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The law of interrogation in the United States is largely a product of United States Supreme Court cases interpreting the United States Constitution. Three parts of the Constitution regulate interrogation practices. The most obvious regulation is found in the Fifth Amendment right not to be compelled to incriminate oneself. The United States Supreme Court also found in the Due Process Clause of the Fifth and Fourteenth Amendments a right not to be coerced into confessing. The Court read the Sixth Amendment right to the assistance of counsel to offer protection against interrogation in some circumstances. Each of these rights provides a slightly different protection, but together they seek to ensure that a suspect makes an uncoerced decision about whether to confess and has the assistance of a lawyer when desired.
Due Process Requirement That Confessions Be Voluntary
The Court’s due process analysis initially drew heavily on the English common law. As far back as the late seventeenth century, English judges were skeptical of confessions that were influenced by threats or promises of favor. By 1788, the leading technical treatise of English law reported that the law of confessions refused to admit statements obtained “by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted … for the law will not suffer a prisoner to be made the deluded instrument of his own conviction” (Hawkins 1788). Confessions taken under those conditions were later referred to as “involuntary.” The core notion of “involuntary” follows the English common law, with “flattery of hope” understood as promises of benefit and “impressions of fear” understood to be threats. In the infamous case of Brown v. Mississippi, 1936, for example, the United States Supreme Court held that the Fourteenth Amendment Due Process Clause forbids the use of confessions that are produced by brutal beatings and threats that the torture would continue. The Court held in several cases that threats made the confessions involuntary even where there was no torture. In Payne v. Arkansas, 1958, the chief of police said that he would probably be able to protect the suspect from the mob outside if he told the truth about what happened. In Lynum v. Illinois, 1963, the police told the suspect that she would lose custody of her children if she did not “cooperate” with them. In Arizona v. Fulminante, 1991, a government informant promised to protect the suspect from violent reprisals from other prisoners but only if the suspect told the truth about raping and murdering his stepdaughter.
The Supreme Court also applied the term “involuntary” to confessions that did not include classic examples of threats or promises of benefits. One way to describe the Court’s involuntariness doctrine as it evolved is that it serves “a complex of values .. .; 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” Blackburn v. Alabama, 1961. In its more than 40 involuntary confessions cases, the Court has expressed concern about unreliable confessions, about protecting the will of the suspect, and about morally offensive police conduct.
For example, Ashcraft v. Tennessee, 1944, held that 36 h of nonstop questioning made the defendant’s confession involuntary, even though police made no threats or promises, because the questioning deprived him of the “mental freedom” to decide whether to answer. Townsend v. Sain, 1963, reached the same result under a mental freedom theory when the police gave the suspect a drug that functioned as a form of truth serum. In Spano v. New York, 1959, a combination of factors rendered the confession involuntary. First, the suspect was “emotionally unstable and maladjusted.” Police also repeatedly refused his requests for counsel and told him, falsely, that if he did not confess, his police officer friend might lose his job. The Court held that this combination of factors made the suspect’s confession involuntary, in part because the police conduct was itself outside the law and thus morally offensive. In Malinski v. New York, 1945, the police strip-searched the suspect, gave him a blanket, and interrogated him while he was naked in an effort, the prosecutor said, “to humiliate him.” The Court held the confession involuntary even though the interrogation was relatively brief.
Cases involving threats and promises of favor have traditionally raised issues about the reliability of the confession. Brutal torture, such as was used in Brown v. Mississippi, 1936, is as likely to produce a false confession as a true one. But in 1986, the Court held that the unreliability of a confession, standing alone, is not relevant to whether the Due Process Clause has been violated. Colorado v. Connelly, 1986, held that as long as the confession is not coerced or compelled by state actors, its reliability is completely a matter of state law. DNA evidence has recently made plain that police methods well short of torture can produce false confessions that are used to convict innocent defendants. These DNA exonerations have caused courts to focus on police deception and trickery – for example, lies about evidence – used to obtain confessions. The underlying notion is that if the police make the case against the innocent suspect look hopeless, he might falsely confess to some lesser involvement to escape the most severe punishment.
Police have long relied on deception during interrogation; in the famous case of Miranda v. Arizona, 1966, the Court noted a police strategy in which someone pretending to be an eyewitness would pick the suspect out of a lineup. Other deceptive techniques include fake lie detector results, fake tests that “prove” the suspect had recently fired a gun, lying about the suspect’s fingerprints being at the scene of the crime, and lying about the existence of eyewitnesses. The issue that courts must address in deception cases is whether police techniques, either alone or in conjunction with other high-pressure interrogation strategies, render a subsequent confession involuntary. This might be true because the technique overbore the suspect’s will, was a morally offensive police technique, or created too high a risk that an innocent suspect might confess falsely. American courts have generally permitted the use of confessions obtained by deception, while sometimes condemning the police conduct, on the ground that an innocent suspect would know that the evidence was false and could resist the temptation to confess.
But there are limits beyond which police may not go. A New Jersey Court held that it violated due process to play an audiotape of a fake eyewitness who claimed to have seen the shooting and identified the suspect as the shooter (State v. Patton, N.J. Superior Court, Appellate Division 2003). In Cayward v. Florida, Florida District Court of Appeal, 1989, the police showed the suspect two official reports that “proved” that his semen was found on the rape/murder victim. “One false report was prepared on stationery of the Florida Department of Criminal Law Enforcement; another was prepared on stationery of Life Codes, Inc., a testing organization.” The Florida Court held that the use of manufactured documents crossed the line between permissible and impermissible deception.
As the cases discussed to this point suggest, the voluntariness test was difficult to apply. There are many factors to consider. More fundamentally, the inquiry itself is hopelessly indeterminate. Absent the kind of torture in Brown or overt threats of severe harm, it is not obvious whether a suspect answers police questions because it is his will to answer or because the police have overcome his volition. These difficulties led the Supreme Court, and all the state courts of appeal, to review many state court decisions, each with unique facts.
When 1966 dawned, the Court realized that it needed a confession rule that made the volition inquiry easier and thus could be applied more mechanically than the voluntariness test.
Miranda V. Arizona’s Requirement Of Free Choice
In Miranda, 1966, the Court turned to the Fifth Amendment right not to be compelled to be a witness against oneself, often called the privilege against compelled self-incrimination. While freedom from compulsion seems roughly the same as freedom from forces that produce involuntary confessions, the five-justice majority in Miranda read the privilege to guarantee that suspects who answer police questions have to make a “free choice.” Noting that little is known about what actually goes on in police interrogation rooms, the Court drew from textbook examples of police interrogation strategies, such as lying about the evidence against the suspect and discouraging him from remaining silent or asking for a lawyer. The Court sketched the history of the privilege against compelled self-incrimination, emphasizing its role in protecting the mental freedom to decide whether to cooperate with the State when it is seeking evidence of crime. From all of this, the Court concluded that the atmosphere of custodial police interrogation was inherently compelling. Thus, the Court held that all statements made in response to custodial police interrogation are compelled unless steps are taken to ameliorate the compulsion of the interrogation. Otherwise, the suspect could not make a “free choice” whether to answer police questions.
Though the Court left the door open for the states and Congress to come up with another way to ameliorate the inherent compulsion of police interrogation, it held that in the absence of an equally effective remedy, the Constitution required the famous Miranda warnings. Suspects must be told that that they have a right to remain silent, that anything they say will be used against them in court, that they have a right to counsel, and that if they cannot afford counsel, a lawyer will be appointed at no cost to them. If a suspect answers questions after being told that he has these rights, answering might be his free choice. If so, the voluntariness question would, in a sense, answer itself in a Miranda world.
Most observers thought that Miranda would reduce the incidence of incriminating statements, perhaps drastically. While innocent suspects have an incentive to answer questions and explain why the police have arrested the wrong person, a guilty suspect’s most rational course of action is to exercise the right to silence and to counsel. In the immediate wake of Miranda, some police officials, including the police chief of Los Angeles, accused the Court of trying to “end the use of confessions in convicting criminals” (Baker 1983).
Though the precise effect of Miranda on the confession rate is yet unknown, there is wide spread agreement that at least 80 % of suspects waive their Miranda rights and consent to answer police questions, very often incriminating themselves. Although the Miranda Court said that the State had a “heavy burden” to prove the voluntariness of a Miranda waiver, later cases held that these waivers may be implied (from the actions or the words of the suspect) rather than explicit (North Carolina v. Butler 1979). Moreover, the Court recently held that “a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police” (Berghuis v. Thomkins 2010). When suspects waive Miranda (whether implicitly or explicitly), its protections typically play no role in mitigating the process or outcome of the subsequent interrogation. In almost all cases, the only protection available after Miranda has been waived is the protection against involuntary confessions, the very protection that Miranda was designed to supplement. Once waived, Miranda neither regulates nor restricts psychologically manipulative or deceptive interrogation techniques, hostile or overbearing questioning styles, lengthy interrogation and confinement, or any of the many stressful conditions of modern accusatorial police interrogation. The leading police interrogation manuals continue to encourage some of the very same deceptive practices that were condemned in the Miranda opinion.
It seems likely that suspects who waive Miranda are responding to police pressure but that they also, at some level, may want to talk to police, to tell their side of the story, and to persuade the police that they should be released from custody. David Simon observed the Baltimore Homicide Department for a year. He concluded that every suspect who faces interrogation imagines a “small open window” that is “the escape hatch, the Out” (Simon 1991). Every suspect who “opens his mouth during an interrogation … envisions himself parrying questions with the right combination of alibi and excuse” and then “crawling out the window to go home and sleep in his own bed.” Thus, it seems that suspects waive their Miranda rights at least in part because they often want to talk to police. In most cases, of course, talking to police is a supremely irrational act. As David Simon imagines a detective’s reflections: “[E]ven after all these years working homicides, there is still a small part of him that finds it completely mystifying that anyone utters a single word in a police interrogation.” After all, “what do homicide detectives do for a living? Yeah, you got it, bunk. And what did you do tonight? You murdered someone.”
However irrational it is for guilty suspects to talk to police, waiver is surprisingly easy to obtain. Police can also avoid Miranda protections because they do not apply to a substantial amount of police questioning. The warnings are required only when police engage in custodial interrogation, and police are free to engage in persistent, marathon questioning – for hours on end with no warnings – as long as they do not take the suspect into custody. Police often tell the suspect that he is not under arrest, to create a noncustodial situation, and then suggest that it is in his best interests to cooperate with them. Any reluctance to answer questions can be met with reassurances that he is not under arrest and that police just want to get his side of the story. Technically, the suspect is not in custody in this situation, and police interrogation without warnings is completely legal. In 1977, Justice Marshall urged the Court to expand Miranda to include coercive interrogations where technical custody was absent, arguing that while Miranda was initially limited to custodial interrogation, the “rationale of Miranda … is not so easily cabined” (Oregon v. Mathiason 1977, Marshall, J., dissenting). But by 1977, the Court had settled on a course intended to keep Miranda from interfering with what it viewed as legitimate police interrogation.
In addition to the ease of proving waiver and the limitation of Miranda to custodial interrogation, four doctrines now permit the State to benefit from evidence learned from a violation of Miranda. The Court first created a “public safety” exception that permits police to question without warnings if the officer reasonably believes it is necessary to protect the public safety (New York v. Quarles 1984). There, police arrested a suspect in a supermarket; they expected him to be armed but his shoulder holster was empty. One officer asked where the gun was, and the Court allowed the State to use his answer on the ground that the officer had an obligation to find the gun and protect the public. A later doctrine that ignores police failure to comply with Miranda is that physical evidence found as a result of a Miranda violation can be introduced into evidence (United States v. Patane 2004). Thus, in the supermarket case, the State could have used the gun itself as evidence even without a public safety exception.
Evidence is also admissible despite a violation of Miranda when police succeed in remedying the violation. In most cases, police are permitted to remedy a failure to warn by providing warnings later even if the suspect has already made an incriminating statement. Thus, if the suspect makes an incriminating admission in his parents’ home without warnings and it turns out that this is a violation of Miranda, giving warnings later at the police station will permit a second confession to be admissible (Oregon v. Elstad 1985). Elstad would not apply, however, if the police had intentionally withheld warnings in the hope that the suspect would confess and then repeat the confession after the warnings are given (Missouri v. Seibert 2004).
A fourth area where statements taken in violation of Miranda can still be used is in impeaching the credibility of a defendant who testifies (Harris v. New York 1971). For example, if a defendant testifies that he has never sold narcotics, his statement to police admitting a sale can be introduced to suggest that he is not testifying truthfully, even though the statement was taken in violation of Miranda. The jury will be instructed not to consider the statement as evidence of guilt but only as to the defendant’s credibility. Conventional wisdom is that juries would have a difficult time ignoring an admission of criminal behavior on the issue of guilt. At least a few police departments have advised officers to be willing to violate Miranda because the statements will always be available to impeach the defendant’s testimony, a threat that seems likely to deter defendants from testifying.
In sum, the kind of robust guarantee of a “free choice” to decide whether to answer police questions probably intended by Miranda does not seem to exist. The most frequent loss of Miranda protections is through waiver, which leaves suspects facing police interrogators with nothing to protect them from zealous interrogation beyond the vague due process prohibition of involuntary statements. Moreover, in a Miranda world, the suspect’s agreement to talk to police in effect creates a kind of soft presumption that statements made later in the interrogation must be voluntary. The choice to talk to police was, superficially at least, a free choice. And the suspect was told that he did not have to answer questions. Thus, answering questions an hour, or 2, or 30 h, later seems to be clothed in voluntariness. As Justice Souter noted in 2004: “[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver” (Missouri v. Seibert 2004 (plurality)).
Moreover, there is no right to warnings when the intense questioning takes place in a noncustodial situation. And, finally, even if Miranda is violated, four doctrines permit the State to use statements and physical evidence in any event.
Right To Counsel
Two years prior to Miranda, the Court held in Massiah v. United States (1964) that indicted defendants have a Sixth Amendment right to counsel when government actors are seeking to elicit incriminating statements. Thus, the government violated Massiah’s Sixth Amendment rights when it used an informant to elicit statements from him after he was indicted. Massiah did not know that he was speaking to a government informant and thus there was no issue of waiver of the right to counsel. Waiver first arose in Brewer v. Williams (1978). The Court acknowledged that indicted defendants could waive their Massiah right to counsel but, on the facts of Brewer, the Court held that the state had failed to prove waiver.
The Court did not address how to prove waiver of the Massiah right to counsel until 1988. In Patterson v. Illinois (1988), the Court held that when an indicted defendant waived his Miranda right to counsel, he had simultaneously waived his Massiah right to counsel. This followed, the Court held, even though the two rights have different textual homes – Massiah the Sixth Amendment and Miranda the Fifth Amendment self-incrimination clause – and even though indictment is the beginning of the adversary criminal process. Like Miranda, the vote was 5-4. The dissent argued that the Sixth Amendment right to counsel carries with it duties and responsibilities that go beyond advice about answering questions, but the majority said that the issue was the usefulness of a lawyer in the particular proceeding. In the context of interrogation, Miranda provides the measure of the usefulness of a lawyer.
One issue left undecided by Patterson was whether it matters if a judge has appointed a lawyer during a pretrial, and post-indictment, proceeding before police seek a Miranda waiver. Would a waiver of Miranda also waive Massiah when the indicted defendant is actually represented by counsel? Continuing a string of 5-4 decisions, the Court in Montejo v. Louisiana (2009) held that Miranda continues to provide the measure of a usefulness of a lawyer even if the defendant is formally represented by counsel. Thus, a waiver of Miranda is a waiver of Massiah whether or not the indicted defendant is represented by counsel.
In sum, Massiah provides indicted defendants with a right not to have incriminating statements elicited surreptitiously – the actual facts of the Massiah case – but it is not clear that the Massiah right to counsel adds anything to the Miranda right to counsel when police seek to interrogate indicted defendants.
The law of custodial police interrogation in 2012 begins with Miranda. Suspects who have been indicted also have a Massiah Sixth Amendment right to counsel. But as most suspects waive Miranda, and thus also waive Massiah, the real story continues to be the voluntariness test that has been evolving in Anglo-American law since the late seventeenth century. Nonetheless, Miranda continues to exert an enormous influence on the law of interrogation. Unlike the vague, subjective, and indeterminate due process test, Miranda provides police interrogators an easily administered procedure that is clear and whose outcomes are predictable. Its clarity and predictability are of great benefit to prosecutors and judges. In addition, Miranda has contributed to a civilizing of police behavior generally and to the professionalism of the interrogation process. It also serves symbolic and educational functions. It has increased popular awareness of the right not to answer police questions and of the right to counsel, so much so that the Rehnquist Court in 2000 concluded that Miranda has “become embedded in routine police practice to the point where the warnings have become part of our national culture” (Dickerson v. United States 2000).
- Arizona v. Fulminante, 499 U.S. 279 (1991)
- Ashcraft v. Tennessee, 322 U.S. 143 (1944)
- Baker L (1983) Miranda: crime, law and politics. Atheneum, New York
- Berghuis v. Thompkins, 130 S.Ct. 2250 (2010)
- Blackburn v. Alabama, 361 U.S. 199 (1961)
- Brewer v. Williams, 430 U.S. 387 (1978)
- Brown v. Mississippi, 297 U.S. 278 (1936)
- Colorado v. Connelly, 479 U.S. 157 (1986)
- Dickerson v. United States, 530 U.S. 428 (2000)
- Florida v. Cayward, 552 So.2d 971(Fla. Dist. App. Ct. 1989)
- Harris v. New York, 401 U.S. 422 (1971)
- Hawkins W (1788) A treatise of the pleas of the crown; or, a system of principal matters relating to that subject, digested under proper heads, 6th edn. Eliz. Lynch, Dublin: London
- Lynum v. Illinois, 372 U.S. 528 (1963)
- Malinski v. New York, 324 U.S. 401 (1945)
- Massiah v. New York, 377 U.S. 201 (1964)
- Miranda v. Arizona, 384 U.S. 436 (1966)
- Missouri v. Seibert, 542 U.S. 600 (2004)
- Montejo v. Louisiana, 129 S. Ct. 20179 (2009)
- New York v. Quarles, 467 U.S. 649 (1984)
- North Carolina v. Butler, 441 U.S. 369 (1979)
- Oregon v. Elstad, 470 U.S. 298 (1985)
- Oregon v. Mathiason, 429 U.S. 492 (1977)
- Patterson v. Illinois, 487 U.S. 285 (1988)
- Payne v. Arkansas, 356 U.S. 560 (1958)
- Simon D (1991) Homicide: a year on the killing streets. Houghton Mifflin, Boston
- Spano v. New York, 360 U.S. 315 (1959)
- State v. Patton, 826 A.2d 783, N.J. Super. A. D. (2003)
- Townsend v. Sain, 372 U.S. 293 (1963)
- United States v. Patane, 542 U.S. 630 (2004)