The nature of our project changes in this chapter. The earlier chapters described how and why interrogation law developed the way it did. In chapter 8, for example, we offered theories that, we hope, explain the current state of the Miranda doctrine better than the Supreme Court’s on-again, off-again characterization of Miranda as prophylactic. But in the final two chapters, we will both describe the current law governing interrogation and offer a normative vision of how it can be improved.
We also narrow our scope in this chapter to interrogation problems connected to Miranda. A theme of this book is that something akin to Miranda has been the default position in Anglo-American law since Blackstone’s eighth edition in 1778. The Hawkins-Leach dictum that appeared in 1787 neatly captures Miranda’s key premise—that official interrogation is inherently coercive. For more than a century, English and American courts applied a version of this dictum. Moreover, we discovered an 1828 New York statutory approach, probably influenced by John Graham’s 1823 monograph, that required warnings remarkably like Miranda would require in 1966.
In chapter 8 we focused on Miranda; the Court’s big gun in the attempt to cleanse compulsion from the police interrogation room. To keep the narrative relatively clean and relatively short, we keep the focus on Miranda in this chapter. Miranda was a once-in-a-century attempt to solve the problem of compelled confessions and deserves its own treatment.
As we sought to show in chapter 8, Miranda changed the interrogation world in ways that were dramatic and profound, but ultimately superficial. Imagine telling Wigmore that the Court would require police to warn suspects they had a right not to answer questions and a right to counsel, and then require police to respect their decision to remain silent or to invoke counsel. We also showed in chapter 8 that subsequent Courts rendered the Miranda regime less potent by making the critical moment that of waiver. Warnings make waiver almost always valid, and suspects waive their rights in roughly 80% of interrogations.