Happy Fiftieth Birthday Miranda

Next Monday, Miranda v. Arizona will celebrate its fiftieth birthday. Easily one of the Supreme Court's most famous decisions, Miranda is as much a part of our popular culture as our legal culture. For many persons, even youngsters in grade school, Miranda conjures the image of a police officer interrogating a suspect according to special rules. Indeed, by requiring police to warn suspects of their right to remain silent and to have a lawyer, Miranda not only revolutionized police interrogation practices but enhanced the professionalism of police more generally.

Chief Justice Earl Warren wrote the decision for a narrow 5-4 majority. There are no catchy phrases or memorable passages. It's a workmanlike opinion organized into three main parts. Part I sets the stage. It describes the history of police interrogations from the early 1930's when police used physical brutality such as beating, hanging, and whipping to extort confessions, to the modern practice of psychological coercion, such as isolating the suspect, positing his guilt, minimizing the moral seriousness of his crime, and using trickery and deception. The Court cited police manuals and training programs that educate police on tactics to secure confessions successfully.

Part II for the first time applied the Fifth Amendment's Privilege Against Self-Incrimination to station-house interrogations. The privilege - called by the Court the "the hallmark of our democracy" - previously was applicable only to the courtroom. This new use of the privilege, the Court observed, was to show the "respect that government must accord to the dignity and integrity of its citizens."

Part III announced the celebrated warnings that must be given before the police are allowed to ask questions. The Court carefully noted that these warnings are not constitutionally mandated but must be given unless police come up with equally protective procedures that inform suspects of their rights. Thus, as an absolute prerequisite to overcoming the inherent pressures of the interrogation atmosphere, police must tell suspects in clear and unequivocal language of their right to remain silent. Second, this warning must be accompanied by an admonition that anything the suspect says can and will be used against him. Third, as an indispensable safeguard to protecting the privilege, the police must advise the suspect of his right to consult with a lawyer before answering any questions, and to have his lawyer present during any questioning. Fourth, the police must tell the suspect that if he wants a lawyer, but cannot afford one, a lawyer will be appointed for him free of charge.

The Court emphasized that its decision was not intended to create a "straightjacket" to handicap police, and that "confessions remain a proper element of law enforcement." A defendant can make a valid choice to relinquish, or "waive," his rights and agree to talk to the police. However, if a defendant is willing to talk and makes a confession, a heavy burden rests on the prosecution to show that the defendant knowingly and intelligently waived his rights.

The four dissenters complained that the decision was constitutionally insupportable, particularly with respect to the Court's unprincipled importation of the self-incrimination clause into the station-house. On a practical level, the dissenters sounded a loud and unnerving alarm, arguing that by showing such a "deep distrust of all confessions," the Court made it more difficult for police to obtain confessions, and "in some unknown number of cases, will return a killer, a rapist or other criminal to the streets to repeat his crime whenever it pleases him."

What has Miranda wrought these past fifty years? Is the dissent's dire prediction of Miranda's adverse consequences born out empirically? Most studies - even ones by anti-Miranda scholars - suggest that Miranda's impact has been minimal, and that only in a small fraction of cases have confessions been excluded. In fact, police claim to have been able to get confessions in 80 to 90 percent of cases and that Miranda is a minor annoyance to a conviction. Some police believe that even if a suspect refuses to waive his rights police should continue to interrogate anyway, because even if a resulting confession cannot be used directly to prove a defendant's guilt, it is still available, as the Court has made clear, to discredit the defendant if he testifies differently.

If anything, the past fifty years have seen a significant erosion of Miranda's protections. Are warnings required if police seek to question a suspect who is forcibly stopped on the street or in his car? No. Is evidence that the police discover from an unwarned confession, such as a weapon or a witness, admissible? Yes. If the police question a suspect about an emergency where public safety may be endangered, do they have to recite the Miranda warnings? No. If a suspect insists on his right to remain silent, can the police thereafter re-interrogate him? Yes. Do the police have to advise a suspect that his refusal to cooperate and talk cannot be used against him? No. Can the police use trickery and deception to get a suspect to waive his rights? Yes. By the same token, the Court has imposed a few limits, such as requiring special rules when a juvenile is interrogated, and barring any further questioning when the suspect asks for a lawyer. Moreover, several jurisdictions require that confessions be videotaped.

Notwithstanding Miranda's popularity, there are significant gaps in the public's understanding. In one recent study most college undergraduates displayed several errors, believing that the Constitution did not guarantee a person the right to remain silent; that a refusal to talk to the police could be used against the suspect; and that Miranda waivers had to be signed. Moreover, Miranda warnings are not uniform; one study revealed thirty different versions of Miranda warnings in the fifty states. Too, oral warnings are less effective than written warnings in advising suspects of their rights. And warnings given in Spanish have led to significant mistranslations that have caused confessions to be thrown out. Also, many suspects who are actually innocent have confessed after being warned, as the Central Park jogger case illustrates.

Miranda has aged well. Despite some narrowing interpretations, police have adapted their interrogation protocols to Miranda, and know that if they follow Miranda's requirements, a confession will almost always be admitted. And Miranda probably has improved the image of the criminal justice system as concerned as much with fair play as with getting convictions.