Cal Berkeley Lawprof Chuck Weisselberg’s epic law review article, Mourning Miranda, is now available for all to read and consider, and it provides a vast wealth of background and issues to raise and consider for the criminal defense lawyer.  When first visited here, the article was noted as having debunked the notion that Miranda provided protection to suspects:

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.

This is not merely an apocryphal tale about Miranda, beginning with the Supreme Court’s unempirical guesswork about how this silly little warning would somehow prevent police abuse of suspects and coercion of statements, and culminating in a sophisticated approach by police to use the clearly defined test to circumvent any benefit it might potentially have offered.  As we continue to seek solutions to the vexing problems of confessions, such as videotaping, and identifications, such as double-blind procedures, we cannot forget the lesson of Miranda.

Chuck explained that the Supreme Court, in developing this bright-line test, assumed that no defendant would ever make a statement again once the Miranda warnings were given.  Of course, they missed the boat by a mile on that one, For most of us, it’s hard to imagine that the Supreme Court, in developing a rule as fundamental as Miranda, based it entirely on assumptions lacking any empirical basis.  It was nothing more than an idea that struck them as good at the time. 

As carefully noted in the article, the assumptions underlying Miranda failed to prove accurate, in some instances inherently and in others as a result of law enforcement efforts to create interrogation schemes specifically designed to not merely circumvent the protections Miranda sought to provide, but to use Miranda as a weapon against defendants and to protect statements taken.  Once the rules were set in stone, figuring out ways to get around them was child’s play.

One of the most dangerous precepts was that Miranda need only be administered when a suspect was in custody, a concept so vague (and made continually vaguer as caselaw developed) that it rendered protection meaningless.  The Court believed that a defendant who was not in custody, believing themselves free to leave at any time, would have no problem exercising that right and taking a quick walk toward the exit.  Of course, few believe themselves free to leave, and most feel quite certain that any attempt to exercise that right will have dire consequences.  It’s a gaping hole exploited intentionally by police.

Similarly, the invocation of rights under Miranda has itself become a bit of an inside joke.  While the courts have held that it doesn’t require “the discrimination of an Oxford don,” it does require “an unambiguous or unequivocal request for counsel,” or “the officers have no obligation to stop questioning him.”  Litigation over the specific words of a suspect’s request are legion, and makes one wonder whether an Oxford don could manage to invoke his rights. 

By placing the burden of precision on the suspect, the Court made another assumption, that defendants wouldn’t find it so painfully difficult to speak with words, “I want to speak with a lawyer,” that has borne out.  The fact has been proven over and over that suspects submit to the shield in ways a Supreme Court Justice, and a criminal defense lawyer, will never quite understand.  Any bright-line test that fails to recognize this reality is doomed to fail.

As we continue to consider and address the ongoing problems with interrogation and identification, and advocate for new bright-line tests, it is critical that we understand and appreciate what went so horribly wrong with Miranda to avoid falling into the same trap.  While many contend that videotaping interrogations is a critical solution, some of the same techniques now used to undermine Miranda will be easily adapted to make this not only a dubious solution, but one that will provide conclusive evidence against defendant. 

Let’s face it, lawyers and cops love bright line tests, but for different reasons.  The tests provide a clear dividing line that removes the dreaded element of judicial discretion from determinations of constitutional violations, and lawyers don’t trust judges enough to leave it up to their good judgment.  That’s our issue. 

Cops, on the other hand, love easy to remember rules, both because it makes their job simpler and because rules, once clearly set forth, provide the limits of hurdles for them to find ways around.  Anyone who believes that police won’t figure out a way to circumvent the intent and then use a rule requiring videotaped confessions against defendants, you won’t feel the same after reading this article.

Regardless of whether your interests are in attacking statements taken from suspects or considering the various other issues confronting criminal defense lawyers, spend the time to carefully consider this article and Chuck’s admonition:

It will be not be easy for judges, officers, and lawyers to let go of Miranda. For over four decades, this icon has occupied the center of interrogation law and practice. Yet Miranda’s protections are more mythic than real. At some point myth must yield to reality.

Miranda launched a forty-year experiment in reforming police practices. I think the Court was right to try; sometimes there can be no progress without experimentation. Now, four decades later, we know that a set of bright-line rules is not a panacea for the issues endemic in police interrogation.

I cannot stress sufficiently the caution of rushing headlong into the fray with the next magic bullet solution without considering the lessons of Miranda.  Be careful what you wish for, as we have been stuck with Miranda for 40 years, there’s no end in sight and rather than put an end to the interrogation of suspects, it has become a favored weapon in the law enforcement arsenal.