Amicus Curiae Brief — Dickerson v. United States

IN THE

Supreme Court of the Anited States

CHARLES THOMAS DICKERSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR AMICUS CURIAE

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONER

STEVEN R. SHAPIRO JONATHAN L. ABRAM*

VIVIAN BERGER AUDREY J. ANDERSON

SUSAN N. HERMAN STEPHEN M. KUPERBERG

AMERICAN CIVIL LIBERTIES HOGAN & HARTSON L.L.P.

UNION FOUNDATION 555 Thirteenth Street, N.W.

125 Broad Street Washington, D.C. 20004-1109

New York, NY 10004 (202) 637-5681

* (212) 549-2500

STEPHEN SCHULHOFER

1111 East 60th Street

“Chicago, IL 60637

* Counsel of Record Counsel for Amicus Curiae

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INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

i

TABLE OF CONTENTS

THIS COURT’S MIRANDA DECISION IS AN

APPROPRIATE AND NECESSARY MEANS

OF ENFORCING THE FIFTH AMENDMENT

A. The Fifth Amendment Privilege Against

Self-Incrimination Reflects Core Values of

Our System of Criminal Justice....................

B. The Due Process Voluntariness Test was

Unworkable and Gave No Guidance to

EEE SES OE

C. In Rejecting a “Totality of the

Circumstances” Test, Miranda is

Consistent With This Court’s Traditional

Approach to Defining Fifth Amendment

D. Miranda’s Workable Rules Have Become

Part of Our Constitutional Heritage and

Should Not Be Cut Back ............csescssssssseesees

Il. CUSTODIAL INTERROGATIONS ARE AS

INHERENTLY COMPELLING TODAY AS

THEY WERE WHEN MIRANDA WAS

B. Police Willingness to Interrogate In

Violation of Miranda Underscores the

Importance of Miranda to

Continuing

Protect Suspects’ Rights ..............csessseeeees

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page Page

III. THE MIRANDA REQUIREMENTS DO NOT

SIGNIFICANTLY BURDEN LAW CASES:

SEPT SUG RINEEEIUE ccocoscusecsnsessntenssnsabennnndbigneapisesadammimidalds 19 Anders v. California, 386 U.S. 738 (1967) .cccccccccesssesseereeen 10

A. Police and Prosecutors Widely Believe That Ashcraft v. Tennessee, 322 U.S. 143 (1944) .......cccccccceeeees 7,14

Miranda Does Not Burden Law

Be SBGNNGI ccocccssessssecssttstnsnstiiccindbacticmasiaidaaeaiaanl 21 Bram v. United States, 168 U.S. 532 (1897) .......cccccccccceesseees 4

B. Data Confirm That Miranda Does Not Brewer Vv. Williams, 430 U.S. 387 (1977) .......cccccccccecceeseenees 10

Impede Law Enforcement.................:cs:sseeesseseeseseesees 23 Brooks v. T; | 406 U.S. 605 (1972) socssccsssseseesesnnee 9

C. Professor Cassell’s Empirical Claims About

Miranda's "Costs" Do Not Withstand Brown v. Mississippi, 4 | 6-7

Scrutiny Cees eeeeeeeseeeeeeereeeeeeereeseeeeeeseeeeseeeeseneooneseseeeesoesoees 25 Brown v. Board of Education, 347 U.S. 483

sonarus | - it eetieaieeieetiteerendiidaschehbanegimiahatibendincsseeccesetecsenstecesseest 13

CUREC LATION ccccasesscecesssutsosesntatectnsensosestbeisentindsianiaanaasananne Bruton v.United States, 391 U.S. 123 (1968) secccsessseseoo 10

California Attorneys for Criminal Justice v.

Butts, 195 F.3d 1039 (9th Cir. 1999) .00......cccccccceceeeseeneeees 18

Carter v. Kentucky, 450 U.S. 288 (1981)..........ccccccccceceeseeeeees 9

v. Dupnik, 963 F.2d 1220 (9th Cir.

|. beck 17,18

Couch v. United States, 409 U.S. 322 (1973) ...ccccccccseseresesees 4

Crooker v. California, 357 U.S. 433 (1958) ...........c.ccsccesee0e 7

Cruz v. New York, 481 U.S. 186 (1987) ..........cccccccccccceeeeeees 10

Edwards v. Arizona, 451 U.S. 477 (1981) .......ccccccccccceeseeeees 12

Escobedo Vv. Illinois, 378 U.S. 478 (1964) ..........ccccccccceeeeees 4-5

Fare v. Michael C., 442 U.S. 707 (1979) .......ccccccccccecseeeeeeees 12

Fikes v. Alabama, 352 U.S. 191 (1957) .....cccc.cccccceceeeeeeseeeeenes 6

Gardner v. Broderick, 392 U.S. 273 (1968) .........cccccccceeceeeees 9

Garrity v. New Jersey, 385 U.S. 493 (1967) ........cccccccceeceeseeee 9

Gray v. Maryland, 523 U.S. 185 (1998) ...cccccccccccccsssssssssss0e 10

iv

TABLE OF AUTHORITIES—Continued

Page

CASES:

Griffin v. California, 380 U.S. 609 (1965)..........cccccccccecseeeeees 9

Harris v. South Carolina, 338 U.S. 68 (1949) .0........ccccccceeees 6

Hoffman v. United States, 341 U.S. 479 (1951) ....cccccc.esssvee- 8

Johnson v. New Jersey, 384 U.S. 719, 730

FREI cocesssesteticentaiipdneitintiialiiaasttithinitapestensenriteepntmencsreeseael 5

Kastigar v. United States, 406 U.S. 441 (1972) ...ccccccss000» 8

Lefkowitz v. Cunningham, 431 U.S. 801 (1977) ....ccccccvsee 9

Lefkowitz v. Turley, 414 U.S. 70 (1973) vccccccesessssesssssssveseeesse 9

Leyra V. Denno, 347 U.S. 556 (1954) .....cccccccccccceceseeeereeeeeeeees 6

Malinski v. New York, 324 U.S. 401 (1945)........ccccccccccceceeeeee 6

Malloy v. Hogan, 378 U.S. 1 (1964) cosccccccccssssssessssseessesencee 3-4

Massiah v. United States, 377 U.S. 201 (1964) ........cccccceeees 10

Michigan v. Mosley, 423 U.S. 96 (1975) cocc.ccccescscsesssssseeesen 12

Michigan v. Tucker, 417 U.S. 433 (1974)........cccc0000 12,13,20

Miller v. Fenton, 474 U.S. 104 (1985).........ccccccccscecsseeeeeeees 5-6

Mincey v. Arizona, 437 U.S. 385 (1978) cescccccccccecssvesssvessseneeee 8

Minnesota v. Murphy, 465 U.S. 420 (1984)....cc..c.cccs0e 11,21

Minnick v. Mississippi, 498 U.S. 146 (1990) ..ccc.cccccsssscveesee 12

Miranda v. Arizona, 384 U.S. 436 (1966)... passim

Moran v. Burbine, 475 U.S. 412 (1986) .......ccccceeceeevees 4,11,12

RS er ‘

New Jersey v. Portash, 440 U.S. 450 (1979) ..cccccccccssssesesees 8-9

Vv

TABLE OF AUTHORITIES—Continued

Page

CASES:

New York v. Quarles, 467 U.S. 649 (19B4)..........cceccesee 12,13

Oregon v. Elstad, 470 U.S. 298 (1985)..........c-ececeeeeeeenes 12,13

Oregon Vv. Hass, 420 U.S. 714 (1975) .....c-ccccesereererereeeeees 12,16

People v. Bradford, 929 P.2d 544 (Cal. 1997)......-....-.c-ev+e 17

" Geta 19h 593 (1 mo CTT Aik sack ska 17

v. Winsett, 606 N.E 2d 1186 (Ill. 1992),

cert. denied, $10 U.S. 831 (1993) .......cccccccersersereereereneeenes 17

Planned Parenthood v. Casey, 505 U.S. 833

QRBGEED <ccccsesecsscscessscstscsszepepeevsssseenesnsnsossnssevasseussscssseesssees 13-14

Reck v. Pate, 367 U.S. 433 (1961) ......ccccccsecsccercseseeeerseeeenennees 6

Rhode Island v. Innis, 446 U.S. 291 (1980) .........--c-eseeeees 2,21

Schneckloth v. Bustamonte, 412 U.S. 218

IE ccsitchcciniinisininiabeanirbhidutiniintiaensiitiieaitmnncceencennesorenences 11

Smith v. Robbins, No. 98-1037, slip op. (Jan. 19,

BR scccicsenessbsisisatibaiictnemctitiiielisantiahisanndicunannsccsternssbeincien 10

Spano v. New York, 360 U.S. 315 (1959)........ccecererereeeerenenes 6

State v. Favero, 331 N.W.2d 259 (Neb. 1983) .....-.--cc-veereees 17

Stein v. New York, 346 U.S. 156 (1953).......-cecceesereesenseenees 6,7

Stroble v. California, 343 U.S. 181 (1952)........ccceceseereeeeenees 7

Turner v. Pennsylvania, 338 U.S. 62 (1949)........-.ccseceereerees 6

United States v. Dickerson, 166 F.3d 667 (4th

GERI Wiecscstcescqnnsvcccesheoceneperpentnenpenniagesigssensccnnencnsecesengasocnasts 7

United States v. Henry, 447 U.S. 264 (1980).........cc0ceceeeeeee 10

United States v. Nixon, 418 U.S. 683 (1974) ..cceccvcssssssseeesssen .

Page

CASES:

United States v. Verdugo-Urquidez, 494 U.S.

FET CUED cocecenerecmnaretupbinnitntiiaeatintateianniemmanasatimenie 5,11

United States v. Wilson, 421 U.S. 309 (1975).........ccceeeeseeeees 9

Washington v. Texas, 388 U.S. 14 (1967).........ccc..ccccseereeeeeees 8

Watts v. Indiana, 338 U.S. 49 (1949)............... uveununnaneneiande 4

White v. Texas, 310 U.S. 530 (1940)..000......cccccccecscceerceeeeseeeees 7

Withrow v. Williams, 507 U.S. 680 (1993) ...........c000+ passim

CONSTITUTIONAL AND STATUTORY PROVISIONS:

ee passim

Ce Fe I ccrrennstistitbthcieitiintceinsiesinicticinnstiittillcisinsi 10

SS UL. © Be ccccssibcntineesittresiasuinsinsictnecsittiintndiasateiasitith 10

ZB GBA. BTID cticsictitinctininnsermsindilitmunnnititnentigtitenidianan 17

OTHER AUTHORITIES:

ABA ial Comm'n on Criminal Justice in a

Free Society, Criminal Justice in Crisis (1988)................ 22

Arthur S. Aubry, Jr. & Rudolph R. .

Criminal Interrogation (2d €d. 1972)..........c-c-eseeeeeeeeeees 15

Liva Baker, Miranda: Crime, Law and Politics

GRD EEP ccccsrecsscemeninetitiltisianeneputibsngieiniietnteieeneceitiiesnenpniates 24

Peter Carlson, You Have the Right to Remain

Silent, WASHINGTON Post, Sept. 13, 1998............... 20,21,24

Paul G. Cassell, All Benefits, No Costs: The

Grand Illusion of Miranda’s Defenders, 90

NW. U. L. REV. 1084 (1996) ..........ccccccesessoccsosecssosesseosenees 27

TABLE OF A

OTHER AUTHORITIES:

Paul G. Cassell, The Costs of the Miranda

Mandate: 4 Lesson inthe Danger

Inflexible, ". em al

Inventions, 28

Paul G. Cassell, Miranda’s Social Costs: An

Paul G. Cassell & Richard Fowles, Handcuffing

the Cops? A a

Miranda’s Harmful Effects on

ST. 3299 ( i ee

Enforcement, 50 STAN. L. Rav 10 1055 (1998).......... 27-28,29

Paul G. Cassell & Bret S. Hayman, Police

jon in the 1990s: An

of Miranda, 43 UCLA L.

Study of the

ST CP sc ili hi ail i sceeescee 19-20,26

Tom C. Clark, Criminal Justice in America, 46

ee Cals Ey OD I cxciencemratinccdepciecnentnescnctncnnsteveeemesnens

John J. Donohue, II], Did Miranda Diminish

Police Effectiveness?, 50 STAN. L. REV. 1147

CRUD scdiasitscincitissilintnctodovinsinsticsibesqnsccinseectscecneseenccvseeses 28,29

Charles Fried, Order and Law (1990)..........csssesesessesseseees

Tom Gibbons & Jim Casey, Ed Meese's War on

Miranda Draws Scant Support, CH. SUN-

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES:

Joseph D. Grano, Voluntariness, Free Will, and

the wg of Confessions, 65 VA. L. REV. 859 ‘

COD VE ceccecrscosscensintbtascandnthittelibinelassnabiniiitadiaiiaiteberntnanhenntis

Gisli H. Gudjonsson, The ape) 4 of

errogations,

Catherine Hancock, Due Process Before

Miranda, 70 TUL. L. REV. 2195 (1996)............ccesseseeseeeees 6,7

Lawrence Herman, The Supreme Court, The

Attorney General, and the Good Old Days of

Police Interrogation, 48 Oui0 ST. L.J. 733

Fred E. Inbau, et al., Criminal Interrogation and

Confessions (3d ed. 1986) ..........++ wsseseesnesnsenssscessessessessssees 15

Yale Kamisar, Confessions, Search and Seizure

and the Rehnquist Court, 34 TULSA L.J. 465

IIIT eccascneecnpunnsennveetecaseummenventietmmamidemnseanteas sssseeennnesennnnes 5,7

Yale Kamisar, Landmark Ruling 's Had No

Detrimental Effect, BOSTON SUNDAY GLOBE,

RD Ue CET incdivenaseekindehceedtacadtatiinttiiietdivensesininecnbedit 21-22

Yale Kamisar, Overturning Miranda, (Detroit)

LEGAL ADVERTISER, Feb. 26, 1987 .............cccsesseeseeeees ro

Saul M. Parcholowy of False C Kiechel, The

Social Psychology “wha

internalization, and

Contobulation, 7 PSYCHOL. SCI. 125 (1996) ...........ccccce0ee 16

Saul M. Kassin & Karlyn McNall, Police

Interrogations and Confessions:

ing Promises

by Pragmatic :

amma LAW & Hum. BEHAV. 233

(1991)........ FE ALES IGE BA IE EN GO COMO Se 16

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES:

Richard A. Leo, From Coercion to Deception:

The Changing Nature Police Interrogation

in America, 18 CRIME, L. & SOC. CHANGE 35

Richard A. Leo, The Impact

(1996) tA OES AE eT Rs passim

Richard A. Leo, Inside the li argues Basm.

86 J. CRIM. L. & CRIMINOLOGY 266 (1996).................

Richard A. Leo, Miranda's R : Police

ne + ated

Richard A. Leo & Richard J. Ofshe, The

Consequences of False essions:

Deprivations

y arenas

429 (EDD UP cnrvsissutccindsttchininsmensntnesleidensiccsoisitebeocseenseoseocessnecee 16

Richard A. Leo & Richard J. Ofshe, Using the

Innocent to Miranda: Another

Reply to Paul | 88 J. Crim. L. &

CRIMINOLOGY 557 (1998) ....cccccceccssssssssecsccssssccessesesseees

Richard A. Leo & Welsh S. White, Adapting to

Miranda: Modern Interrogators’ Strategies for

Dealing with the Obstacles Posed by N

84 MINN. L. REV. 397 (1999) ..cccccosessssssscssssvsuvecsececesseserees 19

Parloff, Miranda on the Hot Seat, NEW

ORK TIMES MAGAZINE, Sept. 26, 1999 ......ccccocccssssssscssee 23

Eduardo Paz-Martinez, Police Chiefs Defend

Miranda Decision Meese Threats,

BOSTON GLOBE, Feb. 5, 1987 ...........cccccccccesecsseeeseeeeeees

x

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES:

Stephen J. Schulhofer, Miranda and Clearance

Rates, 91 NW. U. L. REV. 278 (1996) ......ccccccccssseseseessernees 27

Stephen J. Schulhofer, Miranda’s Practical

t: Substantial Benefits and Vanishingly

li Social Costs, 90 Nw. U. L. REv. 500

CBRE exrrccncishndesshtanbnetaiieiinkinibigindehsaseinniivsadhesiatintenadeiei passim

David Simon, Homicide (1991).......ccc0ss0.000 Man Mer a ldo 20

60 Minutes (CBS television broadcast, Dec. 5,

Se Pacchisiinticilatinantotateidainiibinaisiitarashainiitlnetashiibinesnectinnaendniincduians 18

Jerome Skolnick, Justice Without Trial (1996)..............000++ 28

George C. Thomas, III, Js Miranda a Real-

World Failure?: A Plea for More (and better)

Empirical Evidence, 43 UCLA L. REV. 821

ER OIUED ccncesssesdenpestiieenenntenteieineneatnennaiatiiecniementnians 20,24

George C. Thomas, III, Plain Talk About the

Miranda Empirical Debate: A “St te”

Theory of Confessions, 43 UCLA L. REv. 933

CREB ED ceseccacesticiectnintcinnscnnistbeiecpeintignbiaaibhhasetcnttecsesicceie 24,26

Stephen L. Wasby, Small Town Police and the

Beer eee Ca CUS Fae cece corervnsstncmninimnenennenmaguneres 22

Charles D. Weissel

CORNELL L. REV. 109 (1998) ........cccccscsssesseseceeseneeenees 17,18

Paul B. Weston & Kenneth M. Wells, Criminal

Investigation: Basic Perspectives (2d ed.

SRS RI er NAO ee 20

BDOD)....n.roseccoscceennsndecpstneqneqetatspensnssepeibeocnoneneeennengpeesotoeneneschess 5

xi

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES:

Pete Yost, Police Executive Backs Miranda

ad Review, WASHINGTON Post Jan. 23,

Evelle Younger, /nterrogation of Criminal

Defendants, 35 FORDHAM L. REV. 255 (1966)..........0000000

David E. Zulawski & Douglas E. Wicklander,

Practical Aspects of Interview and

TI ccinisieadstdiinitinprinchisinnischadinentainneandneiegiitienen

IN THE

Supreme Court of the Gnited States

No. 99-5525

CHARLES THOMAS DICKERSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF FOR AMICUS CURIAE

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The American Civil Liberties Union is a nationwide, non-

profit, non-partisan organization with nearly 300,000 mem-

bers that has been engaged in defense of the Bill of Rights for

80 years.' Many of its efforts have focused on enforcing

those portions of the Bill of Rights having to do with the

administration of criminal justice, including participation as

| All parties have consented to the filing of this brief; letters of

consent have been lodged with the Clerk. No counsel for a party

authored this brief in whole or in part, and no person other than the

amicus, its members, and its counsel made a monetary contribution

to the preparation or submission of the brief.

2

amicus curiae in Miranda v. Arizona, 384 U.S. 436 (1966).

This brief will concentrate on the legal setting for this

Court’s decision in Miranda, the factual circumstances of

custodial interrogations today, and the evidence concerning

Miranda’s supposed “costs” to law enforcement. That

limited focus, however, should not obscure our broader

concern. The ACLU continues to believe, as we believed in

1966, that if the Fifth Amendment privilege is to remain an

effective guarantor of our accusatorial system of criminal

justice, some warning is necessary to assure that persons

subjected to custodial interrogation know they are not

obliged to respond to questioning by the police and that the

police will respect their right to remain silent.

SUMMARY OF ARGUMENT

This Court’s landmark decision in Miranda v. Arizona was

a necessary response to the failure of the due process volun-

tariness test to protect adequately the core values of our

accusatorial system of justice, embodied in the Fifth

Amendment’s prohibition against compelled _ self-

incrimination. The per se nature of the holding in Miranda

was entirely consistent with the law this Court had developed

in other contexts to determine whether a particular govern-

ment action amounted to unlawful compulsion under the

Fifth Amendment.

In the past thirty-four years, Miranda's requirements have

been crafted into a series of workable rules that fully respect

the legitimate needs of law enforcement, and Miranda has

become perhaps the most widely recognized constitutional

protection in our criminal justice system. Stare decisis

strongly counsels against wholesale changes in these rules "at

this late date." Rhode Island v. Innis, 446 U.S. 291, 304

(1980) (Burger, C.J., concurring in the judgment). Nor is any

such change justified.

Custodial interrogations today involve the same inherent

compulsion that they did when Miranda was decided. Police

manuals and reported cases continue to detail the sometimes

illegal lengths to which law enforcement officials will go,

3

even with the protections of Miranda, to get a confession

from a suspect. These sources provide a disturbing glimpse

of what police practices could become in a world without

Miranda—where police need not tell citizens of the right to

remain silent, and need not respect that right once invoked.

Some contend that warning citizens about their constitu-

tional rights has imposed great “costs” to law enforcement.

In fact, the evidence is directly to the contrary—in the vast

majority of cases, police are able to conform their

to the dictates of Miranda without difficulty. In the end,

I, THIS COURT’S MIRANDA DECISION IS AN

APPROPRIATE AND NECESSARY MEANS OF

ENFORCING THE FIFTH AMENDMENT

The Fifth Amendment protection against compelled self-

incrimination embodies core values of our accusatorial

system of criminal justice. The Miranda decision was a

consistent with prior due process voluntariness analysis,

which also included some per se rules, and with this Court’s

interrogations to courts and police alike.

A. Poor were seg a ely eats hae per Haat

Incrimination Reflects Core Values of Our System

of Criminal Justice

Our accusatorial system of justice is based on the absolute

right of citizens accused of crime not to confess, but instead

4

stay” of that accusatorial system of prosecution. Malloy v.

Hogan, 378 U.S. 1, 7 (1964).2 The privilege against self-

_ incrimination protects fundamental notions of personal

autonomy by giving citizens suspected of crime the right to

choose whether to remain silent or to speak. See Miranda,

384 U.S. at 469; Moran v. Burbine, 475 U.S. 412, 426-27

(1986). By allowing people to choose not to speak with law

enforcement, the privilege also reflects respect for personal

privacy and individual dignity. See Couch v. United States,

409 U.S. 322, 327 (1973); Miranda, 384 U.S. at 460. Thus,

the privilege embodies “principles of humanity and civil

liberty, which had been secured in the mother country only

after years of struggle, so as to implant them in our institu-

tions in the fullness of their integrity, free from the possibili-

ties of future legislative change.” Bram v. United States, 168

U.S. 532, 544 (1897) (emphasis added).

In addition to protecting the accusatorial system of criminal

justice, the privilege against self-incrimination plays an

important role in protecting against abuses that may too

easily taint any custodial interrogation. Custodial interroga-

tion is designed to exploit the weaknesses of

Miranda, 384 U.S. at 455, and this Court has found “a

substantial risk that the police will inadvertently traverse the

fine line between legitimate efforts to elicit admissions and

constitutionally impermissible compulsion.” Moran v.

Burbine, 475 U.S. at 426 (citation omitted); see Escobedo v.

Illinois, 378 U.S. 478, 489 (1964) (“The exercise of the

power to extract answers begets a forgetfulness of the just

2 See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)

(privilege against self-incrimination reflects “our unwillingness to

subject those suspected of crime to the cruel trilemma of self-

accusation, perjury or contempt; [and] our preference for an

accusatorial rather than an inquisitorial system of criminal justice”)

(citations and internal quotations omitted); Watts v. Indiana, 338

U.S. 49, 3S (1909) CProtmectod, eyenamaaio and’ waseuntolied

subjection of an accused to interrogation by the police for the

purpose of eliciting disclosures or confessions is subversive of the

accusatorial system.”).

5

limitations of that power. The simple and peaceful process

of questioning breeds a readiness to resort to bullying and to

physical force and torture.”) (quoting John H. Wigmore, 8

Evidence § 309 (3d ed. 1940)); Lawrence Herman, The

Supreme Court, The Attorney General, and the Good Old

Days of Police Interrogation, 48 Owlo St. LJ. 733, 752

an “empty formalit{[y]." Miranda, 384 U.S. at 466.

B. The Due Process Voluntariness Test was

Unworkable and Gave No Guidance to Courts or

the Police

It was not until Miranda that the Court came to terms with

474 US. 104, 114 n. 4 (1985) ("The

6

rubric has been variously condemned as useless, perplexing,

and legal doubic talk.") (internal quotations and citations

omitted).

In its many voluntariness decisions prior to Miranda, the

Court generally applied a “totality of the circumstances” test

that gave no guidance to police ar2 »oduced a welter of

unpredictable results. In some cases, the “totality of the

circumstances” included examination of the personal char-

Reck v. Pate, 367 U.S. 433, 441-42 (1961); Spano v.. New

York, 360 U.S. 315, 321-22 and n.3 (1959); Fikes v. Ala-

bama, 352 U.S. 191, 193 (1957). In other cases, the personal

characteristics of the defendant were not so much as men-

nia, 338 U.S. 62 (1949); Harris v. South Carolina, 338 U.S.

68 (1949); Leyra v. Denno, 347 U.S. 556 (1954); Malinski v.

New York, 324 U.S. 401 (1945).

In addition to its “totality of the circumstances” test, the

7

(1936); White v. Texas, 310 U.S. 530 (1940).3 The Court

also established a per se rule that a confession following

continuous questioning of the suspect for thirty-six hours

without rest or sleep was “so inherently coercive” that the

resulting confession had to be excluded without inquiry into

the remainder of the circumstances or their actual impact on

the particular suspect. Ashcraft v. Tennessee, 322 U.S. 143,

154 (1944).

It is incorrect, therefore, to contend that prior to Miranda

there was a single voluntariness test that — the

admissibility of confessions. poy > Sr gy “tend —

between Brown v. Mississippi and Miranda, there was a

“cornucopia of Due Process tests.” See Hancock, supra, 70

misar, Confessions, supra, 34 TULSA L.J. at 471-72; Herman,

The Supreme Court, supra, 48 OHIO St. L.J. at 752.

Cc. ty Ne aly nee aad ON a sal

Test, is Consistent With This Court’s

Amendment Compan

from unwilling suspects, custodial interrogation raises Fifth

3 Despite this rule, the Court—pursuant to its “totality”

caselaw—frequently allowed admission of confessions where there

was substantial evidence of physical violence, refusing to consider

that evidence unless it was undisputed by the police. See, e.g,

Stein, 346 U.S. at 169-70; Crooker v. California, 357 U.S. 433,

437-38 n.3 (1958); Stroble v. California, 343 US. 181, 185-86

(1952).

Amendment issues of compulsion in addition to the due

process question of voluntariness. Although the “compul-

sion” that violates the Fifth Amendment has

been equated with the “involuntariness” or “overborne will”

that violates due process,‘ the two tests have always been

distinct.5 In analyzing compulsion under the Fifth Amend-

ment, this Court typically has not applied a “totality of the

circumstances” test. Rather, the Court has held that many

governmental actions intended to elicit information from

unwilling suspects, or to impose a cost on asserting the

privilege, are impermissibly “compelling” per se. Thus,

Miranda's conclusion that unwarned custodial interrogation

involves inherent compulsion fits comfortably within this

Court’s application of the Fifth Amendment in other con-

texts, both before Miranda and since.

The classic example of impermissible Fifth Amendment

compulsion is the threat of a contempt citation. Such a threat

has always been treated as compelling per se, see, e.g.,

Hoffman v. United States, 341 U.S. 479 (1951); New Jersey

4 See, e.g., Paul G. Cassell, The Costs of the Miranda Mandate:

A Lesson in the Dangers of Inflexible, “Prophylactic” Supreme

Court Inventions, 28 ARIZ. ST. L.J. 299, 302 (1996).

5 The distinction between compelled and coerced statements is

fundamental to our system of civil and criminal justice. While

coerced statements are never admissible for any purpose, Mincey

v. Arizona, 437 U.S. 385 (1978), witnesses are routinely compelled

to give statements under subpoena. Absent a valid claim of

privilege, such compelled statements are clearly admissible,

Kastigar v. United States, 406 U.S. 441 (1972), and are the bread

and butter of virtually all judicial proceedings. United States v.

Nixon, 418 U.S. 683, 709 (1974) (“it is imperative to the function

of courts that compulsory process be available”). Indeed, the Sixth

Amendment provides the accused with the right to compulsory

process to call witnesses in his favor; again, those witnesses are

compelled to testify absent an applicable privilege. See Washing-

ton v. Texas, 388 U.S. 14 (1967). The only such privilege guaran-

teed by the Constitution is that against compelled self-

ssnutesinstian, See Goeteediddinen ananan teoiaaeett den emtunaian

that people are innocent until a prosecutor proves them guilty.

9

v. Portash, 440 U.S. 450 (1979), even though many wit-

nesses can and do resist this threat and go to jail rather than

testify. See, eg., United States v. Wilson, 421 U.S. 309

(1975).

A threat to discharge a public employee for failure to tes-

tify is also compelling per se and therefore impermissible

under the Fifth Amendment. See, e.g., Garrity v. New

Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S.

273 (1968). This Court has never suggested that the totality

of circumstances must be assessed in such cases to determine

if such a threat “overbears” a particular employee’s will

depending on his economic circumstances. See Lefkowitz v.

Turley, 414 U.S. 70, 83 (1973) (Fifth Amendment compul-

sion cocurs per se when refusal to waive privilege reo in

disqualification from contracting with public ;

accord Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977).

Similarly, a comment on a defendant’s failure to testify is

impermissible per se regardless of the “circumstances,”

because it imposes a cost on assertion of the privilege. See,

e.g., Carter v. Kentucky, 450 U.S. 288 (1981); Brooks v.

Tennessee, 406 U.S. 605 (1972); Griffin v. California, 380

U.S. 609, 614 (1965).®

6 Miranda's requirement that police take affirmative steps to

dispel inherent compulsion, by reciting warnings, finds a close

parallel in the Fifth Amendment requirement that a trial judge take

affirmative steps to warn the jury not to draw an adverse inference

from a defendant's failure to testify. This Court noted in Carter v.

Kentucky that "if left to roam at large with only its untutored

instincts to guide it," an unwarned jury might draw inferences that

would jeopardize the Fifth Amendment privilege. Carter, 450

U.S. at 301. But, the Court continued, "[a] trial judge has a

powerful tool at his disposal to protect the constitutional privilege

— the jury instruction — and he has an affirmative obligation to use

that tool." Jd. at 303 (emphasis added). Carter's affirmative

warning requirement, triggered in the trial setting by a defense

10

Thus, in holding that custodial interrogation of an unwill-

ing or unwarned suspect involves inherent compulsion,

Miranda applied to police questioning the same per se

approach that has been a familiar staple of this Court’s Fifth

Amendment jurisprudence. Indeed, it is §3501, not

Miranda, that departs from the traditional Fifth Amendment

concept of compulsion. Section 3501 provides that all

incriminating statements “shall be admissible” if found to be

“voluntarily made . . . tak/ing] into consideration all the

circumstances.” 18 U.S.C. § 3501(a), (6) (emphasis sup-

plied).’? The totality-of-circumstances approach that would

be mandated by § 3501 is irreconcilable with this Court’s

conclusion in Hoffman, Portash, Gardner, Griffin, and their

progeny that certain government action (or inaction, as in

Carter) involve impermissible compulsion per se, without

regard to the defendant’s particular circumstances.®

7 To be sure, Miranda recognized that Congress or the States

might adopt alternative means of protecting the Fifth Amendment

privilege, but made clear that such alternative measures must be

“at least as effective [as Miranda] in apprising accused persons of

their right of silence and in assuring a continuous opportunity to

exercise it." Miranda, 384 U.S. at 467. Section 3501 does not

require that any warnings be given and merely returns protection

of the Fifth Amendment privilege to the same retrospective

"totality" analysis rejected by Miranda. Cf. Smith v. Robbins, No.

98-1037, slip op. at 19 (Jan. 19, 2000) (California procedure for

appointed counsel to file brief on behalf of indigent upheld where

procedure, while not identical to prophylactic requirements of

Anders v. California, 386 U.S. 738 (1967), "far exceed[s] those

procedures that we have found invalid”).

8 Similarly, in the context of Sixth Amendment right-to-counsel

and confrontation claims, the § 3501 mandate requiring federal

courts to admit all “voluntary” statements would, if upheld, require

overruling such cases as United States v. Henry, 447 U.S. 264

(1980), Bruton v. United States, 391 U.S. 123 (1968), and Massiah

v. United States, 377 U.S. 201 (1964), and by implication such

parallel state cases as Gray v. 523 U.S. 185 (1998),

Cruz v. New York, 481 U.S. 186 (1987), and Brewer v. Williams,

430 U.S. 387 (1977).

11

D. Miranda’s Workable Rules Have Become Part of

Our Constitutional H and

yr eritage Should Not Be

The Miranda decision was a compromise. This Court

could have held that any statement made in the course of

custodial interrogation by the police was inadmissible; or it

could have adopted a rule consistent with the position then

by the police were uate to di ion inher-

a we adequ: 9 Gapel the compulsion inher

The requirements of Miranda are particularly crafted to

protect the privilege. Miranda requires that the suspect be

wamed of his rights, not only to inform the suspect so he

may make an intelligent and informed choice as to whether to

rat ortit wh, waive his rights,? but also to “show

ne indi\ interrogators are prepared to recognize

his privilege should he choose to exercise it.” Miranda, 384

U.S. at 436; see Minnesota v. Murphy, 465 U.S. 420, 433

(1984) (“the coercion inherent in custodial interrogation

derives in large measure from an interrogator’s insinuations

that the interrogation will continue until a confession is

invokes his right to remain silent or to have an attorney

present, the interrogation must cease. Miranda, 384 U.S. at

473-74. In this way the suspect can exercise some degree of

control over the duration of the interrogation and the subjects

9 Requiring warnings before the Fifth Amendment privilege i

right to a trial, as well as the reliability of the truth-finding process.

See Withrow, 507 U.S. at 691. Accordingly, because the Fifth

Amendment privilege against self-incrimination "is a fundamental

trial right,” it "operates in a different manner” than the Fourth

Amendment. United States v. Verdugo-Urquidez, 494 U.S. 259,

264 (1990); accord Schneckloth v. Bustamonte, 412 U.S. 218, 232,

12

discussed. See Michigan v. Mosley, 423 U.S. 96, 104 (1975).

Finally, Miranda requires a clear waiver of rights by the

suspect before a statement will be admissible. Miranda, 384

U.S. at 475-76. This requirement again protects the right of

the suspect to make an affirmative choice as to whether to

speak or remain silent. The burden of proving a valid waiver

is on the State because the isolated circumstances of custo-

dial intecrogation are its creation, and the State itself has the

“only means of making available corroborated evidence of

warnings.” Id. at 475.

Miranda thus represents a “carefully drawn approach.”

Moran v. Burbine, 475 U.S. at 427. As this Court has

recognized, a “principal advantage” of the rules announced in

Miranda is their “ease and clarity of application.” Jd. at 425

(citations omitted). Miranda’s requirements have “the virtue

of informing police and prosecutors with specificity as to

what they may do in conducting cus*odial interrogation, and

of informing courts under what circumstances statements

obtained during such interrogation are not admissible.” Fare

v. Michael C., 442 U.S. 707, 718 (1979). Furthermore, in the

thirty-four years since Miranda, this Court has amplified and

clarified its rules to provide workable guidance on the limits

of custodial interrogation. On the one hand, this Court has

applied Miranda narrowly in a range of circumstances in

recognition of law enforcement needs.!° On the other hand,

Arent has Vom CAUSES Pe eee sees re

who request counsel during a custodial interrogation.

Edwards v. Arizona, 451 U.S. 477 (1981); ads v.

Mississippi, 498 U.S. 146 (1990).

The success of Miranda's requirements lies not only in

their clarity. Miranda represents perhaps the most widely

recognized constitutional safeguard in our criminal justice

10 See, e.g., Michigan v. Tucker, 417 U.S. 433 (1974); Oregon

v. Hass, 420 U.S. 714 (1975); New York v. Quarles, 467 U.S. 649

(1984); Oregon v. Elstad, 470 U.S. 298 (1985).

13

system.'! A generation of Americans has grown up since

1966 confident that if brought to the police station for

questioning, we have the right to remain silent, that the police

will warn us of that right and, above all, that they will respect

its exercise. See Richard A. Leo, The Impact of Miranda

Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 671-72

(1996). This is not to suggest that longstanding constitu-

tional rules are beyond re-examination, Brown v. Board of

Education, 347 U.S. 483 (1954), but only to suggest that this

Court has always acted with appropriate hesitancy before

overruling “watershed decision{s]" designed to protect

individual rights. Planned Parenthood v. Casey, 505 U.S.

833, 867 (1992). To measure the public’s reliance on

Miranda may be impossible, but that does not make it

irrelevant. To paraphrase Casey, “[t}he Constitution serves

human values, and while the effect of reliance on [Miranda]

cannot be exactly measured, neither can the certain cost of

overruling [Miranda]” for people who have come to view it

1! As more fully explained in the briefs for petitioner and the

United States, there can be no doubt that the Miranda Court’s

requirement of minimum warnings in custodial interrogations was

based on constitutional grounds. All nine Justices participating in

requirements of the Constitution. See Miranda, 384 U.S. at 490-91

(“the issues presented are of constitutional dimensions . . .. Where

rights secured by the Constitution are involved, there can be no

rule making or legislation which would abrogate them.” ) (empha-

sis added); id. at 500 (Clark, J., concurring in part and dissenting in

part) (emphasis added) (observing that the Court had “fashion{ed]

a constitutional rule”); id. at 505 (Harlan, J., dissenting); id. at 532

(White, J., dissenting). In addition, the application of Miranda to

the States—both on direct appeal and on habeas review—demon-

strates that this Court has understood its warning requirements to

be of constitutional stature. See id. at 491-94, 497-99; Withrow,

507 U.S. 680. The tainted fruits holdings of Oregon v. Elstad, 470

U.S. 298, and Michigan v. Tucker, 417 U.S. 433, and the public

safety exception of New York v. Quarles, 467 U.S. 649, while

imposing limits on the scope of Miranda's applicability, cannot

support the sweeping conclusion that Miranda’s warning require-

ment was without constitutional foundation.

14

as an unquestioned part of our constitutional heritage. Jd. at

856. Thus, even if the question were closer than we believe

it is, stare decisis weighs heavily in favor of retaining

Miranda.

II. CUSTODIAL INTERROGATIONS ARE AS

INHERENTLY COMPELLING TODAY AS THEY

WERE WHEN MIRANDA WAS DECIDED

The decision in Miranda was based in large part on what

the Court concluded was the compulsion inherent in all

custodial interrogations. In the more than thirty years since,

studies have confirmed that conclusion. Moreover, police

manuals and case law of the kind relied on in Miranda

continue to reveal a police force that, while better guided in

the contours of suspects’ Fifth Amendment rights, remains

willing to go to questionable and in many cases unlawful

lengths to obtain confessions.

A. More Than Thirty Years After Miranda, the

“Interrogation Room” Remains an Inherently

Compelling Environment

Central to this Court’s decision in Miranda was its conclu-

sion that the very fact of custodial interrogation involves

inherent compulsion, Miranda, 384 U.S. at 467, a view

shared even by Miranda’s critics. See Joseph D. Grano,

Selling the Idea to Tell the Truth: The Professional Interro-

gator and Modern Confessions Law, 84 MICH. L. REV. 662,

674 (1986) (“The ‘inherent compulsion’ of custodial interro-

gation would be present if an untrained, uniformed officer

questioned the suspect in the stationhouse receiving room.”);

see also Ashcraft v. Tennessee, 322 U.S. at 161 (“[t]o speak

of any confessions of crime made after arrest as being

‘voluntary’ or ‘uncoerced’ is somewhat inaccurate, although

traditional”) (Jackson, J., dissenting).

According to the Miranda Court, several aspects of custo-

dial interrogation coincide effectively to compel statements

from suspects against their will. Custodial interrogations are

done in private, secretively, with the police holding the

suspect “incommunicado” until a confession is made.

15

Miranda, 384 U.S. at 448-50. In addition, the “patience and

perseverance” of the interrogators can result in “relentless

questioning.” Jd. at 450-55. These essential attributes of

as they were in 1966, “exa->t[ing] a heavy toll on individual

liberty and trad[{ing] on the weakness of individuals.” Jd. at

455.

The essence of the interrogation room is still dominance

and control, exerted first through isolation. As the late Fred

E. Inbau, author of the leading treatise on police interroga-

tions, still put it twenty years after Miranda, the “principal

psychological factor contributing to a successful interroga-

tion is privacy.” Fred E. Inbau, et al., Criminal Interrogation

and Confessions 24 (3d ed. 1986).'2 See Arthur S. Aubry, Jr.

& Rudolph R. Caputo, Criminal Interrogation 199 (2d ed.

1972) (emphasis added) (“Privacy serves the useful purpose

of helping to withdraw the environment from the suspect, and

in helping create and heighten the illusion that the suspect is

now, and will continue to be, completely on his own re-

sources after he has entered the interrogation area.”). Deni-

als of guilt are simply put aside or even prevented to avoid

distracting the interrogator from the objective of obtaining a

confession. See, e.g., Inbau, Criminal Interrogation, supra,

at 142 (recommending that interrogatcrs prevent suspects

from making denials); David E. Zulawski & Douglas E.

Wicklander, Practical Aspects of Interview and Interrogation

227-42 (1993) (providing several methods for preventing

suspects from expressing denials of guilt).

Several psychological studies conducted since 1966 have

confirmed that the tactics still endorsed in the interrogation

manuals tend to promote false or untrustworthy confessions

12 See Miranda, 384 U.S. at 449 (quoting this language from the

first edition of Inbau’s treatise). Until his death in 1998, Inbau

continued to enjoy the reputation as the foremost authority on

police interrogation techniques. See, e.g., Gisli H. Gudjonsson,

a ee Confessions and Testimony 31

(1992).

16

by implanting notions of guilt or implying leniency. See Saul

M. Kassin & Katherine L. Kiechel, The Social Psychology of

False Confessions: Compliance, Internalization, and Con-

fabulation, 7 PSYCHOL. Sci. 125, 126-27 (1996); Saul M.

Kassin & Karlyn McNall, Police Interrogations and Confes-

sions: Communicating Promises by Pragmatic Implication,

15 Law & Hum. BEHAV. 233, 236-41 (1991); see also

Richard A. Leo & Richard J. Ofshe, The Consequences of

False Confessions: Deprivations of Liberty and Miscarriages

of Justice in the Age of Psychological Interrogation, 88 J.

CRIM. L. & CRIMINOLOGY 429 (1998) (in a review of 60

post-Miranda confessions, 34 cases of “proven” false confes-

sions, 18 “highly probable” false confessions, and 8 “prob-

able” false confessions). Even drawing from the estimates of

Professor Paul Cassell, in the years 1966 to 1998, “some-

where between 320 and 12,608 individuals have been

wrongly convicted from false confessions alone.” Richard A.

Leo & Richard J. Ofshe, Using the Innocent to

Miranda: Another Reply to Paul Cassell, 88 J. Crim. L. &

CRIMINOLOGY 557, 562 n. 24 (1998). The tendencies toward

false confessions through standard interrogation practices

that these studies present—while alarming enough in them-

selves—only serve to emphasize the atmosphere of inherent

compulsion that continues to characterize custodial interro

gations today.

B. Police Willingness to Interrogate In Violation of

Miranda Underscores the Continuing Importance

of Miranda to Protect Suspects’ Rights

Perhaps the most troubling trend in the interrogation room

of today is the growing police practice of ignoring Miranda

altogether. In Oregon v. Hass, 420 U.S: 714 (1975), Justice

Brennan warned that allowing use of unwarned statements

for impeachment would send police the message that they

were free to violate suspects’ Constitutional rights in pursuit

possibility,” id. at 723, but today, that “speculative possibil-

ity” has become a distinct reality.

17

Cases from thirty-eight states provide instances of police

deliberately ignoring suspects’ invocations of silence or right

to counsel in attempts to obtain confessions. See Charles D.

Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 137-

38 & n.152 (1998).'3 In one recent empirical study, police

continued to question suspects despite the suspects’ invoca-

tion of their right to silence or to consult with an attorney in

nearly one out of every five cases in which suspects invoked

these rights. See Richard A. Leo, Inside the I

Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 275-76 (1996).

These cases illustrate that in custodial interrogations today,

interrogators can and do intentionally violate suspects’ rights

to obtain confessions, even when they know the resulting

confession cannot be used in the prosecutor’s case in chief.

Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en

banc), provides a stark example. In that case, brought under

42 U.S.C. § 1983, law enforcement authorities had followed

a “preexisting interrogation plan” whereby they systemati-

cally “ignored Cooper’s repeated requests to speak with an

attorney, deliberately infringed on his Constitutional right to

remain silent, and relentlessly interrogated him in an attempt

to extract a confession.” 963 F.2d at 1223.'4 Following their

13 Not only do police routinely ignore requests for counsel or

invocations of silence, but courts also routinely admit the confes-

sions so obtained as “voluntary” under the traditional due process

test. See, e.g., People v. Peevy, 953 P.2d 1212, 1219 (Cal.), cert.

denied, 119 S. Ct. 595 (1998); People v. Winsett, 606 N.E.2d 1186

(Ill. 1992), cert. denied, 510 U.S. 831 (1993); People v. Bradford,

929 P.2d 544 (Cal. 1997); State v. Favero, 331 N.W.2d 259, 261,

263 (Neb. 1983).

14 The police agencies in question had assembled a “Task

Force” to find a suspect. The Task Force’s plan was “to hold the

suspect incommunicado, and to pressure and interrogate him until

i naeeea” including lying to the suspect about the evidence

against him and ignoring any request for counsel or right to

silence:

would not be admissible in evidence in a prosecutor’s case in

’

18

plan of deliberateiy ignoring Cooper’s repeated requests for

counsel, the police interrogators questioned Cooper for four

hours regarding, among other things, his Jewish

and his sexual relations with his wife. Jd. at 1229-31. “With

his requests to see a lawyer disregarded, Cooper was a -

prisoner in a totalitarian nightmare, where the police no

longer obeyed the Constitution, but instead followed their

own judgment, treating suspects according to their whims.”

Id. at 1243. Cooper was later cleared of all suspicion in the

matter. /d. at 1234.

This practice of questioning “outside Miranda,” i.e., in

deliberate violation of a suspect’s request for counsel or

invocation of silence, is far from rare. To the contrary, it has

become an institutionalized feature of several major police

departments. See California Attorneys for Criminal Justice

v. Butts, 195 F.3d 1039 (9th Cir. 1999). The training manu-

als and videotapes at issue in the California Attorneys case—

which feature a California deputy district attomey recom-

mending that police officers deliberately ignore requests for

counsel or invocation of the right to silence—received

statewide distribution and were followed elsewhere. See

Weisselberg, supra, 84 CORNELL L. REV. at 136-37.

In a world “without Miranda,” with an after-the-fact de-

termination of voluntariness as the only guide, the state of

police interrogation would be very much worse indeed. As

the former chief of several major metropolitan police de-

partments has said, “I know cops. And one of the things I

know about cops is you have to control them. If you don’t

control them, they will go out of control... And Miranda is

one of those controls that keeps them in line.” 60 Minutes

(CBS television broadcast, Dec. 5, 1999) (William Bratton,

chief, they hoped it would be admissible for purposes of im-

peachment if the suspect ever went to trial. They expected that

the confession would prevent the suspect from testifying he

was innocent, and that it would hinder any possible insanity

defense.

Cooper, 963 F.2d at 1224.

19

for the National Fraternal Order of Police); See

Richard A. Leo & Welsh S. White, Adapting to Miranda:

Modern Interrogators' Strategies for Dealing with the

Obstacles Posed by Miranda, 84 MINN. L. REV. 397 (1999)

Not only does Miranda work to guard against compulsion

in the interrogation room, but over thirty years of accumu-

lated evidence and the direct experience of police profession-

Miranda’s beneficial effect is not as surprising as might at

first appear. Miranda’s impact must be assessed as a net

result of its “costs” and its offsetting gains for law enforce-

ment.

In hundreds of thousands of custodial interrogations each

year,'© Miranda helps police in two ways. It makes clear

15 Even Professor Cassell has conceded that “warnings [the only

Miranda requirement allegedly violated in this case} can be given

to suspects without significantly harming the confession rate.”

Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassess-

ment, 90 NW. U. L. REV. 387, 494 (1996).

16 Police annually make over 750,000 arrests for violent crime

and over two million arrests for property crime. Jd. at 440.

Roughly 80% of these arrestees are questioned. Paul G. Cassell &

Bret S. Hayman, Police Interrogation in the 1990s: An Empirical

do ,

thereby to ensure that his statement will be admissible.

Michigan v. Tucker, 417 U.S. at 433. In

wamings tend to put suspects at ease by

dence that their right to cut off questioning will protect them

from having to make incriminating statements. i

i

sions.'? Interrogators have learned that Miranda often

produces confessions that they would not otherwise obtain. !®

_ Moreover, to focus only on elusive possibilities of change

Study of the Effects of Miranda, 43 UCLA L. REV. 839, 854

(1996).

17 See David Simon, Homicide 197-202 (1991); Richard A. Leo,

From Coercion to Deception: The Changing Nature of Police

Interrogation in America, 18 CRIME, L. & SOC. CHANGE 35

(1992); Peter Carlson, You Have the Right to Remain Silent,

WASHINGTON POST, Sept. 13, 1998, at 6.

18 Carlson, supra at 11, 19; Richard A. Leo, Miranda's Revenge:

Police Interrogation as a Confidence Game, 30 L. & SOC’Y REV.

259 (1996); of. George C. Thomas, III, /s Miranda a Real-World

Failure?: A Plea for More (and better) Empirical Evidence, 43

UCLA L. REV. 821, 831 (1996).

'9 In fact, even authors otherwise opposed to Miranda have

praised it for helping to “dignify” police practices and to improve

the credibility of confessions obtained by interrogation. See, e.g.,

Paul B. Weston & Kenneth M. Wells, Criminal Investigation:

Basic Perspectives, 184 (2d ed. 1974). At least one commentator

has warned that removing this bar would send a dangerous

message to the law enforcement community. See Leo, The Impact

of Miranda, supra, 86 J. CRIM. L. & CRIMINOLOGY at 680.

i

2

of Police “became convinced that his

aif:

cat

a

at

it

fis

38

i

C

22

When a division of the Department of Justice suggested

challenging Miranda in 1986, Solicitor General Charles

Fried noted that “[mJost experienced federal prosecutors in

and out of my office were opposed to this project, as was I.”

Charles Fried, Order and Law 46 (1990). A survey con-

ducted for the Department revealed similar sentiment among

police executives,24 and other reports at the time showed

emphatic support for Miranda among police chiefs and line

officers alike.2> This view remains widely held. William

Bratton, who has headed five police departments including

I see no reason to turn the clock back.” Quoted in Yale Kamisar,

Landmark Ruling’s Had No Detrimental Effect, BOSTON SUNDAY

GLOBE, Feb. 1, 1987, at A27; Evelle Younger, Interrogation of

Criminal Defendants, 35 FORDHAM L. REV. 255 (1966).

23 A 1976 survey of 67 police chiefs, sheriffs, and state police

commanders also found an “overwhelming” number (more than

90% in one state) favorable to Miranda. Stephen L. Wasby, Small

Town Police and the Supreme Court (1976). A 1988 American Bar

Association survey of more than 800 prosecutors, judges, and

police officers found that “[a] very strong majority . . . agree that

compliance with Miranda does not present serious problems for

law enforcement.” ABA Special Comm’n on Criminal Justice in a

Free Society, Criminal Justice in Crisis 28 (1988).

24 See Stephen J. Schulhofer, Miranda’s Practical Effect: Sub-

stantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L.

REV. 500, 507 n.23 (1996) (76% of those polled opposed any

modification of Miranda or “prefer{red] modification to reversal;”

only 24% supported overruling of Miranda).

25 Tom Gibbons & Jim Casey, Ed Meese’s War on Miranda

Draws Scant Support, CHI. SUN-TIMES, Feb. 17, 1987, at 41;

Eduardo Paz-Martinez, Police Chiefs Defend Miranda Decision

Against Meese Threats, BOSTON GLOBE, Feb. 5, 1987, at 25-29.

The Executive Director of the International Association of Chiefs

of Police, one of the few police leaders to voice support for

23, 1987, at Al7.

existence of [federal] review.” Withrow, 507 U.S. at 695.

Notwithstanding this background of widespread support by

dial interrogation and the significant number of officials

urging this Court to affirm the result below leave little doubt

that freedom to depart from Miranda would not go unused.

confidence that clear-cut safeguards still apply. Even in

communities that adopted Miranda-like rules voluntarily, the

absence of a constitutional imprimatur would undercut the

public awareness, legitimacy and trust that Miranda's

nationwide acceptance now confers. Leo, The Impact of

Miranda, supra, 86 J. CRIM. L. & CRIMINOLOGY at 679-80.

B. Data Confirm That Miranda Does Not Impede

Law Enforcement.

In the wake of Miranda, many studies attempted to assess

its effect. Though crude, the studies generally pointed in the

same direction—with isolated exceptions, Miranda’s initial

26 One chief warned that even if communities imposed similar

requirements on their own, individual officers would “probably

exercise their own judgment” and “then you're going to have a

mixture of a lot of things happening.” Paz-Martinez, Police

Chiefs, supra, at 29.

24

impact on confession and conviction rates appeared small or

non-existent.2”7, Two 1996 studies provide contemporary

data. In the first, covering three California cities, police

obtained incriminating statements in 64% of their interroga-

tions.28 In Salt Lake City, incriminating statements were

obtained in 54% of the interrogations.29 Both rates were well

within the range reported in various cities prior to Miranda.”

In a 1998 report on Washington, D.C., re

success rate, though not quantified, was so high that

Miranda’s impact was described as “approximately zilch.”3!

Scholars are virtually unanimous in noting the absence of

empirical evidence that Miranda impedes law enforcement.32

And nearly all scholars concur in dismissing the contrary

27 See Liva Baker, Miranda: Crime, Law and Politics, 180-81,

403-05 (1983); Leo, The Impact of Miranda, supra, 86 J. CRIM. L.

& CRIMINOLOGY at 632-45. In the cautious language of social

science, “[t]here is insufficient evidence that Miranda has a

statistically significant effect on the percentage of suspects who

incriminate themselves." Thomas, Js Miranda a Real-World

Failure?, supra, 43 UCLA L. REV. at 830-31.

28 Leo, Inside the Interrogation Room, supra, 86 J. CRIM. L. &

CRIMINOLOGY at 280.

29 See George C. Thomas, Ill, Plain Talk About the Miranda

Empirical Debate; A "Steady-State" Theory of Confessions, 43

UCLA L. REV. 933, 935-36, 952 (1996).

30 Jd., at 953, 955; Schulhofer, Miranda's Practical Effects,

supra, 90 Nw. U. L. REV. at 509 n.28.

3! Carlson, supra, at 9.

32 The principal scholarly disagreement is on the subtle question

whether the data affirmatively show that Miranda causes no harm

or merely fail to show that Miranda does cause harm. And even

the more cautious scholars concede that an absence of evidence is

telling: “Reaching any decision on the status of Miranda without

better empirical evidence is roughly like having to decide whether

you need surgery before knowing whether you are sick.” Thomas,

Plain Talk, supra, 43 UCLA L. REV. at 958.

25

claims of Professor Cassell, whose arguments we now

consider.

C. Professor Cassell’s Claims About

_ Miranda's “Costs" Do Withstand Scrutiny

In his effort to demonstrate that Miranda impedes law

enforcement, Professor Cassell has used four kinds of data:

before-and-after studies See tide Ce on eens

from contemporary interrogation in

of clearance rates for four years after Miranda, and a regres-

sion analysis of clearance rates over a more extended period.

Several of Cassell’s studies have drawn unusually sharp

criticism for their failure to meet standard scholarly norms.

See, e.g., Leo, Using the Innocent to Scapegoat Miranda,

supra, 88 J. CRIM. L. & CRIMINOLOGY at 557 n.2 (1998).

Each study by Cassell suffers from major defects that render

its claims untenable.

Cassell’s first set of data examined eleven prior studies

comparing confession rates immediately before and after

Miranda. He excluded three studies that he deemed flawed;

in the remainder, confessions were said to drop on average

by 16%, and convictions by an estimated 3.8%. Cassell,

Miranda's Social Costs, supra, 90 Nw. U. L. REV. at 437-38.

As these were crude studies from a period before police had

adapted to Miranda, the claimed 3.8% decline in conviction

rates is not necessarily alarming. Yet examination of Cas-

sell’s procedures showed that inconsistent methods and

misreading of sources had significantly inflated the claimed

drop in confessions, >? and had even inflated the case attrition

SS ee oy wee ban ch gcd cele yal

26

rate to the 3.8% level; on reanalysis, the properly adjusted

' Case attrition rate was less than 1%,34 with reason to think the

net impact would be even less today.35

Cassell’s second study examined contemporary interroga-

tion in Salt Lake City. Cassell reported that only 42% o

interrogated suspects gave incriminating statements, com-

pared to pre-Miranda figures for other cities that he put in the

55-60% range.*© Reanalysis of the data showed that Cassell

had excluded confessions he deemed “volunteered” and

useful statements in the form of incriminating “denials with

explanation.” When these were included, as any valid

comparison to pre-Miranda figures requires, the adjusted

confession rate (54%) was indistinguishable from Cassell’s

pre-Miranda comparison figure (55-60%). Thomas, Plain

Talk, supra, 43 UCLA L. REV. at 935-36, 946-52, 953. In

earlier work, moreover, Cassell reported that pre-Miranda

confession rates varied over a much wider range (31%-88%),

with eleven of the twenty cities below 50%. See id. at 936;

Cassell, Miranda's Social Costs, supra, 90 Nw. U. L. REV. at

459. Cassell’s own figure for Salt Lake City (42%) falls well

within the wider pre-Miranda range, and the properly ad-

justed figure (54%) is above the median of the pre-Miranda

reports. The Salt Lake City data offer no reason to think that

kinds of confessions counted before and after. Jd. If such a

discrepancy might have affected the Los Angeles study, an actual

count, there is at least equal reason for concern about inaccuracy in

the before-period “guestimates” that Cassell deemed reliable in the

Brooklyn and New Orleans cases. Other similarly serious flaws

further skew the conclusions of Cassell’s before-and-after study.

See, e.g., id. at 516-30.

34 Id. at 539, 544-47. Among the usable studies, change in

confession rates varied widely, from a 16% decrease to a 10%

increase. Jd. at 539. Such diverse results suggest that Miranda

itself probably did not cause the fluctuations.

35 Jd. at 507-10, 546-47.

36 Cassell & Hayman, Police Interrogation, supra, 43 UCLA L.

REV. at 871-72.

27

interrogation is less successful today than it was before

Miranda. _

carr sees Se ge Aye agate mg

percentage of reported crime that police solve arrest

remained at about 60% from 1950-1965, but dropped steadily

during the four years following Miranda, and then leveled off

at about 45% thereafter. Cassell suggests that no other event,

only Miranda, could explain this mid-1960’s drop in clear-

ance rates. Paul G. Cassell, All Benefits, No Costs: The

Grand Illusion of Miranda's Defenders, 90 Nw. U. L. REV.

1084, 1089-91 (1996). But when the clearance-rate trend is

to the trend in police clearance capacity (the

number of officers available relative to the number of crimes

to be solved), the two trends closely match.” Crime rates

had been skyrocketing since 1960, largely for social and

demographic reasons. See James Q. Wilson, Thinking About

Crime 4-20 (1975). Because police resources failed to keep

up, the number of officers per 100 violent crimes fell sharply,

from 115 in 1960 and 82 in 1965 to only 45 in 1970. See,

Schulhofer, Clearance Rates, supra, 91 Nw. U. L. REV. at

284, 285 n.16. Given the —_— py ays any

ing this period, the i in clearance

ee arenes eatin made police less

efficient. In fact, the number of crimes cleared per officer

steadily rose during this period. Jd. at 286-87.

Cassell’s fourth used regression analysis to test

whether clearance brn were higher before Miranda (1 950-

65) than after (1966-94). Controlling for all quantifiable

rates for property crimes, robbery and total violent crimes,

but not for murder, rape and assault. Paul G. Cassell &

Richard Fowles, Handcuffing the Cops? A Thirty-Year

Perspective on Miranda's Harmful Effects on Law Enforce-

37 See Stephen J. Schulhofer, Miranda and Clearance Rates, 91

Nw. U. L. REV. 278, 283-84 (1996).

28

ment, 50 STAN L. REV. 1055, 1086-88 (1998).3® A reanalysis

with different statistical models confirmed only some of

Cassell’s results.9

Whichever the preferred model, there is no basis for Cas-

sell’s speculative claim that Miranda was the likely cause of

any statistical differences between the 1950-65 and 1966-94

periods. A host of other factors could explain the results,

including defects in the data and the many nonquantifiable

factors that differed in the two periods. Potential causes

not controlled in his study include social changes that make

crime harder to solve (e.g., the increasing proportion of

stranger crimes), legal changes unrelated to Miranda (e.g.,

implementation of the right to counsel, more widespread

compliance with the Fourth Amendment), and changes in

police organization, including more objective crime-

recording practices. Given vast changes in society and law

enforcement between 1950-65 and 1966-94, there is no

reason to assume that Miranda must have caused the clear-

ance-rate drop or any part of it.*!

38 It should be noted that the variable labeled "MIRANDA"

throughout this article is merely a before-after “dummy” variable

centered on 1966, not necessarily a measure of Miranda's causal

effect. See John J. Donohue, III, Did Miranda Diminish Police

Effectiveness?, 50 STAN. L. REV. 1147, 1161, 1163, 1172 (1998).

39 See, Donohue, Did Miranda Diminish, supra, 50 STAN. L.

REV. at 1168-70, finding a significant difference for larceny but

not for other property crimes, and for total violent crimes, but not

for the individual crimes that comprise this category (murder, rape,

robbery and assault).

40 Id. at 1151-56.

4! One particularly important factor makes clear why it is so

speculative to attribute clearance-rate differences to Miranda. It is

well-established that during the 1950-65 period, many police

departments artificially inflated their clearance rates, for both

internal and public-relations purposes. See Jerome Skolnick

Justice Without Tria' 164-81 (1966). More professional record-

keeping standards ~ troduced in the late 1960s unquestionably

reduced reported ciearance rates, not because fewer crimes were

29

Cassell argues that such factors could not have been im-

portant because none of them changed dramatically right

after Miranda, as clearance rates did. Cassell & Fowles,

Hi

l

the Cops, supra, 50 STAN. L. REV. at 1108,

113, 1117. Thee ete Sue inge Save Coe epee.

First, major record-keeping improvements were introduced

the late 1960s, so their principal effect could well have

occurred in that period. Donohue, Did Miranda Diminish,

supra, 50 STAN L. REV. at 1172 n.100. Second, as discussed

above, a precipitous decline in clearance capacity also

occurred in the late 1960s, in a pattern that fits the clearance-

rate drop. Cassell’s regression analysis controls for this

factor, but only by measuring an average clearance-rate

effect over the entire 1966-94 period. The differences

identified by that analysis could have been caused by any of

the many social and legal factors that were different on

average during the 1966-94 period than they were before,

even if those factors did not change abruptly right after

1966.42 On examination, the regression analysis, like the

other Cassell studies, provides no evidence that Miranda, on

balance, caused a net harmful effect.

At bottom, of course, any potential “cost” to law enforce-

ment due to enforcement of the Fifth Amendment through

Miranda is beside the point; the Fifth Amendment was

ly intended to restrain law enforcement. Given

the reliance by counsel supporting the decision below on

such claims of law enforcement “costs,” however, this Court

should have an accurate view of what those costs are. There

solved but because bogus clearance claims common before were

no longer included. Donohue, Did Miranda Diminish, supra, 50

STAN. L. REV. at 1152-55, 1172.

42 /d. at 1172 n.100. Professor Donohue concludes that “one is left

with unbridgeable uncertainty about how much confidence to repose mn

any of the statistical results" and that even if there were a statistical

change in clearance rates, "causal attribution to Miranda is difficult im

light of the vast systemic changes both in crime and criminal justice that

were occurring and have persisted since the mid-1960s." Jd. at 1172.

30

is no reason to question the widely held view that Miranda

does not significantly burden law enforcement.

CONCLUSION

For the foregoing reasons, the judgment of the Court below

should be reversed.

Respectfully submitted,

STEVEN R. SHAPIRO JONATHAN L. ABRAM*

VIVIAN BERGER AUDREY J. ANDERSON

SUSAN N. HERMAN STEPHEN M. KUPERBERG

AMERICAN CIVIL LIBERTIES HOGAN & HARTSON L.L.P

UNION FOUNDATION 555 Thirteenth Street, N.W.

125 Broad Street Washington, D.C. 20005-1109

New York, NY 10004 (202) 637-5681

(212) 549-2500

STEPHEN SCHULHOFER

1111 East 60th Street

Chicago, IL 60637

* Counsel of Record Counsel for Amicus Curiae