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Confessions have played an ambiguous and paradoxical role in Anglo-American cultural and legal history. In many religious traditions, a confession begins the process of expiation and forgiveness. Yet in the secular, legal sphere, it often lays the foundation for blame and punishment.
Moreover, there is a contradiction embedded within this contradiction. Because confessions appear to create unmediated access to the defendant’s knowledge, thought processes, and beliefs, they seem to provide uniquely powerful evidence of both culpability and contrition. Yet because the access is in fact always mediated, confessions can also be uniquely dangerous and misleading. The upshot has been heavy reliance on confessions coupled with extensive regulation of their use.
In the United States, three separate constitutional provisions limit the legal use of confessions.
- The Fifth and Fourteenth Amendments guarantee due process of law. This protection has been interpreted to prohibit the extraction of ‘‘involuntary’’ confessions.
- The Sixth Amendment (made applicable to the states by the Fourteenth Amendment) guarantees the assistance of counsel in all criminal prosecutions. The Supreme Court has interpreted this provision to prohibit introduction of post-charge statements made by a defendant in the absence of a lawyer.
- Finally, the Fifth Amendment’s self-incrimination clause (also made applicable to the states by the Fourteenth Amendment) provides that ‘‘No person . . . shall be compelled in any criminal case to be a witness against himself.’’ This language has been interpreted to bar from criminal prosecutions all compelled statements made by a criminal defendant and any evidence derived from such statements.
The Role of Confessions
A defendant can confess to guilt in a variety of different settings, and different legal rules govern admissibility in each setting. First, some defendants make inculpatory statements to friends or associates. In general, if the prosecution learns of these statements because of the cooperation of a person who hears them, the statements are admissible against the defendant.
The primary exception to this general rule arises when a government agent deliberately elicits statements made by an individual who has been formally charged with a crime. As we shall see, admission of statements secured in these special circumstances violates the defendant’s Sixth Amendment right to counsel. In the more typical situation, there is no constitutional bar to admission of the statements. Although various evidentiary privileges may bar introduction of inculpatory statements made to a spouse, a lawyer, a member of the clergy, or a physician, the admissions exception defeats a general hearsay objection to the evidence. Moreover, the Supreme Court has repeatedly held that there is no ‘‘reasonable expectation of privacy’’ implicating Fourth Amendment rights when an individual voluntarily shares information with others. Nor is there usually the ‘‘compulsion’’ or ‘‘involuntariness’’ required to invoke self-incrimination or due process objections.
Second, defendants regularly admit culpability when they plead guilty to an offense. Indeed, confessions associated with guilty pleas are the most commonly used inculpatory statements in the criminal justice system. Approximately 90 percent of all criminal prosecutions end in guilty pleas. To be sure, the defendant need not always concede his factual guilt when he pleads guilty, but prosecutors frequently insist on such a concession, and most guilty pleas are accompanied by an admission of guilt. One might suppose that guilty pleas would implicate the Fifth Amendment’s self-incrimination clause when they are extracted through a threat of harsher punishment if a guilty plea is not forthcoming. However, the Supreme Court has held that the mere risk of conviction does not constitute the kind of compulsion that implicates self-incrimination rights and that plea bargaining is therefore permissible, at least so long as the defendant’s plea satisfies the looser ‘‘voluntariness’’ standard.
Third, whether or not they plead guilty, defendants frequently make inculpatory statements during the sentencing process in order to demonstrate contrition. The Federal Sentencing Guidelines grant defendants a reduction in their offense level if they ‘‘clearly demonstrate . . . acceptance of responsibility for [the] offense,’’ and judges regularly take into account remorse or contrition even in the absence of formal guidelines requiring them to do so. Although the Supreme Court has held that self-incrimination rights attach at the sentencing phase, the Court has yet to decide whether harsher punishment for defendants who refuse to admit their guilt at sentencing violates Fifth Amendment rights.
Finally, many defendants confess as a result of police interrogation conducted after their arrest. Confessions in this setting have generated the most controversy, and a complex body of law, discussed below, regulates their use. Despite this regulation, it appears that a surprisingly large number of defendants make inculpatory statements to the police. Although there are no nationwide statistics, a smattering of local studies is suggestive. In a study published in 1996, Richard Leo reported on observations of 182 police interrogations, most of them in a major urban police departments. He found that 64.29 percent of the suspects gave incriminating information of some type and that 41.76 percent either confessed or made partial admissions. In 1994, Paul Cassell studied data on confessions and incriminating statements in cases submitted for prosecution to the Salt Lake County Attorney’s Office. He found that in 33.3 percent of the cases, the suspect confessed, gave incriminating statements, or was locked into a false alibi (1996).
There has been considerable controversy over just how important these confessions are to successful law enforcement. In Escobedo v. Illinois (378 U.S. 478, 488 (1964)), a majority of the Justices implied that reliance on ‘‘extrinsic evidence independently secured through skillful investigation’’ could achieve the same results as a system that relied heavily on confessions. In contrast, Justice Byron White, dissenting in Miranda v. Arizona (384 U.S. 436, 541 (1966)), warned that limitations on confessions would ‘‘measurably weaken the ability of the criminal law to perform [its] tasks,’’ and Justice Tom Clark, dissenting in the same case, argued that a limitation on confessions ‘‘inserted at the nerve center of crime detection may well kill the patient’’ (384 U.S. at 500).
Decades after Justice Clark’s gloomy prediction, the patient seems to be alive and kicking, but there are no recent, systematic empirical studies that throw light on these rival claims. A group of studies conducted in the 1960s tended to show that confessions were necessary for convictions in about a quarter of all cases prosecuted, but the numbers varied widely in different studies, and there appears to be no solid, nationwide data from more recent years.
The Voluntariness Approach
As already noted, three separate constitutional provisions bear on the admission of confessions achieved through police interrogation. Before 1964, the principal means of control were the clauses in the Fifth and Fourteenth Amendments, guaranteeing due process of law. Beginning in 1936, a series of Supreme Court cases held that police tactics having the effect of ‘‘overbearing the suspect’s will’’ or resulting in ‘‘involuntary’’ statements violate this guarantee.
Almost from the beginning, the scope and purposes of this protection were encrusted in ambiguity. To be sure, the earliest cases, suppressing confessions gained through overt police brutality and outright torture, seem uncontroversial, yet even here the Court never made entirely clear which of two rival theories led to exclusion of the evidence. On one theory, the coercive measures themselves entailed a deprivation of liberty, and due process was therefore denied when these measures were utilized without first providing the suspect with adequate process. On this view, the constitutional violation was complete at the point when coercion was applied, and the resulting confession was inadmissible only because this evidentiary rule served to deter future misconduct or prevented the tainting of the criminal justice system by misconduct that had already occurred. Alternatively, the Court sometimes suggested that the deprivation of liberty came when the defendant was convicted. On this theory, a trial at which unreliable statements were introduced did not amount to the process that was due to criminal defendants. So long as the Court confined itself to the regulation of outright brutality, this ambiguity made little difference. Violence and torture are reprehensible both because this treatment of suspects ‘‘shocks the conscience’’ and because a trial dominated by statements secured by these means is a mockery. Over time, however, the Court began to focus on more subtle means of coercion. For example, the Court held that denial of food or sleep, incommunicado interrogation, and subtle psychological pressure might make a confession involuntary. It also began to focus on individual characteristics of the suspect. Statements made by suspects who lacked education or sophistication, who were illiterate, or who suffered from mental abnormalities were suspect even when there was no physical coercion.
This expansion of due process protection raised urgent questions as to the purpose the protection was meant to serve. In the early cases, the Court emphasized the unreliability of confessions secured by violence or torture. In later cases, however, the Court began to suggest a vaguer rationale based upon the appropriate limits of state power over the individual, even when the application of such power produced reliable evidence. For example, in Rogers v. Richmond (365 U.S. 534 (1961)), the trial judge found that the police tactics used in the case had no impact on the reliability of the defendant’s statements and told the jury that the confession’s admissibility turned on its trustworthiness. The Supreme Court reversed, holding that the involuntariness question should be resolved ‘‘with complete disregard of whether or not [the suspect] in fact spoke the truth’’ (365 U.S. at 543).
If one’s concern is unreliability, then confessions secured through both brutality and more subtle coercion are suspect. Both techniques have at least the potential to lead innocent defendants to confess. It might follow that both types of confessions should be excluded as evidence because of the possibility that they will taint the verdict. But this rationale runs up against the fact that in many other contexts (most notably eye witness identification or testimony by accomplices), courts regularly depend upon juries to filter out unreliable testimony. Moreover, the rationale fails to explain why the Court has insisted on excluding reliable confessions. For example, a confession might contain extrinsic evidence that could be known only to the perpetrator. When such a confession is secured through brutal methods, its exclusion might be justified on the ground that the law should not encourage or sanction the use of these methods. But this rationale fails to explain the exclusion of reliable confessions, and reliable evidence gained as a result of these confessions, when police utilize trickery or manipulation rather than brutality.
The short of it, then, is that there is no rationale that adequately explains all of the Court’s due process doctrine. Moreover, the voluntariness approach runs into serious philosophical and practical difficulties. On the philosophical level, the Court’s approach requires it to distinguish between cases where the defendant confessed because of an act of ‘‘will’’ and cases where the confession was the product of external forces that ‘‘overbore’’ the will. This distinction poses philosophical problems encountered by any abstract effort to differentiate between freedom and coercion. On the one hand, there is a sense in which all confessions are the product of choice. Even a defendant who is brutally beaten or tortured in the end ‘‘chooses’’ to confess. Indeed, it is the very fact that the statement cannot be secured without the victim’s cooperation that makes torture so dehumanizing. Yet on the other hand, even the most ‘‘free’’ confession is in some sense a product of external forces. After all, a defendant who volunteers a statement to police would not have done so had there been no police to volunteer the statement to.
To be sure, this philosophical conundrum does not prevent us from sharing strong intuitions about polar cases. So long as we are in the world of the whips and electrodes on the one hand and of authentic contrition on the other, most people know where they come out. More serious problems arose, however, as the Court moved from the clear cases to the marginal ones. These difficulties, in turn, created practical problems. Because the Court never succeeded in formulating a coherent and administrable ‘‘test’’ for what police could legitimately do, it left the lower courts with scant guidance for resolving the many cases that the Supreme Court did not have room for on its docket. Perhaps more seriously, the police themselves lacked clear directions that they could rely upon before the fact when they decided what tactics to use against suspects.
Problems such as these ultimately led the Court to shift focus to alternative means of legal control—means that are discussed below. To be sure, as a formal matter, the Court has never abandoned the voluntariness requirement. But although due process protections remain as a theoretical limit on police tactics, the Court has shown much less interest in the voluntariness inquiry in recent years.
In the quarter century following the Miranda decision the Supreme Court reversed only two convictions on voluntariness grounds, whereas there had been twenty-three reversals during the comparable period prior to Miranda. This change might be attributable, at least in part, to improvements in police behavior, but judicial oversight of that behavior has also changed. For example, in Colorado v. Connelly (479 U.S. 157 (1986)), the Court held that personal characteristics of a defendant, including severe mental illness, did not make his statement involuntary in the absence of coercive police activity.
Moreover, even in cases where the police have resorted to various forms of coercive pressure, lower courts often admit the resulting statement after finding that under the ‘‘totality of the circumstances,’’ the defendant’s will was not overborne. These courts have routinely admitted confessions secured through threats of severe punishment, deceptive statements, and promises. They have also upheld the product of interrogations conducted with suspects who were mentally disabled or who were undergoing drug withdrawal or suffering from lack of food or sleep. As Chief Judge Richard Posner of the Seventh Circuit United States Court of Appeals has summarized the current state of the law, ‘‘The [voluntariness] formula is not taken seriously. . . . [V]ery few incriminating statements, custodial or otherwise, are held to be involuntary, though few are the product of a choice that interrogators left completely free’’ (United States v. Rutledge, 900 F.2d 1127, 1129 (7 B Civ. 1990)).
The Right to Counsel Approach
By the mid-1960s, unhappiness with its own voluntariness jurisprudence led the Supreme Court to consider other, more clear-cut and rulelike approaches to the control of putatively improper interrogation techniques. A breakthrough came in 1964, when the Court decided Massiah v. United States (377 U.S. 201 (1964)). Massiah was arrested and, along with one Colson, indicted for possession of narcotics. Unbeknownst to Massiah, Colson thereupon agreed to cooperate with the government and permitted an agent to install a radio transmitter under the front seat of his car. The agent used the transmitter to overhear a lengthy and incriminating conversation between Colson and Massiah. The Supreme Court held that Massiah ‘‘was denied the basic protections of [the Sixth Amendment right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel’’ (377 U.S. at 206).
In some respects, Massiah is a puzzling holding. After all, Massiah had a lawyer at the time of his incriminating conversation. The prosecution had done nothing to prevent Massiah from bringing his lawyer with him when he went to talk with Colson. It was Massiah’s bad judgment, rather than government coercion, that led to his misguided discussion in the absence of counsel. Moreover, it is hard to see how the presence of his lawyer would have made that discussion less problematic. Indeed, eavesdropping on discussions between lawyer and client seems more invasive of Sixth Amendment rights than what actually transpired in Massiah. If the government’s Massiah tactics were indeed offensive, the difficulty seems to lie not in the absence of a lawyer, but in the deceptive use of a confederate to extract incriminating information. Yet the Court has repeatedly held in the Fourth Amendment context that a defendant who talks to a confederate ‘‘assumes the risk’’ that this information will be conveyed to the police.
But although Massiah rested on debatable doctrinal premises, it nonetheless held out the promise of ‘‘solving’’ the confessions problem. If the Sixth Amendment required the presence of counsel even for a conversation between a defendant and his confederate, then surely it required counsel’s presence during a formal police interrogation. And as a practical matter, there was little chance that a suspect would confess with a lawyer sitting at his elbow.
The Supreme Court seemed to be moving in just this direction in Escobedo v. Illinois (378 U.S. 478 (1964)), a case decided a few weeks after Massiah. Unlike Massiah, Escobedo had not yet been formally charged with an offense. He was arrested on suspicion of murder and interrogated in the absence of counsel despite his repeated requests to see his lawyer. Although the facts surrounding his confession could easily have led the Court to find it involuntary under the due process test, the Justices chose instead to focus on the absence of counsel. Even though there had been no formal charge, the Court found that Escobedo had been ‘‘accused’’ because the investigation had focused on him. It followed that he had a right to the presence of a lawyer and that his confession could not be used against him.
When the Supreme Court announced its decision in Miranda v. Arizona (384 U.S. 436 (1966)), some two years after Escobedo, many observers thought that the Court’s newly minted self-incrimination approach would subsume its Massiah-Escobedo right to counsel jurisprudence, much as the Court lost interest in enforcing a due process, voluntariness standard in the postMiranda period. In one important respect, the modern Court has indeed backed away from its earlier Sixth Amendment jurisprudence: subsequent cases have made clear that the Sixth Amendment right to counsel attaches only after adversary criminal proceedings have been formally initiated against the suspect. Despite the Escobedo Court’s clear language to the contrary, the Escobedo opinion has been reinterpreted as resting on self-incrimination rather than Sixth Amendment grounds. This limitation on the Sixth Amendment right is important, because most police interrogations are conducted during the time period between the defendant’s arrest and the filing of formal charges.
In other important respects, however, the Court has actually expanded upon Sixth Amendment protections against statements made in the absence of counsel. For example, in Brewer v. Williams (430 U.S. 387 (1977)), the Supreme Court reversed the conviction of a defendant convicted of murdering a ten-year-old girl on the ground that the defendant’s confession was secured without the presence of counsel. (Williams was subsequently retried without the confession, and the Supreme Court affirmed his resulting conviction.) The murder in question occurred in Des Moines, Iowa, but Williams was arrested and formally charged in Davenport, some 160 miles away. Despite a promise not to interrogate Williams on the trip back to Des Moines, an officer delivered a long monologue designed to appeal to Williams’s guilt and religious sensibility. Although Williams had been warned repeatedly of his right to remain silent, he responded to the speech by leading the officer to the body of the murdered child.
The Supreme Court’s reversal of Williams’s conviction is notable not only for its reaffirmation of Massiah rights in a highly emotional setting, but also for its clarification of the standards for interrogation and waiver in the Sixth Amendment context. Even though the police officer had not directly questioned Williams, the Court nonetheless found that he had been ‘‘interrogated’’ for Massiah purposes because the officer had ‘‘deliberately and designedly set out to elicit information’’ from him (430 U.S. at 399). Since Williams plainly knew that he had a right to remain silent, one might have supposed that he knowingly waived this right when he led the officer to the body. But the Court focused on the fact that the defendant had ‘‘effectively asserted his right to counsel’’ prior to making the statement (430 U.S. at 405). Having claimed this right, Williams was entitled to ‘‘every reasonable presumption against waiver’’ (430 U.S. at 404). In a later case, the Court made this presumption more concrete: once a defendant had been formally charged and had requested counsel, a defendant could waive the right only if the defendant himself initiated a subsequent conversation about the offense.
Chief Justice Warren Burger wrote a bitter dissenting opinion in Williams, but he arguably extended the Massiah doctrine still further in United States v. Henry (447 U.S. 264 (1980)). After Henry had been charged with armed robbery, the government placed an informant in his cell. The informant was told not to initiate conversation with Henry, but to pay attention to anything he might say about the offense. Writing for the majority, Chief Justice Burger held that the government had ‘‘deliberately elicited’’ Henry’s statements in violation of the Massiah doctrine. True, the government had told the informant not to initiate conversations with Henry, but the informant testified that he had had ‘‘some conversations with Mr. Henry’’ and that the incriminatory statements were ‘‘the product of this conversation.’’ Moreover, because Henry did not know that his cellmate was a government agent, he could not have knowingly and voluntarily waived his right to assistance of counsel.
In subsequent cases, the Court has made clear that Henry does not apply in circumstances where a government informant does no more than listen to the suspect and refrains from ‘‘deliberately eliciting’’ the statements. The Court has also held that the police may legally elicit and introduce statements from a charged defendant concerning a different crime for which the defendant has not yet been charged, and that even when a defendant invokes the right to counsel, the invocation does not bar interrogations about other offenses. Moreover, the Court has held, a defendant who receives Miranda warnings and waives his Miranda rights, discussed below, also waives his Sixth Amendment rights.
The Self-Incrimination Approach— Historical Background
In 1966, the Supreme Court decided Miranda v. Arizona (384 U.S. 436 (1966)), one of the most famous decisions in its history. Miranda is best known for the warnings that take its name. As a doctrinal matter, however, the case is most important for shifting the Court’s focus from due process and Sixth Amendment concerns to an analysis resting on compelled self-incrimination. In order to understand how this shift was accomplished, it is necessary briefly to review the history and structure of the self-incrimination guarantee.
Although the concern about selfincrimination can be traced back to Talmudic law and early Christian thinking, the modern privilege developed out of the events preceding the English Civil War in the mid-seventeenth century. Ecclesiastical courts—most notoriously the High Commission and the Star Chamber— utilized an ‘‘oath ex officio’’ in an effort to squelch religious dissent, mostly by Catholics and Puritans. The oath required the suspect to answer all questions truthfully, although the suspect did not know in advance what questions would be asked, and the authorities were not required to have a basis to believe that the suspect was guilty of any particular crime.
According to the standard view, associated with the scholarship of Leonard Levy, these courts were challenged by common law judges, in particular Edward Coke, who relied on the Latin maxim nemo tenetur prodere seipsum (no man is bound to accuse himself). More recent scholarship by Richard Helmholtz and John Langbein has thrown some doubt on this account. Helmholtz argues that objections to the oath officio were grounded in Roman canon law and European ius commune, rather than the English common law. Langbein has argued that the nemo tenetur maxim was in force only in political trials and had no effect on ordinary criminal trials until defense counsel was introduced on a regular basis over a century later.
However this may be, the colonists were surely aware of the English struggle over selfincrimination. It did not follow that they embodied this principle in their own criminal prosecutions, however. On the contrary, Eben Moglen has shown that early American criminal procedure was dominated by an ‘‘accused speaks’’ model. An investigating magistrate interrogated the accused who, without benefit of counsel, often confessed to criminal acts.
To be sure, state bills of rights, adopted in the 1770s and 1780s, often contained a privilege against self-incrimination. For example, section 8 of the Virginia Declaration of Rights, written by George Mason, provided ‘‘that in all capital and criminal prosecutions a man [cannot be] compelled to give evidence against himself.’’ But Moglen argues that these provisions were meant merely to protect existing arrangements against British retrenchment, not to reform them. Accordingly, compelled incrimination before justices of the peace remained the norm.
When the 1787 Constitution was placed before the states for ratification, over half the ratifying states recommended amendments, and four conventions—Virginia, New York, North Carolina, and Rhode Island—recommended inclusion of versions of section 8 of the Virginia Declaration of Rights. After ratification, James Madison, initially an opponent of a bill of rights, introduced such a bill in the House of Representatives. Included in his proposal was a provision stating in part that ‘‘No person . . . shall be compelled to be a witness against himself.’’ John Laurence, a congressman from New York, moved that Madison’s language be changed so as to limit the protection to criminal cases because it was ‘‘a general declaration in some degree contrary to laws passed.’’ There was no opposition to this change, and the self-incrimination provision, as so amended, passed the House of Representatives unanimously. The Senate thereupon passed the provision without making any substantive change. With little debate, the states ratified the provision along with the rest of the Bill of Rights.
There is little evidence, however, that the Amendment had much immediate effect on criminal practice. At the time of its adoption, defendants were not permitted to give sworn testimony in their own defense, so there was little controversy about compulsion to testify. Defendants continued to be brought before magistrates, who placed considerable pressure upon them to cooperate with the prosecution. It was not until the 1820s, with the widespread introduction of defense counsel, that this practice began to die out.
The Self-Incrimination Approach—Miranda
Although much of the history of the selfincrimination clause is contested, one fact is certain: When the provision was adopted, no one supposed that it applied to pretrial police interrogations in a custodial setting. The reason is simple: in late-eighteenth-century America, there were no organized police forces and there were therefore no police interrogations to which the self-incrimination clause could be applied.
Moreover, even when modern policing took hold, there were significant textual obstacles to application of the self-incrimination guarantee in the station house. By its terms, the selfincrimination clause requires two elements to trigger its protection: a defendant in a criminal prosecution must be compelled; and the defendant must be compelled to be a witness against himself. If one reads this language literally, a defendant who confesses in the station house has not been a ‘‘witness against himself’’ because the station house interrogation does not constitute a formal trial with witnesses. The Supreme Court has surmounted this hurdle by reading the clause to apply in circumstances where the defendant’s compelled statements are subsequently introduced against him at a formal trial. Still, even this reading does not get over the compulsion hurdle. Police officers conducting station house interrogation are not ordinarily armed with subpoena power or, indeed, with any means of formal compulsion.
The Miranda Court’s key analytic move was to equate compulsion with custodial interrogation. The Court said in effect that if a defendant was in custody, and if he was interrogated, then he was automatically compelled. And of course, if the defendant had been compelled, then he could not constitutionally be made a witness against himself. It followed that statements that were the product of custodial interrogation had to be excluded at trial.
If the Court had stopped at this point, the result would have been the effective outlawing of custodial interrogation. In the immediate wake of Escobedo, some members of the law enforcement community feared that this was precisely what the Court planned. In fact, however, this fear turned out to be baseless. Indeed, there is a sense in which Miranda facilitated confessions. Instead of the vague and amorphous voluntariness test, which left police guessing as to how they were to proceed, or the effective exclusion of virtually all confessions implied by Escobedo, Miranda provided the police with practical guidelines for making confessions admissible.
The first step was to dissipate the inherent compulsion created by custodial interrogation by administering the famous warnings. The Court insisted that before interrogation began, the suspect must be informed that he had a right to remain silent, that anything said by the suspect could be used against him in court, that he had the right to the presence of counsel during interrogation, and that if the suspect was indigent, a lawyer would be appointed to represent him. These last two warnings were not derived from the Sixth Amendment right to counsel, as the Massiah counsel right had been. Because station house interrogation most frequently occurs before a defendant has been formally charged, Sixth Amendment rights have not yet attached. Instead, in the Court’s view, a person subject to custodial interrogation was entitled to counsel because ‘‘the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege’’ (384 U.S. at 436).
Because it is the product of Fifth Amendment ‘‘compulsion’’ that has not yet been dissipated, any statement made by an unwarned suspect subject to custodial interrogation is automatically inadmissible. Moreover, the Court made clear that even after the defendant has been warned, police are obligated to refrain from interrogation if, at any time, he invokes his rights. On the other hand, once warned, a defendant can also waive his rights. Although a valid waiver cannot be presumed ‘‘simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained’’ (381 U.S. at 475), the Court held that an express statement that the defendant was willing to talk without the presence of counsel might constitute a valid waiver.
At first, Miranda generated tremendous controversy. Critics of the decision raised questions about its constitutional legitimacy. They argued that nothing in the text or history of the selfincrimination clause gave the Court the authority to promulgate a set of warnings, and that there was no warrant for the irrebuttable presumption that all custodial interrogation in the absence of these warnings was compelled. The Court’s defenders responded that constitutional law was full of judge-made glosses on the text designed to give it practical force and that Miranda had to be understood against the backdrop of other, failed attempts to protect self-incrimination rights in the station house.
Whatever the merits of this theoretical argument, the practical effect of the Court’s decision were certainly less devastating than its most vocal critics predicted. Suspects did not suddenly stop confessing. Instead, the decision provided police with a road map that they could and did follow in order to shield confessions from challenge. Officers throughout the country reduced the warnings to a card, which was read to defendants, and reduced the waiver procedure to a checklist, which defendants executed and signed. In theory, these waivers were subject to challenge on the ground that they were not knowing and intelligent; in practice, absent extraordinary circumstances, they were usually sufficient to meet the prosecution’s burden.
Ironically, there is even a sense in which Miranda’s very success has undermined the argument for it. Over time, the warnings have become a fixture in popular culture, repeated endlessly in crime novels and on television police shows. Arguably, the warnings have become so well known as to reduce both the need for them and their effectiveness. Many criminal suspects already know of the warnings, and to many of them, their recitation is bound to seem like legal gobbledygook that must be ritually intoned before the real business of interrogation begins.
The Self-Incrimination Approach— Miranda Doctrine
When the liberal Justices on the Warren Court were replaced by more conservative jurists, many predicted that Miranda would be quickly overruled. The Burger and Rehnquist Courts did cut back on some aspects of the decision but it has not yet been overruled, and in some important respects, its protections have actually been expanded.
Discussion of Miranda doctrine can usefully be organized around two questions: What factors trigger Miranda protection? And what rules govern the use of confessions after Miranda has been triggered?
Unlike Sixth Amendment rights, which are triggered by a formal charge, Miranda protection comes into play whether or not the suspect has been charged, so long as she is interrogated while in custody. With regard to the interrogation requirement, at least one subsequent case has actually expanded on the protection that Miranda first provided. In Rhode Island v. Innis (446 U.S. 291 (1980)), the Court held that Miranda applied not just to express questioning, but also to the ‘‘functional equivalent’’ of express questioning, which the Court defined as ‘‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect (446 U.S. at 301). This test is subtly different from the test for Sixth Amendment purposes, which focuses on whether the police ‘‘deliberately elicited’’ an incriminating response. Although it extends Miranda beyond express questioning, the test has the odd property of permitting the police to use techniques designed to get the defendant to confess so long as they are unlikely to succeed. For example, in Innis, the police appealed to Innis’s fear that a still unrecovered gun might be found and used by an innocent child. Reasoning that the police had asked no direct questions and that there was no reason to suppose that this appeal would be effective, the Court held that Innis’s statements were admissible.
In Illinois v. Perkins (496 U.S. 292 (1990)), the Supreme Court held that even if the interaction is likely to elicit incriminating statements, conversations with undercover agents are not within the purview of Miranda. A comparison with Sixth Amendment doctrine is again instructive. Massiah and Henry make clear that once a defendant has been formally charged with an offense, interaction with an undercover government agent may well violate the right to counsel. In contrast, the Perkins Court reasoned that Miranda was concerned with the risk that the pressure of station house interrogation would ‘‘compel’’ the suspect to speak and that this risk was absent when the suspect was unaware that he was conversing with a government agent.
The second element that triggers Miranda protection is custody. The Miranda Court defined ‘‘custody’’ as interference with a suspect’s ‘‘freedom of action in any significant way.’’ In the years since Miranda, the Court has made plain that a defendant can be in custody even if he is not at the station house. For example, the Court has applied Miranda to individuals under arrest at their home and to prisoners in jail for unrelated offenses. On the other hand, in an important qualification of the Miranda right, the Court held that an individual stopped briefly on the street for investigative purposes is not in custody in the Miranda sense. Moreover, even if the questioning occurs at the station house, the defendant is not necessarily in custody. According to the Court, the relevant question is neither what the police intend, nor what the suspect thinks. Instead, the question is whether a reasonable person would believe that he has the freedom to leave.
Once Miranda has been triggered, the next question is under what circumstances confessions can be utilized. For purposes of analysis, we can distinguish between three situations: cases where the warnings are not administered; cases where the warnings are administered, but the suspect does not expressly assert his rights; and cases where the warnings are administered, but the defendant does assert his rights.
In the first class of cases, the Miranda Court was unequivocal: in the absence of warnings, the suspect’s statements were per se inadmissible. It is with regard to this situation that subsequent cases have cut back most severely on Miranda. Later Courts have fashioned a wide variety of exceptions to Miranda’s per se rule. For example, in cases decided in 1971 and 1975, the Court held that even if a defendant has not been warned of his rights, or has been warned and has asserted his rights, his statements can be used against him in cross-examination to throw doubt on the truth of his testimony if he chooses to take the stand.
Similarly, in New York v. Quarles (467 U.S. 649 (1984)), a case decided in 1984, the Court recognized a ‘‘public safety’’ exception to Miranda. The case arose when a woman told the police that she had just been raped by a man who had entered a supermarket. An officer chased after Quarles in the supermarket and stopped him. A frisk revealed that he was wearing a shoulder holster that was empty. The officer asked Quarles where the gun was, and Quarles responded by nodding in the direction of some empty cartons and saying ‘‘the gun is over there.’’ The Court held that ‘‘the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the privilege against self-incrimination’’ (467 U.S. at 653) and allowed this statement and the gun to be used against the defendant.
The Court has also been generous in permitting the admission of other evidence gained as a result of statements secured in violation of Miranda so long as the Miranda-defective statement itself is excluded. For example, in Michigan v. Tucker (417 U.S. 433 (1974)), the Court held that the testimony of another witness, discovered through a Miranda-defective statement, could be admitted at trial. Similarly, in Oregon v. Elstad (470 U.S. 289 (1985)), the Court held that a suspect’s second confession could be used as evidence, even though it was the product of a first confession that had been secured in violation of Miranda.
Most of these cases have a common structure. The Court has tended to characterize Miranda warnings as ‘‘procedural safeguards’’ that are ‘‘not themselves rights protected by the Constitution but . . . instead measures to insure that the right against compulsory self-incrimination [is] protected.’’ Having removed the mantle of constitutional necessity from Miranda, the Court then typically balances the benefits and costs of exclusion and concludes that the costs outweigh the benefits.
This technique has provided the Court with a means of restricting Miranda’s reach without disowning the decision itself, but it has achieved this objective at the cost of considerable irony. It was, after all, Miranda’s opponents who initially complained that the Court lacked constitutional authority to impose the warnings requirement on the states without a constitutional mandate. In contrast, Miranda’s defenders insisted that the Court could legitimately place a gloss on the Constitution in order to secure self-incrimination rights. Now, critics and defenders seem to have switched places. The Justices who have participated in Miranda retrenchment have argued that the Court can appropriately require the police to obey procedural requirements not directly mandated by the Constitution, while the Justices criticizing retrenchment have insisted that Miranda can only be justified if the warnings are directly required by the Constitution.
In cases where warnings are given and the defendant does not assert his rights, the modern Court has hewed more closely to Miranda’s requirements. Miranda itself provided that the defendant could waive his rights in these circumstances, so long as the waiver was knowing, intelligent, and voluntary. It is fair to say that more recent decisions have not interpreted this requirement generously, but neither have they disowned it. The Court has not required the police to go out of their way to provide more information than contained in the warnings, but neither has it completely forsaken inquiry into the legitimacy of the waiver.
Perhaps surprisingly, in the third class of cases, where the defendant has claimed his rights, the Court has actually gone beyond the Miranda requirements. At first, it appeared that here, too, the Court might cut back. In Michigan v. Mosely (423 U.S. 96 (1975)), the defendant received Miranda warnings and invoked his right to remain silent. Two hours later, a different detective administered the warnings again and asked Mosely about a separate crime. Mosely executed a waiver and made incriminating statements. The Court upheld his resulting conviction, noting that the defendant’s right to cut off questioning about the first offense had been ‘‘scrupulously honored.’’
However, six years later, in Edwards v. Arizona (451 U.S. 477 (1981)), the Court took a very different approach to invocation of the right to counsel. Edwards invoked his right to counsel, and the officers ceased questioning him. The next morning, two different detectives came to see Edwards, informed him of his Miranda rights again, and engaged in a colloquy with him, resulting in Edwards’s confession. The Court reversed Edwards’s conviction. In doing so, it created a new per se rule on top of the Miranda rule: In cases where a suspect invokes his Miranda right to counsel, ‘‘a valid waiver of the right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. [Such a suspect] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police’’ (451 U.S. at 483). Moreover, in Arizona v. Roberson (486 U.S. 675 (1988)), the Court went beyond even the Edwards requirements by applying the rule to a suspect questioned about a unrelated crime by an officer who was unaware of the first invocation of the counsel right. And in Minnick v. Mississippi (498 U.S. 146 (1990)), the Court held that the Edwards rule applied even in a case where the defendant had been allowed to talk to his lawyer prior to police questioning.
The Continuing Controversy
Although Miranda no longer excites the strong emotions that it did in the 1960s, the controversy over its holding has not entirely dissipated. Scholars continue to debate the effect of the decision. For example, Paul Cassell, a strong Miranda opponent comprehensively reviewed empirical data about the decision’s impact. He concluded that approximately 3.8 percent of all criminal cases are lost due to the Miranda rule. Stephen Schulhofer, a strong Miranda defender, reviewed the same data and concluded that the attrition rate was only.78 percent. Even if this empirical disagreement could be settled, it is doubtful that empirics alone can resolve the underlying dispute. Any judgment about whether ‘‘too many’’ convictions are lost because of Miranda will depend upon normative judgments about the investigatory techniques that would have secured those convictions, and no empirical study can settle this disagreement.
There is also a lingering controversy over the legal question. Shortly after Miranda was decided, Congress enacted 18 U.S.C. section 3501, which provides that a confession ‘‘shall be admissible in evidence if it is voluntarily given.’’ For thirty years, this statute remained dormant, with successive Justice Departments declining to invoke it, presumably because of a belief that it was unconstitutional. However, in 1999, the Fourth Circuit Court of Appeals ordered briefing on the effect of the statute. Relying upon language in Miranda itself suggesting that other techniques might displace the warning requirement and on post-Miranda decisions holding that the warnings were not, themselves, constitutionally required, the Court upheld the statute and concluded that it had the effect of ‘‘overruling’’ Miranda. In a 7-2 decision written by Chief Justice Rehnquist, the Supreme Court reversed this judgment and strongly reaffirmed Miranda in Dickerson v. United States, U.S. (2000). Emphasizing that ‘‘Miranda is a constitutional decision,’’ the Court noted that it has become embedded in routine police practice to the point where the warnings have become part of our national culture.’’
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