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The Diminishment of Miranda Is Leading to False Confessions and Conviction of Innocents

by David M. Reutter

False confessions are a problem as old as policing. The Supreme Court of the United States (“SCOTUS”) promulgated rules in 1966 with its holding in Miranda v. Arizona, 384 U.S. 436 (1966), that were designed to create a coercion-free interrogation room. SCOTUS rulings over the last 27 years have resulted, argues an article in Discourse Magazine, in Miranda dying “a death of a thousand cuts.”

English courts in the mid-18th century banned coerced confessions from criminal trial. SCOTUS first considered the issue in 1884 in Hopt v. Utah, 110 U.S. 574 (1884). The Hopt Court noted that voluntary confessions carry great weight because “one who is innocent will not imperil his safety or prejudice his interests by an untrue statement” and that the trustworthiness of a confession “ceases when the confession appears to have been made either … because of a threat or promise by or in the presence of such person, which operating upon the fears or hopes of the accused, in reference to the charge, deprive him of that freedom of will or self-control….” In other words, involuntary confessions are very unreliable and interfere with the truth-seeking process.

The Hopt decision did not prevent suspects from receiving the “Third Degree” (torture or intensive interrogation to extract a confession) in the interrogation room, especially in state courts where the decision had no applicability due to the doctrine of federalism. The “Wickersham Report,” which was commissioned by President Herbert Hoover, found that “the inflicting of pain, physical and mental, to extract confessions … is widespread throughout the country.”

SCOTUS took a step in 1936, with its ruling in Brown v. Mississippi, 297 U.S. 278 (1936), to end the Third Degree. That case involved an interrogation of murder suspects who were subjected to a mock execution that involved a sheriff’s deputy and a group of local vigilantes stringing one of the suspects up by the neck during a time when lynching was the norm in the South. To end such sadistic behavior, SCOTUS used the Due Process clause in the Fourteenth Amendment to regulate state and local police interrogations to end “contrived” convictions that rendered trials a mere “pretense.”

The Brown decision resulted in courts applying a “totality of the circumstances test” to determine the voluntariness of a confession. Under that standard, courts examine all the relevant facts of an interrogation to determine whether police overbore the suspect’s will to extract the confession.

By the time police pull a suspect in for questioning, they already have a theory of events and seek to confirm that theory with a confession. The good cop, bad cop routine is a common tactic. Another is lying to the suspect about what others have said and the strength of the evidence. In an attempt to get the suspect to agree with their answers, police manipulate the suspect through a variety of techniques, and protestations of innocence are ignored or redirected. These interrogations were often unrecorded and conducted in secret, which provided a strong incentive for either side to lie. Many states responded with mandatory recording laws.

Supreme Court Justice Earl Warren had spent his entire career in law enforcement. He began as a district attorney, became an attorney general, and then governor. He understood what happened inside interrogation rooms, and after 13 years as Chief Justice, he authored the landmark Miranda opinion. He cited several post-Brown cases that involved burning, beating, and other forms of physical and mental abuse that showed the voluntariness test was ineffective.

Miranda’s warnings were intended to level the field of custodial interrogations that creates an inherently coercive atmosphere. Anyone who has watched a TV crime drama is familiar with the key parts of a Miranda warning. To be admissible in court, a custodial interrogation requires the suspect’s voluntary waiver of the right to remain silent and to have a lawyer present during questioning. The burden is on the prosecution to prove waiver. The failure of police to administer Miranda warnings renders the confession automatically inadmissible, making the totality of the circumstances test inapplicable. In sum, suspects were empowered with a simple “no” to end questioning.

President Richard Nixon’s campaign in 1968 asserted Miranda and other Warren Court criminal procedures were “soft on crime.” After ascending to the presidency, Nixon appointed four justices to restore “law and order.” Their first stab at Miranda came in 1971 by holding that while inadmissible during their case-in-chief, prosecutors could use unwarned prior statements to impeach a defendant taking the stand. Harris v. New York, 401 U.S. 222 (1971). SCOTUS’ next assault on Miranda came with a 1974 holding that found Miranda isn’t a per se constitutional rule; rather, it is a mere “prophylactic” rule that is less binding and of lower legal order created to protect a defendant’s Fifth Amendment right not to be forced to speak. Michigan v. Tucker, 417 U.S. 433 (1974).

A 1981 ruling that inflicted further damage to Miranda exhibits how a bad ruling can evolve into a greater harm. The 1984 case ruled it was in the “public interest” for police to question an unwarned defendant about the location of a loose gun in a grocery store. New York v. Quarles, 467 U.S. 649 (1984).

Perhaps the greatest assault on Miranda came in 1994 with the “clear statement rule.” Davis v. United States, 512 U.S. 452 (1994). SCOTUS had long held that a suspect can end questioning at any time by invoking the right to silence or counsel. The clear statement rule arose out of a case that involved a suspect interrupting the interrogation by stating, “Maybe I should talk to a lawyer?” SCOTUS held this was not a clear expression of the right to have counsel present during questioning. “Rather,” the Court instructed, “the suspect must unambiguously request counsel.” It extended that ruling in 2010.

In Berghuis v. Thompkins, 560 U.S. 370 (2010), the suspect took police at their word. After police told him he had the right to remain silent, the suspect remained almost completely silent for over two hours. After two hours, police exploited his sense of religious shame by asking if he asked God to forgive him of the murder. Thompkins answered “yes.” SCOTUS held that actually remaining silent does not clearly express a desire to exercise Miranda’sright to remain silent. That right is preconditioned on speaking up, and police have no duty to warn a suspect of this precondition.

“Today’s decision turns Miranda upside down,” Justice Sotomayor wrote in a dissent to Thompkins.Indeed, it has resulted in prejudice to inarticulate suspects. For example, a suspect’s motion to suppress a confession was denied where the suspect told police his attorney advised him “[t]ry not to talk to anyone.” The same result for a burglary suspect who told police, “I got nothing more to say to you. I’m done. This is over.” Despite the fact a lay person clearly would understand this as invoking the right to silence, it was not articulate enough to satisfy SCOTUS’ construction of Miranda.

The death by a thousand cuts to Miranda has resulted in the conviction of innocents. “Police-induced false confessions are among the leading causes of wrongful convictions,” says FalseConfessions.org. According to the National Registry of Exonerations, 13% of exonerees, or 434 of the 3431 exonerees as of December 9, 2023, falsely confessed to crimes since 1989.

According to a report by the Northwestern University School of Law, after speaking with hundreds of police jurisdictions, the researchers found “[s]ixty-eight percent indicated that they believed a suspect would confess falsely “not very often” (40 percent) or “almost never” (28 percent). This quantifies the perception of trial attorneys who report that the vast majority of potential jurors insist that it is not possible for someone to confess to a crime he did not commit,” says FalseConfessions.org. Of course, that widely-held assumption is demonstrably false based on a plethora of data and evidence to the contrary.

“Primarily, false confessions occur in murder cases,” says FalseConfessions’ website. “3% of false confessors were under the age of 25, and 32% were under 18; yet of all persons arrested for murder and rape, only 8 and 16%, respectively, are juveniles. 22% were mentally retarded and 10% had a diagnosed mental illness. Multiple false confessions to the same crime were obtained in 30% of the cases, wherein one false confession was used to prompt others.”

These numbers do not account for the persons who were compelled to falsely confess and admit to a crime they did not commit during the plea-bargaining process to avoid the trial penalty, which can be coercively steep. As such, the actual number of false confessions certainly dwarfs the reported figures because the overwhelming majority of criminal cases end in plea bargaining (the ABA’s 2023 Plea Bargain Task Force Report states that “nearly 98% of convictions nationwide currently [come] from guilty pleas”), so these false confessions, for the most part, will never be identified and counted.

Then, there are those who cannot overcome the difficulty of bringing a claim to prove their confession is false. Identified false confessions occur more often in homicide cases, which is likely due to the fact those cases typically involve defendants who have incurred the most severe sentencing consequences and thus receive the professional legal assistance needed to prove their confession was coerced. But undoubtedly, there are a myriad of individuals convicted of “lesser” crimes whose confession was similarly coerced but never receive the professional help to prove it. As was the state-of-affairs prior to Brown,it is up toSCOTUS once more to end the use of all coerced false confessions to obtain convictions.   

 

Sources: discourse magazine.com, falseconfessions.org, law.mich.edu, ABA 2023 Plea Bargain Task Force Report 

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