce or eliminate confessions,” recalling that the Court explicitly established a procedure “to ensure that confessions could continue to be elicited and used.”61 “Miranda’s stated objective was not to eliminate confessions, but to eliminate compelling pressure in the interrogation process.”62 In other words, under Miranda, police still get confessions, but they get them by tricking suspects (and exploiting their overconfidence) instead of by “pressure and fear.” That difference, to Schulhofer, honors the Self-Incrimination Clause of the Fifth Amendment while imposing “detectable social costs [that] are vanishingly small.”63
A decade later, Professors George C. Thomas III and Richard A. Leo reviewed “two generations of scholarship” and concluded that Miranda has “exerted a negligible effect” on the ability of police to obtain confessions.64 They argued, as well, that Miranda’s “practical benefits—as a procedural safeguard against compulsion, coercion, false confessions, or any of the pernicious interrogation techniques that the Warren Court excoriated in the Miranda decision”—are similarly negligible.65 They offered several potentially overlapping explanations for their findings of negligible effects. First, suspects know of their rights from television and elsewhere, yet overwhelming majorities “waive their rights and thus appear to consent to interrogation.”66 (They analogized Miranda warnings to those on cigarette packages.) Second, police have learned to recite the Miranda warnings in a way that encourages cooperation. Third, Supreme Court decisions have limited the effects of the Miranda Rule (for example, by making it easy for prosecutors to demonstrate “waiver”). Indeed, police and prosecutors now largely support Miranda and report that it does not interfere with their work.
The broad consensus is that Miranda is not a serious impediment to policework, meaning that suspects regularly confess to serious crimes despite being explicitly informed (1) that they need not do so and (2) that doing so could cause them harm in court. Students interested in how police obtain confessions should see an article titled Ordinary Police Interrogation in the United States: The Destruction of Meaning and Persons: A Psychoanalytic-Ethical Investigation.67 The authors describe a suspect who falsely confessed to murdering his sister. The interrogation was videotaped, allowing analysis of how an innocent person (conclusive evidence of his innocence was later discovered) was pressured to confess by lawful police tactics. The authors argue, “The goal of interrogation is not to gather information. It is to obtain confessions.”68 That is, once police decide during an investigation who they believe committed the crime, the purpose of interrogation is to get the admissions needed to convict the suspect.
One author attended a training seminar for police interrogators, learning techniques such as how to “evade informing suspects of their rights during interrogation by giving suspects the impression that they have been arrested without in fact placing them under arrest.” He reports, “Reid seminar attendees are told to walk into interviews with thick folders, videocassettes, or similar props spilling out to make subjects believe interrogators have evidence against them.” After describing several other techniques effective against the innocent and guilty alike, the authors state, “The interrogator, armed and trained with these powerful rhetorical tools developed and refined over seventy years of systematic study and placed in the position of power and authority over the suspect, not surprisingly often extracts admissions of criminal conduct. But such admissions do not end the interrogation.”69 Because police prefer confessions that match other evidence, interrogators follow the initial admissions with leading questions designed to conform the suspect’s story to what is already known about a crime.
A discussion of best practices for interrogations is beyond the scope of this chapter. It will suffice to state that if questioners seek to learn the truth during questioning—as opposed to confirming existing beliefs and obtaining evidence for trial—the process described in Ordinary Police Interrogation would be avoided.70
Regardless of one’s views on the ultimate practical effects of Miranda, one cannot deny that Supreme Court doctrine affects the number of confessions admitted as evidence against defendants. In our next chapter, we review how the Court has defined “interrogation” under Miranda.