Anyone suffering from themisapprehension that the SupremeCourt’s 1966 decision in
Mirandav. Arizona, 384 U.S.436(1966) had a positiveimpact on reducing false confessions in this country will get a muchneeded dose of reality from the following articles, plus HaroldHall’s story of exoneration after falsely confessing to twomurders that is elsewhere in this issue of Justice:Denied.
Innocent people falsely confess everyday, and it is not due toinadvertent or negligent conduct by police interrogators, but rather,it is attributable to their training. In the March 2004 law reviewarticle exploring false confessions that inspired the article on thefacing page, Professors Steven Drizin and Richard Leo explain thatpolice interrogators are trained in coercive techniques that trigger asuspect to use the logic that confessing to a serious crime is in theperson’s self-interest. However those techniquesdon’t distinguish the innocent from the guilty: Thus with theexpectation of getting a lesser sentence, innocent people can and dorationally deduce - just like people who are guilty - that under thecircumstances of their situation it is better to confess than denyinvolvement with a crime.
Furthermore, the hallowed
Mirandadecision did not impair theapplication of those techniques. That is why there has not been anidentifiable reduction in the rate of confessions - including falseconfessions - since 1966. To the contrary, there is evidence they haveincreased.
Miranda imposed the obligationon the police to inform a person in acustodial setting of his or her rights to remain silent and to consultwith a lawyer prior to their interrogation. After which - in theabsence of a finding that the person was subjected to physical orpsychological torture - a person’s incriminatory admissionswould be considered to have been the result of a “voluntary,knowing and intelligent” waiver of his or her rights.
Miranda’s proceduralrequirement was interposed in place ofthe “voluntariness test” that had previously beenrelied on to determine the admissibility of a challenged confession ona case by case basis. While not perfect, the “voluntarinesstest” examined the totality of an interrogation’scircumstances, whereas a
Mirandahearing is centered on the time asuspect was or was not read his or her rights. Thus
Miranda replaced asubstantive judicial procedure that publicly exposed the intimate andall too often embarrassing (and possibly criminal) details of aninterrogation with a process primarily concerned with determining if abureaucratic procedure was followed prior to the interrogation itself.In hindsight, it was inevitable that
Mirandawould do nothing toprotect people in this country from interrogation techniques -particularly psychological ones - that are proven in theireffectiveness to extract a confession from the innocent as well as theguilty.
There is no fail-safe catch-all method of determining the truthfulnessof a confession or if the person giving it is innocent or guilty.However there are easily implemented procedures that will improve thelikelihood a confession is more veracious. The Supreme Court recognizedin
Miranda that the only waya suspect can effectively be protectedfrom involuntarily waiving his or her right to silence is to consultwith a lawyer about their situation.
Miranda however, was fatallydeficient in its implementation of thatidea. The Supreme Court left it up to a suspect’sinterrogators to inform the person of their rights to silence andcounsel, and that anything the person says can and will be used againsthim or her. Yet it is not in the professional self-interest of policeinterrogators - who are trained to assume all suspects are guilty - tofaithfully respect the letter and spirit of
Miranda, and so theydon’t. Looking at the situation from the perspective of aninterrogator, conscientiously respecting the due process rights of asuspect presumed guilty undermines the likelihood the person will beinduced to begin talking and incriminate him or herself prior toconsulting with a lawyer. Once a
Mirandawaiver is obtained, the legalbar to the admissibility of an innocent suspect’sincriminating statements is effectively removed. So as the article onthe facing page explains, a variety of psychological techniques areemployed by interrogators determined - by hook or by crook - to inducea
Miranda waiver from avulnerable, 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 consultationwith a lawyer. That removes an interrogator or anyone else associatedwith the prosecution from being involved in something - enforcing asuspect’s right to silence and consultation with an attorney- that they not only have no interest in doing, but that they willsabotage if at all possible.
That is not a new idea, nor is the observation that
Miranda was aceremonially important decision that actually made it easier for thepolice to obtain legally admissible incriminating statements. In AreConfessions Really Good For the Soul?, a 1987
Harvard Law Reviewarticle, Charles Ogletree wrote:
AlthoughMiranda warnings may seem adequatefrom the detachedperspective of a trial or appellate courtroom, in the harsh reality ofa police interrogation room they are woefully ineffective. My ownexperience as a public defender has been that many suspects makestatements during the process of police interrogation and are surprisedto learn thereafter that they had a constitutional right to remainsilent or to have an attorney present during questioning. This patternsuggests thatMirandawarnings as currently delivered by the policeare not an effective means of informing suspects both of the existenceand extent of their privilege against self-incrimination and of theirright to consult with counsel before they make any statements.
...
I would propose the adoption, either judicially or legislatively, of aper se rule prohibiting law enforcement authorities from interrogatinga suspect in custody who has not consulted with an attorney. If, afterconferring with counsel, a suspect desires to make a statement, it maybe used against her. Any statements made without the assistance ofcounsel, however, would be inadmissible.” 1
Under
Miranda the federalconstitution theoretically provides theshield of legal counsel to protect an innocent suspect from makingfalse incriminating statements when confronted by police interrogators.However that protection is hollow for a suspect nakedly confronted bypsychologically sophisticated interrogation techniques intended toextract information - but which do not discriminate as to the qualityof that information. Furthermore, wealth and fame provide noprotection from a person’s susceptibility to thosetechniques. Although at this point it is unknown if she is innocent,Martha Stewart is a high-profile example of a convicted person whoseprosecution was dependent on statements investigators induced her tomake while she was unassisted by legal counsel.
False confessions are alive and well in this country, and their use toprosecute an innocent person will continue unabated until there is ablanket absolute evidentiary exclusion of all statements made to aninterrogator by a person directly and immediately unassisted by counsel.
1
AreConfessions 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).