Thirty Years After Miranda Ruling, Suspects Still Talk

Fuming over the crime and violence that seem to pervade their lives, and convinced something must be terribly wrong with the legal system, many Americans have grown disenchanted with key provisions of the Bill of Rights--especially the 4th Amendment’s protection against unreasonable search and seizure. Evidence of the public’s impatience with the rights of criminal suspects came to a head in February, when U.S. District Court Judge Harold Baer Jr. of New York excluded as evidence some 80 pounds of cocaine and heroin found in a car trunk. The reason? According to Baer, the police had failed to comply with the 4th Amendment. Millions of American were incredulous.

The case became a symbol of all that is wrong with U.S. criminal justice. Politicians know where the votes are and almost tripped over each other in their rush to condemn Baer for being “too soft on crime.” Talk-show hosts, columnists and editorial writers joined in the frenzy of recriminations. A few months later, Baer reversed himself.

Such public anger is all too familiar to those who remember the shock and dismay that initially greeted Miranda vs. Arizona. That ruling, whose 30th anniversary is Thursday, has recently received little public criticism. Yet, at one time, many considered it the red flag of Warren court liberalism. Then-presidential candidate Richard M. Nixon made the case, and the court that decided it, major issues in the 1968 campaign.

Until Miranda was decided, the privilege against compelled self-incrimination applied only to judicial or other formal proceedings. Miranda extended it to the informal compulsion exerted by police when they subject suspects to “in-custody questioning” and held that such a setting was inherently coercive. Thus, unless the now familiar warnings were used to dispel such compulsion, no statement obtained could be considered the product of a free choice.

Few press accounts of Miranda failed to quote from Justice Byron R. White’s angry dissent, in which he asserted: “The rule announced today will measurably weaken the ability of the criminal law to perform its tasks . . . . In some unknown number of cases, the court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”

Twenty years later, however, in Moran vs. Burbine, White, by then the only remaining Miranda dissenter on the court, joined a majority opinion by Justice Sandra Day O’Connor describing Miranda as a decision that “rather than proceeding from the premise that the rights and needs of the defendant are paramount to all others, embodies a carefully crafted balance designed to fully protect both the defendant’s and society’s interests.” More recently, in 1993, Justice David Souter observed for a majority that in the years since the ruling, “law enforcement has grown in constitutional as well as technological sophistication, and there is little reason to believe that the police today are unable, or even generally unwilling, to satisfy Miranda’s requirements.”

What accounts for this dramatic shift?

For one thing, the Miranda dissenters, and many law-enforcement officials as well, greatly exaggerated the meaning, scope and impact of the ruling.

For example, in the first few years after the decision, many erroneously believed--and some probably still do--that a suspect must be given Miranda warnings immediately upon arrest or before being transported to the station house. But “custody” alone does not require the warnings. It is the impact on the suspect of the interplay between interrogation and custody--each condition reinforcing the pressures produced by the other--that, as the Miranda court realized, makes “custodial police interrogation” so coercive. Thus, as long as they do not question a suspect who has been arrested or taken to the station house, Miranda permits the police to hear and act on “blurted out” or “volunteered” statements. It does not matter that the “volunteer” neither knew nor was advised of his rights.

Miranda also allows the police to conduct “general on-the-scene questioning,” though the person questioned is not informed of his rights. As long as they do not restrict the occupant’s freedom to end the meeting, Miranda allows the police to question someone in his home or office without advising him of his rights.

On the eve of Miranda, many doubted that law enforcement could survive if the court injected defense counsel into the police station. But the Miranda court did so only in a limited way. Miranda’s major weakness (or, depending on your viewpoint, Miranda’s saving grace) is it does not require that a suspect first consult with a lawyer, or actually have a lawyer present, in order for his waiver of constitutional rights to be effective.

For another thing, the disaster prophesied by White never materialized. The great weight of empirical evidence reveals that Miranda’s impact on the police’s ability to obtain convictions has been negligible. In 1988, for example, after extensive hearings and a survey of 800 criminal-justice officials, a blue-ribbon committee of the American Bar Assn. reported, “a very strong majority of those surveyed--prosecutors, judges and police officers--agree that compliance with Miranda does not present serious problems for law enforcement.”

However one feels about Miranda, it cannot be denied that in the 30 years since the decision, suspects have continued to incriminate themselves with great frequency. Why?

It may be that many suspects talk to the police, despite the warnings, because they hope for favorable treatment; curiosity about the strength of the government’s case; a desire to get the matter over with, or misplaced confidence in their ability to outwit police. But there may be a more sinister reason: Aware that, in the event of a dispute, their version of how they delivered the warnings will almost always prevail, police may mumble the warnings, omit some or suggest it would not be in a suspect’s best interests to exercise his rights.

We would know a good deal more about why people taken into custody continue to incriminate themselves with great frequency--and the Miranda system of police-issued warnings would be a more formidable safeguard--if, whenever feasible, an electronic recording of the entire waiver transaction had to be made. But in the great majority of jurisdictions, there is no such requirement.

On their own initiative, two state supreme courts--Alaska and Minnesota--have required tape recordings whenever such recordings are practical, but the U.S. Supreme Court has not done so. Miranda allows the police to obtain waivers of a suspect’s rights without the presence of any disinterested observer and without any objective recordings.

Bernard Weisberg, a leading Chicago civil-liberties lawyer, once observed: “No other case comes to mind in which an administrative official is permitted the broad discretionary power assumed by the police interrogator, together with the power to prevent objective recording of the facts. It is secrecy, not privacy, which accounts for the absence of a reliable record of interrogation proceedings in a police station. If the need for some pre-judicial questioning is assumed, privacy may be defended on grounds of necessity; secrecy cannot be defended on this or any other ground.”

Weisberg made these comments five years before the Miranda ruling. But nothing has changed in this regard. This is perhaps the most surprising thing about the Warren court’s vigorous efforts to deal with the confession problem. The court never stripped police interrogation of its most unique feature--its characteristic secrecy. And if the Warren court failed to do so, can we expect any more from any other Supreme Court?*