Miranda Changes the Confessions World
At ten a.m. on June 13, 1966, Washington, D.C. was experiencing cool weather: It was only 68 degrees.1 But inside the Supreme Court building, emotions ran hot as Chief Justice Warren read his entire sixty-one-page opinion for the five-justice majority in Miranda v. Arizona. “At times the emotion in his voice equaled that of the dissenters and bespoke the deep division in the Court over the new doctrine.”2 The dissenters read their opinions, too. “Justice Harlan, his face flushed and his voice occasionally faltering with emotion, denounced the decision as ‘dangerous experimentation’ at a time of a ‘high crime rate that is a matter of growing concern.’”
Our goal in this chapter is to describe the evolution of the Miranda doctrine from its beginning on that cool June day in 1966. One way to conceptualize this evolution is to focus on Miranda’s rhetorical embrace of the Hawkins-Leach dictum. Indeed, Miranda is mostly rhetoric—its narrow holding is that the defendants in the four cases before the Court had been compelled to answer questions by the inherent coercion of police interrogation. But, as we will see, different fact patterns would arise, and it was easy for less sympathetic Courts to modify Miranda’s analytical structure pretty much as they pleased. The journey here, which should be familiar by now, begins with Miranda’s view that suspects will be “deluded instruments of their own conviction” unless they receive warnings from the authorities and make a robust choice to waive those rights. Over the decades, however, the Court gradually modified the Hawkins-Leach view of suspects by assuming that the warnings solved any problem of inherent compulsion. Waiver is now almost automatic.
Upon reflection, one should not be surprised that the Court narrowed Miranda’s doctrine from what its expansive dicta suggested to what it is today. As Donald Dripps explained, the Court needed a “wide” rule that would apply to almost all interrogations because its previous attempts to offer guidance on a case-by-case basis had largely failed.3 A wide rule requires a fully theorized opinion with a deep justification. But deep justifications tend to be “intensely controversial. Rarely will a deep justification persuade a majority, and over time deep justifications that do win majority support are likely to lose it.”4 Sometimes the loss of majority support leads to a wide rule being overruled.5 Sometimes, the wide rule continues to be accepted, but majorities for future applications are put together on a case-by-case basis and the application of the rule begins to look arbitrary.6
Craig Bradley has made a similar argument, concluding that the “major ideological” shift entailed by Miranda required a “full-blown” opinion that, over time, was “reinterpreted” and “restated” until the later decisions served not to explain but to obfuscate the original robust doctrine.7 “This is an inevitable process, only partly explained by the fact that a subsequent Court may not like the earlier decision.” Obfuscation, inconsistency, and arbitrariness are good descriptions of the current Miranda doctrine. The Court has never offered much of an explanation for reshaping and restating the Miranda doctrine.
We begin with two examples of rights that have deep justifications. The right to a jury trial comes with a built-in deep justification because the Sixth Amendment text can be interpreted only one way: Defendants have the right to an impartial jury “in all criminal prosecutions.”8 While there have been disputes at the margin—what counts as “impartial” and how many jurors constitute a “jury”9—there has never been a challenge to the idea that a criminal defendant has a right to be tried by a jury.
The Sixth Amendment right to counsel offers a more complex example. The right “to have the Assistance of Counsel for his defence”10 means, at a minimum, that the State cannot forbid a defendant from having a lawyer argue his or her case. English law at the framing did not permit a lawyer to argue cases for felony defendants;11 the Framers’ intent to establish a different regime in the United States could not be clearer. The right of defendants to appear through counsel thus has a deep justification going back to the Framers. The only issues to arise in modern times have been at the margin. Did a judge deny the right to counsel when he forbade the defendant from consulting with his lawyer during an overnight recess? Did a judge deny the right to counsel when he refused to allow a defendant to waive a conflict of interest that the lawyer would have if he represented the defendant? (The answer to these fact-sensitive questions was, respectively, “yes” and “no.”12)
There is another dimension of the right to counsel—the positive right of indigent defendants to demand that the State provide counsel. That right almost certainly does not trace its roots to the Framers. The best historical evidence indicates that the only purpose of the Sixth Amendment right to counsel was to avoid the common law rule that lawyers could not appear for felony defendants in court.13 But the positive right to demand counsel acquired a deep justification in 1963 in the unanimous decision in Gideon v. Wainwright:
[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. … That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. … From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.14
In 1963, one could comfortably imagine a world in which a suspect faced police interrogators without counsel and without being told of the right to remain silent. Indeed, aside from FBI interrogations, that was the world in which we lived.15 One could not, however, comfortably imagine a world in which a felony defendant had to oppose a prosecutor in a courtroom. Nothing about that picture fit the 1963 image of how an adversarial justice system should function. By 1963, all but five states in the Union required appointed counsel in indigent felony cases16—evidence that Gideon tapped into a deep justification. When the Court faced the counsel issue, there were no dissents from the lofty rhetoric just quoted.
When the Court faced the interrogation issue, it attempted lofty rhetoric but delivered the new rule by a 5–4 majority over anguished dissents and without any support in state law. Unlike Gideon, the Miranda opinion offers no single deep justification. Instead, the Court employed a scattershot approach. Part I of Miranda attempts to show, by reference to police interrogation manuals, that police routinely take advantage of suspects by tricking, cajoling, and pressuring them into answering questions. Then in Part II, the Court seeks the kind of lofty rhetoric it achieved three years earlier in Gideon, by abstracting from the privilege against self-incrimination a general limit on government power:
Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a “noble principle often transcends its origins,” the privilege has come rightfully to be recognized in part as an individual’s substantive right, a “right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.”17
To the Miranda majority, the “private enclave” created by the privilege protects the dignitary and autonomy interests that Americans have against the government when it investigates crime:
All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a “fair state-individual balance,” to require the government “to shoulder the entire load,” to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.18
However successful one finds this rhetorical flourish, the Miranda Court’s final analytical move is much less powerful than Gideon’s. The Gideon Court moved from the rhetorical summit of a defenseless man facing his accusers and a legally trained prosecutor, to a remedy befitting the rhetoric. All defendants charged with a felony must be provided counsel. Period.
But Miranda’s remedy did not fit its deep justification or even its rationale. After using the police interrogation manuals to “prove” that custodial interrogation is inherently coercive, and thus inimical to the values of autonomy and free choice that the Court found in the Fifth Amendment privilege, the Court concluded that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.”19 The Court goes on for pages about how the presence of counsel will protect the values it found inherent in the privilege, thus establishing the right of indigent suspects to have counsel appointed free of charge.
So far, so good. But after this sound and fury about counsel in the interrogation room, the Court quietly gives it all away: “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.”20 Miranda in effect creates a procedural minefield for police and then politely provides a map of where the mines are buried. In Dripps’s words, “The Miranda Court’s waiver doctrine is plainly at odds with the rest of the opinion.”21 Rights supported by deep justifications, like the right to a jury trial and the right to counsel at trial, cannot be so easily waived. Making a deep justification for Miranda even less likely, the Court admitted that the procedural minefield is not even required by the Fifth Amendment privilege. In a famous paragraph that expressly disavows any attempt at a deep justification, the Court left open the possibility that its minefield is only a placeholder for a better solution:
It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.22
But a procedural mechanism that is merely a placeholder for a legislature solution, by definition, lacks the kind of deep justification that undergirds Gideon or the right to trial by jury.
A major difficulty with Miranda’s attempt to use the Fifth Amendment privilege as a deep justification for requiring warnings and waiver is that police questioning looks very different from the other contexts in which the privilege applies. A witness summoned before a grand jury or a congressional committee has days or weeks of notice and time to plan a strategy about testifying. If a witness refuses to answer, the government can overcome that resistance with an offer of use immunity, which protects the witness from having her testimony used in a criminal case against her.23 If the witness still refuses to answer—as Susan McDougal did when questioned about Bill and Hillary Clinton’s Whitewater real estate deal—she can be imprisoned for contempt.24
Little about police interrogation looks like what we just described. Suspects typically have no notice that they will face police interrogation and thus no time to prepare for the questioning. Police have no formal authority to compel answers; they cannot ask a court to find a suspect in contempt. And police cannot overcome an assertion of the privilege with an offer of use immunity. A consequence of the lack of police authority to compel answers is that suspects have the power to resist the interrogator. They can say nothing and pay no formal price. There is no reason, then, to disagree with the Court in Bram and Miranda that suspects have what amounts to a privilege not to answer police questions. But when the Court sought to formalize the exercise of the privilege in the alien landscape of the police interrogation room, it risked major discontinuities. And it got them—delivered by the hands of future Courts unfriendly to Miranda, to be sure, but in the views of Bradley and Dripps inevitable in any event.25
Even at the time it was handed down, Miranda was not the great victory that it might seem on first reading. It was less than Escobedo v. Illinois26 seemed to promise, and certainly less than the ACLU requested in its amicus brief. Escobedo found a Sixth Amendment counsel violation in the police interrogation on somewhat unusual facts: Escobedo had already retained a lawyer and repeatedly asked to talk to his lawyer who was, during the three-hour interrogation, trying to see his client. The Court said that “[t]he ‘guiding hand of counsel’ was essential” because police interrogation interrogation “was the ‘stage when legal aid and advice’ were most critical.”27 If Escobedo were extended to typical police interrogation, as the ACLU requested, then police would either have to provide a lawyer during routine interrogations or show a Johnson v. Zerbst knowing and intelligent waiver of counsel.
Given the promise of Escobedo, Corinna Barrett Lain concludes that Miranda “was a comparatively weak decision,” one that does not deserve the claim that it was robustly counter-majoritarian.28 Seidman claims that Miranda is “best characterized as a retreat from the promise of liberal individualism brilliantly camouflaged under the cover of bold advance.”29 To Seidman, what Miranda added to the right to counsel cases and the robust form of the voluntariness principle “was a mechanism by which the defendant could give up these rights.” Laurence Benner agrees: “The Miranda retreat therefore transformed the debate about self-incrimination into a debate about waiver.”30 In a similar vein, Lain comments that “the Court’s ruling did nothing whatsoever to prevent the coercion police used to make suspects talk from translating to the waiver context.”31 If this is the best way to view Miranda, it was not, as we argued in chapter 7, a compromise. It was a full-out retreat.
Whether Miranda was a compromise or a brilliant retreat under cover of an attack, we agree with Bradley and Dripps that it was unstable from the beginning. Given the lack of a deep justification and given the Court’s refusal to tie the warnings and waiver regime tightly to the Fifth Amendment privilege, it was inevitable that the path of future decisions would be to ease the admission of incriminating statements. For example, it remained for later, more conservative Courts to determine how easy it was going to be to prove waiver. And, as we will see, waiver became very easy to prove. The expansive dicta in Miranda requiring an express waiver of the right to counsel became, well, dicta to be discarded.
Miranda’s lack of a deep justification showed up in other ways as well. Despite the Court’s best efforts to ground the decision on a “fair state-individual balance,” later Courts limited Miranda to its custodial interrogation context. Later Courts were not moved by arguments that coercive environments existed outside the custodial interrogation matrix. In Rhode Island v. Innis, for example, the state court had found that Innis was subjected to “subtle coercion” and thus was being interrogated in violation of Miranda.32 The Court rejected the premise that “subtle coercion” was the equivalent of interrogation. Defendants must show that they are subject to custodial interrogation before Miranda applies, coercion or no coercion. In Oregon v. Mathiason, the Court, in a per curiam opinion, held that because Mathiason could not show that he was in custody, he could not show a Miranda violation even if he were subjected to coercive interrogation.33 The foundation for the Miranda holding—that custodial interrogation was inherently coercive—was now being used as its ceiling.
In sum, the Court has not adequately explained the underlying theory of the Miranda doctrine. Indeed, Miranda’s protection is sometimes broader than that offered by the Fifth Amendment on which Miranda is based. The Court often expresses the breadth of the protection by saying that Miranda is prophylactic—a doctrine developed to protect the privilege by excluding some confessions that are not compelled.34 Yet the protection is narrower as well. The Court has found greater protection in the “pristine” Fifth Amendment privilege than in Miranda’s prophylactic protection.35 A violation of the “pristine” privilege sometimes has greater evidentiary consequences than a “mere” violation of Miranda.
We will offer alternative explanations of the Court’s Miranda doctrine, each of which we believe is more satisfying than the Court’s easy assumption that Miranda is just different from the Fifth Amendment privilege. But we wish to be clear: We offer the alternative explanations not to reject the Court’s characterization of Miranda as different from the privilege. Rather, we simply want to dig deeper than the Court to explain why Miranda is broader, but shallower, than the privilege from which it sprang.
The explanations we offer are about Miranda and not the Fifth Amendment privilege. Our book is about interrogation law. What the Fifth Amendment contributes to interrogation law is Miranda. As the Court has observed, the protection against involuntary confessions that exists alongside Miranda has “retained a due process” focus even after the Court incorporated the privilege into the Fourteenth Amendment.36 Thus, it is fair to say that, as far as the law of police interrogation in the United States is concerned, there is Miranda and there is the due process prohibition of involuntary confessions.
In chapter 7, we claimed that Miranda represented a return to the long-standing Anglo-American view that confessions should be viewed with a healthy dose of skepticism. By 1966, the stresses and strains that produced the third degree in American law had moderated. The Depression had ended, the Second World War was won, the 1950s were a calm decade, organized crime was no longer on the ascendancy, America had become the world-dominant military and economic power, and the Vietnam War had yet to drain our self-confidence. The Court felt free to implement a version of the Hawkins-Leach dictum.
Yet that claim does not foreclose the cynical view that Miranda was a full-scale retreat from the promise of the Court’s right to counsel cases. Whatever else the Miranda Court might have intended, there is no gainsaying that the Court intended to ease the burden of judges in deciding confessions cases. The Court had known, at least since Justice Frankfurter failed to articulate a workable test in Culombe v. Connecticut in 1962, that the voluntariness test left both trial and appellate judges without much guidance.37 As the Miranda doctrine developed, it eased the judicial burden without a significant effect on the confessions rate.38 As we will see in more detail in the next chapter, rights were waived easily and often. The admission of confessions became soothingly routine. The political costs the Court paid for Miranda turned out to be excessive. Police and prosecutors should have been thanking the Court. We turn now to the issue of how Miranda operates on the ground.
The success or failure of Miranda turns on how its goal is defined. If the goal was to make it easier to show that suspects consented to the interrogation, and thus gave “voluntary” statements, then, yes, it succeeded admirably in the large sub-universe of cases—roughly 80%—where suspects waive their rights.39 Miranda waivers created, in Seidman’s words, “a world where we need no longer be concerned about official coercion because defendants have definitionally consented to their treatment. When things go wrong, then, it is hardly ‘our’ fault.”40
If the goal is defined as avoiding or mitigating compulsion, one must ask whether the goal was to dispel compulsion from the entire interrogation or only to ensure that the suspect gives a non-compelled waiver of his right to remain silent. Most of the Miranda opinion suggests that the goal was to cleanse the entire interrogation of compulsion—as unrealistic as that sounds to modern ears. The Court said that the “privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’”41 Warnings were necessary, the Court wrote, because “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”42
One would think that dispelling compulsion would reduce the rate at which suspects answer police questions. This assumes, of course, that suspects calibrate their interests the way that judges or academics predict. The rational course of action for a guilty suspect, who is told that he need not talk to police and that he can confer with a lawyer, is to ask for a lawyer and say nothing else. We will revisit the assumption that suspects engage in rational behavior later in the chapter, but for now we indulge it. The Miranda dissents predicted that suspects would take the rational course and refuse to talk to police. We saw Justice White’s heated prose earlier. Justice Harlan concluded: “There can be little doubt that the Court’s new code would markedly decrease the number of confessions.”43
What counts as a marked decrease in the number of confessions is open to question. Indeed, the extent to which Miranda has reduced the confessions rate has been the subject of rather fierce debate,44 but all agree that suspects waive their rights and speak to the police in roughly 80% of custodial interrogations. It should not surprise one that suspects often waive their rights. If the Miranda Court was correct that custodial interrogation is inherently compelling, the goal of a noncompelling process of interrogation was unattainable. It could be achieved only when the suspect invoked the right to counsel, and the interrogation proceeded with counsel at the suspect’s side. Indeed, there are passages in the opinion that suggest the Court had this model in mind: “[T]he need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”45
But the Court drew back from the widest rules—requiring counsel or banning custodial interrogation—and compromised on a rule that permitted suspects to waive the right to silence and to counsel. However many suspects invoke their rights, some will not. For those suspects, in Miranda’s own words: “A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice” to “assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.”46 The Court, in effect, conceded that when suspects waive, police coercion will taint the subsequent questioning.
Achieving a noncompelling interrogation process in all cases was thus doomed from the beginning once the Miranda Court chose to permit waiver. But it is possible to ensure that the waiver decision is not the product of compulsion. Later Courts have focused on this goal, and both Donald Dripps and Larry Rosenthal argue that it has been achieved. To Dripps, Miranda created a “special waiver rule applicable in the unique context of custodial interrogation.”47 He draws an analogy to how the privilege is exercised before a legislative committee or grand jury. Compared to witnesses who appear before those bodies, the “suspect in custody is under a different and more intense kind of pressure to speak rather than stand silent. He is given the Miranda warning to place him in a position to claim the privilege that is roughly equivalent to the position of the witness before the grand jury.”48 But “once the warning has been given, the traditional waiver rule is re-instated.”49 The suspect must invoke the Miranda rights to secure the protection of the Fifth Amendment privilege. Otherwise, he has waived the privilege.
The Miranda warnings ensure that the suspect knows that he need not participate in interrogation and is being asked to surrender that right. For purposes of the Fifth Amendment, no more is required to obtain a valid waiver, at least under the settled principles of waiver law that Miranda applied. As we have seen, a waiver is valid as long as a suspect intentionally relinquishes a known right, and the Miranda warnings ensure that a suspect knows that he has a right to remain silent and is facing a decision whether to relinquish his right when he is asked to waive. Thus, while Miranda does not eliminate the compulsion inherent in custodial interrogation, it instead produces a valid waiver of the right to be free from that compulsion.50
Dripps and Rosenthal are right that long-recognized principles of waiver focus on the moment of waiver and not what comes next. So, for example, a defendant waives the privilege in the courtroom by taking the witness stand, and the prosecutor is permitted to pursue a vigorous cross-examination that will cause enormous pressure to answer. A reading of Miranda that focuses on non-compelled waivers rather than non-compelled responses to police questions could explain both the high waiver rate and the high rate of incriminating responses. The waiver rate is high because the warnings succeed in momentarily dispelling the coercive atmosphere of the police interrogation, which induces waivers. The rate of incriminating responses is high because the post-waiver interrogation atmosphere remains coercive. Of course, it is also possible that the warnings do not dispel the inherent coercion, even for a moment, and that all, or most, waivers are compelled. We will return to that possibility later in the chapter.
In a similar vein, George Thomas has argued that Miranda doctrine today requires only notice of the right not to answer questions and the right to consult with counsel.51 Thomas identified two ways to understand Miranda’s connection to the Constitution.52 First, there might be a “strong force” connection to the Fifth Amendment privilege. So understood, Miranda creates an irrebuttable presumption of compulsion if a confession is taken during custodial interrogation without a valid waiver of the rights that Miranda found implicit in the privilege. The obvious problem with this interpretation is that later Courts did not understand Miranda that way. For more than thirty years, the Court decided case after case that separated Miranda from the strong-force connection to the Fifth Amendment.
The second understanding, which Thomas calls the “weak force” connection, is that Miranda creates a presumption of compulsion that can be rebutted.53 While this explains all of the Court’s cases seeking to create separation between Miranda and the Fifth Amendment privilege, what it lacks is an account of when or why the presumption should be rebutted. The Court has proceeded in an ad hoc basis without an overarching theory. Thomas’s theory is that the Court has, since 1971, seen Miranda’s function as providing suspects with sufficient notice of the right to remain silent and the right to counsel. This can best be viewed as the Court creating a due process notice requirement within the Fifth Amendment privilege. If a debtor who is behind in her payments must be given due process notice before her stereo can be seized,54 the Fifth Amendment privilege must require due process notice before the State deprives a suspect of her right not to answer questions posed by state actors.
The debtor can, of course, waive her right to contest the seizure of her property by not showing up at the hearing.55 The suspect in the police interrogation room can similarly waive Miranda by listening to the warnings and talking to the police. Waiver can be found even in a case, North Carolina v. Butler, where the suspect refuses to sign the waiver form and states, “I will talk to you but I am not signing any form.”56 While finding waiver there is entirely consistent with due process notice theory, it would diminish the Fifth Amendment privilege to compare what Butler did with deciding to take the witness stand and testify.
Also consistent with Miranda-as-notice is Davis v. United States.57 The issue in Davis was the effect of a suspect’s ambiguous reference to counsel. Miranda clearly stated its preference for defense counsel to help ameliorate the inherent compulsion of police interrogation: “If, however, [the suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.”58 A later case, Edwards v. Arizona, made clear that police may not interrogate after a request for counsel unless the suspect reinitiates discussion about the investigation.59 But what does it mean to “request counsel”? Did it include, as Miranda said, indicating “in any manner” that the suspect “wishes to consult with an attorney”?
On the facts of Davis, the suspect waived his Miranda rights both orally and in writing and answered questions for over an hour. At that point he said, “Maybe I should talk to a lawyer.”60 The Court split 5–4 on the question of whether the interrogators were constitutionally required to clarify what the suspect meant. The majority of five held that an ambiguous “request” for counsel was not an invocation of counsel and, more important, that it created no duty on the part of the interrogators to ask clarifying questions.61 The majority did not refer to the “in any manner” language from Miranda and thus did not have to explain how its holding squared with Miranda’s intent.
Justice Souter, concurring in the judgment, did quote the “in any manner” language as well as Miranda’s language that its goal was “to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process.”62 This, of course, assumes that Miranda intended that the response to police questions, as well as waiver, be non-compelled. The majority’s response to Souter is instructive: “[T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves.”63 The key point in time has become, as Dripps, Rosenthal, and Thomas have argued, the moment of giving the warnings and obtaining a waiver.
To be sure, the Davis Court then said that “full comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.”64 But this nod toward Miranda as ameliorating inherent coercion throughout the process is difficult to square with the Davis rule that police need not even repeat the warnings when a suspect appears to be stumbling toward a request for a lawyer. If one looks at what the Court did in Davis, it fits with the idea that waiver is easily proved because the critical part of Miranda’s protection is the content of the warnings.
That Davis was about notice and not about dispelling inherent coercion was made plain in 2010. In Berghuis v. Thompkins, the police read the Miranda rights to a murder suspect and had him read the last one aloud—one not required by Miranda—that he had “the right to decide at any time before or during questioning” to assert the right to remain silent or the right to counsel.65 Thompkins declined to sign the form indicating that he understood his rights and never gave an explicit waiver. After sitting virtually silent through constant interrogation for almost three hours, he eventually answered a police question and admitted killing the victim.66 The Court held that “a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.”67
Thus, Miranda doctrine as understood today does not even require an express waiver, despite the language in Miranda that it would take an “express statement that the individual is willing to make a statement to waive the right to silence.68 Like almost everything in the Miranda opinion, the “express statement” language was dicta. As Bradley has noted, to reject dicta from Miranda raises questions about the scope of the principle of stare decisis.69 Normally, a court is bound only by the narrow holding of its precedents. Thus, a court facing a due process challenge to the voluntariness of a confession would attempt to square the facts of the interrogation and the characteristics of the suspect as closely as possible to earlier cases. That was one of the Court’s frustrations with the voluntariness doctrine. The richness of the “totality of the circumstances” approach made it difficult to find a binding precedent. Miranda opted for the “wide rule” alternative that was legislative in scope. Once later Courts began to pick the dicta away from the holding, however, not much was left of the wide rule.
Berghuis did more to undermine Miranda’s wide waiver rule than make plain that no express waiver is required. The record contained “conflicting evidence about whether Thompkins” indicated that he understood his rights.70 But that did not stop the majority from holding that there “was more than enough evidence in the record to conclude that Thompkins understood his Miranda rights.”71 This surfeit of evidence was based on giving him a written copy of the warnings, determining that he “could read and understand English,” giving him “time to read the warnings,” and providing the fifth warning that he could decide at any time to use his right to silence or to a lawyer. There is no way to know whether the fifth warning is critical to the holding in Berghuis until another case comes along. If it turns out not to be critical, then Berghuis in effect holds that an English speaker who hears the warnings can be presumed to understand them.
Not much is left of the “heavy burden” that Miranda put on “the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.”72 The burden can perhaps be satisfied when an English speaker hears the warnings and talks to the police. Berghuis relied on language from Davis that “the primary protection afforded suspects subject[ed] to custodial interrogation is the Miranda warnings themselves.”73 Notice was given and notice is all that Miranda now requires.
Viewing Miranda as requiring a form of due process notice, rather than ameliorating the pressure of police interrogation, explains all of the cases separating Miranda from the Fifth Amendment privilege. The prosecution in Harris v. New York used a statement taken in violation of Miranda to impeach a defendant who told an inconsistent story in court.74 Harris was decided in 1971 when the Miranda majority had presumably shrunk to four. Gone were Chief Justice Warren and Justice Fortas, who formed part of the majority, and Justice Clark who dissented. Their replacements, Chief Justice Burger, Justice Powell, and Justice Marshall could be expected to split two to one against Miranda, with Marshall the likely supporter.
The Court could have overruled Miranda, but that would have left it open to the criticism that the Court is a super-legislature, and that when membership changes, the law changes. As Geoffrey Stone put it, a “direct overruling” of Miranda would have seemed “unattractive, for such action would inescapably raise strong doubts about the integrity and the stability of the judicial process.”75 Thus, the Court did what it would do many times over the next forty years—distinguish Miranda. Acknowledging language in Miranda that the prosecution could not use for any purpose statements taken without warnings and waiver, the Court in Harris held that this language was dicta and thus did not bind the Court.76
Once that dicta had been neutralized, it was difficult to defend the right of witnesses to perjure themselves. The Court characterized the issue as whether the “shield provided by Miranda” could be “perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”77 Stating the issue that way made the Court’s holding predictable: Statements taken in violation of Miranda can be used to impeach.
But Harris is limited to Miranda violations. New Jersey v. Portash later held that a statement compelled by threat of contempt of court cannot be used for impeachment.78 The Court distinguished Harris this way: “[A] defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatsoever against him in a criminal trial.”79
Portash and Harris settled the question of whether statements taken in violation of Miranda are compelled under the Fifth Amendment: They are not. But Harris and Portash settled this question differently than the Court’s dicta in Miranda “settled” it. Miranda sought to connect its holding securely to the Fifth Amendment privilege, but this dicta was ultimately rejected by later Courts. “Wide rule” dicta weighs less in the stare decisis balance than narrow holdings. Harris and Portash are narrow holdings. They trump Miranda’s strong-force dicta.
New York v. Quarles also made clear that Miranda is different from the Fifth Amendment privilege.80 Quarles held that, given reason to believe that the suspect had hidden a gun in a grocery store, the officer could ask about the location of the gun without giving Miranda warnings. Quarles is the only case where the Court permitted the introduction of statements taken without notice. The Court performed a cost-benefit balance to conclude that the threat to public safety outweighed the benefit of a rule designed to protect the Fifth Amendment privilege.81 What is missing in a strong-force understanding of Miranda is an account of why the privilege should not apply during an exigency. As Justice O’Connor said in dissent, “since there is nothing about an exigency that makes custodial interrogation any less compelling, a principled application of Miranda requires that respondent’s statement be suppressed.”82
Dripps argues that a single question asked in a grocery store is not “secret stationhouse questioning under the complete control of the police” and thus did not constitute the “evil of custodial interrogation” that Miranda sought to ameliorate.83 Perhaps. But Quarles is equally well explained if Miranda is understood to require due process notice that the suspect does not have to answer questions. If this is the right way to understand Miranda, O’Connor’s dissent misses the point. The majority’s balance might be wrong, but the attack that the Court is ignoring Fifth Amendment compulsion goes nowhere. Miranda is about notice, not ameliorating compulsion, and due process is sufficiently flexible to permit different procedures depending on the cost to the party charged with the responsibility of providing notice. The Court requires actual notice to known or reasonably ascertainable creditors of an estate, for example, but notice by publication suffices for all other creditors.84 The Court in Quarles concluded that the cost of providing notice to suspects in situations where public safety is threatened is too high to bear. This is a stark due process form of analysis.
Michael Mannheimer argues that the Court “inappropriately” used a cost-benefit balance in Quarles.85 If Miranda had a strong-force connection to the privilege, we would agree. But the Court has chosen the weak-force understanding. Whether appropriate or not, it is the state of Miranda doctrine today. Mannheimer’s “unified theory” of testimonial evidence explains Quarles, Harris, and other oddball Fifth Amendment cases (as well as Sixth Amendment confrontation clause cases) by insisting that the privilege protects only statements made in contemplation of their use in court for the truth of the matter asserted. A statement that the “gun is over there” does not qualify, nor does impeaching Harris by using his statements to show that his testimony should not be believed.86 As much as we like Mannheimer’s “unified theory,” it does not capture what the Court often says it is doing in the Fifth Amendment arena; moreover, his theory forces him to call for Portash to be overruled.
A due process understanding of Miranda explains not only the outcomes of the Court’s Miranda cases but also the analysis that the Court uses. Consider the cases deciding whether a violation taints other evidence discovered by means of the violation. In Oregon v. Elstad, the police took a single incriminating statement while in the suspect’s house, without warnings, and then back at the police station gave warnings and took a fuller statement.87 If Miranda were a strong-force application of the privilege, the second statement would be inadmissible unless the prosecution could meet the difficult burden of showing that the taint of the earlier violation had somehow become attenuated.88 But since Miranda is a weak-force application of the privilege, all it requires is notice. The only statements introduced were given after Elstad received what the Court held to be adequate notice of his Miranda rights, and they were admissible.89
In a later Elstad-type case, Missouri v. Seibert, the Court splintered badly over what constituted adequate notice, but all agreed that notice was the issue.90 The police used the initial confession, taken in violation of Miranda, to encourage Seibert to confess minutes after giving warnings and obtaining a “waiver.”91 The police then “resumed the questioning with ‘Ok we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?’ and confronted her with her prewarning statements” that were highly incriminating.92
The Seibert plurality put the notice issue this way: “These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.”93 For Kennedy, concurring in the judgment, the police conduct “undermines the Miranda warning and obscures its meaning.”94 To the dissent, the issue was whether the second statement was voluntary, but this depends, in large part, on whether Seibert understood that she had a choice not to answer questions.95
Our due process theory of Miranda explains the Court’s weak-force understanding of Miranda. When there is a threat to the public safety, no notice is necessary. In all other cases, statements are admissible if the suspect who faces custodial interrogation received adequate notice of his or her Miranda rights. Notice is adequate if the warnings are fairly communicated to the suspect. It does not matter if the suspect knows the crime for which the police intend to interrogate him96 or if the suspect hedges his waiver by saying that he would not sign a statement until his lawyer arrived.97 If notice was given by reading the warnings, and was not undermined as in Seibert, the weak-force privilege of Miranda is satisfied.
Moreover, notice can be adequate even if the warnings deviate from those the Court suggested in Miranda. In Duckworth v. Egan, the Court held the notice adequate even though the warnings said that if the suspect wanted a lawyer to be appointed, he could not get one until he appeared in court.98 “The inquiry is simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.”99 Because the warnings made plain that the suspect could end questioning until he had talked to a lawyer, the Court held that they were adequate.100 In 2010, the Court reiterated the Duckworth principle, noting: “Although the warnings were not the clearest possible formulation of Miranda’s right-to-counsel advisement, they were sufficiently comprehensive and comprehensible when given a commonsense reading.”101
In her 2010 dissent in Berghuis v. Thompkins, Justice Sotomayor said that “Miranda and our subsequent cases are premised on the idea that custodial interrogation is inherently coercive. Requiring proof of a course of conduct beyond the inculpatory statements themselves is critical to ensuring that those statements are voluntary admissions and not the dubious product of an overborne will.”102 With all due respect to Justice Sotomayor, she is right about Miranda but wrong about “subsequent cases.” As we have shown in this chapter, the subsequent cases rejected Miranda’s wide rule dicta about cleansing the entire interrogation of compulsion in favor of a narrow rule that asks only if the suspect is given sufficient notice of his rights. Berghuis and some of the other cases rejecting a strong-force reading of Miranda were decided 5–4, and we suppose that the Court could yet return to a strong-force understanding of the relationship between Miranda and the Fifth Amendment privilege.103 But to do that would require overruling several cases and thus seems unlikely.
Whatever the intent of the Miranda Court, later Courts separated Miranda from the Fifth Amendment privilege. The Court has created a framework within which a suspect can decide whether to talk to the police. Dripps and Rosenthal argue that Miranda is no more, and no less, than an application of standard waiver principles: “Miranda warnings provide the ingredients for a valid waiver of Fifth Amendment rights; in this sense as well, Miranda worked no innovation, but merely applied settled law.”104 We have argued that the Court’s current view of the privilege requires only that suspects receive adequate notice of Fifth Amendment rights.105
Of course, even if the reader accepts that Miranda has only a weak-force connection to the privilege, and even if the reader accepts that waiver is the only point at which courts should worry about compulsion, Rosenthal might be wrong that the warnings are sufficient to dispel the inherent coercion of police interrogation long enough to produce a valid waiver. Dripps might be wrong that Miranda warnings place suspects facing custodial interrogation “in a position to claim the privilege that is roughly equivalent to the position of the witness before the grand jury.”106 And Thomas and Leo might be wrong that the warnings constitute sufficient notice of the right to remain silent. Laurence Benner might be right that later Courts retreated from Miranda by “reducing the concept of waiver to a formalistic ritual.”107 We will turn to Miranda problems and partial solutions in the next chapter.
So far we have presented the Miranda Court’s likely understanding of its creation—that its function was to preserve free choice not only at the moment of waiver but also during the interrogation that followed. We also presented two alternative understandings that explain the Court’s subsequent doctrine—Miranda as notice and Miranda as applying standard waiver rules. In explaining and critiquing these theories, we indulged the conventional assumption that rational suspects who are guilty and who are given a serious waiver moment, without trickery or pressure, would quite often do what is in their long-term best interests and say nothing other than “I want a lawyer.”
That approximately 80% of suspects waive Miranda and incriminate themselves challenges this conventional wisdom, thus requiring an additional assumption that either the warnings are inadequate or are routinely undermined by police interrogation tactics. But what if the whole premise on which the warnings are based were false? What if suspects really do want to talk to police? This is a third alternative explanation of the Miranda world of today. Because it rejects the rationalist premise of the explanations so far, we devote a separate section to it.
Why do humans do things that they know might hurt them? The answer must lie in the ordering of preferences. Take, for example, the government-mandated warning labels on cigarette packs. As Patrick Malone wryly concluded, “Next to the warning label on cigarette packs, Miranda is the most widely ignored piece of official advice in our society.”108 Malone’s humor makes a serious point: The beneficiaries of social campaigns to improve life through information often seem incapable of acting on that information.
Assume that a cigarette smoker reads the warnings and believes them. She knows that if she keeps smoking she will likely die sooner than if she stops smoking. But the preference for a cigarette when she is 16 or 26 or 36 or 46 or 56 can outweigh in her mind the risk of a horrible death from cancer, hopefully in the distant future. Those who wish to change preferences fail to take into account that preferences for current relief or pleasure are often of a higher order than the preference to avoid the future effect of a particular decision. What else explains that 56,000 Americans were infected with HIV in 2008, mostly from unprotected sex?109 This hierarchy of preferences is a basic component of human nature.
Criminologists have long argued that those who commit crimes are less likely than non-criminals to defer gratification.110 They tend to have a “weakened sense” of the future. As Jim Morrison of the Doors put it in a song: “Well, I woke up this morning and I got myself a beer. The future’s uncertain and the end is always near.”111 And in his case, of course, the end was near. He died the year after that song was released on an album.112
Seidman argues that preferences about talking to the police are “not individual, autonomous, and pre-existing. Instead, they are socially constructed in the course of the very transaction that the court is asked to review.”113 Thus, “the problem with custodial interrogation is not that it might represent a doomed effort to restructure preferences, but that it risked succeeding in such re-structuring” with the effect that most suspects want to talk to police.
Based on his observations of homicide detectives in Baltimore, David Simon concluded that they “like to imagine a small, open window at the top of the long wall in the large interrogation room. More to the point, they like to imagine their suspects imagining a small, open window at the top of the long wall.”114 This window offers an “escape hatch,” an Out that every suspect seeks. Every suspect who talks must imagine “himself parrying questions with the right combination of alibi and excuse; every last one sees himself coming up with the right words, then crawling out the window to go home and sleep in his own bed.”115 The dominant preference is not to be trapped in the interrogation room with the police. Every decision the suspect makes is drenched with hope that he can find a way out of the room.
The effect of the illusion is profound, distorting as it does the natural hostility between hunter and hunted, transforming it until it resembles a relationship more symbiotic than adversarial. That is the lie, and when the roles are perfectly performed, deceit surpasses itself, becoming manipulation on a grand scale and ultimately an act of betrayal. Because what occurs in an interrogation room is indeed little more than a carefully staged drama, a choreographed performance that allows a detective and his suspect to find common ground where none exists.116
Police interrogation produces a constellation of powerful forces that might defy any judicial attempt to persuade suspects to resist the interrogators. The conventional wisdom is that Miranda warnings have had little or no effect on the rate at which suspects talk to police because of a failure in the way the warnings are constructed or delivered or because police have found deceptive and manipulative ways of persuading suspects to waive their rights. But perhaps the interaction between the suspect and the police will produce roughly the same rate of cooperation regardless of what the warnings say or how they are delivered.
These overlapping, shifting preferences complement each other in subtle and fast-changing ways, producing countless complex interactions that resemble a quantum state in physics. To explain how these forces produce a choice may be beyond the current understanding of human psychology. But part of the outline of this “choice mechanics” seems clear enough. It would never assume that any preference is stable, though some might prove to be. It would assume that a rational actor might choose a perceived benefit because of a momentary desire even though a longer view would clearly show that the “benefit” was illusory. It would factor in the idiosyncrasies of each of our unique human experiences. Norman Bates, the main character in Psycho, would have a different set of preferences that would interact differently when police suggest that he killed his mother than would, say, a person raised in an orphanage. The person raised in the orphanage who had a happy experience would have a different set of preferences from the person who had an unhappy experience.
The decision of whether or how to interact with the police is potentially affected by one’s sex; education; history of drug and alcohol use; childhood experiences; attitude toward authority and experiences with authority figures (parents, police, teachers, nuns); feelings of belonging or obligation to relevant communities (school, peer group, church, gang, work group); whether one has a job, what kind of job, and how successful one is at that job; the time of day or night; how much sleep one had the night before; how much coffee one had or needs; whether one just had or needs sex (booze, pills, narcotics, cigarettes, whatever); whether and how many times one has experienced police interrogation and what one feels about the outcome(s); how long ago one ate, what food, and how much. And so on ad infinitum.
We know that most suspects cannot resist the effect of powerful preference-creating forces created by police interrogation as it occurs today, and this might be true even when the police play it “straight” and refrain from using deceptive strategies. If our rough description of the hierarchy of preferences is more or less right, the due process “overbear the will” voluntariness test was, and continues to be, incoherent. When the suspect speaks to police, that act represents his will at the moment. But Aristotle, Wigmore, Kamisar, and the New Deal Supreme Court knew that.
The contribution of pulling back the curtain on the hierarchy of preferences is to show that Miranda was probably destined to make little difference in the interrogation room, even if the Court had found a wide rule with a stable deep justification. The set of variables that interact in staggeringly complex ways to produce the choice to talk or not to talk to police is so immense and personal to each suspect that the warnings become a mere blip on the radar screen. Any added variable, to be sure, can move some suspects toward the decision not to talk, and there is no reason to doubt that Miranda sometimes does that. But one can also tell a plausible story in which the warnings move some suspects to decide to talk as a way of making themselves appear innocent. We have no way to know the size of either group.
One fact is clear: Suspects waive their Miranda rights in roughly 80% of interrogations. Whether this is because of the hierarchy of preferences or because of the undermining (by police and later Courts) of the waiver moment or some other factor, it is nonetheless the confessions world in which we currently live. As one police lieutenant put it in 1986, Miranda “doesn’t, frankly, interfere much with confessions, surprisingly enough . … It’s human nature, once you start answering questions, to keep answering questions . … Well, he’s already talked to me for fifteen minutes. He’ll say yes, he’ll keep talking.”117 Or as a prosecutor said, “The Miranda issue, is perhaps substantially insignificant. There’s a reason for that. The smarter the police are and the way they conduct themselves, the more likely it is that the Miranda problem would never appear on the prosecutor’s desk.”
For many years, Miranda has enjoyed universal acceptance, if not love, from the players in the criminal justice system. The police have learned that, whatever the reason, giving warnings does not seem to make suspects less likely to talk to them. Suspects talk to police because at the moment it seems like the most beneficial course to take. Prosecutors rarely lose a motion to suppress a confession. Defense lawyers make motions to suppress but don’t really expect to win them. Judges can decide Miranda issues much more easily than issues raised by the old voluntariness test.
The United States Supreme Court, after decades of reining in Miranda, had an epiphany in 2000. In Dickerson v. United States, the Court concluded that Miranda has “become embedded in routine police practice to the point where the warnings have become part of our national culture.”118 In the same paragraph, the Court took credit for subsequent cases that “have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.” Everyone seems happy.
But there is a dark side to the Miranda “success” story, and that story is what happens as interrogations proceed. The Miranda Court anticipated waivers,119 though probably not as frequently as is the case. But to the extent the Miranda majority thought about postwaiver interrogation, the justices could have hoped that the Ashcraft-Chambers-Spano due process test would influence courts. While the Court’s due process cases had apparently failed to cause lower courts to value fairness and suspect autonomy as much as the FDR New Deal Court did, the message in Miranda was that courts needed to pay more attention to how suspects were treated by interrogators. That attention could have translated into lower courts embracing something approaching the Court’s view of how due process limits interrogation.
It did not happen. As we will see in the next chapter, lower courts continued to apply a minimalist due process test, and now the Supreme Court no longer sets a high rhetorical bar that might be used to win close cases. In effect, Miranda has rolled back the due process clock to something like Lisenba. As Craig Bradley puts it, Miranda is “a rug under which concerns about the fairness and reliability of confessions can be swept.”120 The next chapter considers the Miranda “rug” and other problems that plague the current law of interrogation.
But the history is clear: The law of interrogation has once again wrenched itself from the Hawkins-Leach world into a Wigmore rationalist world.