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Right Should Remain Silent

Don't end "Miranda." Mend it.

This week, Paul Cassell, a conservative law professor from the University of Utah, asked the Supreme Court to overturn its most famous criminal- procedure decision, Miranda v. Arizona. But, while the campaign against Miranda comes from the right, the most powerful criticisms of the decision come from the left. It has long been obvious that the system Miranda enshrined protects the most sophisticated suspects, who need it least, and does little to stop police from using psychological pressure, lies, and trickery to elicit confessions from less sophisticated suspects. Nevertheless, the Court should decline the invitation to overturn Miranda. The Fifth Amendment to the Constitution doesn't protect suspects from being pressured to confess by trickery and deception, but it does protect them from being coerced to confess because of the mistaken belief that they have no right to remain silent. And, by failing to inform suspects of this right, the 1968 law that Cassell is urging on the Court instead of Miranda fails to meet the minimal requirements of the Constitution.

As Peter Brooks notes in his new book, Troubling Confessions, ever since the Fourth Lateran Council of 1215 imposed on the faithful an annual duty to confess, confessions have triggered absolution by the church, not punishment by the state. The exception, however, was inquisitions into heretical beliefs or thought crimes. And these star-chamber investigations--in which suspects were forced to take an oath promising to answer any question that might be put to them about their most intimate thoughts and beliefs--were precisely what the Fifth Amendment was designed to prohibit. In an age that took oaths seriously, it was considered moral torture to confront a suspected heretic with the choice between self-incrimination if he confessed his private thoughts, punishment for contempt if he refused to answer, and eternal damnation if he confessed falsely and committed perjury.

As a result, in America, criminal suspects in police custody are not interrogated under oath. And, although the federal government, like many states, has laws on the books forbidding lying, even while not under oath, to investigating officials, these laws are rarely enforced. Nevertheless, in light of what Chief Justice Warren in Miranda called the "inherent pressures of the interrogation atmosphere," some suspects may mistakenly believe that the police will punish them if they refuse to talk--by keeping them incommunicado until they confess or by resorting to the third-degree methods that, as any fan of The Untouchables will recall, were once common.

Miranda sought to alleviate this particular pressure by requiring that all suspects be told they have the right to remain silent. It was Warren's hope that the warning would ensure that suspects who waive their right to silence make this choice, to use his words in Miranda, "knowingly, voluntarily, and intelligently." But, in subsequent cases, the Court abandoned this expansive interpretation of the right not to incriminate oneself. Rather than a right not to be duped into confessing, the Court came to see the Fifth Amendment as a right not to be compelled to confess. Thus, after reciting the warnings, interrogators are free to use whatever psychological pressures they please to fool suspects into waiving their rights. This can range from informing a suspect, correctly, that the court will treat him more leniently if he pleads guilty, to lying to a suspect by saying, for example, that a co-conspirator has turned against him. Either way, under Miranda, a suspect who confesses after being warned is presumed to have confessed voluntarily, even if he has confessed against his interest as a result of his own foolishness or the police's deception. This is why many police prefer Miranda to real oversight of their secret interrogations, such as videotaping.

Miranda has not proved a major hindrance to police interrogators. Between 80 and 90 percent of all suspects waive their Miranda rights, and more than 90 percent of all felony convictions in America result from guilty pleas, either by confession or plea bargain. In short, Miranda has failed to achieve its original goal--allowing suspects to protect themselves against coercive police interrogation by cutting off questioning after it has started. As William Stuntz of the University of Virginia has shown, suspects almost never stop talking once they have begun.

In fact, the practical effects of Miranda stem not from its first set of warnings--"You have the right to remain silent. Anything you say can and will be used against you in a court of law"--but from subsequent interpretations of its second set: "You have the right to consult with a lawyer... If you cannot afford a lawyer, one will be appointed for you." In the case of Edwards v. Arizona, decided in 1981, the Supreme Court ruled that when a suspect says the magic words--"I want a lawyer"--interrogation must stop and cannot resume unless the suspect initiates the conversation. As a result, the first lesson that students of criminal procedure learn is that if you're suspected of a crime, whether you're innocent or guilty, you should resist the impulse to tell your side of the story and instead call Alan Dershowitz immediately. Sophisticated white-collar suspects--who make up a large proportion of federal criminal defendants--know this; whether or not they are read their rights, savvy suspects will demand a lawyer and say no more. But, as Stuntz argues, these suspects are not protecting themselves against police coercion; they are manipulating the system to their own advantage.

In the case now before the Supreme Court, Dickerson v. United States, Paul Cassell has resurrected a law that Congress passed in 1968 to overturn Miranda but that has been ignored for more than three decades because Republicans and Democrats questioned its constitutionality. In Miranda, Chief Justice Warren stressed that although the precise words of the Miranda warnings aren't constitutionally required, some form of warning is. Congress and the states are free to develop other safeguards against self- incrimination, Warren held, as long as these alternatives are "fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it." Because the alternative Congress passed in 1968 contains no requirement that suspects be notified of their right of silence, the Supreme Court can't uphold it without overruling Miranda.

But should Miranda, with all its problems, be overruled? The 1968 statute would return the law to its pre-Miranda state--by making the "voluntariness" of a confession the test of its admissibility. Voluntariness is to be judged by a series of amorphous factors, including whether or not the Miranda warnings were given. But voluntariness is a difficult standard for judges to apply, because, as courts discovered in the years leading up to Miranda, no one can agree on what it means to confess voluntarily. In an opinion written five years before Miranda, Justice Felix Frankfurter struggled to distinguish confessions "naturally born of remorse" from those produced by "an overborne will," in which "the suction process" has drained the prisoner's "capacity for freedom of choice." But Frankfurter's high standard--that confessions must be "the product of an essentially free and unconstrained choice"--proved notoriously hard to apply. Except in the rare case of a suspect who walks into the police station and confesses because he wants to expunge his guilt, confessions are always produced under circumstances designed to constrain a suspect's free choice and to induce him into acting against his best interests by speaking instead of hiring a lawyer to speak for him.

As a practical matter, Frankfurter and other judges disagreed about how much pressure was undue pressure, because it was so hard to balance the relevant factors that might constrain rational choice, including the age and mental ability of the suspect, the length of the investigation, the aggressiveness of the police duplicity, and so forth. For this reason, Justice Hugo Black, at the Miranda oral argument, announced, "If you are going to determine the admissibility of a confession each time on the circumstances ... if the Court will take them one by one ... it is more than we are capable of doing."

Miranda deftly short-circuited the legal, philosophical, and psychological debates about voluntariness, and this should weigh heavily on the swing Supreme Court justices, Sandra Day O'Connor and Anthony Kennedy, who appear uncertain about whether or not to overturn it. In Casey v. Planned Parenthood in 1992, O'Connor and Kennedy announced that they would uphold the core of Roe v. Wade, even though they may have disagreed with it when it was first decided, because Americans had come to rely on the right recognized in Roe, and nothing about the right had become unworkable in light of subsequent changes in society. In Miranda, the case for adherence to precedent is even stronger: thanks to television, there is no other right that has generated such widespread expectations. Thus, overturning Miranda would provoke chaos and confusion, as states struggled to adopt a host of inconsistent standards and judges struggled to apply them.

This doesn't mean, however, that Miranda is the best or the only way of regulating custodial interrogation. If the Supreme Court upholds it, Congress and the states could consider more effective ways of balancing the needs of the police against the rights of suspects. Any constitutionally permissible alternative would have to inform suspects that they have the right to remain silent. But it might not have to include the second and more significant part of the Miranda warnings: informing suspects they have the right to have a lawyer present during interrogation. Indeed, as Stuntz suggests, Congress and the states might plausibly pass laws giving police the right to interrogate a suspect without a lawyer for a reasonable period of time--say, twelve hours. If a suspect asked for counsel, the interrogation wouldn't automatically cease, as it does under current law, although repeated requests for counsel might have to be respected. To regulate and deter overbearing police conduct, the entire interrogation could be videotaped.

A compromise like this might come close to satisfying Miranda's critics. In his Supreme Court brief, Cassell has chosen not to emphasize his original (and hotly disputed) claim that after Miranda, the nationwide confession rate fell by about 16 percentage points; now Cassell argues that even if Miranda were overturned, the police would and should continue giving Miranda warnings anyway, just to be safe. The real benefit of overturning Miranda, Cassell claims, would be to allow police more leeway to question suspects without lawyers. But Congress and the states may have this power anyway, even if the Supreme Court reaffirms the core of Miranda.

A system in which police could question suspects without lawyers would, of course, bring us even further from the ideal that Warren embraced--namely, that the decision to confess should be made "voluntarily, knowingly, and intelligently." The only way of achieving that ideal would be to put a Dershowitz in every interrogation room. But as long as our legal system, like our culture, continues to rely on public confessions, perhaps we should inform suspects of their right to silence in a way that gives police more discretion, not less, in pressuring suspects to act against their own best interests. After all, as Peter Brooks notes, "It may be that the only true confessions are involuntary."