Over 120 years ago, in Brown v. Walker, 161 U.S. 591, 596 (JUSTIA) the Supreme Court explained that the Founders created the Fifth Amendment’s right against self-incrimination as a “protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system.” Specifically, the Court noted:

[The Fifth Amendment was created to protect an accused from] the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials . . . [which] made the system so odious as to give rise to a demand for its total abolition.

Id. at 597.

Seventy years later, the Supreme Court found that the Fifth Amendment’s purpose – abolishing “inquisitorial” police practices – had yet to be satisfied. Accordingly, the Court issued its decision in Miranda v. Arizona, 384 U.S. 436 (1966) (oyez).

Miranda put in place a procedure for police to use when conducting interrogations. But those procedures were a means to an end, not an end unto themselves. Miranda was supposed to change policing culture. Its rules were supposed to address “what in fact goes on in [police] interrogation rooms,” and to eradicate the “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda, 384 U.S. at 683, 687.

As CAAF has explained:

The Miranda rules were issued to counter-balance the psychological ploys used by police officials to obtain confessions.

United States v. Leiker, 37 M.J. 418, 420 (CMA 1993); United States v. Sojfer, 47 M.J. 425, 429, n. 18 (CAAF 1998).

In an article soon to be published by the Texas Tech Law Review entitled Fifty Years Later: Miranda and the Police, 50 Tex. Tech L.R. ____ (2018), Professor Tracy Hresko Pearl argues that Miranda has failed to help the Fifth Amendment achieve the “total abolition” of inquisitorial police interrogation that Brown v. Walker says the Founders intended. Instead:

Rather than abandoning the psychologically coercive tactics about which the [Miranda] Court expressed concern in its decision, the police have continued to utilize them and to do so often and in combination.

On the flip side, Miranda has done very little to change the behavior of suspects. . . . The only suspects that Miranda appears to have made more savvy are those with prior felony convictions. . . .

Perhaps most troubling, however, is the way in which Miranda allows police officers to sanitize confessions and incriminating statements. Simply providing Miranda warnings and obtaining a waiver from suspects virtually guarantees that anything they say subsequently will be admissible in court, barring only the most extreme situations. Far from reducing the coercive atmosphere in interrogation rooms, Miranda has actually protected if from judicial scrutiny, and provided greater protection for police practices which might otherwise be challenged successfully by defendants in criminal cases.

Fifty Years Later at 18-19.

In sum, Professor Pearl concludes:

Miranda has been far more beneficial than detrimental to the police in the United States, [] its protections have been largely meaningless or unclaimed by all but the most experienced criminals, and [], consequently, it has hampered the pursuit of justice as a whole.

Id. at 2.

5 Responses to “Scholarship Saturday: Miranda’s unfulfilled promise”

  1. stewie says:

    So are all psychological police practices bad or just some? If their rights have been adequately explained to them, and they understand those rights (obviously a pretty big if), then why would a waiver of those rights and agreement to testify mean that the police can’t use at least some “psychological” tactics to get a confession? Almost no one who confesses goes in to completely confess.
    I can agree that there are some techniques that are iffy, but others might not be.
    But if giving someone notice of their rights ultimately doesn’t result in fewer confessions (and I am not sure that’s the point), then the solution is what? Is fewer confessions the goal, or just fewer false ones? I’m certainly a believer in false confessions.

  2. Vulture says:

    In the not too distant past Texas Tech had its own military law institute.  I don’t know what became of it or how it figures into this article.  But in the vein of Berguis V Thompkins (an affirmative requirement to invoke right to silence) and decisions that require a service member to deny an insinuation of criminal wrongdoing, US v Ahern, the implications for military justice can’t be understated.  A circumstance with drive-by allegations (someone walks in the room, says “That’s the guy” then walks out), or The Rocky Horror Picture Show technique (audience partici-pation) just about turns a prosecution into a public lynching.  Without some bounds the system turns into a paranocracy.  Maybe we’ll hear more from Abilene in the future. 

  3. Isaac Kennen says:

    stewie queried:

    Is fewer confessions the goal, or just fewer false ones? 

    Perhaps the impact on confessions is just a collateral consequence of the real goal? If the Fifth Amendment is viewed more as a social engineering exercise than merely being a rule concerning criminal procedure, then its purpose seems to be setting a tone by which our government is supposed to interact with us, particularly at the point in time when we are at risk of having that government take our liberty. In that light, the Fifth Amendment is about preventing government practices (including policing) which might tend to view the citizenry as prey rather than as individuals presumed to be innocent and with the right to be free of government molestation. Perhaps setting that tone was so important to the Founders societally, that it they deemed it to be worth whatever reduction in confessions (truthful or otherwise) might result.  

  4. stewie says:

    Or, maybe the Founders just wanted to make sure you knew your rights first? I’m going to guess that interrogations used “psychological tricks” even way back then. They wanted to forestall inquisitions, not necessarily questioning.
    So let’s get into specifics…if I lie to you and tell you that your co-accused told me everything, is that allowed or no?
    What if I just tell you we already know you did it? Or we found fingerprints at the scene and we are just waiting to match them up to yours? Are those allowed?
    Or is it simply? did you do it? No. OK well, guess there’s nothing left here?
    I think the purpose of the 5th Amendment and Miranda is to make sure every citizen knows they don’t have to say anything, and they can keep their mouth shut. Obviously, we also want to prevent confessions based on not just physically coercion but mental coercion (tell us or your kid dies), and we can come up with some examples of questioning that crosses a psychological line, and certainly extra long, or various deprivations cross the line as well.
    But I’m not sure your standard, garden-variety police techniques do that. If you’ve been read your rights, and you understand them, and you still choose to try and talk your way out of it…that’s on you. So to answer my own question, it is not about fewer confessions per se. It’s about fewer false ones, and it’s about not using ignorance about one’s rights to garner even a true confession where if the confessor knew of their rights, they’d have kept their mouth shut.
    Otherwise, we’d just ban confessions period.

  5. Vulture says:

    And never mess with a Sicilian when life is on the line.