Anyone suffering from the
misapprehension that the Supreme
Court’s 1966 decision in
Miranda
v. Arizona, 384 U.S.
436
(1966) had a positive
impact on reducing false confessions in this country will get a much
needed dose of reality from the following articles, plus Harold
Hall’s story of exoneration after falsely confessing to two
murders that is elsewhere in this issue of Justice:Denied.
Innocent people falsely confess everyday, and it is not due to
inadvertent or negligent conduct by police interrogators, but rather,
it is attributable to their training. In the March 2004 law review
article exploring false confessions that inspired the article on the
facing page, Professors Steven Drizin and Richard Leo explain that
police interrogators are trained in coercive techniques that trigger a
suspect to use the logic that confessing to a serious crime is in the
person’s self-interest. However those techniques
don’t distinguish the innocent from the guilty: Thus with the
expectation of getting a lesser sentence, innocent people can and do
rationally deduce - just like people who are guilty - that under the
circumstances of their situation it is better to confess than deny
involvement with a crime.
Furthermore, the hallowed
Miranda
decision did not impair the
application of those techniques. That is why there has not been an
identifiable reduction in the rate of confessions - including false
confessions - since 1966. To the contrary, there is evidence they have
increased.
Miranda imposed the obligation
on the police to inform a person in a
custodial setting of his or her rights to remain silent and to consult
with a lawyer prior to their interrogation. After which - in the
absence of a finding that the person was subjected to physical or
psychological torture - a person’s incriminatory admissions
would be considered to have been the result of a “voluntary,
knowing and intelligent” waiver of his or her rights.
Miranda’s procedural
requirement was interposed in place of
the “voluntariness test” that had previously been
relied on to determine the admissibility of a challenged confession on
a case by case basis. While not perfect, the “voluntariness
test” examined the totality of an interrogation’s
circumstances, whereas a
Miranda
hearing is centered on the time a
suspect was or was not read his or her rights. Thus
Miranda replaced a
substantive judicial procedure that publicly exposed the intimate and
all too often embarrassing (and possibly criminal) details of an
interrogation with a process primarily concerned with determining if a
bureaucratic procedure was followed prior to the interrogation itself.
In hindsight, it was inevitable that
Miranda
would do nothing to
protect people in this country from interrogation techniques -
particularly psychological ones - that are proven in their
effectiveness to extract a confession from the innocent as well as the
guilty.
There is no fail-safe catch-all method of determining the truthfulness
of a confession or if the person giving it is innocent or guilty.
However there are easily implemented procedures that will improve the
likelihood a confession is more veracious. The Supreme Court recognized
in
Miranda that the only way
a suspect can effectively be protected
from involuntarily waiving his or her right to silence is to consult
with a lawyer about their situation.
Miranda however, was fatally
deficient in its implementation of that
idea. The Supreme Court left it up to a suspect’s
interrogators to inform the person of their rights to silence and
counsel, and that anything the person says can and will be used against
him or her. Yet it is not in the professional self-interest of police
interrogators - who are trained to assume all suspects are guilty - to
faithfully respect the letter and spirit of
Miranda, and so they
don’t. Looking at the situation from the perspective of an
interrogator, conscientiously respecting the due process rights of a
suspect presumed guilty undermines the likelihood the person will be
induced to begin talking and incriminate him or herself prior to
consulting with a lawyer. Once a
Miranda
waiver is obtained, the legal
bar to the admissibility of an innocent suspect’s
incriminating statements is effectively removed. So as the article on
the facing page explains, a variety of psychological techniques are
employed by interrogators determined - by hook or by crook - to induce
a
Miranda waiver from a
vulnerable, and all too often innocent suspect.
However the solution to correct that situation is deceptively simple:
prohibit any interrogation of a suspect prior to their consultation
with a lawyer. That removes an interrogator or anyone else associated
with the prosecution from being involved in something - enforcing a
suspect’s right to silence and consultation with an attorney
- that they not only have no interest in doing, but that they will
sabotage if at all possible.
That is not a new idea, nor is the observation that
Miranda was a
ceremonially important decision that actually made it easier for the
police to obtain legally admissible incriminating statements. In Are
Confessions Really Good For the Soul?, a 1987
Harvard Law Review
article, Charles Ogletree wrote:
Although Miranda warnings may seem adequate
from the detached
perspective of a trial or appellate courtroom, in the harsh reality of
a police interrogation room they are woefully ineffective. My own
experience as a public defender has been that many suspects make
statements during the process of police interrogation and are surprised
to learn thereafter that they had a constitutional right to remain
silent or to have an attorney present during questioning. This pattern
suggests that Miranda
warnings as currently delivered by the police
are not an effective means of informing suspects both of the existence
and extent of their privilege against self-incrimination and of their
right to consult with counsel before they make any statements.
...
I would propose the adoption, either judicially or legislatively, of a
per se rule prohibiting law enforcement authorities from interrogating
a suspect in custody who has not consulted with an attorney. If, after
conferring with counsel, a suspect desires to make a statement, it may
be used against her. Any statements made without the assistance of
counsel, however, would be inadmissible.” 1
Under
Miranda the federal
constitution theoretically provides the
shield of legal counsel to protect an innocent suspect from making
false incriminating statements when confronted by police interrogators.
However that protection is hollow for a suspect nakedly confronted by
psychologically sophisticated interrogation techniques intended to
extract information - but which do not discriminate as to the quality
of that information. Furthermore, wealth and fame provide no
protection from a person’s susceptibility to those
techniques. Although at this point it is unknown if she is innocent,
Martha Stewart is a high-profile example of a convicted person whose
prosecution was dependent on statements investigators induced her to
make while she was unassisted by legal counsel.
False confessions are alive and well in this country, and their use to
prosecute an innocent person will continue unabated until there is a
blanket absolute evidentiary exclusion of all statements made to an
interrogator by a person directly and immediately unassisted by counsel.
1
Are
Confessions Really Good For the Soul?: A Proposal To Mirandize Miranda,
Charles J. Ogletree, 100
Harvard L.
Rev.
1826 (1987), at 1827-1828, 1830 (emphasis added).