# Amicus Curiae Brief — Dickerson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 428

## Text

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 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0386%3A18. Public record. Not legal advice.