Lawprof Charles Weisselberg’s new article, Mourning Miranda, raises some very interesting questions about how a good thing can go south over time.  Via Orin Kerr,

Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework. Although Weisselberg has long been a noted defender of Miranda, he finds himself concluding that the Miranda experiment has been a failure:

. . . Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda’s vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda’s hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda’s procedures. I suggest other possibilities, including legislation.

Anybody who watches a cop show on TV is familiar with the Miranda mantra, so much so that it usually has no impact at all when the familiar words are spoken.  Criminal defense lawyers harp on the first line of Miranda all the time, “you have the right to remain silent.”  Better than anyone, we know how people just can’t seem to do this, and just how much damage they do when the sounds start spewing from defendants’ mouths.  We cringe all the time, as our clients explain why they thought talking to the cops was a good idea.

But Weisselberg’s statement, that Miranda has become “a hollow ritual [that] often forecloses a searching inquiry” rings true.  Under the best of circumstances, the cop testifies that he read the defendant his Miranda rights “from this little card right here” and the defendant responded “yes” to all the questions.  Whatever happens after that is invariably admissible, unless the defendant speaks the magic words that stop interrogation and the cop admits he did so.  Of course, if the cop is that honest, he will respect the invocation of rights in the first place and there won’t be any post-invocation interrogation.

But as Weisselberg correctly recognizes that the police haven’t been sitting around eating donuts since Miranda was decided.  Well, okay, they have, but they have people who do stuff while they are sitting around eating donuts.  These people have figured out how to use sophisticated psychological pressure to undermine the exercise of free will that Miranda was supposed to protect.

Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda’s safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court’s pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.

Somehow, judges who hear suppression motions don’t seem to recognize that this sort of thing happens.  Bad judge.  Bad judge.  The truth, of course, is that we all know too well that the cops know how to squeeze a statement out of a defendant with some subtle psychological ploys, and that defendants fall for this over and over again. 

So why don’t well-intended, intelligent, fair-minded judges put a stop to these mind-games that cops use to overcome the exercise of free will by defendants?  Miranda!  Once the cops say the mantra, all bets are off.  The defendants have been duly warned, and the cops are now free to exert whatever pressures they can to get the bad guys to talk.  Miranda has tipped the balance away from an actual inquiry into the voluntariness of a confession, toward the rote application of the rule.  Courts love rote applications of rules.  It makes their job infinitely easier.

Few on the defense side favor the end of Ernesto Miranda’s legacy, mostly because we’ve lived with it for a long time and gotten used to it being there.  But Weisselberg’s point is persuasive, and Miranda may have outlived its usefulness.  Perhaps it will serve better in a post-Miranda environment, where the mantra no longer ends the inquiry, but remains a fixture in everyone’s mind. 

But bear in mind, an ugly truth for most criminal defense lawyers is that defendant need very little pressure to start talking when they snap the cuffs on.  More often than not, they can’t help themselves and the words that will hang them just start coming.  And they don’t stop until the cops have enough to lock up the conviction and get bored.  Then they just walk away and return to their donut, praying that it hasn’t gotten stale.