Our book, so far, has sketched a dialectic between the Hawkins-Leach dictum and a rationalist view of interrogation law. In the twentieth century alone, the law shifted abruptly toward Wigmore’s rationalist pole, then back to Miranda ‘s version of the Hawkins-Leach dictum and, finally, back to a more rationalist view as the Court narrowed Miranda’s robust dicta. Going forward, we think the rationalist view will prevail, at least in the intermediate term.
We believe that the future of the law governing interrogation will be a dualistic one: one set of rules for “ordinary” police interrogation and quite a different set governing the interrogation of those viewed as sources of information rather than as potential criminal defendants. We begin with ordinary police interrogation, by which we mean interrogation intended to produce statements that can be used against the suspect in a criminal trial.
In chapters 8 and 9, we highlighted some of Miranda’s trouble spots. One is that it is unclear how effectively the warnings provide adequate notice of the rights waived if suspects talk to police. Another is that courts tend to treat a Miranda waiver as a near-conclusive presumption that all subsequent statements are uncoerced.1 A third trouble spot is that some suspects lack the capacity to waive Miranda, most notably juveniles and the mentally impaired.
A fourth trouble spot, which we did not mention in chapter 9, is that interrogators sometimes construct the confession;, a phenomenon that Richard Leo has exposed based on observing thousands of police interrogations.2 From this wealth of data about police interrogation, Leo concludes that one goal of detectives is to construct a narrative that shows the suspect’s confession as “authentic,