The Miranda App: Metaphor and Machine

By Ferguson, Andrew Guthrie; Leo, Richard A. | Boston University Law Review, May 1, 2017 | Go to article overview

The Miranda App: Metaphor and Machine


Ferguson, Andrew Guthrie, Leo, Richard A., Boston University Law Review


INTRODUCTION

For fifty years, a familiar scene has played out in interrogation rooms across America. Police officers read suspects the Miranda warnings.1 Suspects listen to the warnings before either waiving or invoking their Fifth Amendment rights.2 The Miranda process remains an all-too-human drama-fraught with tension, conflicting incentives, and potential miscommunication. Not surprisingly, after millions of such personal interactions, familiar issues of coercion,3 constitutional understanding,4 unambiguous invocation,5 custody,6 interrogation,7 trickery,8 literacy,9 competency,10 and mental illness11 have arisen out of this human dialogue between investigators and suspects. The unsatisfying results have been well catalogued by many of the scholars participating in this Symposium, offering fifty years' worth of criticism and suggestions for improvement.12

Strikingly, the core problem that gave rise to Miranda-namely, the coercive pressure of custodial interrogation-has remained largely unchanged.13 Miranda warnings have been incorporated into the interrogation script without notable decrease in custodial pressure.14 Miranda warnings, which were supposed to counterbalance that human pressure, have instead become a tool adding to that pressure.15 Further, the primary control of constitutional power-how the warnings are given, how invocation and waiver are interpreted, and whether the warnings are understood-remains with the interrogating officers.16 With limited exception, the Miranda colloquy remains not appreciably different today than it was fifty years ago.17

This Article proposes bringing Miranda into the twenty-first century by developing a "Miranda App" to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. Accessible on a smartphone, computer, tablet, iPad, or other system, the Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address fifty years' worth of unsatisfactory Miranda process.18 Each of Miranda's core warnings would be communicated via interactive digital graphics, animation, video, and text.19 Explanations would accompany each word and legal concept.20 Short comprehension tests would be built into the system to evaluate a suspect's general understanding of language and law.21 Additional clarification would be available to address confusion about terminology, process, or rights.22 In addition, as designed, the Miranda App could generate a contemporaneous record of useful data about the suspect's current capacity, literacy, understanding, and familiarity with constitutional rights.23 The App would be free, simple to use, easy to understand, and would provide the clarity and finality lacking in current Miranda practice. After custody, a police officer would simply hand over the Miranda App to the suspect and hand offthe responsibility to explain or advise suspects to the machine.

The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. This Article includes not only the blueprints for Miranda's future, but also a rendering of the structural weakness of past doctrine.

The Miranda App is both metaphor and machine. As metaphor, thinking through how one might offer Miranda warnings anew-without the mediation of an interrogating detective-requires resolving many elided or assumed questions at the heart of Miranda. How much do we want suspects to know about their rights, or about the larger adversarial context of investigation, or about the consequences of invocation or waiver? In Berghuis v. Thompkins,24 the Supreme Court emphasized the importance of a suspect "understanding" Miranda as a prerequisite of waiver,25 but the Miranda process has not evolved to address or ensure that requirement of understanding. …

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