Academic journal article Boston University Law Review

Manipulation of Suspects and Unrecorded Questioning: After Fifty Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues

Academic journal article Boston University Law Review

Manipulation of Suspects and Unrecorded Questioning: After Fifty Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues

Article excerpt

Introduction

In the fifty years since Miranda v. Arizona1 was decided, most of the big constitutional questions about interrogation have been resolved, at least to the Supreme Court's satisfaction. Miranda held that an individual's statements made during custodial interrogation are not admissible at a criminal trial unless the police first inform the individual about the right to silence and the right to counsel and unless the statements were made after a valid waiver of those rights.2 The Court has since fleshed out the meaning of custody and interrogation, clarified the content of the warnings that must be given, decided numerous cases on the waiver issue, and limited the scope of the exclusion remedy.3 Certainly more case law from the courts, providing even greater nuance on these issues, is forthcoming. But the parameters have been set.

Yet the Supreme Court has still not explicitly addressed two issues that are crucial to sensible regulation of the interrogation process: the constitutionality of the various types of psychological techniques police often use during interrogation and the extent to which police must keep a record of the interrogation. Neglect of these two issues is particularly aggravating because, even prior to Miranda, they were arguably the most important outstanding questions relating to interrogation, other than Miranda's core concern about whether notification of rights is constitutionally required. Well before Miranda was decided there was widespread consensus against the third degree and explicit threats designed to elicit confessions, meaning that for some time the key concern about the conduct of interrogations has been the propriety of using subtler psychological techniques.4 And any concrete rules developed on this score are likely to be toothless if accounts of the interrogation process are dependent entirely on ex post descriptions by the police and the suspect.5 Yet the Court, whether deliberating before or after Miranda, has offered only scattered dicta and vague hints about its views on the use of manipulative interrogation techniques.6 And despite the feasibility of recording interrogations for the past several decades, the Court has said nothing about the need for or even usefulness of recordings.7

This Symposium provides me with the opportunity to update articles I wrote addressing these two issues. The first article proposed what I called the "equivalency test," which would permit police deceit about matters that, if true, would not be considered coercive, but did not address in detail how this test would interact with concerns about false confessions.8 The second article argued that the Due Process Clause, the Fifth Amendment, and the Confrontation Clause all require taping of a suspect's interrogation if the government later seeks to use those statements against the person in a criminal trial, but did not flesh out how this requirement would apply to statements made in the field.9

This Article expands upon these proposals by relating each to relatively recent developments. With respect to the use of manipulative interrogation techniques, it looks at three such developments: (1) the advent of "third-generation" interrogation practices that purport to avoid manipulation; (2) the explosion of research on techniques that may cause false confessions; and (3) conceptual advances regarding the admissibility of this research through expert testimony. Exploring these issues helps explicate how, under current doctrine, courts might more concretely evaluate the admissibility of self-incriminating information obtained through manipulative interrogation techniques.

With respect to the recording proposal, the update in this Article examines how the advent of police body cameras can transform regulation of preinterrogation interrogation. Body cameras could allow courts to ensure that what transpires in the interrogation room is not a sanitized result of improper practices employed outside of it. …

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