Academic journal article Texas Law Review

Miranda's Illusion: Telling Stories in the Police Interrogation Room

Academic journal article Texas Law Review

Miranda's Illusion: Telling Stories in the Police Interrogation Room

Article excerpt

MIRANDA'S WANING PROTECTIONS. By Welsh S. White.^ Ann Arbor: The

University of Michigan Press, 2001. Pp. 225. $45.^

The verdict is in: Miranda v. Arizona1 represents a failure of legal liberalism. By "legal liberalism" I mean the tradition that presupposes rational actors who come equipped with pre-existing preferences that are independent of the collective.2 In Miranda, the Court assumed autonomous subjects who have a relatively stable, pre-existing preference not to incriminate themselves during police interrogation. The Court provided those autonomous subjects with rights designed to adequately protect this pre-existing preference. Moreover, the Court required the interrogators themselves to tell the suspects that their words will be used against them in court and that they have a right to remain silent and a right to a lawyer. Surely having the captors acknowledge that the captive has the right to be left alone and the right to talk to a lawyer would enable him to act on a preference not to incriminate himself.3 As the Miranda dissent correctly inferred, the goal of the majority was nothing short of ending interrogation of suspects who did not want to talk to police.4 IMAGE FORMULA4

Yet by most accounts, Miranda has been a spectacular failure. Welsh White offers an accomplished account of the failures of Miranda in Miranda's Waning Protections. Though scholars disagree as to Miranda's precise effect on the confession rate, everyone acknowledges that most suspects waive their Miranda rights and answer police questions.5 Moreover, proof of voluntary waiver often leads courts to assume that any confession taken after waiver is also voluntary. In theory, the two voluntariness questions are separate, but courts today rarely question whether police used unfair or coercive means to obtain a confession if a Miranda waiver is presented.6 Most disturbing of all, abundant evidence demonstrates that false confessions are admitted to convict innocent defendants.

Perhaps the clearest evidence of Miranda's failure is the Rehnquist Court's easy acceptance of Miranda's constitutionality in Dickerson v. United States.8 The vote was seven-to-two and the opinion was written by Chief Justice Rehnquist, long a harsh critic of Miranda. What has changed? The Chief Justice informed his audience soothingly that Miranda was constitutional in part because the police had adjusted to its strictures and because it does not have much effect on "legitimate" police interrogation.9 But why would autonomous agents who have a guilty secret and a pre-existing preference not to incriminate themselves respond willingly to legitimate police interrogation after being informed that they can remain silent and talk to a lawyer?

Various stories can be told to explain Miranda's failure. One is deeply embedded in the tradition of viewing suspects as independent agents who, given the right kind of information in the right way, will act in their best interests. On this view, Miranda was subverted by subsequent events, including later Court decisions restricting its scope and police interrogators' adaptation or manipulation of Miranda to their own advantage. As to the latter point, perhaps Miranda itself was flawed in not finding the right language to communicate the information or the right mechanism to deliver the information. "You have a right to remain silent" is presumably clear IMAGE FORMULA8

enough. But "anything you say can and will be used against you in a court of law" sounds a lot like the warning on cigarette packages, and we all know how much effect that has had on presumably rational actors. The "anything you say" part of the Miranda warning sounds too much like legal mumbojumbo and, more importantly, signals a distant event that may not ever occur. Moreover, the warnings do not tell the suspect that his silence cannot be used against him or that he can invoke his rights even after he has begun to incriminate himself. …

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