Miranda's Spider Web

By Thomas, George C.,, III | Boston University Law Review, May 1, 2017 | Go to article overview

Miranda's Spider Web


Thomas, George C.,, III, Boston University Law Review


"Will you walk into my parlour?" said the Spider to the Fly. -Mary Howitt, The Spider and The Fly: A Fable (1829).1

We know how that turned out for the fly! I want to argue today that suspects are like the fly and Miranda v. Arizona2 is, if not the spider, at least the spider's web. Along the way I will offer new proof that the forces (the spider web) that suspects face are powerful and tend to produce a desire to cooperate with police. But what is wrong with that? I will argue that Miranda's web gives us the best of both worlds. Police gets lots of confessions, almost all of them from guilty suspects, and courts have clean hands when they admit confessions and affirm convictions based in part on those confessions. The suspect, after all, knew he did not have to talk and that what he said could be used against him in court. My position thus offers a way to understand how Miranda could be a success without causing much in a loss of convictions.

To reach Miranda as a journey on the road of American law, one can begin with Ashcraft v. Tennessee,3 a 1944 case authored by Justice Black, holding that a thirty-six-hour interrogation rendered a confession inadmissible. The Court concluded that the thirty-six-hour interrogation was "so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear."4 The idea of "mental freedom" would appear again and again in the Miranda opinion.

Ashcraft laid the groundwork for Miranda in yet another way. As Catherine Hancock has noted, "Ashcraft was a milestone because it prefigured Miranda's recognition of the coercion inherent in all custodial interrogation."5 Once that premise was engaged, as Justice Jackson noted in his Ashcraft dissent, it followed that all confessions obtained by police interrogation are to some extent a product of the inherent coercion of the interrogation. As Justice Jackson put it, "If thirty-six hours is more than is permissible, what about 24? or 12? or 6? or 1? All are 'inherently coercive.'"6

In charting the Miranda journey in American law, one must also figure in the contributions of Bernard Weisberg, which included writing an amicus brief in Escobedo v. Illinois,1 decided two years prior to Miranda. His brief urged the Court to look at the police interrogation manuals to gain a glimpse into what had up to that point been a black box.8 These manuals became a central part of Chief Justice Warren's opinion for the Court in Miranda. 9 Weisberg helped persuade the Court that Danny Escobedo's confession had to be suppressed even though the police methods were not coercive, but the Court based its holding on a violation of the Sixth Amendment right to counsel.10 This theory suffers several defects, not the least of which is the language of the Sixth Amendment that begins, "In all criminal prosecutions."11 As Justice White's dissent argued passionately, how can an interrogation that occurs before charges are even filed be part of a criminal prosecution?12

Of course, the proximate cause of Miranda is the man who gave the keynote remarks at this Symposium: Yale Kamisar. A year before Miranda, Kamisar published the most influential article yet written on interrogation law: "Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to . . ."13 The ellipsis in the title would be filled in by Miranda. In this brilliantly argued article, Kamisar gave the Court the analytical structure by which it escaped the Escobedo Sixth Amendment trap. Imagine a world in which the Fifth Amendment privilege against compelled selfincrimination applies not only to the courtroom but also to the police interrogation room. The Court would not then need to rely on the Sixth Amendment to develop protections against the inherent coercion of police interrogation. In a passage that deserves to be often quoted, Kamisar wrote:

The courtroom is a splendid place where defense attorneys bellow and strut and prosecuting attorneys are hemmed in at many turns. …

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