Confession Can Be Good for the Soul--and Community

Ernesto A. Miranda’s 1963 conviction in a Phoenix rape case was simply the product of good police work. His victim, a pathetically shy teen-age girl, was so slow and easily confused that she appeared to be lying even when truthful. But skillful interrogation revealed Miranda as the perpetrator.

As interrogations go, it was mild--lasting but two hours, conducted in mid-day and by just two investigators. There was no hint of force. At the end, Miranda confessed not only to the rape under investigation but also to attempting a second and to trying to rob still a third person. And he identified his rape victim.

Miranda made that identification after he had been led to believe that the girl had already picked him out of a lineup. However, it was not this deception, nor was it the length or the intensity of the interrogation, that caused the U.S. Supreme Court to reverse the conviction three years later. Rather, it was a concern that the police had not told Miranda of his “right to remain silent, that any statement he does make may be used . . . against him, and that he has the right to the presence of an attorney, either retained or appointed.”

That the Phoenix detectives had not informed Miranda of his right to counsel was understandable. Such a right had not yet been discovered in the Constitution. Counsel, it was felt, would eliminate fair as well as unfair questioning by advising the client to be silent.

As to the requirement that the police inform a suspect that he had a right to remain silent and that anything he said could be used against him as evidence in court, scant attention was directed.

Nonetheless, the propriety of making the state responsible for informing the suspect of his rights is not evident. It is not easy to explain why fair play requires the police to warn a suspect of the danger in answering truthfully. Giving the warning is not a neutral act designed merely to place the suspect in an independent position to decide whether to take responsibility for his wrongdoing. A police warning provides information with a purpose. If delivered faithfully, it will encourage the suspect to withhold information or to seek counsel who will encourage him to remain silent.

If condemnation and punishment are appropriate responses to rape and murder, then paternalistic counseling is inappropriate. To expect truthful answers from a suspect is too much to ask; most persons would not perceive or honor an obligation to respond candidly. The government, though, has good reason to make the inquiry.

If the police were to issue a warning that reflected the common understanding of the implications of silence in the face of an accusation, the suspect would be told something like this: “We cannot compel you to answer our questions, but your failure to provide us with information concerning this matter suggests that you may be involved.”

The exercise of the right to silence might not invariably lead to adverse inferences. But in many cases, perhaps most of them, a person could be expected to protest his innocence and give an account of himself rather than stand on his rights. The right that is being asserted, it must be recalled,is the right to withhold incriminating evidence, not all evidence. However unpleasant it may be to testify, a citizen ordinarily is required to do so in the absence of privilege.

Only the person who seeks to deny the state damaging material about himself is protected, and we provide protection not because we admire the person who stands silent, but because we do not want to give the authorities the power to coerce testimony.

From the suspect’s point of view the right to silence has appeal. It fosters self-preservation. But from other perspectives there seems nothing admirable in standing silent in the face of a criminal accusation. The suspect who is told, “We are investigating the murder of your wife. What can you tell us about this matter?” and remains silent is not heroic; he is merely covering up. It is difficult to see just how the stature of the individual gains in dignity and importance by maintaining silence in the face of grave evidence, unless one takes the position that the government was wrong to ask.

The Miranda approach reflects a bias against self-accusation on principle. This bias has roots in the desire to treat suspects equally. Suspects who do not know their rights, or who do not assert them as a consequence of some handicap--poverty, lack of education, emotional instability--should not, it is felt, fare worse than the more accomplished suspects who know and have the capacity to assert their rights.

But guilt is personal. That another, equally guilty, person got away with murder because of some fortuitous factor--he was more experienced in dealing with the police, he had a poorly developed sense of guilt, he had a smart lawyer, he knew his rights--or even because of discrimination does not make the more vulnerable murderer less guilty. To hold otherwise is to confuse justice with equality. Both are desirable. However, neither can replace the other.

Confession, however, is more than an individual matter. Confession is also an act with consequences for the community. This is more than just another way of asserting that there is a societal interest in the identification and reformation of criminal offenders, or that the unrepentant wrongdoer poses a continuing danger to the community. The principal value of confession may lie elsewhere, in its implicit reaffirmation of the moral order. The offender by his confession acknowledges that he, not the community, is to blame. By presenting himself as a victim of his own errors, his own weaknesses, as an ordinary man who has gone astray and is anxious to make amends, he reassures us. His confession is of value not because it illuminates the dark corners of an alien mind but, conversely, because it confirms the existence of a shared ethical view, a common human nature, a capacity to reiterate the basic distinctions between good and evil.

This is so even when the forum is the police stationhouse, and the community representatives are uniformed officers and the confession, far from being volunteered, comes into being only after insistent encouragement.