Miranda's Fourfold Failure

By Alschuler, Albert W. | Boston University Law Review, May 1, 2017 | Go to article overview

Miranda's Fourfold Failure


Alschuler, Albert W., Boston University Law Review


Introduction

In 1966, five Justices of the Supreme Court sought to civilize police interrogation in America.1 Fifty years later, their efforts appear to have been an abject failure. As Scott Howe observes, today's law of interrogation "facilitates bad behavior all around."2 Howe's criticism of interrogation practices today resembles the criticism offered by Yale Kamisar shortly before Miranda.3

Howe writes:

For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. . . .

It goes far to protect noncooperation and cover-up by the most knowledgeable, cunning, and steely criminals, while providing only minimal safeguards for those who are uneducated, unintelligent, or easily coerced. It permits . . . trickery, harassment, and the inducement of despair . . . . It invites courts . . . to declare the irrational or inveigled decisions of arrestees to talk to police as "knowing," "intelligent," and "voluntary," torturing the meaning of these words . . . .4

Miranda's failure was foreseeable. From the outset, this decision has been:

(1) A Doctrinal Failure (a) because Miranda seriously misconstrued the Fifth Amendment's privilege against self-incrimination; (b) because the artificiality of Miranda's rules has produced a mountain of nonsense law; and (c) because Miranda promised legal assistance at the stationhouse while ensuring that suspects would not get it;

(2) An Ethical Failure (a) because the extravagant right to remain silent asserted by Miranda runs counter to ordinary moral principles; and (b) because the unwillingness of just about everyone actually to honor this right has produced a system relying on exploitation and deception;

(3) A Jurisprudential Failure because Miranda departed from the appropriate role of courts; and

(4) An Empirical Failure because Miranda did next to nothing to protect suspects from police abuse.

I. The Initial Doctrinal Failure: Miranda's Misunderstanding of the Privilege Against Self-Incrimination

A. Compulsion

The famous fourfold forewarning begins, "You have a right to remain silent."5 The Supreme Court explained, "For those unaware of the privilege, the warning is needed simply to make them aware of it."6 The privilege against self incrimination, however, does not guarantee an unqualified right to remain silent. It says only that no person "shall be compelled in any criminal case to be a witness against himself."7 The crucial constitutional concept is compulsion.

Legal prohibitions of compulsion are ubiquitous. Just as you may not be compelled to incriminate yourself, you may not be compelled to enter a contract, make a will, or have sex. But forbidding compulsion to enter a contract does not preclude persuasion to enter a contract. It requires the authorities to mark a line between legitimate and illegitimate means of convincing you.8

You have a right not to enter a contract in the sense that you cannot be imprisoned, whipped, or water-boarded for refusing to enter it. Forbidding compulsion to enter a contract, however, does not mean that no one will think less of you for refusing to enter a contract, that no one will draw adverse inferences from your refusal to enter a contract, or that no one will ever try earnestly and repeatedly to convince you to enter a contract. Prohibiting compulsion to enter a contract does not mean that refusing to enter a contract will never make things worse for you.9 If the word "compulsion" in the Fifth Amendment were to be given its ordinary meaning, your right to remain silent would be no broader than your right to refuse to enter a contract.10

B. The Griffin-MirandaMisinterpretation

A year before Miranda, the Supreme Court appeared to equate compulsion with any action that makes a choice disadvantageous. In Griffin v. …

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