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.