THE FUTURE?
Our book, so far, has sketched a dialectic between the Hawkins-Leach dictum and a rationalist view of interrogation law. In the twentieth century alone, the law shifted abruptly toward Wigmore’s rationalist pole, then back to Miranda’s version of the Hawkins-Leach dictum and, finally, back to a more rationalist view as the Court narrowed Miranda’s robust dicta. Going forward, we think the rationalist view will prevail, at least in the intermediate term.
We believe that the future of the law governing interrogation will be a dualistic one: one set of rules for “ordinary” police interrogation and quite a different set governing the interrogation of those viewed as sources of information rather than as potential criminal defendants. We begin with ordinary police interrogation, by which we mean interrogation intended to produce statements that can be used against the suspect in a criminal trial.
In chapters 8 and 9, we highlighted some of Miranda’s trouble spots. One is that it is unclear how effectively the warnings provide adequate notice of the rights waived if suspects talk to police. Another is that courts tend to treat a Miranda waiver as a near-conclusive presumption that all subsequent statements are uncoerced.1 A third trouble spot is that some suspects lack the capacity to waive Miranda, most notably juveniles and the mentally impaired.
A fourth trouble spot, which we did not mention in chapter 9, is that interrogators sometimes construct the confession;, a phenomenon that Richard Leo has exposed based on observing thousands of police interrogations.2 From this wealth of data about police interrogation, Leo concludes that one goal of detectives is to construct a narrative that shows the suspect’s confession as “authentic, compelling, and self-corroborating.”3 Interrogators seek a coherent andbelievable storyline with a statement of the suspect’s motives and explanations, knowledge of intimate details of the crime, and expressions of emotion that “humanize the admission, seemingly rendering it the natural product of lived experience.”4
The narrative should be capable of persuading the key parties in the criminal justice system as the case goes forward: the prosecutor, the judge, the jury, and the court of appeals. When the narrative makes sense as a story, it will cue listeners to interpret other evidence as consistent with the narrative. To create this convincing narrative, police sometimes supply missing information to the suspect. The threat to innocent suspects is obvious. An innocent suspect who finally succumbs to police pressure and concedes that he must have done it, even though he cannot remember how, can be “helped” to create the narrative of how he did it by police eager to have a story that they can “sell” to prosecutors, judges, and juries.
Larry Rosenthal takes the position that what appears to Leo and Thomas as constructing a confession is really nothing more, or less, than police confronting a suspect with evidence of his guilt.5 But in this, as in much else in life, the truth is complex. It is one kind of interrogation tactic to confront a silent suspect with evidence that his DNA or fingerprints were found at the scene, whether true or false. What the police did to Michael Crowe is a different kind of interrogation. He was fourteen years old, in police custody, and under suspicion of murdering his sister. As Leo described it, the police “shattered Crowe’s confidence in his memory” and eventually convinced him to agree with them that the reason he did not remember the crime was the rage that had caused him to kill his sister:6 “The only way I even know I did this is because she’s dead and because the evidence says that I did.”7 Crowe was exonerated by a conclusive DNA match with the real killer.8
The incidence of false confessions is unknown, but the Innocence Project data suggest that it is far from trivial. False confessions are the third leading cause of wrongful convictions.9 There is a harm beyond the false confession concern. To the extent that the confession does not really “belong” to the suspect and to the extent it was constructed by the police, it undermines the fact-finding function of the criminal process. Suspects in large numbers likely plead guilty to more serious offenses, or receive longer sentences, than might otherwise have been the case had the suspect’s halting, incomplete, inconsistent story been the one that the system accepted as his “confession.” Though the false-conviction literature concentrates on defendants who are wholly innocent, defendants who are convicted of greater offenses than they committed are also falsely convicted.
These trouble spots can be ameliorated, though not completely solved, with one simple solution: recording the relevant contact between the police and the suspect. We realize that recording is hardly a new recommendation. Perhaps one hundred other writers are on record recommending some form of recording.10 Nonetheless, we believe that the future of ordinary police interrogation is intimately connected with recording. As we saw in Doody, an accurate recording of an interrogation permits courts to put themselves in the position of the suspect and make a more informed decision about waiver and voluntariness.
We envision a world in which technology allows almost the entire encounter between a suspect and the police to be easily recorded—from arrest to the end of interrogation. Motion-sensitive recording devices could be placed in all police cruisers and even attached to the officers themselves. David Harris reports that police departments are already experimenting with “body-worn video” devices that attach to the officer’s ear and that record all that she sees.11
Rooms in a police station could be equipped with motion-sensitive recording devices. This would solve the problem of police “tuning up” the suspect prior to, or during stops in, the recording. Many have argued that if police knew they were being recorded, they would be less likely to undermine Miranda and less likely to engage in coercive interrogation techniques. Indeed, because police cannot know precisely where a judge will draw the coercion line, the incentive will be for the officer to stop considerably short of that line. As we saw in Doody in the last chapter, however, police will sometimes come close to, or go over, the line, even when they know the recorder is running. The beauty of recording is that it matters not a bit whether it encourages police to put less, or more, pressure on suspects. Whatever transpires between the police and the suspect will be there for the defense lawyer, the prosecutor, the judge, the jury, and the world to see.
The recordings might reveal a police interrogation world where police routinely take advantage—by coercion, trickery, and deception—of confused suspects who do not appear to make choices that we would accept as truly theirs. If so, judges would suppress more confessions than they do today. Prosecutors might offer more favorable plea bargains to avoid the risk of having confessions suppressed. Legislatures might, the past notwithstanding, be shamed into enacting specific restrictions on interrogation that would ease the pressure on suspects.
Richard Leo in 2008 set out some potential rule-like restrictions on interrogations, prohibiting some types of police deception, threats, and promises, and limiting the length of interrogations. Leo would also forbid interrogation in the absence of probable cause.12 The late Welsh White made a set of similar recommendations in 2001.13 When reviewing White’s book, Andrew Taslitz fearlessly predicted that it is “likely over time to have a significant practical impact” because its focus on protecting innocence is “more likely to move policymakers to action in a law-and-order world than are pleas to respect the rights of the guilty.”14 So far the legislative cannons have been silent.
We will largely avoid prescriptive rules in this chapter, in part because police can find their way around almost any set of rules. Moreover, we are skeptical about legislative willingness to inhibit the ability of police to obtain confessions (which mostly come from guilty suspects). Whether the political will can ever be found to restrict police interrogators is unknown, but at least the legislatures in jurisdictions that record interrogations would make that decision knowing the reality of what police interrogation looks like.
It is possible that the recordings will reveal a police interrogation world where suspect and interrogator circle each other like a mongoose and a cobra. In this world, Miranda is merely a piece of furniture that can be easily moved aside, but the suspects who respond to the police might seem to be making genuine, if ill-advised, choices to talk to the police. Judges who refuse to suppress confessions in that world would be making wise decisions. And legislatures could safely continue to leave the regulation of police interrogation in the hands of the courts. Even in this world, of course, there will be some cases that show the kind of pressure and deception that should cause a judge to suppress a confession. Moreover, judges (and juries) who watch the entire interrogation can better sort out the difference between confronting a suspect with evidence of guilt and constructing a confession from a suspect who appears genuinely not to remember the crime. The beauty of recording is that the full picture is there for the judge and jury to see, warts and all.
Larry Rosenthal pointed out that if juries were squeamish about police interrogation tactics, many confessions from guilty suspects would be suppressed.15 The “cost” of this development, should it occur, would be to increase the number of years that guilty defendants are on the street. We imagine, however, that this cost would be quite low. First, when police engage in the kind of tactics associated with false confessions—lengthy, relentless questioning that includes lies about evidence of guilt; fabricating evidence of guilt; promising lenient treatment in exchange for a confession; and helping the suspect construct a confession when she does not appear to remember the details—we think the confession ought to be rejected even if, in some cases, the defendant is guilty. The risk of eliciting false confessions is just too high when police use these tactics. Second, juries who see the ordinary tricks of police interrogation will not, we think, be inclined to punish police by ignoring what appears to be a genuine confession of guilt. Third, if the police tactics are in a gray area between truly overpowering and routine interrogation, the prosecutor can sweeten the plea offer. Because the odds of conviction still favor the State, in most cases even a discounted deal will probably be roughly commensurate with the culpability of the defendant.
Another potential cost of a universal recording requirement is the drain on judicial time in viewing the tapes and lengthier suppression hearings as the defense lawyer attacks police tactics. But the recording requirement imposed by the Minnesota Supreme Court in State v. Scales seems to have worked.16 Scales was decided in 1994, but we searched in vain for a case, article, or news story even alluding to problems in implementation. Brad Colbert, a Minnesota public defender, informed us that when a defendant challenges his confession, the trial judge views the recording prior to the hearing.17 If the judge admits the confession, and the defendant wishes to challenge it before the jury, the recording is played in court while the jury follows along with a transcript.
A recording requirement might create other costs, such as an increase in habeas petitions and an increase in claims of ineffective assistance of counsel. Prisoners whiling away time would, after all, be motivated to view the recording, and they are likely to see possible Miranda, right to counsel, and due process violations that they could not have reconstructed from memory. But these costs, to us, pale in comparison with the advantages that a full picture of interrogation provides the defense, the prosecution, and the judge. How can knowing the truth about police interrogation be bad for justice?
We will now discuss some specific problems that Miranda has either failed to remedy or, perhaps, has made worse.
Leo is right that “[t]here is no worse error in American criminal justice than the wrongful prosecution, conviction, and incarceration of an innocent person, especially in capital cases.”18 And Dan Medwed is right that “American criminal law is undergoing a transformation due to the increasing centrality of issues related to actual innocence in courtrooms, classrooms, and newsrooms.”19 Thus, additional safeguards will be needed, and should, up to a point, be politically possible, no matter which world of interrogation emerges from the recordings. The defendant will, of course, have the right to have the judge and jury view the electronic recording and draw their own conclusion. If the police are seen blatantly constructing a confession from a suspect who has made a halting, confused admission, a judge could easily suppress it as involuntary or a jury could reject it as unreliable. Sufficient threats, trickery, and deception coupled with promises of favor should lead a judge or jury to reject a confession.
At a minimum, defendants should have the right to have a jury rule on whether the confession is reliable. The Supreme Court agrees. In Crane v. Kentucky, the defendant, who was sixteen at the time, testified that “he had been badgered into making a false confession.”20 The police denied using coercion or “sweating,” and the trial judge admitted the confession. The case came to the United States Supreme Court on the narrow question of whether Crane had the right to argue to the jury that his confession was unreliable. The trial court held, and the state supreme court affirmed, that once the trial judge found the confession voluntary, the defendant could not offer evidence of involuntariness, although he could offer “any competent evidence relating to authenticity, reliability or credibility of the confession.”21 One judge dissented, arguing that evidence of coercion is obviously related to reliability and thus should be admitted under the majority’s own statement of the rule.22
A unanimous Supreme Court agreed with the dissent in the state court:
The holding below rests on the apparent assumption that evidence bearing on the voluntariness of a confession and evidence bearing on its credibility fall in conceptually distinct and mutually exclusive categories. Once a confession has been found voluntary, the Supreme Court of Kentucky believed, the evidence that supported that finding may not be presented to the jury for any other purpose. This analysis finds no support in our cases, is premised on a misconception about the role of confessions in a criminal trial, and, under the circumstances of this case, contributed to an evidentiary ruling that deprived petitioner of his fundamental constitutional right to a fair opportunity to present a defense.23
The issue of reliability thus ultimately belongs to the jury. But defendants who seek to prove the falsity of their confessions face the obvious hurdle of persuading a jury that what was said voluntarily (according to the trial judge) was in fact not true. Given the human desire to avoid pain, why would anyone who is innocent make incriminating statements? Since we know that this phenomenon occurs, though we do not know the frequency, it makes sense to permit defendants who claim that they falsely confessed to present expert witnesses who could explain to jurors how it is possible for the innocent to confess and under what conditions it is most likely to occur.
In addition, a cautionary jury instruction should be available if the defendant requests it. Here’s one version: “The defendant has claimed that his confession, though legally voluntary, is in fact false. I instruct you that cases exist in which DNA evidence has proven that a legally voluntary confession turned out to be false.” Many false confessions tend to be halting, evasive, and indirect. Letting the jury see the interrogation, with an instruction that alerts them to the possibility that the confession might be false, should permit the jury to make a fair decision about how much weight to give the confession. Indeed, the truth or falsity of incriminating statements is not a binary proposition, as English cases first held in the eighteenth century. A jury might believe that some of the admissions are true but give them so little weight that the prosecution fails to prove guilt beyond a reasonable doubt.
In sum, recording is particularly helpful in ameliorating the unreliability problem. Recording will also be beneficial, though perhaps less so, in remedying the lack of capacity problem.
Part of our argument in this book is that the Court inadvertently lost most of the value in the voluntariness test that Miranda sought to supplement. We have seen that waiver creates an almost irrebuttable presumption that any subsequent statements are made voluntarily. We saw that even mental disabilities are largely ignored on the voluntariness issue when a suspect waives Miranda, unlike the Court’s earlier approach in its due process cases. By lack of capacity, we include the capacity to waive the legalistic rights that Miranda created as well as the capacity, if waiver is held valid, to make a voluntary confession. The two capacities are obviously linked, but suspects could have the capacity to understand the warnings but not the capacity to make a voluntary choice about confessing given the pressure brought to bear by interrogators.
As noted in the last chapter, Morgan Cloud and co-authors conducted an empirical study of mentally retarded subjects who are asked the meaning of the Miranda warnings.24 The question that sought to uncover an understanding of the right to remain silent had the control group giving the correct answer 86% of the time while the mentally retarded subjects were correct only 10% of the time.25 Across the board, the retarded subjects recorded understanding rates far below those of the control group.
To what extent will recording the interrogation prove beneficial to suspects who lack the capacity to waive Miranda or to make a voluntary choice about confessing? It is difficult to know until studies have been conducted, but, at a minimum, recording will allow the judge and jury to gauge for themselves whether the suspect appeared to have the capacity to waive Miranda or to make a choice about confessing. We would be surprised if a judge or jury would find a waiver valid after watching the face of an eleven year old as an officer gives the warnings in a rote fashion. And we hope that most judges and juries would find the admission involuntary after the eleven year old was interrogated for an hour and then asked to put his hand on the Bible and swear that he had nothing to do with burning a church. But, again, the beauty of recording is that it gives the judge, and then the jury, maximum information. We would feel better about a ruling against an eleven-year-old suspect if the judge and the jury watched the recording of the warnings, the waiver, and the subsequent interrogation.
We expect that “waivers” will often be rejected if mentally impaired suspects manifest their disabilities. Those who have learned to mask their disabilities will have a more difficult time persuading the judge and jury that they lacked the capacity to waive. But they will still be in a superior position to defendants who have to make arguments based on testimony of what the participants recalled from the interrogation process. Thus, while recording will not solve the capacity problem, it should substantially ameliorate it.
We are not optimistic that courts will apply a due process test with much enthusiasm after determining that a Miranda waiver was valid. But to the extent courts still talk about due process rights that exist independently of Miranda, and they ought to, they should at least use better terminology than “voluntariness.” We showed in chapter 4 that voluntariness, understood as “overbear the will” is incoherent. However suspects come to decide to talk to police, even if after torture, their will was not literally overborne. Faced with talk or X, they made a choice to talk rather than X. All conscious utterances are, and must be, willed actions.
The FDR Court’s shift to whether compulsion was applied—in cases like Ashcraft and Chambers—is a coherent, if difficult, inquiry. One way to get past the difficulty of determining whether the police applied compulsion is to draw on Alan Wertheimer’s argument that what underlies the notion of voluntariness in confessions law is a normative theory about whether the forced choice is a reasonable one.26 Perhaps because courts and legal scholars have wrestled, unsuccessfully, with the Fourth Amendment question of what searches and seizures are reasonable, we prefer a somewhat different locution—whether the choice is one that society views as morally permissible. For instance, when a robber gives a bank teller a choice between “your money or your life,” society does not accept that as morally permissible. Focusing more narrowly on police interrogation, the moral choice theory asks, in the choice between talk or X, whether X is something that society believes police ought to be able to force on suspects. We do not, for example, want police to put suspects in the position of choosing between confessing or suffering extreme physical pain. That, of course, is Brown v. Mississippi. During the heyday of the Hawkins-Leach dictum, many English courts held it improper to give a suspect a choice between being silent or telling the truth. Today, that choice would not be considered improper.
We believe that all due process voluntariness cases can be usefully viewed through the lens of whether the choice the suspect faced was one that society permits the police to force on a suspect. But we should be clear. This is neither, at bottom, an original idea nor one that it is self-executing or precise. The roots go back at least as far as Yale Kamisar in 1963 and include versions by Albert Alschuler in 1997 and Mark Godsey in 2005. In 1963, Kamisar unmasked the “voluntariness” test as having “obscured” the “real reasons for excluding confessions.”27 He urged that courts “scrap the ‘voluntariness’ terminology altogether” and replace it with a test that focused on whether the interrogation entailed “forbidden police methods.”28 Kamisar offers examples of forbidden police methods—e.g., preventing a suspect from having contact with his lawyer or purposely keeping a suspect who has been unlawfully arrested from being brought before a magistrate29—but the only definition of “forbidden police methods” he gives is “offensive or deliberate and systematic police misconduct.”30
Albert Alschuler in 1997 also rejected confessions tests based on free will: “[E]fforts to assess whether confessions were the product of free will were always misguided—incoherent in concept, unadministerable in practice, and incompatible with our general understanding of the Bill of Rights as a body of restraints on improper governmental conduct.”31 To Alschuler, most of the talk about free will is the kind of talk one does “when one is in a funk, drunk, in France, or at a university.”32 Instead, Alschuler proposes to ask whether the police conduct is offensive.33 Like Kamisar, Alschuler offers examples but no definition. His examples include interrogations that are too long or police fabricating evidence and misrepresenting the strength of the case against the suspect, especially when also promising leniency.34
Mark Godsey in 2005 proposed replacing voluntariness with a test that focuses on whether the police threatened the suspect with what he calls an “objective penalty.”35 Conceding that “[d]efining the concept of an objective penalty is not an easy task,”36 Godsey provides some rough guidance. Courts would begin with the baseline that the suspect is entitled to expect, which should be drawn from “reasonable law enforcement practices, customs, norms and societal expectations.”37 If the police threaten to move the suspect below that baseline, then he has suffered an objective penalty, and his statements in response to the threat are inadmissible. For example, if the police tell a suspect they will arrest her husband if she does not confess, this is a threat to move the suspect below the baseline she is entitled to expect if the police lack probable cause to arrest her husband.38 If the police do have grounds to arrest her husband, then Godsey would treat a statement about not arresting him if she confesses as an offer rather than a threat and would find it permissible.
Our moral choice theory is similar to these approaches in that all require explicitly moral judgments about police conduct. It must be offensive and systematic police misconduct, an objective penalty, or a choice that society is not prepared to have police force on a suspect. We acknowledge that our approach lacks precision. How does a court decide what choices society is prepared to have police force on suspects? But this problem plagues the other morality-based approaches, though Godsey’s baseline approach probably comes closest to precision. However imprecise, all of the normative theories are preferable to the “overbear the will” test. An imprecise test that at least asks the right question is better than an incoherent inquiry that is also imprecise.
One way to “surround” the vagueness problem of our moral choice inquiry is to recognize, as Larry Rosenthal suggested to us, that there is a subcategory of cases that are relatively easy to resolve—where the police make a threat other than the threat to convict the suspect after a fair trial.39 This first-stage inquiry, which we call the “external threat” inquiry, can be traced to Justice Harlan’s opinion for the Court in McGautha v. California.40 The issue there was whether the privilege against self-incrimination was offended when the State put a defendant to the choice of testifying on the issue of punishment and having the jury consider that testimony on guilt, or not testifying at all. Because the “threat” was merely an increased risk of conviction, it was not external to the attempt to fairly convict him and thus constitutionally permissible.41
The “external threat” inquiry explains most of the Court’s due process voluntariness cases. In Payne v. Arkansas, the police chief told Payne that there were thirty or forty people outside the jail who wanted to get him, and that if he would “tell him the truth” the chief “would probably keep them from coming in.”42 The Court found it “obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an ‘expression of free choice.’43 How much easier to hold that Payne confessed when faced with mob violence—a threat that had nothing to do with convicting him after a fair trial.
In Lynum v. Illinois, one of the arresting officers told Lynum that she “could get 10 years and the children could be taken away, and after [she] got out they would be taken away and strangers would have them.”44 If she cooperated, on the other hand, the officer “would see they weren’t [taken away]; and he would recommend leniency and I had better do what they told me if I wanted to see my kids again.” Lynum’s children were three and four years old; their father was dead.
Justice Stewart, writing for a unanimous Court, invoked the voluntariness mantra: “We have said that the question in each case is whether the defendant’s will was overborne at the time he confessed.”45 The Court held that it was “clear” that Lynum’s will was overborne and her confession “not voluntary.” But it is only a bizarre use of the word “will” that allows a court to claim that she didn’t will her confession. Of course she did. She decided she would rather receive the promised benefits of confessing—leniency and keeping her children—than face the penalties that the police threatened. How much easier is a case like Lynum if a court instead asked whether she confessed after the police made a threat external to the case against her.
In Rogers v. Richmond, the assistant chief of police told the suspect that he was going to bring his wife in for questioning unless he confessed—by Rogers’s account, the chief said “that he would be ‘less than a man’ if he failed to confess and thereby caused her to be taken into custody.”46 Rogers testified that “his wife suffered from arthritis, and [that] he confessed to spare her being transported to the scene of the interrogation.” In Rogers, the Court came close to an external threat theory of voluntariness. Confessions are induced by “constitutionally impermissible methods,” the Court said, when a suspect is “subjected to pressures to which, under our accusatorial system, an accused should not be subjected.”47 Assuming that the police lacked probable cause to arrest Rogers’s wife, they made a threat that is external to the case against him and should be held impermissible.
Similarly, Spano can be understood as a mild external threat case. Though the Court discussed the length of time he was questioned—his statement was finally taken at 4:05 a.m.—and the refusal to provide access to counsel,48 the fact that seemed most worrisome to the Court was the “false friend” ploy. The detectives had Spano’s police friend claim that his job was in jeopardy because Spano had called him after killing the victim.49 The friend “played this part of a worried father, harried by his superiors, in not one, but four different acts, the final one lasting an hour.” Though the threat is mild, it is external to the case against Spano.
As we understand Larry Rosenthal’s argument, he would limit the category of “involuntary” confessions to those induced by external threats, but we think that there is a residual category in which police methods, even without an external threat, become so oppressive that they fall outside the choices that society is willing to force on suspects. To begin with an extreme hypothetical, consider the murder suspect who is questioned for seventy-two hours, nonstop, without being permitted to eat or sleep. At the seventy-two-hour mark, the district attorney offers to reduce the charge to assault with a six-month suspended sentence in exchange for a confession. We think it pellucid that this interrogation violates due process. If this is right, then the due process question in the absence of external threats is simply a question of degree, and interrogations with less pressure are candidates for this residual category.
A good example of the residual category is Blackburn v. Alabama.50 The Court described the defendant as a twenty-four-year-old black man with a “lengthy” history of mental illness, who “had been discharged” from the armed forces in 1944 “as permanently disabled by a psychosis.”51 The robbery occurred during Blackburn’s “unauthorized absence” from a Veterans Hospital mental ward. The Veterans Administration diagnosis was “100% ‘incompetent’” and “‘schizophrenic reaction, paranoid type.’”52
On the issue of police tactics, the Court stressed “the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn’s friends, relatives, or legal counsel; [and] the composition of the confession by the Deputy Sheriff rather than by Blackburn.”53 The Court conceded that the confession might have been made “during a period of complete mental competence.”54 But “the chances of the confession’s having been the product of a rational intellect and a free will” were “remote” and thus the interrogation a denial of due process.
Along the way, Chief Justice Warren’s opinion tried to identify the values served by the voluntariness doctrine. The Court started with “the likelihood that the confession is untrue” and “the preservation of the individual’s freedom of will.”55 But the Court assured the reader that neither of those values is “the sole interest at stake.” The Court quoted Spano “that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”56 The Court concluded that “a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.” This is pretty close to acknowledging that “voluntariness” is really a stand-in for values that have nothing to do with the exercise of will. We think the real issue is the moral permissibility of the choice created by the police—in Blackburn’s case, the choice of a suspect with severe mental illness to confess or face interrogation for eight or nine hours, with no end in sight, in a “tiny room” sometimes “filled with police officers.”
We now apply our moral choice test to some of the other cases discussed in the last chapter. Unlike the majority in State v. Jackson,57 we believe that a true totality of the circumstances test, taking into account the racial context, would conclude that the police threatened Jackson with the death penalty. This is an example of a threat that is internal to the case but that, when considered with the racial context and the repeated lies about evidence against him, suggests he was “subjected to pressures to which, under our accusatorial system, an accused should not be subjected.”58
In Miller v. State, where the defendant was found as a matter of state law to be mentally retarded, our moral choice theory suggests suppressing his confession.59 We think that lying to a mentally disabled suspect to make the case look hopeless weighs more heavily against admission than if the suspect is not disabled. The impaired suspect is less able to appreciate his options and more likely to confess falsely. Thus, the choice Miller faced between confessing and continuing an interrogation that falsely demonstrated an overwhelming case against him is not a choice, we hope, that society is prepared to accept.
We do not claim that all voluntariness questions are easy to resolve under our moral choice analysis. Hard cases, such as State v. Harris, remain hard cases.60 He was shackled to the floor, the police fabricated much evidence against him, and they kept from him the exculpatory evidence that someone else was identified at a lineup. Still, he was only questioned for two and one-half hours and, as far as the court’s opinion reveals, police made no threats or promises. However a court would rule under our moral choice theory, we believe that the right question to ask is some variation of whether Harris was “subjected to pressures to which, under our accusatorial system, an accused should not be subjected.”
We turn now to interrogation in search of information rather than convictions, usually directed at suspected terrorists.
Our focus in chapters 2 through 9 was the interrogation of those suspected of ordinary crimes. As chapter 1 noted, however, the 9/11 mass murder of Americans opened a new chapter in methods of interrogation. To be sure, according to some accounts, the CIA has been using extreme interrogation methods for decades,61 but the chapter that opened after 9/11 brought these methods more fully to light. We know that coercive interrogation methods, such as water-boarding, have been used against suspected terrorists. In addition, allegations arose that terrorism suspects were sent to other nations by a process called “extraordinary rendition.” The purpose of extraordinary rendition is to allow intelligence agencies in other nations to use interrogation methods, including torture, that American law prohibits.
That the United States has engaged in the process of extraordinary rendition, although never admitted, is supported by substantial evidence.62 As the result of one well-known allegation of extraordinary rendition, Maher Arar, a dual Syrian and Canadian citizen, brought a federal lawsuit that accused senior United States officials of sending him to Syria to be tortured.63 In 2007, “Democratic and Republican lawmakers urged the Bush administration to apologize to Mr. Arar.”64
A June 2006 report of the Council of Europe concluded that several member nations wrongfully colluded with the CIA in its rendition activities, sometimes by turning a “blind eye.”65 Multiple sources indicate that the CIA utilizes secret detention centers, or “black sites,” and various types of airplane transfer sites on European soil, both of which facilitate rendition.66 According to the European Parliament, the CIA has conducted “at least 1,245 flights” to accomplish these renditions.67 An Italian court in November 2009 convicted twenty-three Americans of kidnapping a Muslim cleric from the streets of Milan in 2003.68 The cleric claimed that the kidnapping was part of a plot to render him to Egypt for interrogation and torture. Those convicted included the CIA base chief in Milan at the time of the kidnapping, an air force colonel, and twenty-one CIA operatives. All were tried in abstentia, and it is unlikely that any will serve time in an Italian prison.
Whatever the extent of the extraordinary rendition and the use of coercion by U.S. intelligence agents, a little-noticed Supreme Court case from 2003 has surprising implications for interrogation of suspected terrorists. At least some of the suspected terrorists have been and will be tried in civilian court. This will give them the chance to move to suppress their statements as involuntary under the Fifth Amendment due process clause or as compelled under federal evidence law.69
Whether Miranda would apply to these former “enemy combatants” is a more difficult question. The Fifth Amendment privilege applies by its terms to “any person.”70 But even if “any person” includes enemy combatants who have no connection with the United States, the Court in Quarles made plain that Miranda is a procedural safeguard that can be withheld when questions are “reasonably prompted by a concern for the public safety.”71 Interrogators seeking information about future attacks might fit within a Quarles exception. To be sure, the public safety concern in Quarles was more imminent—locating a gun thought to be hidden in a store—than concerns that arise in the interrogation of suspected terrorists. But the scope and scale of the threat to public safety posed by terrorists suggests that a Quarles-type exception be made to Miranda.
In the wake of the failed attempt to detonate a bomb in Times Square in 2010, Attorney General Eric Holder called for legislation to dispense with Miranda warnings when interrogating suspected terrorists—in his words, to make the law “relevant to our time and the threat that we now face.”72 While awaiting legislation, the FBI set out guidelines for when agents can dispense with warnings in an “unsigned, internal memorandum.”73 Unsurprisingly, the guidelines broaden the Quarles exception to fit the terrorism context: “In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.”
One little-noticed issue remains. There are two groups of suspected terrorists for whom the suppression right has little relevance. The first, and obvious, group includes those against whom the authorities have enough evidence to convict without their statements. Presumably, if the government decides to try Khalid Sheikh Mohammed in civilian court, his case fits in this category. If not, there will be political hell to pay. Going forward, and facing the prospect of civilian trials for some of the terrorist suspects, future interrogators will have incentives either to comply with constitutional standards or amass sufficient evidence to convict that is independent of the confession evidence.
Those whom the government never intends to bring to trial make up a second group, which includes low-level suspects who might be released back to their countries once the interrogators have learned what they know. At the other end of the spectrum, there are probably higher level suspects who might be kept indefinitely if releasing them is simply too dangerous to contemplate; the great Apache chief Geronimo was a federal prisoner until his death twenty-two years after he surrendered.74 For those who will never face trial, are there constraints on interrogators’ attempts to coerce information? One constraint, of course, is that interrogators will not always know ex ante which suspects fit into the category that will never face trial, which will create an incentive for interrogators to avoid easily proven coercion.
But the question remains whether any remedy other than suppression might be available. Answers lurk in a 2003 case, Chavez v. Martinez.75 The issue was whether Martinez could sue, under 42 U.S.C. § 1983, the police officer who conducted a highly coercive interrogation of him. To bring suit under § 1983, a litigant must allege a violation of the United States Constitution or a federal statute. One might assume that a coercive interrogation violates the United States Constitution, but that assumption turns out to be superficial and at least partly wrong.
Investigating a police shooting, Chavez questioned the victim, Martinez, in the emergency room while he was receiving treatment. There can be little doubt that the questioning was coercive.
Martinez “had been shot in the face, both eyes were injured; he was screaming in pain, and coming in and out of consciousness while being repeatedly questioned about details of the encounter with the police.” His blinding facial wounds made it impossible for him visually to distinguish the interrogating officer from the attending medical personnel. The officer made no effort to dispel the perception that medical treatment was being withheld until Martinez answered the questions put to him. There was no attempt through Miranda warnings or other assurances to advise the suspect that his cooperation should be voluntary. Martinez begged the officer to desist and provide treatment for his wounds, but the questioning persisted despite these pleas and despite Martinez’s unequivocal refusal to answer questions.76
Though this description appears in a dissenting opinion, none of the opinions denied that Martinez was subjected to coercion.
If Martinez had been prosecuted, his statements would have been suppressed. No threat to public safety justified dispensing with warnings, and the questioning in the emergency room thus violated Miranda. Moreover, the due process doctrine that began in Brown v. Mississippi and evolved into Spano v. New York would also lead to suppression on the grounds that his statements were coerced. Because he was not prosecuted, however, the police conduct became an issue only when Martinez sued Chavez in a civil action for violating his constitutional right to be free from coercive questioning.
Thomas’s opinion for a plurality of four justices noted that the language of the Fifth Amendment privilege forbids compelling a person “in any criminal case” to be “a witness against himself.”77 As Thomas put it, “We fail to see how, based on the text of the Fifth Amendment, Martinez can allege a violation of this right, since Martinez was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case.” On that issue, Justice Souter and Justice Breyer, in a separate opinion, essentially agreed with the plurality, concluding that the claim for civil damages by Martinez was outside the “Fifth Amendment’s core.”78
Alan Dershowitz concludes that in the wake of Chavez: “If the objective of the interrogation is to produce intelligence information rather than evidence … you may have no constitutional rights at all.”79 But we believe that Souter left that door ajar when he concluded that Martinez cannot “make the ‘powerful showing,’ subject to a realistic assessment of costs and risks, necessary to expand protection of the privilege against compelled self-incrimination to the point of the civil liability he asks us to recognize here.”80 To Souter, the suppression remedy that Martinez would have if prosecuted criminally was a sufficient remedy unless Martinez could show the suppression remedy “has been systemically defective.”81
If a litigant could show a regime of coercive interrogation designed merely to secure information, rather than convictions, the suppression remedy would have a deterrent effect close to zero and thus be “systemically defective.” Our hypothetical terrorist litigant who will never be tried could show what Martinez could not—a “limiting principle” that would keep tort liability from attaching to every interrogation that produces an involuntary statement.82 Instead, only suspected terrorists could seek tort damages for coercive interrogation, which is hopefully a very small number of cases. That kind of limiting principle might attract five votes in favor of permitting detainees to bring suit as long as they could show that they are cut off from a suppression remedy.83
To be sure, two of those five theoretical votes belong to justices who are no longer on the Court,84 leaving the issue up in the air. Complicating matters is the Obama administration’s goal to try some of the Guantánamo Bay detainees in civilian court.85 That group would have access to a suppression remedy, which leaves them outside the category of those who can only avail themselves of a civil remedy. The first detainee to be tried civilly, however, was acquitted on 279 of 280 charges, creating doubt about how many detainees will face a civilian trial.86
Terrorist suspects have an alternative argument. As the plurality pointed out, rejecting the privilege does not mean “that police torture or other abuse that results in a confession is permissible so long as the statements are not used at trial.”87 It simply means that the appropriate constitutional provision is the due process clause. This is a stronger argument because it does not suffer the textual problems of the privilege argument. One can imagine an account of due process of law that forbids coercive questioning qua questioning. And, indeed, the Court unanimously agreed that the due process clause prohibits certain State methods of interrogation. The dispute is over what those methods are.
The proper standard to measure whether Chavez violated Martinez’s constitutional rights is what the Court calls substantive due process. How substantive due process differs from procedural due process in the context of regulating police conduct is far from clear. The use of substantive due process to deter police misconduct arose at a time when the Court had yet to require states to suppress evidence found in violation of the Fourth Amendment prohibition of unreasonable searches and seizures. The Court thus turned to substantive due process to remedy and deter egregious police misconduct.
In the seminal case of Rochin v. California, officers broke into Rochin’s bedroom and tried to prevent him from swallowing capsules suspected to be morphine.88 When he managed to swallow the capsules, police took him to a hospital where his stomach was “pumped” and he vomited two morphine capsules. In 1949, California did not require the exclusionary rule under state law, and the federal rule was not then available in state court. Rochin thus claimed that the state conduct violated due process of law.
Offended by the conduct of the officers, yet wary of creating a broad right that would wreck havoc in state justice systems, the Rochin Court crafted the substantive due process right to be very narrow indeed. Here is the key passage:
This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.89
One might plausibly ask why Rochin is still relevant after Mapp v. Ohio’s holding in 1961 that courts must suppress evidence, like that obtained from Rochin, if the search or seizure was unreasonable.90 The answer to that question can be found by implication in Chavez. At least six members of the Chavez Court seemed to accept the underlying premise that “ordinary” due process standards, developed in cases like Ashcraft and Spano, apply when the issue is whether to suppress a confession in a criminal prosecution but do not govern the due process issue in a civil trial.91 Why a heightened standard should apply in civil cases is never explained but, presumably, the Court wishes to protect police officers and municipalities from an avalanche of civil suits.
Thus, for six members of the Court, Martinez could rely only on the Rochin shock-the-conscience test. The plurality found their conscience not shocked and would have reversed the Ninth Circuit’s holding that Martinez had shown a constitutional violation. But five members of the Court joined Part II of Justice Souter’s opinion, which left “the scope and merits” of any due process claim to be decided on remand.92 The Ninth Circuit, however, did not address the scope and merits of Martinez’s claim when it sent the case to the district court for trial, and the Supreme Court denied certiorari when the case came back for a second look.93 Chavez thus stands for the proposition that the due process clause forbids police interrogation methods that go too far, even when the confession is not offered into evidence, but it is unclear how far is too far.
In a later case, the Ninth Circuit held that improper promises and threats directed to a developmentally delayed child did not shock the conscience: “While these allegations might be relevant to the question of whether [the child’s] confession was in fact voluntary and therefore admissible, an issue the juvenile court resolved in [his] favor, they fall below what is required to state a claim under the Fourteenth Amendment.”94 This is an explicit recognition of the difference between procedural due process and substantive due process in interrogation cases. Noting that the Chavez plurality and Justice Kennedy’s separate opinion spoke of “police torture and other abuse” and “torture or its close equivalents,” the Ninth Circuit concluded that the standard for showing a substantive due process violation “is quite demanding.”95
Thus, the state of the law today regarding coercive interrogation of suspected terrorists is far from clear. If “shock the conscience” becomes the standard for civil liability, as seems likely, it would give interrogators of suspected terrorists a lot of leeway in the methods they could use without fear of liability. Whether it would permit water-boarding seems doubtful, but it might allow a range of methods that would violate the Ashcraft -Spano due process test. These might include cramped confinement, stress positions, sleep deprivation, nudity, and dietary manipulation.
To be sure, if the government routinely tries terrorism suspects in federal criminal court, that might alter the calculations of interrogators going forward. Concern over loss of the use of evidence in future criminal trials might induce interrogators to stick close to the Spano due process line. This is obviously a story that is in play. But it strikes us that if interrogators thought a future Khalid Sheikh Mohammed had information about pending terror attacks on the United States, the overriding motivation would be to obtain the information now and let the criminal case, years in the future, take care of itself, as well as any potential civil liability that might result from a court’s shocked conscience.
Thus, it seems likely that the future of American confessions law will be a dualistic world—one set of rules governing police interrogation, where obtaining admissible evidence is the goal; and a shadowy, more permissive set of rules governing interrogation, where the goal is information and not admissible evidence. While the second category will be disproportionately populated by suspected terrorists, it would not be limited to that group. One can imagine a case in which it is more important to locate the victim than to prosecute the person being questioned. Imagine that police question someone who knows where a kidnap victim is being held but was not an accomplice to the kidnapping. If the person with the information does not want to tell the police—perhaps he is deathly afraid of the kidnapper—police might want to coerce the location of the victim. But these will be rare cases. The largest number will be suspected terrorists.
The shadowy, more permissive set of rules that apply mostly to the interrogation of suspected terrorists, spawned by Chavez, is no accident. As John Parry noted, “Concerns about terrorism, unstated in the [Chavez] opinions but on display in the briefs, feed the uncertainty of the middle and strengthen the hand of the justices who would narrow the privilege and limit the scope of substantive due process.”96 And a more permissive set of limitations might not be a bad thing. Again quoting Parry: “One could also argue in favor of the post-Chavez status quo by emphasizing the need to free law enforcement officials from microscopic review of their actions because greater legal regulation and particularly damages liability would cause, and perhaps already causes, overdeterrence.”97 Parry rejects this argument, concluding that we now live in a world of underdeterrence. In his view, U.S. agents conduct too much coercive interrogation and courts should move toward a more optimal level of deterrence.98
Dershowitz hopes that Chavez is not “the last word on this issue. … The privilege against self-incrimination should be construed to impose restrictions on at least some means of coercion, even if the resulting information is never used against a defendant at a criminal trial.”99 He urges “citizens, legislatures, judges, and scholars” to develop a jurisprudence that will appropriately constrain governmental actors even when acting to prevent terrorism.
In England in 1721, the only concern about out-of-court confessions, other than in treason cases, was whether the confession was offered against the one who confessed. By 1787, the law was obsessed with the risk that a confession might make a suspect “the deluded instrument of his own conviction.”100 In 1821, a New York lawyer argued that without a four-part warning of the right to remain silent and to consult with counsel, the pretrial examination by a magistrate was “a mere nullity—void in law—void in conscience, and cannot be read in evidence against the prisoner on his trial.”101 Seven years later, the New York legislature enacted the first requirement in Anglo-American law that the accused be warned of his right “to refuse to answer any question” that the magistrate puts to him and be given time “to send for and advise with counsel.”102 In 1881, the New York legislature strengthened the rights of the accused when appearing before a magistrate.103
But by 1881, the questioning of suspects in much of the United States had been largely turned over to police, and the emergence of handguns, large cities, and organized crime made policing dangerous and difficult. The Whig Party, which had long favored the individual over the State, disappeared into the Republican Party, which emphasized national unity to oppose slavery and maintain the Union.104 The strife leading up to the Civil War, and the war itself, underscored the need to protect the collective. The war helped create a culture of deviance, crime, and violence that persisted for decades. Part of the response by police, at times, was the third degree directed at suspects “known” by police to be guilty.
This, too, would pass. News accounts of the third degree had turned generally negative by the time the Wickersham Commission exposed the third degree on a much larger scale than the newspaper coverage had achieved. Condemned by the commission, the third degree disappeared in favor of relentless questioning and psychological pressure as a means of securing confessions from those “known” to be guilty. In 2011, the website that offers training in the Inbau-Reid method claimed to have trained over 500,000 investigators “in the art of interviewing and interrogation.”105
In 1966, about a quarter-century after Fred Inbau first published a manual for police interrogators,106 Miranda attempted to develop a procedural mechanism to ensure that suspects were freely giving up their right not to answer police questions. Thus, in a sense, we returned to the days of the Hawkins-Leach dictum, John Graham’s 1821 argument, and the New York statutes of 1828. The success of the Miranda method of protecting the Fifth Amendment privilege is open to debate. At least at the superficial level of suspects knowing that they can remain slient, Miranda appears to be largely a success. Indeed, one of Miranda’s critics on the Court, Chief Justice Rehnquist, concluded in 2000 that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”107 Moreover, “our subsequent cases 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.”
Rehnquist’s comment hints at the failure of Miranda to prevent suspects from being “a deluded instrument of their own conviction.” What has been achieved, as the law of interrogation lurched back toward the Hawkins-Leach dictum, is a rhetorical flourish that aligns quite closely with English law of the late eighteenth century. But the reality on the ground is far different. Suspects are generally put on notice that they do not have to answer questions, but the vast majority does answer, and most of them become instruments of their own conviction. But perhaps that is a good development. Perhaps having the law inform suspects that they are equals of the police and can control their interrogation—without suspects taking advantage of the offer very often—is a net positive for society as long as the innocent are not ensnared.
The law governing the interrogation of suspected terrorists is almost as shadowy as terrorism. The doctrines developed to regulate ordinary police interrogation work less well, or not at all, to regulate the interrogation of terrorists. The chief aim of a military, FBI, or CIA interrogator is to obtain evidence for the sake of foiling plots to attack the United States. Thus, they care little, or not at all, whether the evidence will be admissible years later in a criminal proceeding. The doctrine of substantive due process provides some, as yet unknown, limit by making actors liable civilly if they go too far in their interrogation methods.
In some ways, the dualistic American law of confessions has returned to England of the sixteenth and late eighteenth centuries. The law of ordinary police interrogation is, superficially at least, that of the Hawkins dictum written by Leach for the 1787 edition. The law governing interrogation of terrorists looks a little like the “protections” granted those suspected of treason in the days before Henry VIII died and Parliament enacted the Treason Act of 1547. The rack and the screw were available to be used against those suspected of trying to overthrow the monarch. On President Obama’s watch, the most abusive interrogation methods used from 2001 to 2008 are probably no longer employed. But there is no law in place, either from the Supreme Court or Congress, that parallels the Treason Act and requires that confessions taken from suspected terrorists in this country be given “willingly” and “without violence.”108 There is, to be sure, an odd statute that criminalizes torture when committed outside the United States.109 But even as to acts outside the United States, “torture” is a more restrictive category than conduct that causes unwilled confessions.
As our theory predicts, confessions law tracks, in at least a rough way, the national feeling of security or insecurity. International law did not prevent the Bush administration from using coercive interrogation techniques, perhaps even torture, against suspected terrorists because our fear level was very high after 9/11. Candidate Barack Obama promised that he would close the detention facility at Guantánamo Bay and try the detainees in civilian courts. As this book neared publication in 2012, neither campaign pledge had been achieved. Neutral principles of law work during “placid and tranquil times” but not when a nation considers itself in extremis.110
That the Court continued to embrace Miranda while the country looked the other way when suspected terrorists were harshly interrogated tells us that the country feels relatively secure from the threat of ordinary criminals but not, at least until 2008, from acts of terror. When the level of security versus insecurity changes in significant ways, the law of confessions will change again.