Vol. 14 No. 2 (February 2004)

MIRANDA’S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON, by Welsh S. White.  Ann Arbor, MI: The University of Michigan Press, 2003.  240 pp. Paper $21.95.  ISBN 0-472-08941-2. 

Reviewed by Craig Hemmens, Department of Criminal Justice Administration, Boise State University, chemmens@boisestate.edu. 

MIRANDA v. ARIZONA (1966) stands as the best known and most controversial criminal justice-related opinion ever handed down by the Supreme Court. When the case was decided almost forty years ago, critics claimed that the police would no longer be able to extract confessions from suspects. Time has proven this fear false, but conservative critics of the rule continue to assert that the MIRANDA warnings are unwise as a matter of policy and unconstitutional as a matter of law (Cassell, 1998; Grano, 1979). In 2000, the Supreme Court, in DICKERSON v. U.S., rebuffed a challenge to the constitutionality of MIRANDA and made it clear the MIRANDA warnings are constitutionally mandated. Interestingly, and to the distress of the dissenting Justice Scalia, the majority opinion was penned by Chief Justice Rehnquist, a long-time critic of MIRANDA.

In MIRANDA’S WANING PROTECTIONS, Welsh S. White, a law professor at the University of Pittsburgh, provides a timely, fascinating and often troubling account of police interrogation procedures and the law surrounding this crucial police task. White uses DICKERSON as a jumping off point for a review of MIRANDA and its progeny. He makes a strong case that MIRANDA has failed to provide suspects with the level of protection that was intended by the Warren Court in 1966.

How has MIRANDA failed to protect suspects? White argues the failure is the consequence of a combination of factors. First, subsequent Supreme Court decisions drastically curtailed the reach and impact of MIRANDA. This argument is not new; legal scholars have been making it since the 1970s (Kamisar, 1999). The Supreme Court has decided more than thirty cases dealing with MIRANDA-related issues since 1966; most have upheld the police interrogation procedure at issue. Second, and more important according to White, is that law enforcement has adapted to the strictures of MIRANDA and dramatically improved their interrogation practices. This is similar to how the police have adapted to the limitations imposed by the high court on search and seizure practices.

The Warren Court assumed that providing suspects with knowledge of their rights would allow the suspects to exercise some degree of control over the interrogation process and prevent application of the "third degree" by the police. The Warren Court realized that a case-by-case review of allegations of inappropriate interrogation practices was unlikely to solve the problem, since judges routinely accept the police version of what happened in the interrogation room. The Court assumed that suspects made aware of their rights would "lawyer up," thereby ensuring the interrogation would be conducted properly (if at all). In this sense MIRANDA was a good start, but White notes that subsequent rulings by a more conservative Court failed to fully realize the promise of MIRANDA, and indeed severely limited its reach. Also, police interrogation procedures became much more sophisticated, with psychological and semantic tricks taking the place of the truncheon. Consequently, MIRANDA represents what one scholar has called a "failure of legal liberalism" (Thomas, 2003).

Courts now routinely abdicate their responsibility, under the Due Process Clause, of ensuring that police interrogation procedures do not violate fundamental fairness so long as the police have provided the MIRANDA warnings. Proof of a voluntary waiver by the suspect leads reviewing courts to assume that any subsequent confession is also voluntary. This focus on the MIRANDA warnings and what happens before the interrogation begins has led to ignoring what goes on after the warnings are given and waiver obtained-during the interrogation. White notes that recent empirical studies suggest false confessions are obtained with some frequency. This leads White to assert that how the interrogations are conducted is more important than simply uttering the MIRANDA warnings.

White’s argument is not limited to legal analysis. He makes good use of the empirical research on wrongful convictions to demonstrate that MIRANDA’s protections do not prevent miscarriages of justice, and that these miscarriages are not as infrequent as conservative critics, such as Professor (now Judge) Cassell (1998), have argued. Focusing on wrongful convictions is more likely to convince the public and politicians who want to be tough on crime to do something about what goes on in the interrogation room. Indeed, the chapters detailing how false confessions have been obtained are among the most impressive of the book. White paints a disturbing picture of what can happen when well-meaning-and no so well-meaning-police officers utilize their interrogation skills and the limits to the MIRANDA protections-if not outright intimidation and abuse-to elicit false confessions from those most susceptible to trickery and deception.

The first four chapters of MIRANDA’S WANING PROTECTIONS provide a foundation and context for White’s later discussion of MIRANDA. White discusses how interrogations were once conducted, and the brutality associated with the "third degree." He tracks interrogation procedures from physical torture to extract confessions to the modern use of mental, psychological and emotional trickery.

The next section of the book explicates MIRANDA and its progeny. The Warren Court decided MIRANDA in 1966. President Nixon criticized it and used it as a rallying cry in the 1968 election. He subsequently filled the Court with more conservative, pro-law enforcement justices who made clear their discomfort with MIRANDA and who took every opportunity to restrict it. Chapter Five discusses MIRANDA; Chapter Six delineates subsequent cases and shows how the Burger and Rehnquist Courts weakened MIRANDA’s protections; and Chapter Seven details how police officers develop strategies to overcome the effect of the mandated warnings. Chapter Eight discusses DICKERSON, which solidified MIRANDA but failed to adequately address its shortcomings, and Chapter Nine discusses MIRANDA’s limitations.

The next three chapters provide concrete, real-life examples of how police interrogation practices can lead to wrongful convictions. Chapter Ten discusses how police interrogators can utilize torture without reviewing courts discovering it. Chapters Eleven and Twelve detail how police interrogation practices can result in false confessions. Chapters Thirteen and Fourteen are devoted to a discussion of ways to improve judicial review of police interrogation procedures.

What may surprise liberal critics of the MIRANDA opinion is that White does not advocate major change in the existing law. He rightfully notes that MIRANDA does provide protections to some suspects-mainly those who are able to understand their rights and assert them. White acknowledges what liberal critics such as Yale Kamisar (1999) have long noted, that MIRANDA does not go far enough-its protections do not prevent what White refers to as "pernicious police practices," or what occurs in the interrogation room after the warnings are given and waived by the suspect. Rather than require a major overhaul of existing doctrine, however, White argues forcefully that the Supreme Court can and should fill in the gaps left by MIRANDA by more rigorously interpreting the Due Process Clause as it applies to the interrogation process.

White proposes some relatively simple remedies to the problem. These include the videotaping of police interrogations and renewed use of the due process voluntariness test that was utilized before MIRANDA. He argues the Supreme Court should "refurbish" the due process voluntariness test by mandating a mechanism that will allow lower courts to make more accurate findings of fact in interrogation cases. He also argues that the Court should prohibit specific types and forms of interrogation that are substantially likely to produce untrustworthy statements. In particular, the Court should restrict interrogation of the mentally handicapped and juveniles, and shorten the permissible length of interrogations and monitor the use of threats, promises, and use of deception during interrogation.

MIRANDA represents the Supreme Court’s struggle to adress the fundamental conflict between civil liberties and law enforcement. MIRANDA is often seen as protecting only those with something to hide; the evidence of wrongful convictions, based in large part on false confessions obtained through the use of "pernicious interrogation practices," reveals this is not necessarily the case. Professor White’s account of MIRANDA and its progeny is insightful, balanced, and comprehensive, yet concise. The book is accessible, clearly written, and perfect for advanced undergraduates, graduate students, practitioners, and the general public. Professor White’s study is an indispensable contribution to the literature on the subject, and should be required reading for any scholar, student, lawyer, or policymaker interested in the criminal justice process.

REFERENCES:

Cassell, Paul G. 1998. "Protecting the Innocent From False Confessions and Lost Confessions-and from Miranda." 88 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 497-575.

Grano, Joseph D. 1979. "Voluntariness, Free Will, and the Law of Confessions." 65 VIRGINIA LAW REVIEW 859-925.

Kamisar, Yale. 1999. "Confessions, Search and Seizure, and the Rehnquist Court."  34 TULSA LAW JOURNAL 465-498.

Thomas, George C., III. 2003. "Miranda’s Illusion: Telling Stories in the Police Interrogation Room."  81 TEXAS LAW REVIEW 1091-1116.

CASE REFERENCES:

MIRANDA v. ARIZONA, 384 US 436 (1966).

DICKERSON v. U.S., 530 U.S. 428 (2000).

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Copyright 2004 by the author, Craig Hemmens.