How long will Miranda last…..

I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improvedMiranda warning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

  1. Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
  2. But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).
  3. On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).
  4. If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980).
  5. But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)
  6. You have the right to an attorney.
  7. But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).
  8. If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own.
  9. And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?”

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.

You have the right…or do you?

Kinports on the Court and Miranda

Kit Kinports (The Pennsylvania State University) has posted The Supreme Court’s Love-Hate Relationship with Miranda on SSRN. Here is the abstract:
In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, and Berghuis v. Thompkins. This Article examines each opinion through a pragmatic lens, with an eye towards ascertaining whether the Roberts Court remains committed to the pragmatic approach taken by its predecessors. While the government prevailed on every issue raised by the three cases, the opinions vary in their fidelity to pragmatic norms.

The Article concludes that, even if Shatzer and Powell can be dismissed as effecting only incremental changes in the law – in the rules protecting those who invoke their Miranda rights, defining custody, and requiring that the warnings reasonably convey each of the rights Miranda guarantees – Thompkins cannot be defended on pragmatic grounds. In effect, the decision in Thompkins allows the police to begin interrogating a suspect immediately after reading the Miranda warnings, without first securing a waiver of the suspect’s Miranda rights, and then to use anything she says – even hours later – to demonstrate that she impliedly waived her rights. Thompkins thus essentially reduces Miranda to a mere formality, requiring that warnings be read and otherwise leaving criminal defendants with the same voluntariness due process test that Miranda was designed to replace. To the extent Thompkins signals a change in the Court’s attitude towards Miranda, it comes at a particularly critical time given reports that the Obama administration is considering proposing an exception to Miranda for terrorism suspects.
September 4, 2010 | Permalink

False Confessions

The Substance of False Confessions
Brandon Garrett -University of Virginia School of Law

Posted in Confessions, Criminal Procedure, DNA, Police

The scholarship of interrogations has taken a turn from procedure to substance. The Supreme Court’s landmark criminal procedure rulings regulating modern psychological interrogations remain static, inviting lingering decades-long debates over whether the Court correctly decided decisions such as Miranda. Meanwhile, psychologists increasingly study not the legal regulation of interrogations, but police practices inside the interrogation room. Saul Kassin, Gisli Gudjonsson, Richard Ofshe, Richard Leo, and many others have shed light, through landmark experimental and empirical work, on how modern psychological interrogation techniques can generate false confessions. The American Psychology and Law Association released a White Paper on the subject, surveying the literature and recommending a series of changes to interrogation procedures.2 Doing so shed light on the phenomenon of confession contamination. Police may, intentionally or unintentionally, prompt the suspect on how the crime happened. Yet false confessions do not happen simply by happenstance. They are carefully constructed during an interrogation and then reconstructed during any criminal trial that follows. Constitutional criminal procedure does not regulate this critical phase of an interrogation. The Constitution requires that the ubiquitous Miranda warnings be provided and that the bare admission of guilt have been made voluntarily under the totality of the circumstances. That admission of guilt, while important, is only a part of the interrogation process. After the bare admission of guilt, police conduct a lengthy “confession-making” phase. Much of the power of a confession derives from the lengthy narrative that follows. For a person to confess in a convincing way, he must be able to say much more than “I did it.” The confession narrative not only plays an important role in fleshing out the suspect’s motive and culpability, but properly used, it can be used to test the accuracy of the confession. Police are trained to evaluate the suspect’s knowledge of how the crime occurred, by asking open-ended questions to assess whether the suspect can freely volunteer specific details that only the true culprit could know.

The false confessions in DNA cases all involved very long interrogations, and most involved vulnerable juveniles or mentally disabled individuals. In all cases but one (95% or 36 of the 38 exonerees for whom trial or pre-trial records could be obtained) police reported that suspects confessed to a series of specific details concerning how the crime occurred. As the prosecutor in Robert Miller’s case briefly put it, “He supplied detail after detail after detail after detail. And details that only but the killer could have known.”3 The non-public facts contained in confession statements then became the centerpiece of the State’s case. Although defense counsel moved to exclude almost all of these confessions from the trial, courts found each to be voluntary and admissible, often citing to the apparent reliability of the confessions. The facts were typically the focus of the State’s closing arguments to the jury. Even after DNA testing excluded these people, courts sometimes initially denied relief, citing to the seeming reliability of these confessions. For example, Nathaniel Hatchett had been excluded by DNA testing at the time of trial, but postconviction, the court concluded that “the prosecution presented overwhelming evidence” where the “defendant’s statement included information that only the perpetrator of the crimes would know.”4 The ironic result is that the public learned about these false confessions in part because of the contaminated facts. These false confessions were so persuasive, detailed, and believable that they resulted in convictions upheld during appeals and habeas review. After years passed, and appeals and habeas petitions were all denied and dismissed, these convicts had no option left but to seek the DNA testing that finally proved their confessions false.

False confessions uncovered by DNA testing are almost certainly not representative of other false confessions, much less confessions more generally. The 40 cases examined, consisting chiefly of confessions to 1980’s rape-murders, cannot speak to how often people confess falsely. While unusual, only in such examples of known false confessions can one assess whether detailed or supposedly non-public facts contaminated a confession. These data provide a set of examples of a very troubling problem that deserves further study.

One reason why these examples are important is that courts, lawmakers, and executives, while perhaps increasingly aware that false confessions can occur, continue to ignore that there is even a possibility that false confessions may appear uncannily reliable precisely because of the insidious problem of confession contamination. Justice Alito, concurring in U.S. Supreme Court in District Attorney’s Association v. Osborne, noted that “[a]fter conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime.”5 Of course, if it is true that Osborne is innocent, he certainly could have known the details of his case. His “confession” to the parole board was by definition contaminated because he could very easily admit guilt “in detail” based on the victim’s account of the crime that he heard at his own trial. In one additional recent example, Virginia’s Governor granted a conditional but not full pardon in the “Norfolk Four” case, despite DNA exclusions, citing to the “cumulative power” of confession statements, but never acknowledging that the statements could have been contaminated.7 The problem of contamination is thus not limited to the accuracy of the crime narrative, but also extends to the interrogation room shaping of mens rea and of defenses that the suspect might otherwise rely upon. We should look more carefully at the substance of scripts used by police interrogators and the substance of statements by suspects regarding defenses and mens rea, and not just crime details.

Perhaps the prolonged involvement of law enforcement in generating a confession, true or false, should itself raise concerns about possible contamination. Barry Feld’s work reviewing recorded juvenile interrogations in Minnesota suggests that the typical interrogation of a suspect lasts much less than an hour, and not hours, and without prolonged questioning, elaborate ruses, or schemes designed to produce coercion. Rather, in those interrogations of juveniles, many of which produced confession statements, police used open-ended questioning designed to elicit a narrative, together with questions designed to directly confront them with an accusation that they committed the crime or accusing them of lying. Other studies suggest that the vast majority of interrogations, even in more serious cases, are fairly short and benign. Feld asks us to consider, “Are confronting suspects with false evidence and lying during interrogation necessary evils?”8 The over-the-top and elaborate psychological techniques used in lengthy interrogations described in police manuals and used in many of these DNA exonerees’ harrowing interrogations may not be the norm. Perhaps such lengthy interrogations are needed in certain difficult and serious cases. However, scholars are right to increasingly scrutinize lengthy interrogations using complex confession-making tactics—particularly if the ornate storytelling, narrative formation, fabrication, deception, threats, psychological manipulation, and the like occurs in darkness, absent any electronic recording.

A series of reforms could reorient our criminal system towards the substance of confessions. First, although constitutional criminal procedure could regulate reliability, such constitutional change is unlikely. However, an understanding of the vulnerability of confessions to contamination can also inform courts reviewing trials postconviction, particularly in cases involving persons vulnerable to suggestion, such as juveniles and mentally disabled individuals. Second, unless interrogations are recorded in their entirety, courts may not be aware of what transpired during the confession-making process, much less detect contamination of facts, especially when no DNA testing can be performed. In recent years there has been a concerted movement towards reform. In response to some of these false confessions, state legislatures, police departments, and courts have increasingly required videotaping of entire interrogations. Third, additional police procedures can safeguard reliability, such as procedures intended to assure against contamination, to assess suggestibility of vulnerable suspects, and to avoid coercion postadmission.

Contamination of confessions is to a great degree preventable, and the remedy involves making interrogations less secretive. The remedy—electronic recording combined with reliability review—may produce benefits to law enforcement and to society beyond detecting errors. The Supreme Court complained in Miranda, “Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”9 Recording will help to close that gap in our knowledge about interrogation practices. In most cases, police will document professional, brief, accurate, and unprompted confessions. However, recording and review will also help to identify the hopefully dwindling number of contaminated false confessions, which before the advent of DNA technology had remained shrouded in secrecy and darkness. Sunlight in the interrogation room will bring interrogation practices out into the open, so that we can better understand and evaluate them. That shift towards reviewing the substance of confessions has the potential to enhance confidence in both the accuracy and legitimacy of the criminal process.


Copyright © 2010 Stanford Law Review.

Brandon L. Garrett is an Associate Professor of Law at the University of Virginia School of Law.