When the Supreme Court announced plans last week to hear a case that will put the landmark Miranda decision to the test, it was seen as a triumph for law-and-order advocates who believe "the right to remain silent" handcuffs the police. But I thought about how some of my students will react. In the seven years that I've been teaching a criminal procedure course, many of those students have been contradicting the conventional wisdom: They believe that Miranda warnings--the rights that the police are required to recite to suspects before interrogating them--have actually been helping the police more than the suspects they were supposed to protect. And I'm inclined to think my students are right.
Since the Supreme Court's 1966 ruling in Miranda v. Arizona, these warnings have become the most visible symbol of the so-called criminal procedure "revolution" led by a liberal federal judiciary under Chief Justice Earl Warren. By now, they are also a staple of popular culture. People who watch TV cop shows (as most of my students do) can rattle off Miranda almost as fast as they can recite the Pledge of Allegiance: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to consult with a lawyer and to have the lawyer present with you during questioning. If you cannot afford a lawyer, one will be appointed for you."
But when my students start examining the practical impact of this mantra, they conclude the boilerplate language actually frees officers to proceed with their interrogations with little additional concern about suspects' Fifth Amendment rights to protect themselves against compelled self-incrimination.
It was a series of legal and historical quirks that suddenly made Miranda the subject of renewed scrutiny. The Supreme Court will revisit the constitutional status of the warnings because the U.S. Court of Appeals for the 4th Circuit in Richmond recently upheld a long-ignored federal statute that purported to nullify them. Passed by Congress in 1968, this statute attempted to replace the mandatory warnings with a more general inquiry into whether a particular suspect made his or her confession voluntarily. The Justice Department refused to rely on that statute in court, presumably because its lawyers know that Congress lacks the power to overrule constitutional decisions. In the Virginia case, though, conservative lawyers filed a friend-of-the-court brief urging the appeals court to go ahead and apply the statute in this case. The court did so and, in a 2-to-1 ruling, held that the statute had overturned Miranda.
Controversy has always dogged Miranda. Some of the debate has been over the questions that the Supreme Court will decide next year: Are the warnings really required by the Fifth Amendment? If so, by what theory and according to what mode of constitutional interpretation? Those are important questions about the scope of the federal courts' authority over local police practices. It is time for the justices to answer them directly. But the Miranda debate also involves other challenging questions about what some lawyers like to call matters of "policy," rather than of law, such as: Is the warning system a bad or good way to regulate the interrogation process? These questions demand our close attention, too.
Make no mistake about it: Even where the police avoid violence and other brutal practices, custodial interrogation is highly coercive. The point of it is to persuade guilty people to inculpate themselves so we can punish them.
Not surprisingly, most criminals want to avoid this, and interrogators have developed a variety of psychological strategies to overcome their reluctance to talk. For example, officers frequently advise suspects that they have conclusive evidence of their guilt--eyewitness identifications, confessions from alleged accomplices, fingerprints and other physical evidence--when, in fact, they have no such evidence at all. Officers often also imply, if not assert directly, that the prosecutor or judge will give suspects a break if they come clean, when in fact the confessions may well aggravate, rather than mitigate, the suspects' sentences.
With its Miranda decision, the court was reacting to the concern that those strategies trade on the weaknesses of the weakest suspects--those who are young, poor and uneducated. The court thus put in place a minimal precaution: Each suspect must be told that he or she does not have to cooperate with the interrogators. And the court gave the police an incentive to comply with the new regime: Unwarned statements may not be used in the prosecution's case against the suspect.
The reactions to Miranda were highly charged politically. One line of thinking was that, upon hearing the warnings, many suspects would refuse to talk. The police would lose those confessions, and they also would be deprived of the chance to use unwarned statements in court. The supposed upshot? Some offenders would go free unless the police could uncover sufficient evidence apart from the admissions of guilt. Depending on your perspective, this prospect was a bad or a good thing. Conservatives largely thought that the warnings would hamper the police--which is bad. The standard liberal viewpoint was that the warnings were properly sensitive to fragile constitutional rights--which is good. The one thing that the left and right did agree upon was that the decision was going to transform interrogation practices.
But, as my students remark, Miranda has done no such thing. Far from handcuffing the police, the decision has allowed the interrogation business to proceed as usual, practically free from judicial oversight. Sure, the police have to give the warnings, but reciting those four sentences is a piece of cake. And once the interrogators have given the warnings, the cops are home free. No, they cannot resort to physical violence. But they do get to go ahead and use the very psychological strategies to persuade suspects to talk that the Miranda ruling cited as evidence of potential police overreaching.
Here's why: Despite the fact that defense attorneys will jump on the possibility that Miranda has not been properly administered, trial courts almost always credit a police officer's testimony that it was. (Remember, the warnings are very easy to give.) Then, the judge typically reasons that the warnings dispelled the pressure on the suspect to talk. True, the questioning might have been heavy-handed, but the suspect had been advised of his rights, and he could have told the police to cut it out.
From the perspective of anyone who remains interested in suspects' rights, Miranda seems to be all but a bust. Who invokes their right to remain silent or, especially, their right to counsel? The usual suspects: the hardened criminals, the ones who have been through the system many times before or who come into it well-heeled and well-counseled. These offenders don't need the warnings to understand their rights, and they are quick to assert them. For all the rest, Miranda amounts to little more than red tape, just another part of the ritual of putting on the handcuffs and making the trip to the station. Maybe these suspects don't listen when the officer recites Miranda's familiar words, or they don't believe the police will honor them, or they simply don't understand what they hear. For whatever reason, Miranda does little, if anything, to protect the most vulnerable suspects.
My students aren't the only ones who think Miranda has not been much of a burden for interrogators. If you have the opportunity to ride with the police, as I sometimes do, go ahead and ask them which Supreme Court decisions are bad. I doubt any of them will complain much, if at all, about Miranda. Why should they? From the law enforcement perspective, Miranda is a good, even great, success story: Just recite the magic warnings, and confessions are almost automatically admissible as evidence. In that light, law-and-order conservatives should be content to leave Miranda alone. It's the liberals who should be pushing to replace it.
Anne Coughlin is a professor at the University of Virginia School of Law.