Some Legal Aspects of Police Interrogations 50 Years After Miranda

Confirmation bias is a psychological tendency to interpret information in a way that reinforces a preexisting belief. For example, if a suspect believed to be guilty tells the same unchanging story over and over, it must be a rehearsed lie.
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My recent Shepard's Citation search indicated in excess of 73,000 citations in subsequent judicial decisions, articles, and other legal materials to the 1966 U.S. Supreme Court decision in Miranda v. Arizona. This comment provides a brief and incomplete educational overview of some legal aspects of police interrogations. Always consult an experienced attorney in all criminal law situations.

Many commentators distinguish a police interview and a police interrogation. An interview gathers information without accusation while an interrogation is focused on a criminal suspect and is accusatory. Thankfully, we are beyond the Roman method of interrogation by flogging described in the Biblical account in Acts 22. The Apostle Paul asserted his Roman citizenship rights to avoid this.

The Fifth Amendment to the U.S. Constitution reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment famously contains double jeopardy, self-incrimination, and due process clauses. Note that it does not specifically mention interrogations or warning individuals of their rights.

Miranda v. Arizona was decided (5:4) by the U.S. Supreme Court on June 13, 1966. Chief Justice Warren wrote for the majority that:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

The Miranda decision discussed the psychology of interrogation in some detail. Interestingly, the decision did not precisely word the "Miranda Warning" that is commonly utilized.

Justice Harlan, writing for himself and Justices Stewart, and White, in dissent wrote:

While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim, in short, is toward 'voluntariness' in a utopian sense, or, to view it from a different angle, voluntariness with a vengeance.

Justice White in a separate dissent wrote:

The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.

Justice Clark in a mixture of concurrence and dissent wrote:

Rather than employing the arbitrary Fifth Amendment rule which the Court lays down, I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering.

The Miranda decision has been controversial since it was rendered. Decades of judicial decisions have discussed the concept of "custodial interrogation," what is "testimonial" (for example, not fingerprinting, photographs, physical characteristics, or demeanor), and carved-out a variety of exceptions to its application. A number of well-documented situations indicate that it is possible for a skilled interrogator to extract a false confession, even from an educated and intelligent suspect.

Conventional defense attorney advice is for the suspect to ask the police if she or he is under arrest. If the police answer "no," then leave without providing the police any more than a statutorily mandated identification, name, and address. If the police answer "yes," then the individual in custody should affirmatively state that he or she is exercising the right to remain silent and is requesting an attorney. Then don't talk and sit quietly. In a 2013 plurality U.S. Supreme Court decision, Salinas v. State, the Court wrote that one cannot invoke the right to remain silent by simply remaining silent.

Additionally, conventional defense attorney advice is not to take a polygraph. A polygraph is not a true "lie detector." It measures physiological reactions (basically stress responses) but does not indicate why these reactions are occurring. Polygraphs are not admissible in evidence in criminal trials.

The following are some reasons for the conventional defense attorney advice:

1. Confirmation bias is a psychological tendency to interpret information in a way that reinforces a preexisting belief. For example, if a suspect believed to be guilty tells the same unchanging story over and over, it must be a rehearsed lie. If the details vary, the suspect is lying and cannot keep her or his story straight. Suspect emotional flatness indicates disengagement and guilt. Suspect hysteria indicates over-acting and guilt. All of us may unconsciously engage in confirmation bias.

2.Statements may "open the door" to impeachment (contradicting testimony or the introduction of extraneous offenses) at trial. If the defense presents the defendant's version of events, through tapes or live testimony, and there are contradictory interrogation statements, these may be presented to the jury. A jury may conclude that the contradiction indicates lying and convict the defendant. However, it is possible that the contradiction only indicates stress, confusion, or lack of rest.

3.The police are allowed to use at least some deceptive tactics during an interrogation. For example, the U.S. Supreme Court in a 1969 decision, Frazier v. Cupp, allowed a confession to stand although the police falsely told the suspect that a co-defendant had confessed. Precisely what tactics are lawful or unlawful is beyond the scope of this brief comment.

4.A suspect should not attempt to plea bargain with the police as this is the prerogative of the prosecutor. Furthermore, prosecutorial plea bargains are typically not legally binding on a judge. Police promises of leniency or expressions of understanding are interrogation tactics. Certainly, a suspect should not think that she or he will be allowed to go home if only he or she tells the police what they want to hear.

5.Interrogation may be a method of obtaining additional evidence that the police lack probable cause, at the time, to obtain through a search warrant. For example, a DNA sample or fingerprints might be taken from a discarded soda can or bottle of water that the police gave a suspect. Demeanor evidence or mumbled statements may be recorded when the police leave the suspect alone in the interrogation room. A muttered "Boy, I'm in trouble now" is ambiguous but may be presented to a jury as an expression of guilt. Carefree behavior may be presented as remorselessness and lack of concern.

This comment presents a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all specific criminal law situations.

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