Of all the Warren Court decisions expanding the rights of the accused, none earned more enmity over the years than Miranda v. Arizona, the 1966 ruling which required police to give a four-part warning to suspects before interrogation.  Prosecutors, police, and conservative commentators predicted that the decision would be devastating to law enforcement, given that about 40% of crimes are solved through confessions.   

So now I sit here, looking back on 34 years of practice of criminal law, and wonder why the hell so many of my clients wouldn’t shut up.  And my experience isn’t atypical; studies have shown that over three-quarters of suspects waive their Miranda rights.  What happened?

Those of the liberal persuasion would argue that Miranda has been undercut by the Court itself in its subsequent decisions on the scope of Miranda.  Additional fodder for that theory was provided by two more decisions last week.

While Miranda spelled out the basic nature of the warnings that had to be given, questions as to the exact required wording have frequently arisen.  Last week, in Florida v. Powell, at issue was the warning given by the Tampa Police:  it cautions a suspect that he has a right to “talk to a lawyer before answering any of our questions,” and the Florida Supreme Court held that this may lead suspects to believe that they can’t talk to a lawyer once questioning begins, or that they can’t have the lawyer present during questioning.

The Court’s never been particularly demanding as to the precise warning (at one point requiring “Miranda warnings. . . or their equivalent), and previous cases have seemed to offer more questionable phrasing:  in Duckworth v. Eagan, the warning advised that the suspect had a right to appointed counsel “if indigent,” but informed him the lawyer would be appointed “if and when you go to court.”  Given that the warning in Duckworth passed muster, that the Court would find the warning in Powell sufficient is hardly surprising, and that’s exactly what they did.

Maryland v. Schatzer, the other case decided last week, offered a more substantial issue.  While incarcerated in 2003, Shatzer had been questioned about allegations he’d sexually abused his son, and had invoked his Miranda rights.  Three years later, while Schatzer was still in prison, another detective came and interviewed him on the same subject, and, after being readvised of his Miranda rights, this time Schatzer talked.

In 1981, the Court ruled in Edwards v. Arizona that once a suspect invoked his Miranda rights, the police couldn’t resume questioning unless the suspect re-initiated contact.  That decision was compelled, the Court wrote then, by the prospect of police repeatedly badgering a suspect until he finally agrees to talk.  But the lower courts had held that a break in custody ends the Edwards  presumption, and the Court unanimously agreed.  In future cases, the Court also held, a break of 14 days or more would be sufficient to overcome the Edwards presumption.

I find it difficult to get worked up about either decision.  Only Stevens dissented in Powell  (Breyer joined in his dissent only on the point that the Florida court’s decision rested on an independent state ground, and thus the Court shouldn’t have ruled on it at all), and the result in Schatzer was unanimous.  The Florida court’s reasoning on how Powell might have been misled by the warnings was severely strained, and given the officers’ compliance with Miranda in Schatzer – he was given the warnings on each occasion — it seems unlikely that Schatzer felt “badgered” into giving up his rights by the appearance of a police officer almost three years after the last one had left.

To be sure, previous decisions of the Court have narrowed Miranda, but that still doesn’t explain why the vast majority of suspects talk.  I think the greater problem may be that Miranda is based on assumptions which don’t work in the real world.  To a large degree, Miranda buys into the “rational suspect” theory:  that one who is informed that talking the police can get him into trouble will prefer not to do so.  Once he is informed that he has the choice not to, he will opt for keeping silent.

The problem is that, in my experience, suspects do not rationally process this.  Inside of every criminal is a con man.  When I talk to my clients who’ve made confessions, or read over the transcripts of interrogations in my cases or in appellate opinions, the same pattern invariably emerges:  the interview very obviously begins with the suspect believing that he can talk his way out of trouble.  He’s spent so much time lying to others — his victims, his family, and often himself — that he thinks he’s really good at it, and it can get him by one more time.

If Miranda’s only failing was that it didn’t dissuade guilty people from talking, there wouldn’t be an issue.  The bigger problem is that it doesn’t discourage innocent people from talking, either, and that results in false confessions.  (Studies of DNA exonerations show that, in about 20% of the cases, there was also a confession. perhaps the most notable was in the Central Park Jogger case, in which five young men were sent to prison for brutally beating a woman, their verdicts seemingly confirmed by confessions, their claims that the confessions were coerced in turn confirmed by DNA evidence which showed the real assailant acted alone.)  The Miranda warnings rarely register for such a person.  Why would you be worried that anything you say could be held against you if you didn’t do anything?

The ultimate problem is that Miranda skirts the true issue — the voluntariness of a confession — by substituting a procedure:  as long as the warnings are given, what ensues is largely immaterial.

There is growing recognition that warnings aren’t sufficient in light of increasingly sophisticated police interrogation techniques.  Several states and localities have adopted a requirement that such interrogations be audiotaped or videotaped; there’s presently a proposal in the Ohio legislature to adopt that rule for “major” felony cases.  Only one cautionary note:  the “confessions” in the Central Park jogger case were videotaped.