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Nwlr Cassell Part Ii Mirandas Social Costs Empirical Reassessment 1996

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LEXSEE 90 NW. U.L. REV. 387
Copyright (c) 1996 Northwestern University Law Review
Northwestern University Law Review
Winter, 1996
90 Nw. U.L. Rev. 387
LENGTH: 28433 words
ARTICLE: MIRANDA'S SOCIAL COSTS: AN EMPIRICAL REASSESSMENT
NAME: Paul G. Cassell *
BIO:
* Associate Professor, University of Utah College of Law. Dean Lee Teitelbaum, Ahkil Reed Amar, Craig
Bradley, Kingsley Browne, Lionel Frankel, Joseph Grano, Richard Leo, William Pizzi, William Stuntz, Gordon
Van Kessel, and Welsh White provided helpful comments on an earlier draft. I gratefully acknowledge the
support of the University Research Committee and the College of Law Faculty Development Committee, and of
the research librarians and their assistants at the College of Law, who patiently tracked down various obscure
references.
SUMMARY:
... A confession can strengthen the prosecution's case considerably. ... The district attorney will always charge a
suspect and prosecute a case if there's a confession, and the district attorney will also be less likely to accept a plea or
make a reduced plea himself." ... The eighth study, conducted in Seaside City, California, found only a modest 2.0%
reduction in the confession rate. ... The data for the regression were the reliable confession rate data, that is, data from
(in order of ascending population) "Seaside City," New Haven, New Orleans, Kansas City, Pittsburgh, Philadelphia,
Chicago, and New York. ... While an alternative explanation was that the small sample (173 suspects) was simply
unrepresentative, at a minimum the Pittsburgh confession rate data provide no support for the rebound thesis. ... In
Edwards, the Court reaffirmed a blanket prohibition of police-initiated resumption of interrogation after a suspect
invoked the right to counsel. ... The Miranda rules would do little to prevent false confession of either type. ... In
Detroit, there was, at most, a 2.8% drop in the confession rate after police began warning suspects of their rights under
Escobedo -- from 60.8% of all cases in 1961 to 58% of all cases in 1965. ...
TEXT:
[*440] [EDITOR'S NOTE: PART 2 OF 2. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON
LEXIS TO ACCOMMODATE ITS LARGE SIZE.]
B. Indirect Costs in Terms of More Lenient Plea Bargains
Based on the empirical evidence, we can calculate a rough estimate not only of Miranda's direct costs (in terms of
lost cases), but also indirect costs (changes in case disposition resulting from plea bargaining). Any assessment of the
effects of Miranda on the criminal justice system would be incomplete if it did not consider plea bargaining. In the

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90 Nw. U.L. Rev. 387, *440

United States, the great majority of criminal cases are resolved by a guilty plea rather than a trial. n313 The literature
suggests that in most jurisdictions, 70% to 90% of all felony cases are resolved by a plea of guilty or its functional
equivalent. n314 Many, though not [*441] all, n315 of these guilty pleas will result from plea negotiations or plea
"bargaining."
Plea bargaining depends on the strength of the government's case. Even where the government appears to have
sufficient evidence to convict, an eccentric jury can always return a not guilty verdict. Prosecutors avoid this risk by
taking "the bird in the hand" and allowing a plea to a lower charge. Because the risk of a not guilty verdict diminishes as
the government's case becomes stronger, the incentives to allow pleas to reduced charges will become weaker.
The empirical research suggests that the strength of the government's case is an important factor in plea bargaining.
For example, David Neubauer's study of "Prairie City" found strength of the prosecution's case to be one of three factors
that play a major role in plea bargaining and concluded that the facts of the case are a "prime consideration[]." n316
A confession can strengthen the prosecution's case considerably. A confession is "direct" evidence of a defendant's
guilt and thus is generally superior to indirect or circumstantial evidence. n317 Indeed, the Supreme Court has
recognized that "a defendant's confession is probably the most probative and damaging evidence that can be admitted
against him. The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable
source of information about his past conduct." n318 Accordingly we can hypothesize that any reduction in the rate at
which police obtain confessions [*442] would increase defendants' success in plea bargaining. n319 This was a
hypothesis advanced by Justice White in his Miranda dissent. n320
Anecdotal evidence suggests that the hypothesis is accurate. As one police officer has explained, "getting a
confession . . . puts a case on an entirely different track so to speak. The district attorney will always charge a suspect
and prosecute a case if there's a confession, and the district attorney will also be less likely to accept a plea or make a
reduced plea himself." n321 On the other hand, when confessions are unavailable, notorious plea bargains sometimes
result. n322
The available empirical evidence also supports the hypothesis. Detailed information on plea bargaining and
confessions comes from David Neubauer's study of confessions in "Prairie City," which concluded that "the presence or
absence of a confession has a marked effect on the outcomes of the plea bargaining process. A defendant who has
confessed . . . received fewer concessions from the prosecutor when he pleads guilty." n323 Neubauer reported data for
property crimes and violent crimes. n324 For property crimes, of those suspects who confessed, 69% pled to the
original charge as compared to 45% who did not -- a 24% difference. n325 For violent crimes, 24% of those [*443]
who confessed pled to the original charge, while 18% of those who did not confess did so -- a 6% difference. n326
Peter Nardulli, James Eisenstein, and Roy B. Flemming also found that confessions affected the guilty plea process.
They conducted a sophisticated regression analysis of guilty pleas in three states in a sample involving several thousand
cases. One of the variables in their equations measured confessions. n327 They found that defendants who had
confessed were less likely to receive a reduction in the number of counts charged against them. n328 At the same time,
Nardulli and his colleagues found no relation of confessions to charge reductions, reductions in the primary charge, or
reductions in the magnitude of the projected sentence to be served by the defendant. n329 The effects of confessions
were more pronounced when the data were disaggregated into four groups of counties defined by the extent of plea
bargaining practices. In three of the four groups, confessions had some effect on charge or count reductions. n330
The Yale Project also reports data suggesting the importance of confessions to plea bargaining. In 9 cases in which
the defendant had confessed and was unable to bargain for a lower charge, the defense attorneys attributed this outcome
to the confession. n331 In 16 more confession cases, the prosecutor simply would not bargain at all. n332 Bargaining
was successful in reducing the charge in only 15 of the 49 confession cases (30.6%), whereas charges were reduced or
nolle [*444] prossed in 16 of the 26 cases (61.5%) in which the defendant had not talked to the police. n333

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90 Nw. U.L. Rev. 387, *444

Recent data reported by Richard Leo also suggest that incriminating statements have a significant effect on the plea
bargaining process. In his study of cases in the California Bay area, he found that "suspects who provide incriminating
information to detectives are significantly more likely to be treated differently at every subsequent stage of the criminal
process . . . ." n334 Although Leo did not collect data on charge disposition in particular, he found that suspects who
incriminated themselves "were 24% less likely to have their cases dismissed" and "25% more likely to have their cases
resolved by plea bargaining." n335
Finally, the most recent research on this issue is my 1994 Salt Lake County study. It found that defendants who
confessed were less likely to receive concessions in plea bargaining. For example, of suspects whom police successfully
questioned, 30.6% pled to charges at the same level as were initially filed, compared to only 15.4% for suspects
invoking Miranda rights, 9.4% for suspects questioned unsuccessfully, and 10.8% for suspects not questioned. n336
Miranda has one possible offsetting effect to lenient dispositions that should be examined. The plea bargain
literature contains some suggestions that defendants who confess to police may receive lighter sentences. n337 The
theory might be that defendants who confess "are further along the path of reformation than those who do not repent"
[*445] and thus deserve credit at sentencing. n338 While the theory appears tenable, the limited empirical evidence
cuts against it. n339
Although confessions may appear to affect only a small percentage of plea bargained cases, a basis for concern
appears when we realize that plea bargaining implicates a substantial proportion of criminal cases in this country. Based
on the calculation discussed in the preceding section, Miranda appears to have reduced the confession rate by
approximately 16%. In all of these cases, the prosecution has a weaker hand from which to bargain. Indeed, the previous
section concluded that in roughly one out of four of these cases (24%), the entire case would be "lost" because the
prosecution would not have sufficient evidence to convict. n340 In the remaining three out of four cases in which a
confession is lost, the defendant may receive a more favorable disposition through a plea bargain.
Although the empirical data here are much more limited than those examined on confession rates, it is possible to
provide some very rough quantitative estimate of Miranda's effects on plea bargaining. To do this, assume that
Neubauer's observed effects in Prairie City apply equally across the country. n341 Specifically, we can generalize from
his findings that in property cases approximately 19% fewer suspects [*446] who did not confess pled to the original
charge; n342 in violence cases, 6% fewer suspects who did not confess pled to the original charge and 13% fewer pled
to reduced charges. n343 Taking these percentages and taking the 16% reduction in the confession rate from Miranda
discussed previously leads to the conclusion that, because of Miranda, roughly 3.0% fewer property offenders plead
guilty to the original charge; 1.0% fewer violent offenders plead guilty to the original charge; and 2.1% fewer plead
guilty to reduced charges (a total of 3.1%). n344 To come up with a general approximation of the total number of
cases affected, we can use again the 1993 FBI arrest figures n345 for index crimes of 754,110 arrests for violent crime
and 2,094,300 arrests for property crimes. Multiplying the percentages derived here suggests that in 1993 there were
67,000 pleas to reduced charges in property cases and 24,000 pleas to reduced charges in violence cases attributable to
Miranda. n346
IV. PROBLEMS WITH GENERALIZING
The methodology employed in the previous section requires several generalizations from limited data sources. First,
the available data on changes in confession rates and necessity rates from only a few jurisdictions are averaged and
extrapolated to the entire country. Second, studies conducted in the late 1960s are equated to conditions in the 1990s.
Finally, police success in obtaining confessions for specified offenses is universalized to all offenses reported in the
FBI's crime index. These three generalizations are then applied to the two variables in my Miranda cost calculation -changes in the confession [*447] rate after Miranda and importance of confessions -- producing a total of six areas in
which generalizations are used. This Part examines the propriety of these six extrapolations.
Before examining the validity of these generalizations, however, it might be useful to briefly recall the types of

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claims that have been made about Miranda by the decision's defenders. They have exhibited no hesitancy in
generalizing from a few studies purporting to show little impact from the decision to nationwide conclusions. n347 As
will be seen, the extrapolations made in this Article are more defensible.
A. Generalizations on Confession Rates
1. Generalizing Across Jurisdictions. -- One critical and possibly controversial part of the cost estimate is the
nationwide extrapolation of an estimate of a 16% drop in the confession rate after Miranda. The data for this estimate
come from before-and-after studies conducted in just eight jurisdictions: Pittsburgh, New York County, Philadelphia,
"Seaside City," New Haven, Kansas City, Kings County, and New Orleans. Was their experience under Miranda typical
of that elsewhere in America?
An agnostically inclined critic might argue that we simply do not know anything about other areas. After all, there
are "virtually endless variations, large and small, overt and subtle, from one local law enforcement jurisdiction to
another." n348 From a public policy perspective, such criticism seems unpersuasive. To be sure, more and better
studies in various parts of the country would add to our knowledge about Miranda's effects. But in the absence of such
studies, policy makers must do the best they can with the data at hand.
Also supporting the reasonableness of the extrapolation is the general consistency in the data, at least when drawn
from urban areas. The reliable urban area studies all found fairly substantial post-Miranda reductions in the confession
rate -- 16.9% in Pittsburgh, 34.5% in New York County, 24.6% in Philadelphia, 16.0% in New Haven, 6% in Kansas
City, 15.5% in Kings County, and 11.8% in New Orleans. This congruity tends to suggest that these studies are
representative of other cities. n349
[*448] This consistency is obtained, however, only by looking at the seven urban area studies. The eighth study,
conducted in Seaside City, California, found only a modest 2.0% reduction in the confession rate. Seaside City is a
residential community within the Los Angeles metropolitan area and thus is "not confronted with the same crime
problems as those encountered by [police] departments in large metropolitan areas." n350 One possible hypothesis is
that Miranda has more substantial effects on the confession rates in cities, effects that dissipate beyond urban frontiers.
Support for the cities-are-affected-more hypothesis can be found in a 1968 survey conducted by Cyril Robinson.
n351 Robinson surveyed police departments in various jurisdictions across the country to assess the impact of the
Miranda decision. He found that while both "city police" and "small city police" thought that Miranda had reduced
confessions, city police noticed the greatest change. n352
That Miranda has a larger effect on major urban areas is suggested by several considerations. Big-city police are
under the heaviest caseload pressure. As a result, they might be less able to take advantage of effective but
time-consuming stratagems for avoiding Miranda's effects. n353 For example, they might not have the luxury of time
to conduct noncustodial interviews outside of the Miranda strictures. n354 Another possible factor is that if Miranda
has a greater effect on serious violent crimes, as suggested below, n355 urban law enforcement agencies that handle a
disproportionate number of such cases would be more substantially affected. Finally, it may be, as Robinson suggests,
that outside the major cities there are "closer relationships [*449] among police, attorneys, and courts" that mean court
decisions have less effect on police practices. n356
To test the hypothesis that Miranda affected the confession rate more in larger cities, one can regress confession
rate changes after Miranda against the population of the jurisdiction. The data for the regression were the reliable
confession rate data, that is, data from (in order of ascending population) "Seaside City," New Haven, New Orleans,
Kansas City, Pittsburgh, Philadelphia, Chicago, and New York. n357 As suggested by Figure 1, a regression of the
logarithm of the city population and the change in the confession rate produced a strong, statistically significant relation
between the two variables. n358
[SEE FIGURE IN ORIGINAL]

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[*450] While the foregoing analysis suggests that Miranda has differential effects on the confession rate in cities
of varying sizes, that problem is not as substantial for estimating Miranda's nationwide costs as it might first appear.
Major urban areas contain much of this country's crime and, consequently, many of the criminal interrogations. One
measure of this fact is found in the Uniform Crime Reports, which reports that in 1993 the 63 largest cities in the
country (those with populations over 250,000) contained only 19.2% of the country's population but 31.6% of the index
crimes and 43.1% of the country's violent crimes. n359 Thus, even if the data used here are representative only of the
largest cities, they should still reflect roughly one-third of the nation's crimes and close to half of the violent crimes.
Including Seaside City as one-eighth of the data base also serves to make the calculations more representative.
2. Generalizing Across Time. -- Another generalization on which the Miranda cost estimate rests is a temporal one:
that data on confession rates taken from the 1960s are reflective of confession rates in the 1990s. It is possible that,
since the 1960s, confession rates have "rebounded" to pre-Miranda levels. A number of Miranda's defenders have made
this rebound argument. n360
It seems appropriate to assign to those who take this view the burden of proof. After all, the data recounted above
show significant drops in the confession rate after Miranda that did not seem to disappear in the year or two following
the decision. If some offsetting long-term effect has since appeared, its proponents should demonstrate it.
Why might a rebound occur? One theory, which we might dub the "publicity hypothesis," was ventured by Kansas
City police chief (and later FBI Director) Clarence Kelley. His view was that the reduction in confession rates would
probably fade with time "as the case becomes more remote [in suspects' minds]." n361
Publicity can cut another way. A competing hypothesis suggests that awareness of Miranda has increased over
time, causing more serious effects today. For example, Professors LaFave and Israel, while taking the view that the
studies done in the immediate wake of Miranda show only a marginal effect on confession rates, speculate that rates
may have dropped "now that Miranda has become a part of our culture and presumably the rights declared therein are
more widely perceived by the public at large." n362 There is some support for the [*451] hypothesis that the
population has now, in effect, been "Mirandized." A 1991 public opinion poll found that 80% of Americans knew about
their right to remain silent. n363 Assuming that today's criminal suspects are at least as knowledgeable as the citizenry
at large, n364 this would appear to be an increase in awareness of rights. n365 If increased understanding correlates
with fewer confessions, n366 confession rates may have dropped over time since Miranda. Given the two competing
publicity hypotheses, we cannot determine through a priori reasoning whether publicity effects have increased or
decreased Miranda's harms over time. Resort to the empirical data is our only choice.
Before turning to those data, another theory, which might be labelled the "accommodation hypothesis," should also
be outlined. Sometimes it is argued that police have now "accommodated" the Miranda decision through "techniques to
subvert its effects." n367 As a result, Professor Schulhofer among others argues that the before-and-after studies are
"at most, irrelevant for assessing Miranda's current impact because they record its initial effects, before police had an
opportunity to adjust interviewing methods and investigative practices to Miranda's requirements." n368 One of the
frequently suggested accommodations springs from Miranda's application to custodial "interrogations," [*452] but not
police "interviews." Because of this limitation, careful observers of police behavior suggest that "police who are seeking
admissions have learned how to interview rather than interrogate," thereby escaping Miranda's strictures. n369
Another often-cited accommodation is police delivery of the warnings in a manner designed to discourage suspects
from invoking their rights. n370
The accommodation hypothesis could justify a conclusion that confession rates have rebounded only if police
discovered and employed these new techniques after the completion of the before-and-after Miranda studies. That the
police discovered such tactics only belatedly remains unproved. Many police departments quickly received advice
regarding the Miranda decision and were probably able to respond to the decision relatively promptly. n371 For
example, the Miranda opinion itself explicitly suggested its limitation to custodial interrogation n372 and police were
probably aware of the "interview" option around that time. n373 As another example, police in New Haven just a

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month or two after the decision were trying to "de-fuse" the warnings by bureaucratic delivery or other similar devices.
n374 The Miranda decision was also preceded by earlier decisions by the Court and other courts, and police probably
had considerable pre-Miranda experience to draw upon in formulating their response. n375
[*453] Even if accommodating tactics spread and improved over time, at best they would ameliorate, not
eliminate, Miranda's harmful effects. The possibility of a shift away from interrogations to casual "interviews," for
example, would not work for the significant proportion of police business involving suspects who must be taken
immediately into custody, either because they pose a danger to the community or a risk of flight. Moreover, even when
police can interview suspects, it is not clear that they will be as successful in obtaining confessions. It appears that the
privacy of the interrogation room is an important ingredient in obtaining confessions. n376 I have done the only
empirical research on this question and found that custodial questioning is more likely to produce a confession (56.9%
vs. 30.0% for noncustodial questioning, a statistically significant difference). n377
Even if police tactics for dealing with Miranda have improved over time, it is also important to recognize a
competing hypothesis we can label the "compliance hypothesis": that police compliance with Miranda may also have
improved, thereby increasing Miranda's costs. As noted above, the early studies may not have captured all of Miranda's
harms because some police did not actually follow the requirements of the decision. n378 Since then, police have more
closely adhered to Miranda's requirements. n379 Police forces have been carefully trained in the Miranda rules n380
and now receive better information about compliance. n381 The increasing professionalization of police forces might
also contribute to this trend. n382 One might therefore conclude that, as police have complied more strictly with the
Miranda rules, confession rates have dropped even further than shown in the [*454] early studies. n383 Some
evidence supports this position. n384 If this hypothesis is true, then the 3.8% cost figure estimated in this Article is too
low. The cost estimate is based on studies concluded just a year or so after Miranda, not long enough to capture later
reductions in the confession rate.
Again, there is no a priori method to determine which of the competing hypotheses -- accommodation or
compliance -- will predominate. Our only hope for an answer is the empirical data.
(a) Empirical data from the before-and-after studies. -- The limited empirical data from around the time of
Miranda (decided on June 13, 1966) offer no support for the rebound argument. The only before-and-after study to
track confession rates over a substantial period of time is the Seaside City study. n385 While the study found only a
modest reduction in confession rates after Miranda (2% to be exact), the study offers an illuminating five-year
progression of confession rates over time: 1964 -- 67%; 1965 -- 70%; 1966 -- 77%; 1967 -- 71%; 1968 -- 61%. n386
The data show steadily increasing confession rates until 1966, the year of Miranda, followed by steadily declining
confession rates, reaching a substantially lower rate in 1968, the last year studied. While Witt cautioned against
attributing this year-to-year decline solely to Miranda, n387 the data at least offer no support to those looking for a
rebounding confession rate over time. n388
The Pittsburgh study contains data from a shorter time period that also support the conclusion that Miranda's
effects did not dissipate. The Pittsburgh study rests on two sets of data: one from shortly [*455] after the decision
(exactly when is not made clear in the article) and a second, more recent set drawn from June 20 through September 5,
1967 -- more than one year after Miranda. n389 While the first set showed a drop in the confession rate of 16.2%, the
second set showed a larger drop of 21.4%. n390 The authors noted that the second figures "involve more recent cases
so perhaps the confession rate continues to decline as suspects become more aware of their rights." n391 While an
alternative explanation was that the small sample (173 suspects) was simply unrepresentative, n392 at a minimum the
Pittsburgh confession rate data provide no support for the rebound thesis. n393
The only other multi-year data available on confession rates come from the Yale Law Journal study, which found
that confession rates declined approximately 10 to 15% from 1960 to 1966. n394 Unfortunately, the Yale data
terminate in the summer of 1966 and thus are of little use for determining Miranda's long-term effects. In sum, the
before-and-after studies contain no evidence of a rebound in confession rates over time.

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(b) Evidence from later time periods. -- In response to these before-and-after data, an advocate of the rebound
hypothesis might argue that a longer view is needed. Police could not be expected to accommodate Miranda in just a
few months or years following the decision, the argument might go. Rather, one must look over the two-and-a-half
decades since the decision to observe the rebound effect.
Even taking a longer time horizon, it is hard to find any empirical data supporting the notion that confession rates
have rebounded to pre-Miranda levels. n395 The confession rates found in later studies do not seem, on average, to be
as high as pre-Miranda rates, generally falling below 50%. For example, David Neubauer reported that in 1968 in
"Prairie City," a medium-sized city in central Illinois, suspects gave damaging statements in 46% of all cases. n396
Lawrence Leiken interviewed fifty suspects held in the Denver jail in 1969. Sixteen of [*456] the fifty defendants
(32.0%) reported that they had made a damaging statement. n397 Gary LaFree found that an average of 40.3% of all
cases contained confessions in a sample drawn from six cities (El Paso, Texas; New Orleans, Louisiana; Seattle,
Washington; Delaware County, Pennsylvania; Tucson, Arizona; and Norfolk, Virginia) during 1976 and 1977. n398 A
study by Floyd Feeney, Forrest Dill, and Adrianne Weir in 1979 found that in Jacksonville, Florida of suspects for
robbery, burglary, and felony assault, 32.9% confessed and an additional 18.4% admitted being at the scene of the
crime. n399 Assuming generously that an on-the-scene admission is always an incriminating admission, n400 the
percentage of incriminating statements in Jacksonville might be as high as 51.3%. n401 In San Diego, California, the
study found that of suspects for the same crimes, 20.3% confessed and an additional 16.2% admitted being at the scene
of the crime. n402 Therefore, a total of 36.6% might be viewed as incriminating themselves.
Two recent studies of confession rates have been completed. In 1993, Richard Leo observed, either in person or on
videotape, 182 interrogations in the Bay area of California. n403 He found that 64.3% of the suspects gave
incriminating information of some type. n404 However, he used a very broad definition of what was incriminating,
n405 and [*457] for comparison with other studies the more relevant figure is the 41.8% who gave either a confession
or partial admission. n406 Even this rate is likely significantly overstated as a measure of overall police success, n407
because of both the study's narrow focus on stationhouse interrogation by detectives n408 and the study's sampling
methodology. n409 In 1994, my research assistant and I collected data on confessions and incriminating statements in
cases submitted for prosecution to the Salt Lake County Attorney's Office. n410 In 33.3% of the cases, the suspects
either confessed, gave incriminating statements, or were locked into a false alibi. n411
[*458] While these studies report varying results, it is hard to read the figures as proving that confession rates
have rebounded to pre-Miranda levels. If anything, they support the conclusion that rates have continued to fall. n412
For comparison, the confession rate data I have been able to find, from both before and after Miranda, are set out in
Table 3. n413 Comparing these rates from various jurisdictions is extremely difficult because of varying definitions of
"confessions" and differences in police practices. But it is hard to see in the data support for those who claim that
confessions are now obtained as often as before Miranda. n414 [*459]
TABLE 3 -- PRE- AND POST-MIRANDA CONFESSION RATES
Pre-Miranda
City

Year

Confession
Rate

Pittsburgh

1966

48.5%

1966

49.0%

1964

45% (est./der.)

1964

68.9%

New York
County
Philadelphia
"Seaside
City"

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90 Nw. U.L. Rev. 387, *459

New Haven

1960

58-63% (est.)

D.C. - total

1966

21.5%

1966

45% (est./der.)

1966

40% (est.)

Angeles

1965

40.4%

City A, CA

1960

58.1%

City B, CA

1960

88.1%

Detroit

1961

60.8%

Detroit

1965

58.0%

Sacramento

1961

46.9%

Baltimore

1961

30.9%

Plains

1961

84.7%

Dayton

1961

73.8%

Atlanta

1961

47.0%

Newark

1961

77.0%

1961

42.4%

Kings
County
New
Orleans
Los

White

Kings
County

Post-Miranda
Pittsburgh

1967

29.9%

1966

14.5%

1967

20.4% (der.)

1968

66.9%

New Haven

1966

48.2%

D.C. - total

1967

20.0%

Kings County

1966

29.5% (der.)

New Orleans

1967

28.2%

Los Angeles

1966

50.2%

1967

16.8%

New York
County
Philadelphia
"Seaside
City"

New York -Manhattan

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90 Nw. U.L. Rev. 387, *459

New York -Manhattan

1967

23.7%

"Prairie City"

1968

46.0%

Denver

1969

32.0%

1977

40.3%

1979

32.9%

1979

51.3%

1979

20.3%

1979

36.6%

1993

63.8%

1993

41.8%

1993

38.7%

1994

33.3%

Six City
Sample
Jacksonville
Jacksonville incl. onscene
San Diego
San Diegoincl. onscene
Bay area - all
Bay area incriminating
Bay area adjusted
Salt Lake
County
est. = estimated
der. = derived
[*460] (c) The effect of doctrinal changes since Miranda. -- Another gambit sometimes tried by Miranda's
defenders is to argue that Miranda doctrine has now been scaled back by the more conservative Burger and Rehnquist
Courts. n415 This approach can skirt the empirical studies on confession rates by instead observing court opinions and
arguing that the rules have since changed in favor of the police.
The premise of this position -- that Miranda has been significantly restricted -- is open to challenge. While recently
the Court has decided more Miranda issues in favor of the police than suspects, the decisions have often been narrow
ones involving peripheral questions. n416 The core Miranda apparatus is the same today as it was on June 13, 1966,
the day the decision was announced. The prevailing marginal philosophy found in the more recent decisions is perhaps
best expressed by Chief Justice Burger's statement in 1980 that "the meaning of Miranda has become reasonably clear
and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend
it at this late date." n417 Several respected commentators seem to suggest that, on balance, the core requirements of
Miranda have not been substantially cut back since its pronouncement. n418
The one area where there perhaps has been some significant doctrinal movement in favor of law enforcement is in
the custody area. In several decisions, the Court has limited the circumstances in which a suspect will be considered to
be subject to "custodial" interrogation, which is the triggering event for the Miranda regime. n419
While we cannot say concretely how much difference doctrinal changes in the definition of "custody" might make,

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we can say that there are some offsetting doctrinal shifts that must be considered as well. The prime example is the
Court's decision in Edwards v. Arizona, n420 [*461] which "reinvigorated Miranda in an important respect." n421
In Edwards, the Court reaffirmed a blanket prohibition of police-initiated resumption of interrogation after a suspect
invoked the right to counsel. n422 In recent years, the Court "has not merely reaffirmed but actually expanded the
scope of this protection . . . ." n423 The Edwards line of cases is particularly significant for present purposes because
its blanket prohibition of questioning is precisely the kind of rule that has the most effect on confession rates. n424
Similarly, the Court "gave the key term 'interrogation' a fairly generous reading in Rhode Island v. Innis." n425
One is thus left with competing doctrinal shifts and no solid empirical evidence concerning whether the changes
have had a noticeable effect on confession rates. My impression, however, is that these changes have made relatively
little difference in the day-to-day conduct of police interrogation. One example is provided by the "public safety
exception" to Miranda. In 1984, in New York v. Quarles, n426 the Court held that police could dispense with Miranda
warnings in situations involving an immediate threat to public safety. Shortly after the decision, commentators predicted
that the decision might portend a significant change in police questioning. n427 Yet four years after the decision, a law
review note could find only 27 published appellate cases in all of the federal and state courts in the country discussing
the public safety exception, n428 a tiny number when one considers how frequently Miranda issues arise. Only eight
of the decisions clearly applied the exception as the sole ground for admitting evidence. n429 Most of these eight cases
involved reflexive police questioning (often involving the location of weapons) rather than deliberate attempts to use
public safety concerns to skirt Miranda's requirements. My data [*462] from Salt Lake County also suggest that public
safety questioning is quite rare. n430 The available information fails to provide evidence of new police interrogation
practices designed to capitalize on the "public safety" exception to increase confession rates. n431
In sum, there is no persuasive evidence that confession rates have, over time, rebounded to pre-Miranda levels. To
be sure, this question deserves further study. It is startling to discover that we have so little useful data on such a basic
question as the rate of confessions in this country. n432 Hopefully scholars will begin to probe this area.
3. Generalizing Across Offenses. -- The numbers recited in this Article involve generalizing not only across
jurisdictions and time but also across offenses. The before-and-after studies gathered data on different crimes, which
are, for purposes of extrapolation, assumed to be representative of all crimes in the FBI's crime index. Is this assumption
valid?
It might be useful first to canvas the specific offenses covered in the eight before-and-after studies relied on for the
extrapolation. The Pittsburgh study covered homicide, forcible sex, robbery, burglary (including receiving stolen
goods), and auto larceny. n433 The Philadelphia study covered "the most serious offenses, such as homicide, robbery,
rape and burglary, and some other offenses, such as aggravated assault and battery and larceny." n434 The New York
County study examined "almost all felony cases in New York County except homicides." n435 The Seaside City study
reviewed "murder, forcible rape, robbery and burglary." n436 TheNew Haven study reviewed a range of what were
apparently felony offenses. n437 The Kansas City, Kings County, and New Orleans studies also apparently involved a
wide range of criminal [*463] offenses. n438 The studies thus cover a broad range of offenses, which should
facilitate generalizations.
The extrapolation across offenses may in fact understate Miranda's costs. The limited empirical data suggest that
Miranda's harmful effects may be more substantial for the most serious crimes, especially crimes of violence. The only
before-and-after data broken down by type of crime come from the Pittsburgh study, which found that while confession
rates dropped 16.9% overall, the rate in homicide cases fell 27.3% and in robbery cases 25.7%. n439 Smaller
reductions were observed for auto larceny (21.2%), burglary and receiving stolen goods (13.7%), and sex offenses
(0.5%). n440 Greater impact on police success in the most serious cases was also observed in Britain when new
interrogation regulations were imposed there. n441
While the Pittsburgh study is the only before-and-after data on whether Miranda affected serious crimes more,
indirect support for the proposition comes from the post-Miranda confession data, which show generally lower

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confession rates for the most serious crimes. My study of Salt Lake County in 1994 found more confessions by property
offenders than violent offenders, although the difference was not statistically significant at the standard 95% confidence
level. n442 Neubauer's study in "Prairie City" found that confession rates were much lower for crimes of violence than
for property crimes. n443 The D.C. study found that statement rates were generally lower for offenses [*464] against
persons. n444 The Vera Institute study in New York City in 1967 found that denials were more likely than admissions
for offenses against the person while admissions were more likely than denials for property, instrumentality (e.g.,
possession of burglar's tools or illegal weapons), and narcotics offenses. n445 Data from Chicago in 1967 also suggest
that violent offenders are more likely to invoke either their right to counsel or their right to silence. n446 The
American studies suggesting lower confession rates for more serious crimes are consistent with more detailed data
available from Britain reporting that serious offenders are less likely to confess. n447 On the other hand, the New
Haven study found some (statistically insignificant) suggestion that interrogation-rate success increased as the crime
became more serious, which was attributed to more vigorous interrogation in more serious crimes. n448
One other differential that might be obscured by aggregation should be mentioned. It is possible that Miranda
adversely affects police success the most when dealing with repeat offenders. Anecdotal evidence suggests that repeat
offenders are most likely to invoke their Miranda rights. After spending a year with Baltimore detectives, journalist
David Simon concluded that
the professionals say nothing. No alibis. No explanations. No expressions of polite dismay or blanket
denials. . . . For anyone with experience in the criminal justice machine, the point is driven home by
every lawyer [*465] worth his fee. Repetition and familiarity with the process soon place the
professionals beyond the reach of a police interrogation. n449
The available empirical research supports this conclusion. The Prairie City study found that, of those with a prior
felony conviction, only 36% confessed, compared to 59% without. n450 For violent crimes, the differential was even
more substantial: only 15% with prior convictions confessed, compared to 45% without. n451 The study also found
that suspects with prior convictions were less likely to execute a waiver of rights form, with 68% of those with records
waiving compared to 80% of those without. n452 The New Haven study similarly found that "prior record tends to
reduce the likelihood of success." n453 Interrogation was successful for 41% of the suspects with a previous arrest,
compared to 60% without. n454 Recent data from the Bay area also found "a suspect with a felony record . . . was
almost four times as likely to invoke [Miranda rights] as a suspect with no prior record . . . ." n455 Data from Britain
also support the conclusion that "hardened criminals" are more likely to take advantage of procedural rights and less
likely to confess. n456 However, my study in Salt [*466] Lake City found no relation between prior record and
interrogation success. n457
Taken together, the available studies suggest that, if anything, the calculation reported here may misleadingly
understate Miranda's harms by averaging all crime categories together -- transferring some of the lost cases from the
more serious violent crime category to the less serious property crime category, and obscuring Miranda's more harmful
effects on the prosecution of repeat criminals. This is of particular concern in view of the difficulty of the criminal
justice system in bringing violent, professional offenders to justice. n458
B. Generalizations on the Necessity for Confessions
Turning from confession rates to necessity rates, the reader will recall the earlier estimate that a confession is
needed for conviction in 24% of all cases. n459 Like confession rates, this necessity estimate was derived by averaging
the reliable studies from around the country. Like confession rates, the extrapolation requires justification on three
points: generalizing across jurisdictions, generalizing across time, and generalizing across offenses.
1. Generalizing Across Jurisdictions. -- The necessity estimate used in this Article comes from a few studies:
Pittsburgh, Seaside City, New York County, and Los Angeles, as shown previously in Table 2. The necessity estimates
from these various jurisdictions are not widely divergent. The same rough convergence is noted even if one includes the

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studies found to have problems: taking all the studies that report data on all cases, the necessity figures range from a low
of 10.3% to a high of 28.3%; for studies reporting data on confession cases, the necessity figures range from 8.2% to
25.9%. n460 In contrast to confession rates, where big cities seem to have been more adversely affected by Miranda's
requirements, confession necessity figures show no obvious relation to city size.
2. Generalizing Across Time. -- This Article takes research on the need for convictions in the 1960s and then
applies it to generate [*467] estimates for the 1990s. Has the importance of confessions changed over time?
One area worth exploring is whether improved investigative techniques have made reliance on confessions
obsolete. Indeed, one of the underlying rationales for Miranda and related decisions was that police reliance on
confessions discouraged the use of other, more scientific methods of investigation. n461 With recent advances in
investigative techniques -- such as DNA analysis, fiber and hair comparisons, and similar technologies n462 -- it might
be argued that confessions are even less necessary than when Miranda was handed down. A related argument might be
that police agencies have devoted more resources to physical evidence collection since Miranda. n463
While the application of scientific techniques has advanced, it is unclear that this would make an appreciable
difference in the need for confessions to convict. n464 The "confession necessary" category of cases likely embraces
those with the least physical or other evidence. Improved techniques for analyzing evidence will have the smallest effect
on these cases.
Even looking at the broad run of cases, the empirical literature suggests that scientific improvements have not
altered the proof available to prosecutors in a significant percentage of cases. For example, studies suggest that
fingerprints rarely solve crimes. n465 Along the same lines, studies suggest that other evidence susceptible to scientific
analysis, such as paint chips and bloodstains, is collected in only a small percentage of cases. n466
The British seem to have performed the most extensive empirical research on this subject, which quantifies the
conclusion that forensic techniques are of limited usefulness in obtaining convictions. Perhaps the most detailed
investigation was done by John Baldwin and Michael McConville, who concluded in 1980 that "forensic evidence was
either not available or was unimportant in 95 per cent of all cases [*468] within the sample and, in the other five per
cent, it was buttressed by supplementary incriminating evidence." n467 At the same time, Baldwin and McConville
noted that confessions were highly important to ultimate outcomes. n468 When McConville gathered additional data
on the role of forensic science thirteen years later, he also found a minor role for scientific evidence: "Scientific or
forensic evidence appears to play a statistically insignificant part in the identification of suspected offenders." n469
My point here is not to denigrate innovative police investigative techniques, but to show that scientific analysis can
be brought to bear on such a small fraction of cases that improvements over time could not explain away a continuing
need for confessions. Indeed, forensic improvements might actually increase the need for confessions, by enhancing the
ability to identify possible suspects but leaving police with the need to obtain sufficient evidence to prove guilt beyond
a reasonable doubt. n470 In short, it seems unlikely that the march of science has, since the 1960s, significantly
changed the need for confessions.
Even if improvements in science have made some dent in the need for confessions, other factors may have more
than offset that gain. If the Miranda assumption that cases can be solved without confessions is correct, it is clear that
this will require an expenditure of additional police resources. n471 While greater police diligence in investigation
might have been sanguinely prescribed in the mid-1960s, n472 today such a suggestion seems rather divorced from the
burgeoning crime rates and limited police resources. For example, a widely cited [*469] statistic during the recent
debate on the federal crime bill was that in 1961 there was only one reported felony for every American police officer;
by 1990, that number had risen to 4.6 felonies per officer. n473
David Simon's book Homicide captures the current police environment, at least in major urban areas. He describes
the plight of the District of Columbia homicide squad as "awash in a deluge of violence . . . [with] no time for follow-up

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investigation, no time for pretrial preparation, no time for anything but picking up bodies." n474 Such workload
pressures affect not only street detectives, but also forensic laboratories. n475 In such an environment, quick solutions
to crimes through interrogations might take on greater importance. n476 In this connection, it is interesting that the
most recent field research on police interrogations found that "virtually every detective to whom I spoke insisted that
more crimes are solved by police interviews and interrogations than by any other investigative method." n477
Finally, the necessity for confessions may have increased over time because prosecutors now have more difficulty
persuading juries to convict. Some troubling anecdotal evidence along these lines comes again from David Simon's
1988 book about criminal justice in Baltimore. He reports that in that year, 55 homicide defendants faced a trial by jury;
25 (or 45%) were acquitted. n478 While Simon attributes some of this to racial animosities, he believes that the more
telling factor in "crippling the jury system in Baltimore" is television, which has perceptibly raised the functional
burden of proof for prosecutors:
Television ensures that criminal juries are empaneled with ridiculous expectations. Jurors want to see the
murder -- see it played out in front of their eyes on videotape in slow motion or, at the very least, see the
guilty party fall to his knees at the witness stand, begging for mercy. Never mind that fingerprints are
recovered in less than 10 percent of criminal cases, the average juror wants fingerprints on the gun,
fingerprints on the knife, fingerprints on every door handle, window, and house key. n479
Simon reports that, "as a consequence, city juries have become a deterrent of sorts to prosecutors, who are willing to
accept weaker pleas or tolerate dismissals rather than waste the city's time and money on cases involving defendants
who are clearly guilty, but who [*470] have been charged on evidence that is anything less than overwhelming." n480
Misimpressions from television are not the only malady in the criminal justice system that has grown worse with
time. For example, witness intimidation seems to be a more serious problem, n481 with the result that confessions may
now be more important. n482 Also it is possible that urban juries may have become more distrustful of police
testimony or less likely to convict for other reasons. n483 In such an environment, the estimate of confessions needed
to convict in 23.8% of all cases seems unreasonably low.
Fully consistent with this conclusion is my own data from Salt Lake County -- the only data on this subject
collected in at least 20 years -- which found that confessions were much more important in 1994 than suggested in
earlier studies. n484
3. Generalizing Across Offenses. -- The final generalization made in the necessity-for-confessions estimate is that
the necessity will be the same for all offenses. The offenses on which the estimate is based have been set out earlier.
n485 It is possible, of course, that the need for confessions might vary by offense.
The available evidence suggests that confessions may be needed to convict more often for burglary, robbery, and
crimes of violence generally. The Detroit study found that confessions were needed most for robbery and burglary
cases. n486 The Pittsburgh study also provided such data, finding that confessions were most often needed for robbery
and burglary charges. n487 A British study found that if confessions were excluded from the prosecution's case, all
offense types would have been weakened, but robbery and burglary charges would have been weakened more than any
other. n488
Other than these studies, we are left with only the speculations of various commentators to explain the necessity of
confessions for various [*471] offenses. David Neubauer has read the confession data as suggesting that confessions
are more often needed to convict for serious, violent crimes, perhaps because police are more likely to have physical
evidence in property cases. n489 Some empirical evidence supports Neubauer's differential evidence hypothesis.
n490 William Stuntz has reached the same conclusion, apparently by applying a different methodology. Noting that
prosecutors drop more cases against violent offenders and that fewer violent offenders are ultimately convicted, n491
he concludes that violent felonies are "the category of cases where incriminating statements from the defendant
probably matter most." n492

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In sum, based on the available empirical evidence and discussions in the literature, confessions may be more
important for the prosecution of burglaries and robberiesand for crimes of violence than for the prosecution of other
crimes. In any case, taking an average necessity figure and extrapolating it across offenses seems likely to produce a
reasonable, conservative estimate of the overall costs of Miranda.
V. THE LEGITIMACY OF THE CONCEPT OF A "COST" TO MIRANDA
The preceding sections have assumed that a lost confession due to Miranda is properly identified as a "cost" to the
decision. This Part considers arguments that might be made against such a characterization.
A. Miranda's Cost as Dictated by the Fifth Amendment
In the empirical debate over the costs of the search and seizure exclusionary rule, defenders of the rule have made
the plausible argument that the concept of a "cost" is simply inappropriate. A case that is lost, either because the police
did not unreasonably search or because the results of such a search were later suppressed, is simply the logical
consequence of the Fourth Amendment. As retired Justice Potter Stewart explained, "In many of the cases in which
exclusion is ordered, police officers would not have discovered the evidence at all [*472] if they had originally
complied with the fourth amendment." n493 A similar argument might be tried against my assessment of Miranda's
costs: that I have simply calculated the costs of complying with the Fifth Amendment's prohibition against compelled
self-incrimination.
Whatever force such an argument might have in the exclusionary rule context n494 disappears in the Miranda
context. Miranda's costs are quite different than those stemming from the Fourth Amendment. Miranda's costs are
generated regulations on police not required by the Constitution and to which reasonable alternatives clearly exist.
The Supreme Court has now made clear that the Miranda rules are not themselves constitutional rights or
requirements. Rather, they are only "suggested safeguards" whose purpose is to reduce the risk that the Fifth
Amendment's prohibition of compelled self-incrimination will be violated in custodial questioning. This means that the
police can violate Miranda without actually violating the Fifth Amendment -- without, that is, having compelled a
defendant to become a witness against himself. As explained in Michigan v. Tucker, n495 Miranda established a
"series of recommended 'procedural safeguards' . . . . The [Miranda] Court recognized that these procedural safeguards
were not themselves rights protected by the Constitution but were instead measures to insure that the right against
compulsory self-incrimination was protected." n496 Thus, in Tucker, the Court excused noncompliance with Miranda
because failure to provide a full set of warnings "did not abridge respondent's constitutional privilege . . . but departed
only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege." n497 To
obtain a confession in violation of Miranda is not necessarily -- or even usually -- to obtain a coerced confession in
violation of the Fifth Amendment. n498
[*473] B. Miranda's Cost as the Benefit from the Disappearance of Coercion
Miranda's unique costs involve confessions that were not obtained under the Miranda rules that would have been
obtained under the traditional Fifth Amendment prohibition of coercion. Based on this view, an alternative argument
against the Miranda harms calculated here is that the "cost" is simply the "benefit" of the disappearance of coerced
confessions. Specifically, one might acknowledge the post-Miranda drop in the confession rate but attribute the change
to a reduction in unconstitutional police coercion. After all, if the police were extracting confessions before Miranda
with rubber hoses and the like, we would need to "back out" of the cost estimate any reduction in confessions because
of the elimination of such tactics.
Undoubtedly, police coerced confessions from suspects before Miranda. It is also conceivable that police abuses
declined over time after Miranda, although whether the decline is attributable to the decision is highly disputable.
n499 For purposes of determining Miranda's costs, however, we need only consider a limited issue: whether any
significant portion of the drop in the confession rate found in the before-and-after studies is attributable to police

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abandonment of unconstitutionally coercive tactics within a few months or a year after the Miranda decision. Such a
conclusion is unlikely for at least three reasons.
First, genuinely coerced confessions were, statistically speaking, rare at the time of Miranda. n500 Changes of the
magnitude suggested here (in the neighborhood of a 16% reduction in confessions, or roughly one out of every six
criminal cases) seem unlikely to have occurred because of the disappearance of coercion in the immediate wake of the
decision. To be sure, we cannot consult an FBI Report on the number of coerced confessions each year, yet some
reputable assessments allow a ballpark estimation to be made.
To develop our estimate, it is useful to consider coerced confessions in historical perspective. In 1931 the National
Commission of Law Observance and Enforcement, headed by George W. Wickersham, reported that the "third degree,"
that is, "the employment of methods which inflict suffering, physical or mental upon a person, in order to obtain from
that person information about a crime" was widespread throughout the United States. n501 Following the publication
of the Wickersham Report, the Supreme Court, among other institutions, [*474] took a greater interest in preventing
such police abuses. In Brown v. Mississippi, n502 the Court for the first time used the Fourteenth Amendment Due
Process Clause to reverse a state conviction involving a clearly coerced confession. Later cases continued to signal that
the Court would review suspects' claims of coerced confessions -- a fact that discouraged police from using coercive
interrogation methods. n503
The Wickersham Report was followed by not only increased judicial regulation of the interrogation process but also
increased police professionalization. For example, FBI Director J. Edgar Hoover began a movement to train police in
scientific techniques of crime detection. n504 Training and awareness of legal norms increased so that by the
mid-1940s most police chiefs in America had openly condemned the use of third-degree tactics. n505 Police
interrogation manuals also began telling police that brutality was an ineffective way to obtain confessions. n506 Police
professionalization thus had its start well before Miranda and was considerably developed by 1966. n507
As the result of these twin restraining developments -- judicial oversight and police professionalization -- coercive
questioning methods began to decline in the 1930s and 1940s, n508 and by the 1950s their use had, according to a
leading scholar in the area, "diminished considerably." n509 For example, observers for the American Bar Foundation
Study, who witnessed interrogations in police departments in Michigan, Wisconsin, and Kansas in 1956 and 1957,
found that use of coercion during custodial questioning (whether physical or psychological) was exceptional. n510
When the Supreme Court began issuing more detailed rules for police interrogation in the 1960s, it was dealing [*475]
with a problem "that was already fading into the past." n511 Chief Justice Warren's majority opinion in Miranda,
while citing the Wickersham Report and other historical records of police abuses, acknowledged that they are
"undoubtedly the exception now" and that "the modern practice of in-custody interrogation is psychologically rather
than physically oriented." n512 At the time of the Miranda decision, the President's Commission on Law Enforcement
and the Administration of Justice reported that "today the third degree is almost nonexistent" and referred to "its virtual
abandonment by the police." n513 In January 1966, the Los Angeles District Attorney's office reported that they found
no involuntary confessions among cases that they rejected for prosecution or presented to a judge at a preliminary
hearing. n514 In the summer of 1966 in New Haven, when detectives were generally operating under pre-Miranda
rules, n515 the student observers saw no undue physical force used by the detectives and doubted "that many of them
would employ force as a calculated tool to pry out a confession. . . . Few are such crusaders against crime that they feel
physical violence is justified to get a confession." n516 The empirical surveys thus provide solid support for Professor
Gerald Rosenberg's assessment: "Evidence is hard to come by but what evidence there is suggests that any reductions
that have been achieved in police brutality are independent of the Court and started before Miranda." n517
Of course, coercive police questioning can involve not only police brutality but also other techniques as well. It
seems unlikely, however, that reductions in other forms of coercion shortly after Miranda [*476] could explain large
changes in the confession rate. Professor Wayne R. LaFave reported the year before the Miranda decision:
In the great majority of in-custody interrogations observed, the possibility of coercion appeared slight. In
many instances the suspect is merely confronted with the evidence against him or with evidence

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inconsistent with his prior statements and is asked to give an explanation. Often he is just given an
opportunity to admit to other outstanding offenses recited to him. Lengthy, continuous questioning is the
exception rather than the rule. In practice the interrogating detective often terminates the questioning
after a brief period to appear in court or elsewhere on other cases or to check upon the statements already
given by the suspect. n518
Similarly, the student observers in New Haven in 1966, assessing all forms of police "tactics," found "a low level of
coerciveness in most questioning." n519
Indirect confirmation of the statistical scarcity of all forms of coercion is provided by statistics on motions to
suppress confessions. Even if a coerced confession is obtained, "such confessions are typically withdrawn and
challenged at a pretrial voluntariness hearing." n520 If coerced confessions were prevalent before Miranda, we should
find frequent challenges to the voluntariness of confessions. n521 The very limited data from around the time of
Miranda suggest that such challenges were rare. The Los Angeles study found that in 1965 prosecutors rejected only
about one percent of police requests for complaints because of inadmissibility of the defendant's statements n522 and
courts, at the preliminary hearing stage, rejected less than two percent. n523 To be sure, these data do not indicate the
percentage of cases in which defendants claimed that they had been coerced and, in view of the [*477] difficulties of
proving police coercion, the fact that the courts frequently admitted confessions is not incontrovertible proof that they
were voluntary. Nonetheless, these figures fail to provide support for the theory that disappearing coercion was a
significant factor in explaining changes in confession rates around the time of Miranda.
Beyond the relative infrequency of coercion, a second factor suggesting that the confession rate reductions reported
here did not stem from the disappearance of coerced confessions comes from the nature of the Miranda rules
themselves. Miranda was not particularly well tailored to prevent coerced confessions. Justice Harlan's point in his
Miranda dissent has never been effectively answered: "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." n524 It is not clear why police using rubber hoses
before Miranda would have shelved them afterwards -- at least in the generally short time period following the decision
during which the confession rate changes were observed. n525 Isolated instances of police brutality have been reported
after Miranda. n526 Less extreme forms of coercion might have continued as well. n527
The relation of Miranda to the elimination of such practices remains unclear and unproved. To be sure, under
Miranda police must obtain a waiver of rights. But once a valid waiver is obtained, police are relatively unconstrained.
Shortly after Miranda, Neal Milner studied the police response in Wisconsin and found that "generally most
interrogations continued to operate under rules formalized prior to the Miranda decision." n528 As the Office of Legal
Policy concluded, after a waiver, "Miranda is . . . virtually worthless as a safeguard against specific interrogation
practices that were characterized as abusive in the Miranda decision . . . ." n529 This is not an isolated finding, as there
appears to have been "general agreement among writers on the [*478] subject that Miranda is an inept means of
protecting the rights of suspects . . . ." n530
A final point cutting against the disappearance of coercion as an explanatory factor is empirical research in other
countries with observers and videotape equipment to guard against police abuses. As shown previously, in those
countries police obtain confessions at rates comparable to the pre-Miranda rates in the United States (in excess of 60%),
even though coercion in violation of constitutional norms was not observed. n531
In light of all three of these factors -- the virtual nonexistence of the third degree and minimal coerciveness of
questioning around the time of Miranda, the ineffectiveness of the Miranda rules in preventing coercion, and
international empirical confirmation that high confession rates are obtainable without coercion n532 -- it seems quite
unlikely that a reduction in coercion had much to do with the confession rate drops that form the basis of the Miranda
cost estimate. n533

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[*479] C. Miranda's Cost as the Benefit of Protecting the Innocent
If the confession rate decline after Miranda cannot be explained by a reduction in coercive questioning, it might
still be defended as the result of protecting innocent persons in the criminal justice system. n534 For example, if
Miranda prevented a large number of false confessions, this would be a virtue, not a vice. More generally, if Miranda
protected an appreciable number of innocents from being convicted, the decision might be defensible even if guilty
persons escaped. n535
It seems unlikely that Miranda's costs can be defended on such grounds. Setting aside the immediate rejoinder that
there are better ways than Miranda of regulating police questioning to protect innocents n536 and that Miranda has
retarded the search for these superior alternatives, n537 Miranda's defenders have yet to establish that the decision
does much for innocent suspects.
Turning specifically to the question of false confessions, the psychological literature has developed a typology of
false confessions, identifying two main types apart from the coerced false confession just discussed: the
coerced-internalized false confession and the voluntary false confession. n538 The Miranda rules would do little to
prevent false confession of either type.
The coerced-internalized false confession arises when "suspects come to believe during police interviewing that
they have committed the crime they are accused of, even though they have no actual memory of having committed the
crime." n539 While it is impossible to quantify precisely the extent of false confessions, the few bizarre cases reported
of such situations seem unlikely to account for even a tiny fraction of the reported confession rate drops. n540 Even if
the cases were statistically significant, persons susceptible to such confessions are particularly unlikely to be helped by
the Miranda rules because [*480] they trust the police n541 and, at least initially, are likely to want to waive their
Miranda rights to convince the police of their innocence. n542
A voluntary false confession is "offered by individuals without any external pressure from police," often because of
the publicity associated with the crime. n543 For example, over 200 persons reportedly "confessed" to the famous
Lindbergh kidnapping. n544 The Miranda rules seem unlikely to dissuade such confessions.
It has sometimes been argued that proof of the significance of false confessions comes from examining their role in
the conviction of innocent persons. For example, Jerome H. Skolnick and Richard A. Leo have suggested that false
confessions "are one of the leading sources of erroneous conviction of innocent individuals." n545 However, even
within the already tiny fraction of tragic cases involving innocents who are convicted, it appears that false confessions
of all types play only a small role. The support for Skolnick and Leo's assertion is the Bedau-Radelet "study" of
allegedly innocent persons convicted in capital cases, n546 which has been refuted elsewhere. n547 Even taking the
study at face value, however, it found "coerced or other false confessions" to be responsible for erroneous convictions in
49 out of 534 cases -- less than 10%. n548
Skolnick and Leo attempt to demonstrate a serious problem with wrongful convictions by citing the work of C.
Ronald Huff, Arye Rattner, and Edward Sagarin for the proposition that a "conservative estimate" of wrongful
convictions each year in this country is 6000. n549 However, the Huff study is flawed in its conclusion. Read properly,
[*481] the study suggests the more likely estimate -- particularly using "conservative" assumptions -- of roughly 350
wrongful convictions each year in this country, n550 a total error rate of approximately .02% n551 (roughly one in
5000). Combining 350 wrongful convictions with the Bedau-Radelet estimate that 10% of such convictions stem from
false confessions produces a total of around 35 wrongful convictions from false confessions each year. Even this
number might be too high, because Huff and his colleagues did not find false confessions to be among the major factors
contributing to the already small number (comparatively speaking) of wrongful convictions. n552 While each such
wrongful conviction is an undeniable tragedy, these calculations show that false confessions could not play any
significant role in the Miranda cost estimate calculated here. n553

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[*482] Miranda not only fails to do much about false confessions but, speaking more generally, may in fact
positively harm innocent persons by making it more difficult to separate guilty defendants from innocent ones. As
Professor William Stuntz has argued, "it seems likely that making government investigation easier improves the welfare
of innocent defendants." n554 Stuntz explains in some detail that prosecutors face the difficult task of separating guilty
suspects from innocent ones. Given that prosecutors operate in a world of imperfect information, "innocent defendants
stand to gain a great deal if there are low-cost separating mechanisms available to the government after suspects are
identified or arrested but before trials. . . . Various common police interrogation tactics[] can plausibly serve as such
mechanisms." n555
The claim here is not that Miranda makes it more difficult for innocent suspects to give their alibis and
explanations to police officers during questioning. Presumably innocent persons could waive their rights and talk to
police as well after Miranda as before. n556 The claim is that, for suspects who do not convince police of their
innocence, Miranda perversely may make it more likely that they will be convicted and unjustly punished. n557
To see how this might happen, consider the case load of a hypothetical prosecutor before and after Miranda. Before
Miranda, the prosecutor has 100 cases to handle, 60 with confessions and 40 without. n558 After Miranda, the
confession rate drops at least 15%, n559 so now the prosecutor handles 45 cases with confessions and 55 without.
Assume further that, both before and after Miranda, there is one innocent defendant among the 100 cases. n560 The
prosecutor does not know which defendant is innocent -- other than that the innocent defendant did not confess. It seems
plausible that the prosecutor will [*483] have less success in culling the innocent defendantfrom a pool of 55
nonconfessors than from a pool of 40 nonconfessors. After all, needles are harder to find in bigger haystacks. n561 To
be sure, our innocent defendant might gain an acquittal at trial. But we are concerned here with the odds innocent
persons would be unjustly convicted, either before Miranda or after. Other things being equal, Miranda might make the
prospects worse for such defendants.
A related possibility is that Miranda reduces information that might be useful to innocent defendants in clearing
themselves. Presumably, the confessions that are lost under Miranda might have prevented police from charging the
wrong person or, if charges were filed, might have contained information an innocent could use to establish his
innocence. Judge Friendly made an analogous point about the costs of the privilege against self-incrimination,
explaining that "[a] man in suspicious circumstances but not in fact guilty is deprived of official interrogation of another
whom he knows to be the true culprit . . . ." n562 The same loss of evidence results when a suspect invokes his
Miranda rights. In sum, it seems hard to justify Miranda because of its role either in specifically preventing false
confessions or more generally in preventing the conviction of innocent persons.
VI. ASSESSING MIRANDA IN LIGHT OF ITS COSTS
In concluding this Article, this Part discusses the relative significance of Miranda's costs and whether reasonable
alternatives could avoid them.
A. Miranda's Costs in Perspective
One possible response to the costs of Miranda calculated in this Article is that, all things considered, they are quite
small. After all, it might be argued, "only" 3.8% of cases are lost due to Miranda. My [*484] reaction is quite different.
We should be concerned about the total number of lost cases from such a percentage. n563 Roughly 28,000 arrests for
serious crimes of violence and 79,000 arrests for property crimes slip through the criminal justice system due to
Miranda, and almost the same number of cases are disposed of on terms more favorable for defendants. n564
The Supreme Court has reached the same conclusion in modifying the Fourth Amendment exclusionary rule. In
creating a good faith exception to the exclusionary rule, the Court cited statistics tending to show that the rule resulted
in the release of between 0.6% and 2.35% of individuals arrested for felonies. n565 The Court concluded that these
"small percentages . . . mask a large absolute number of felons who are released because the cases against them were

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based in part on illegal searches or seizures." n566 Miranda's lost cases are 160% to 630% of those from the
exclusionary rule. n567 Moreover, while the costs of the exclusionary rule are sometimes said to be simply the price of
complying with the constitutional prohibition of unreasonable searches, the costs of Miranda stem from restrictions that
are not constitutionally required and for which reasonable alternatives exist. This suggests that reforming Miranda
deserves a higher priority from court reformers than reforming the search and seizure exclusionary rule.
Another method of demonstrating that Miranda's costs require a public policy response is to consider them in light
of the recent debates in Congress over how to deal with the problem of crime. The various proposals ranged from
midnight basketball leagues to placing more police officers on the streets. Each of these measures may be quite
desirable on its own merits. Yet little empirical support was provided that any of these changes would have a
quantifiable impact on the prevention of crime or conviction of criminals -- certainly nothing suggesting that any
individual measure could achieve a change in the handling of almost four percent of all criminal cases. Reducing
Miranda's costs thus is more important than any of these hotly debated proposals.
[*485] Still another suggestion of the seriousness of Miranda's costs comes from taking the perspective of victims
of crime. n568 Concern for victims suggests that society is obligated to do its best to avoid the kinds of miscarriages of
justice as when a confessed killer walks out of a courtroom with a "big smirky grin" on his face because of what can
fairly be described as a Miranda technicality. n569 While cases in which confessions are suppressed under Miranda
allow us to put a human face on Miranda's costs, far more often Miranda means that a confession will not be obtained,
with the result that a crime will go unsolved or unpunished. How do we tell the victims of these crimes that their
suffering doesn't count? n570 Quantification of costs is important, but the calculus here stops well short of conveying
the human toll involved in murders that go unpunished, rapists that remain at large, and treasured heirlooms and other
stolen property that are never recovered. As Professor Caplan has concluded, the statistical studies "reduce crime to
something remote and abstract, a string of numbers, an event that one reads about in the newspapers, something that
happens in another part of town. There is no hint of rape as a nightmare come alive, or robbery as a ruinous matter."
n571
A final way of showing the significance of Miranda's harms is the simple truism that an unnecessary cost is a cost
that is too high. Given that Miranda is only one way of structuring custodial interrogation, even one inappropriately
released defendant is one too many. n572 If Miranda's costs can be reduced without sacrificing other values, they
should be reduced -- and as quickly and completely as possible. To argue against considering reform of Miranda on the
grounds that its cost is small has always struck me as equivalent to arguing against curing diabetes because its toll is
smaller than that from cancer. Yet surely no one in the medical profession is stopping a quest to cure a particular disease
because the relative cost, compared to other human miseries, is small. Instead, the medical profession can tell the legal
profession that it is moving forward on a broad range of fronts to solve all manner of medical problems. In contrast, in
the area of the law governing confessions, we in the legal profession can report only that we are frozen in a 1960s
conception of the optimal resolution of [*486] the issue. The fact that there has been no substantial change since
Miranda is attributable either to Miranda's foresight or our lack of progress -- the costs documented in this Article
strongly suggest the later.
B. Moving Beyond Miranda
The analysis so far will strike some as incomplete because I have simply calculated Miranda's costs without
acknowledging any of the possible benefits. In view of the need to enforce the Fifth Amendment prohibition of coerced
confessions, Miranda's costs are "unnecessary" only if other alternatives serve Fifth Amendment values equally well.
This already lengthy Article is not the place for a detailed consideration of the alternatives to Miranda. n573 But to
make my case that Miranda's costs are largely unnecessary, I want to briefly outline one alternative approach that can
protect the other values thought to be served by Miranda while at the same time minimizing Miranda's costs.
Miranda's defenders have argued that any change in the decision's requirements would "roll back the clock" to an
outmoded day and age. But time has passed these Warren Court warriors by -- they are, in effect, advocating a 1966

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solution to the problem of preventing coerced confessions when the 1990s offer superior solutions. Consider, then,
videotaping of interrogations as an alternative to Miranda.
1. Recording as an Alternative to Miranda. -- One example of a replacement for the Miranda regime is to record,
preferably by videotape, all custodial interrogations. Even around the time of Miranda, the ALI proposed recording of
interrogations as a way of avoiding police coercion, with the additional benefit of eliminating disputes concerning what
was actually said during interrogations. n574 Other commentators have since recommended videotaping. n575
[*487] Videotaping interrogations would certainly be as effective as Miranda in preventing police coercion and
probably more so. The Miranda regime appears to have had little effect on the police misconduct that does exist. n576
In contrast, videotaping, when used, has often reduced claims of police coercion and probably real coercion as well.
n577 To be sure, police conceivably could alter tapes n578 or deploy force off-camera. n579 But if you were facing a
police officer with a rubber hose, would you prefer a world in which he was required to mumble the Miranda warnings
and have you waive your rights, all as reported by him in later testimony? Or a world in which the interrogation is
videorecorded and the burden is on law enforcement to explain if it is not; where date and time are recorded on the
videotape; where your physical appearance and demeanor during the interrogation are permanently recorded?
Videotaping is the clear winner. Not surprisingly, those who are most concerned about police brutality have seen
videotaping as a means of control. n580
[*488] Recording confessions also promises to be effective in preventing not only physical coercion but also in
detecting, if not preventing, other fine points of coercion as well. In this regard, it is interesting that some of the most
detailed assessments of voluntariness have come in cases of recorded interrogations, which permitted judges to parse
implicit promises and threats made to obtain an admission. n581 Recording also allows a review of police overbearing
that might not be revealed in dry testimony. n582 Taping is thus the only means of eliminating "swearing contests"
about what went on in the interrogation room. n583
Videotaping also promises to offer more effective protection against the more esoteric problem of false confessions
induced by noncoercive police questioning. A complete record of the proceedings promises to be the most effective
means of identifying such cases. n584 A recent story in the American Lawyer regarding three false confessions to
involvement in the murders of nine people at a Thai Buddhist temple near Phoenix provides a good example. n585
Police obtained and taped these false confessions in apparent compliance with [*489] Miranda following lengthy
questioning. While the real killers were discovered before the innocent men stood trial, the American Lawyer concluded
that the tapes would have been their only hope:
Only these tape recordings gave the suspects any chance of defending themselves at trial. Only the tapes
reliably document how much information was fed to the suspects before they repeated it back. Only the
tapes document all the inaccuracies in the suspects' statements. Only the tapes document the manner in
which investigators steered the suspects toward tidying up the details of their confessions. Only the tapes
document the suggestiveness of the questions and the ambiguity of the answers. Police reports provide
none of this information. n586
While recording maintains, and in many ways exceeds, Miranda's supposed benefits of deterring coercion and
preventing false confessions, it has the advantage over Miranda of not significantly impeding law enforcement. n587
In 1992 the National Institute of Justice (NIJ) published a nationwide survey of a representative sample of police
agencies about videotaping interrogations. n588 The survey found that about one-sixth of all police and sheriffs'
departments in the United States videotaped at least some confessions. n589 The survey found that 59.8% of the
agencies believed that they obtained more incriminating information from suspects, 26.9% the same amount, while
13.2% thought they obtained less. n590 Also, 8.6% thought suspects were more willing to talk to police, 63.1%
thought there was no difference, while 28.3% reported suspects less willing to talk. n591 Videotaping also had many
other benefits, such as improving police interrogation practices, rendering confessions more convincing, facilitating
their introduction into evidence, assisting prosecutors in negotiating more acceptable plea bargains and obtaining guilty
pleas, and helping in securing convictions. n592 Taping had not proved to be a significant financial burden. n593

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[*490] The striking conclusion of the NIJ survey was that
97 percent of all departments in the nation which are videotaping either confessions or full interrogations
find videotaping "very useful" (65.8%) or "somewhat useful" (31.3%). An additional 2.5 percent of the
agencies find this use of electronic technology "neither harmful nor helpful," and less than 1 percent
cited the practice of videotaping as "somewhat harmful." n594
This ringing endorsement of videotaping is particularly striking because in many departments detectives initially
resisted the innovation only to be won over by its benefits. n595
One qualification to this endorsement should be noted. In many of the jurisdictions surveyed, the videotaping was
at the discretion of the interrogating detective. n596 It is possible that a mandatory videotaping regime might be more
problematic for law enforcement.
Recent and substantial experience with a mandatory recording requirement in Britain suggests that such a
requirement would not significantly harm police efforts to obtain confessions. In 1988, a Code of Practice took effect
that generally required that police tape-record interviews with suspects. n597 A 1993 review of the requirement by the
Royal Commission on Criminal Justice reported that "by general consent, tape recording in the police station has proved
to be a strikingly successful innovation providing better safeguards for the suspect and the police officer alike." n598
No significant adverse effect on obtaining confessions has been observed in the empirical studies specifically focusing
on taping, and in fact police obtain more confessions and information about other offenses when interrogations are
taped. n599 According to one survey, 91% of police officers approve of the practice, with 65% reporting "very
favorable" views about it. n600
[*491] A carefully monitored study of mandatory videotaping of confessions in Canada suggests the same
conclusion. Police obtained confessions or admissions in 68% of their interviews, even with videocameras running.
n601 The study concluded that "the videotaping process does not appear to inhibit suspects from making confessions or
admissions . . . ." n602
The only specific controlled empirical study in the United States also suggests that a taping requirement does not
harm the confession rate. In 1967, the Vera Institute made a comparison of audiotaped police interrogations in one New
York City precinct with standard interrogation in other comparable precincts. More admissions were obtained in the
taped precinct. n603 The same result is suggested by my 1994 Salt Lake County study. Although not based on a
"controlled" sample, my study found that suspects were just as likely to confess when police videorecorded the
questioning. n604
A final indication that mandatory taping does not inhibit suspects is found in Alaska. The Alaska Supreme Court in
1985 imposed a requirement that all custodial interviews be recorded on audio tape. n605 I have seen reports of several
interviews with law enforcement officers in that state which suggest that the recording has not been harmful to the
confession rate. An Alaskan appellate judge was quoted recently as saying "I've seen no indication that the requirement
has been onerous [*492] or unworkable." n606 The judge also noted that officers now frequently carry portable
microcassette recorders to record every potential contact with a suspect, a policy that often preserves other damaging
evidence against suspects. n607
My reading of the available empirical information is that a mandatory videotaping requirement would not
noticeably inhibit suspects from confessing and would produce significant collateral benefits for law enforcement.
However, further study of this question is warranted, as some law enforcement concerns have been expressed about
such a requirement. For example, 28.3% of police agencies in the NIJ survey thought that suspects were somewhat less
willing to talk on videotape. n608 Similarly the current edition of the Inbau interrogation manual discourages taping
confessions. n609 This is slender evidence on which to build a case against taping from a law enforcement perspective,
particularly when factoring in the possibility of covert taping to avoid inhibiting suspects. n610 But to obviate any
objection from law enforcement, a reasonable, interim compromise could be tried: Allow police to depart from Miranda

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(under the conditions outlined below) if they videotape the interrogation; if not, they can continue to operate under the
Miranda rules. This compromise would allow police to shift to the alternative if they thought it would be more
effective. It would also develop a body of empirical evidence that would be useful in developing future policy
recommendations.
2. Minimizing Miranda's Costs. -- Miranda's defenders might be prepared to concede that videotaping has many
advantages but argue that police should comply with both Miranda and videotaping requirements. But such an approach
single-mindedly pursues the goal of eliminating coerced confessions without considering the countervailing costs
identified in this Article. The Court has described Miranda as "a carefully crafted balance designed to fully protect both
the defendants' and society's interests." n611 An approach that strikes a reasonable balance between maximizing
benefits and minimizing costs would be to require taping to prevent police coercion while at the [*493] same time
relaxing the features of the Miranda regime that extract the greatest costs in terms of lost confessions. The existing
empirical literature allows us to identify the particularly harmful features of Miranda. These features can then be
modified, without disturbing the other protections. In particular, the Miranda warnings can be retained without
significantly lowering the confession rate, while the waiver and questioning cutoff rules should be eliminated, as they
cause the bulk of Miranda's harms.
(a) Warnings. -- Simply advising suspects of their right to remain silent does not appear to be the critical factor in
the post-Miranda decline in the confession rates. The best evidence of this fact comes from the experience of law
enforcement agencies following the Escobedo decision, when many police agencies began giving various warnings
n612 without substantial effects on confessions. At the annual meeting of the National Association of Attorneys
General, held in May 1966 (after Escobedo but shortly before Miranda), the "clear consensus" was that Escobedo had
had little effect on the rate of confessions and that confession rates remained constant even in those states where
Escobedo had been extended to require the police to warn suspects of their rights. n613 For example, J. Joseph
Nugent, Attorney General of Rhode Island, reported that warning suspects of their rights to counsel and to remain silent
along with obtaining written waivers had not affected confession rates. n614 In New Jersey in February 1966, the
Essex County prosecutor reported that confession rates remained stable even though police had been advising suspects
of their rights since June 1964. n615 A related indication that warnings per se were not responsible for the change in
the rates comes from the practice of the FBI, which gave warning of the right to remain silent without apparent adverse
effect. n616
The available empirical evidence confirms that warnings have comparatively little effect on confession rates. In
Detroit, there was, at most, a 2.8% drop in the confession rate after police began warning [*494] suspects of their
rights under Escobedo n617 -- from 60.8% of all cases in 1961 to 58% of all cases in 1965. n618 In Pittsburgh, a
substantial decline occurred in the confession rate after Miranda, even though it was the pre-Miranda practice of the
detectives to warn suspects of their right to remain silent and to, at some point, advise suspects that they would receive
counsel. n619 In New Haven, the Yale Law Journal reported no support in its data for the claim that warnings of rights
caused a decline in police success at obtaining confessions. n620 Finally, in Philadelphia, an estimated 90% of arrested
suspects made statements before Escobedo, 80% (estimated) after Escobedo when police gave limited warnings, 68.3%
when police gave more extended warnings as required by the Third Circuit, and 40.7% when police followed Miranda.
n621 Thus, the biggest drop followed not the imposition of warning requirements, but rather the imposition of the
Miranda requirements.
A final indication that warnings can be given to suspects without significantly harming the confession rate comes
from studies in Britain and Canada. Historically, both countries gave warnings to suspects about their right to remain
silent, but achieved much higher confession rates than found in America. n622 In structuring less costly alternatives to
Miranda, eliminating warnings of rights need not be the main focus of reform.
(b) Waiver and questioning cut-off requirements. -- While the warnings are perhaps the most famous (and least
harmful) part of the Miranda decision, the decision also made important changes in requiring that police obtain an
affirmative waiver of rights from suspects before conducting any custodial questioning and that police stop questioning

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whenever a suspect invoked his right to counsel or right to silence. These changes seem to have been responsible for
some significant [*495] portion of the drop in confessions, as every study suggests that some suspects cannot be
questioned at all because of these Miranda rules. The available historical data on invocation of Miranda rights are set
out in the footnote here, arranged in order of largest to smallest possible impact. n623 The percentages vary widely
(from 77% to 4%, averaging somewhere around 20% n624 ). In addition to the historical data, two recent studies
suggest that about 20% of suspects cannot be questioned because of Miranda. In 1993, the Bay area study found [*496]
that 22% of suspects invoked their Miranda rights. n625 In 1994, my Salt Lake County study found that 16.3% of
suspects given Miranda warnings invoked their rights initially. n626
The fact that a significant proportion of suspects invoke their Miranda rights certainly marks these requirements of
Miranda as responsible for a good part of the confession rate decline. In the absence of such rules, officers could be
expected to successfully persuade some suspects to make incriminating statements. n627 And these raw percentages
do not measure any reduction in questioning effectiveness due to the fact that officers need to avoid giving a suspect
reason to terminate an interview. n628 It must be remembered that 20% of all suspects represents a huge number of
criminal cases. Using the same methodology employed earlier, n629 if 20% of suspects invoke their Miranda rights,
police cannot question in any way approximately 550,000 criminal suspects each year. In modifying Miranda, then, the
waiver and questioning cut-off rules along with the prophylactic right to counsel n630 should be the main targets for
reform.
3. The Replacement for Miranda. -- In light of the benefits of videotaping and the costly features of Miranda, what
might a replacement for Miranda look like? Suspects could continue to be advised of their rights, as follows:
(1) You do not have to say anything.
(2) Anything you do say may be used as evidence.
(3) You have the right to be represented by a lawyer when we bring you before a judge.
(4) If you cannot afford a lawyer, the judge will appoint one for you without charge.
(5) We are required to bring you before a judge without unnecessary delay. n631
[*497] While adding a new, fifth warning that is not required by Miranda, the modified warnings would dispense with
the Miranda offer of counsel, n632 identified as a particularly harmful aspect of Miranda and, in any event, a right that
has proved to be purely theoretical since police always terminate questioning rather than finding a lawyer. n633 Also,
the alternative would dispense with the requirement that police obtain an affirmative waiver of rights from suspects,
another particularly harmful feature of Miranda. However, police could continue to ask suspects whether they
understood the rights communicated to them, since nothing in the empirical literature identifies this aspect of Miranda
as being particularly harmful. Also eliminated would be the requirement that police immediately terminate an interview
whenever the suspect requests an end to the interview or an opportunity to meet with counsel. These features have been
identified as harming the confession rate. n634
While these changes would eliminate most of Miranda's costs, the additional safeguard of taping confessions could
be added on top of existing requirements without adversely affecting confession rates. Videotaping would be required
for custodial interrogation in the stationhouse; audiotaping would be required for custodial interrogation in the field (as
is currently done in Alaska). Such a requirement might be operationalized for police agencies as follows:
Custodial interviews with suspects shall be electronically recorded. Videorecording shall be the
preferred form of recording, but sound recording may be used if operational videorecording equipment is
not readily available or if the interview is conducted outside of the stationhouse. If both videorecording
and sound recording are impossible because of equipment malfunction, an interview may be carried out
without recording. If the suspect indicates that he does not wish to have the interview recorded, the
interview may also be carried out without recording. The recording shall include the delivery of the
rights to the suspect.
One final point should be made in favor of this proposal. Since police are still required to give modified warnings

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and since they will be videotaped while conducting interrogations, police will not gain the mistaken impression that any
judicial supervision of the interrogation process has ended.
[*498] C. Miranda's Greatest Cost
No doubt some will find this alternative to Miranda to be too favorable for police. Others may argue that it is still
too restrictive. n635 But this kind of discussion, which has been virtually nonexistent since 1966, demonstrates
Miranda's greatest cost. Beyond the release of dangerous criminals, the undeniable tragedy of the Miranda decision is
that it has blocked the search for superior approaches to custodial interrogation -- alternatives that might better protect
not only society's interest in apprehending criminals but also criminal suspects' interests in preventing coercive
questioning. n636 Miranda itself seemed to invite exploration of alternatives, explaining that "our decision in no way
creates a constitutional straitjacket which will handicap sound efforts at reform." n637 The Court's invitation, however,
was in reality empty because it did not specify what alternatives would be deemed acceptable. n638 In the
quarter-century since Miranda, reform efforts have been virtually nonexistent. As the Office of Legal Policy concluded:
The Miranda decision has petrified the law of pre-trial interrogation for the past twenty years,
foreclosing the possibility of developing and implementing alternatives that would be of greater
effectiveness both in protecting the public from crime and in ensuring fair treatment of persons suspected
of crime. . . . Nothing is likely to change in the future as long as Miranda remains in effect and
perpetuates a perceived risk of invalidation for any alternative system that departs from it. n639
This period of stagnation in the United States should be contrasted with reform efforts in other countries where
varying modification of interrogation rules have been made or recommended. n640 It seems difficult to quarrel with
the assessment that "the police interrogation [*499] process in the United States would benefit from a comparable
effort." n641
The time has come for the Supreme Court to allow serious exploration of less costly ways of regulating police
interrogation. As Miranda itself recognized, the Court's announced rules are not necessarily the best accommodation of
the various concerns. n642 This Article suggests that the requirements imposed by the Court in 1966 continue to exact
a heavy toll in lost cases -- a toll that could be substantially reduced under reasonable alternatives. Justice Harlan's
dissent in Miranda recognized this possibility, explaining that while the Court's change by judicial fiat might have the
benefit of being speedy, other approaches "when they come would have the vast advantage of empirical data and
comprehensive study." n643
This Article has tried to begin the effort in that direction by comprehensively surveying the available empirical
literature on Miranda's costs and by preliminarily surveying such literature on videotaping as a replacement. If nothing
else, this Article may highlight areas for future academic research. More importantly, perhaps it is not too optimistic to
think that this Article might serve as something like a petition for rehearing on behalf of those who have borne
Miranda's social costs. Justice White's dissent in Miranda recognized the fact that "in some unknown number of cases
the Court's rule will return a killer, a rapist or other criminal to the streets . . . to repeat his crime whenever it pleases
him." n644 He continued, "There is, of course, a saving factor: the next victims are uncertain, unnamed and
unrepresented in this case." n645 While this Article cannot identify Miranda's specific victims, it should at least prove
that they are numerous and that their victimization could have been avoided under reasonable alternatives to Miranda.
As our criminal justice system prepares to enter the next century, one hopes that the Court will take advantage of this
new knowledge and permit Congress and the states to craft better regimes for regulating police questioning of suspects.

Legal Topics:
For related research and practice materials, see the following legal topics:

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Criminal Law & ProcedureInterrogationMiranda RightsCustodial InterrogationCriminal Law &
ProcedureInterrogationMiranda RightsSelf-Incrimination PrivilegeCriminal Law & ProcedureGuilty PleasGeneral
Overview
FOOTNOTES:

n313 See generally HERBERT S. MILLER ET AL., NATIONAL INST. OF LAW ENFORCEMENT AND
CRIMINAL JUSTICE, U.S. DEP'T OF JUSTICE, PLEA BARGAINING IN THE UNITED STATES (1978)
(discussing prevalence of plea bargaining in the United States).
n314 See BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS
-- 1993, at 536 (1994) (estimating that 91% of all felony convictions in state courts in the United States in 1990
resulted from a guilty plea); BARBARA BOLAND ET AL., PROSECUTION OF FELONY ARRESTS, 1988,
at 24-29 (1988) (1988 sample of ten felony courts found proportion of guilty pleas to range from 83% to over
95%); DAVID A. JONES, CRIME WITHOUT PUNISHMENT 192 (1979) (among 24 states and D.C., only 6
tried more than 10% of their cases). But cf. Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L.
REV. 1037, 1047-50 (1984) (collecting evidence suggesting that plea bargaining is less prevalent than generally
believed).
n315 See PETER F. NARDULLI ET AL., THE TENOR OF JUSTICE: CRIMINAL COURTS AND THE
GUILTY PLEA PROCESS 205 (1988).
n316 DAVID W. NEUBAUER, CRIMINAL JUSTICE IN MIDDLE AMERICA 218-19, 241 (1974); see
MILLER ET AL., supra note 313, at 81; Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U.
CHI. L. REV. 50, 58 (1968); Henry H. Rossman et al., Some Patterns and Determinants of Plea-Bargaining
Decisions: A Simulation and Quasi Experiment, in PLEA-BARGAINING 77, 78, 82-83 (William F. McDonald
& James A. Cramer eds., 1980); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty
Pleas, 112 U. PA. L. REV. 865, 901 (1964). But cf. PETER F. NARDULLI, THE COURTROOM ELITE: AN
ORGANIZATIONAL PERSPECTIVE ON CRIMINAL JUSTICE 193 (1978) (finding that regression analysis
of Chicago sample shows no relation between strength of the state's case and prosecution's decision to pursue a
case to trial).
n317 JONES, supra note 314, at 95-96; see NEUBAUER, supra note 316, at 199.
n318 Arizona v. Fulminante, 111 S. Ct. 1246, 1257 (1991); see Saul M. Kassin & Lawrence S. Wrightman,
Confession Evidence, in THE PSYCHOLOGY OF EVIDENCE AND TRIAL PROCEDURE 67, 83-87 (Saul M.
Kassin & Lawrence S. Wrightman eds., 1985) (collecting mock jury evidence to the same effect); Gerald R.
Miller & F. Joseph Boster, Three Images of the Trial: Their Implications for Psychological Research, in
PSYCHOLOGY IN THE LEGAL PROCESS 19, 21-22 (Bruce D. Sales ed., 1977) (reporting mock jury trial
showing strong correlation between confession evidence and likelihood of guilty verdict); cf. DAVID SIMON,
HOMICIDE: A YEAR ON THE KILLING STREETS 454 (1991) (explaining that juries are sometimes
skeptical of police testimony about confessions); UVILLER, supra note 14, at 185 (same).
n319 Some data also suggest that those who confess are less likely to go to trial. See David W. Neubauer,
Confessions in Prairie City: Some Causes and Effects, 65 J. CRIM. L. & CRIMINOLOGY 103, 110 (1974)

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(table 4) (finding, for violent crimes, that 3% of confessors went to trial as compared to 32% of nonconfessors);
see also BALDWIN & McCONVILLE, supra note 196, at 19 (British data showing confessors more likely to
plead guilty); SOFTLEY, supra note 195, at 87, 91 (same); MICHAEL ZANDER & PAUL HENDERSON,
ROYAL COMM'N ON CRIMINAL JUSTICE, CROWN COURT STUDY 4 (1993) (same). From this fact, one
might be tempted to argue that Miranda, by reducing the confession rate, might cause court backlog by
increasing the number of trials. In my view, such an outcome is unlikely because of the dynamics of plea
bargaining. Instead of increasing court backlog, Miranda is more likely simply to change the concessions
necessary to induce pleas -- thus maintaining a roughly constant rate of trials.
n320 Miranda, 384 U.S. at 541 n.5 (White, J., dissenting) ("No reliable statistics are available concerning
the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical
evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial.").
n321 Leo, supra, note 267, at 99.
n322 See, e.g., Markman, supra note 23, at 948 (after confession suppressed in Edwards v. Arizona,
Edwards received favorable plea bargain); Miranda v. Jogger, WALL ST. J., Feb. 1, 1991, at A10 (favorable
plea given to nonconfessing defendant in celebrated case of attack on a Central Park jogger).
n323 Neubauer, supra note 319, at 109.
n324 Neubauer describes the non-property category as "crimes against the person," id. at 106, which were
defined as "aggravated battery, death, rape, armed and unarmed robbery, narcotics, and indecent liberties with a
minor." Id. at 104 n.***. For convenience, I will use the appellation "crimes of violence."
n325 Id. at 110 (table 4). Slightly more of those defendants who did not confess pled to a reduced charge -13% vs. 9% for confessors. Id.
n326 Id. (table 5). In addition, 45% of those who confessed pled to reduced charges, while 32% who did not
confess did so -- a 13% difference. Id.
n327 NARDULLI ET AL., supra note 315, at 226.
n328 Id. at 237 (table 8.3) (statistically significant at the .01 level). The study found that, overall, defendants
who confessed were 4% less likely to receive a count reduction. Id. at 236.
n329 Id. at 237 (table 8.3).
n330 Id. at 254 (table 8.13).
The observed effects of confessions in plea bargaining may have been understated in all the regression
equations because of a possible multicollinearity problem. The equations tended to show substantial, statistically
significant relations between the physical evidence and all forms of charge concessions. Id. at 237 (table 8.3),

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254 (table 8.13). Physical evidence and confessions are probably strongly correlated, see supra note 214 and
accompanying text (suspects more likely to confess when evidence against them is strong and confessions may
lead to physical evidence), which means that multicollinearity might reduce the reported confession effect. See
generally PETER KENNEDY, A GUIDE TO ECONOMETRICS 146-49 (1985) (discussing consequences of
multicollinearity). Because the authors were not interested in quantifying a separate, confession effect, it is not
clear what steps they took to assess this potential problem. However, while the actualprintouts of the regressions
are no longer available, Professor Nardulli does not recall any particular multicollinearity problem. Letter from
Peter F. Nardulli, Professor, Univ. of Illinois at Urbana-Champaign, to Paul G. Cassell, Professor, Univ. of Utah
College of Law (Jan. 30, 1995) (on file with author).
n331 Yale Project, supra note 8, at 1608.
n332 Id.
n333 Id.
n334 Leo, supra note 145, at 293.
n335 Id. at 293.
n336 Cassell & Hayman, supra note 47 (reporting this result along with statistical significance tests). Other
similar effects of confessions on plea bargaining results were also found. Id.
The Pittsburgh study contains information on guilty plea rates that, unfortunately, is incomplete for present
purposes. The study reports that guilty pleas to indictments for all crimes rose from 22.1% before Miranda to
25.0% in the year after Miranda. Seeburger & Wettick, supra note 32, at 22 (table 11). This figure, however,
tells us little about overall plea bargaining, because we do not know what happened in the remaining 75% of the
cases after Miranda. For example, we do not know whether pleas to lesser charges or to misdemeanors increased
after Miranda. Also, 70% guilty plea figures related to all Pittsburgh police units (not just the Pittsburgh
Detective Branch, which followed Miranda) and otherunits in Allegheny County as a whole, which might not
have been following Miranda in the year after the decision. See ALI REPORT, supra note 56, at 134; Markman,
supra note 23, at 947. Finally, these guilty plea figures suffer the same problems as conviction rate figures. See
supra notes 39-47 and accompanying text.
Information peripherally related to the role of confessions in plea bargaining comes from Neil A. Milner's
study of two cities in Wisconsin, which found that convictions to lesser charges dramatically increased in Racine
after Miranda but fell somewhat in Madison. NEIL A. MILNER, THE COURT AND LOCAL LAW
ENFORCEMENT: THE IMPACT OF MIRANDA 218-19 (1971). Milner's data do not distinguish between
conviction by trial and conviction by plea of guilty, however, and therefore are of little use for present purposes.
n337 See e.g., VERA INST. OF JUSTICE, supra note 24, at 15; Yale Project; supra note 8, at 1609.
n338 ARTHUR I. ROSETT & DONALD R. CRESSEY, JUSTICE BY CONSENT: PLEA BARGAINS IN
THE AMERICAN COURTHOUSE 147, 149-50 (1976); see also U.S. SENTENCING COMMISSION,
GUIDELINES MANUAL § 3E1.1 (1994) (authorizing sentence reduction for "acceptance of responsibility" and

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listing among factors to be considered a defendant's "voluntary and truthful admission to authorities of
involvement in the offense and related conduct"); cf. Miranda, 384 U.S. at 538 (White, J., dissenting)
(confessing may "enhance the prospects for rehabilitation").
n339 See NARDULLI ET AL., supra note 315, at 242 (table 8.6) (no association between a confession and
lower sentences in a regression of guilty plea cases); Gary D. LaFree, Adversarial and Nonadversarial Justice:
A Comparison of Guilty Pleas and Trials, 23 CRIMINOLOGY 289, 302 (1985) (table 4), 303 (table 5), 305
(table 6) (no indication that confessions produce lower sentences in regression analysis of guilty pleas and
sentence severity); Leo, supra note 145, at 293 (suspects who incriminated themselves more likely to receive
punishment after conviction; suspects who waived rights more likely to receive punishment, although effect not
statistically significant); Neubauer, supra note 319, at 110-11 (no evidence that, after controlling for relevant
factors, those who confess receive lighter sentences); see also Yale Project, supra note 8, at 1609 (defense
attorneys generally reported that sentence bargaining was more difficult when a defendant had confessed).
n340 It might be argued that, in view of plea bargaining, it is unfair to view the entire 24% as involving
"lost" cases because, in some of these, the defendant might nonetheless be induced to plead guilty. An offsetting
possibility, however, is the parallel possibility that in some of the 76% potentially "won" cases the prosecution
might be induced to bargain the whole case away. I will assume that these two effects cancel each other,
particularly in view of the fact that there are many more "won" cases to lose than "lost" cases to win.
n341 I use Neubauer's study rather than Nardulli et al.'s because of possible problems (for present purposes)
in the Nardulli regression. See supra note 330. Using the larger figures from my study and from the Yale Project
would produce a greater effect than calculated here.
n342 Neubauer found a 23% difference, but I have offset that by 4% to take account of the fact that 4%
more nonconfessors than confessors (13% vs. 9%) plead guilty to reduced charges. Neubauer, supra note 319, at
110 (table 4).
n343 Id. (table 5). I have used the data from table 5 because Neubauer says they are the "best gauge" of the
plea differential and because they produce a more conservative estimate of plea bargaining effects. Cf. id. (table
4).
n344 These figures are derived by multiplying Miranda's confession rate reduction (16.1%) by the observed
plea bargaining effects.
n345 Arrests appear to be the proper figure for extrapolation because Neubauer's study appears to follow
defendants "from the time of arrest." Neubauer, supra note 319, at 103.
n346 A plea to reduced charges does not necessarily prove that a shorter sentence will result, as the
available studies have reached varying conclusions on the relation between charge of conviction and actual
sentence. Compare WILLIAM F. McDONALD & JAMES A. CRAMER, PLEA-BARGAINING 126 (1980)
(suggesting that sentence concessions are seldom awarded to defendants pleading guilty) and Stephen J.
Schulhofer, Due Process of Sentencing, 128 U. PA. L. REV. 733, 757 n.97 (1980) (collecting evidence that
reduced charges have little impact on sentence ultimately imposed) with Hyun J. Shin, Analysis of Charge
Reduction and its Outcomes 58-91 (1972) (unpublished Ph.D. dissertation, State University of New York at

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Albany) (finding that defendants pleading guilty receive sentence concessions that are somewhat offset by
parole practices) and NARDULLI ET AL., supra note 315, at 244 (table 8.7) (finding that charge reductions
affect sentencing dispositions).
n347 See, e.g., Seeburger & Wettick, supra note 32, at 26 (generalizing from Pittsburgh data to the entire
nation); Yale Project, supra note 8, at 1533 (arguing the New Haven data should be typical of the country). See
generally supra notes 2-5 and accompanying text (collecting general pronouncements that Miranda has not
harmed law enforcement).
n348 OTIS H. STEPHENS, JR., THE SUPREME COURT AND CONFESSIONS OF GUILT 174 (1973);
see Barrett, supra note 306, at 25.
n349 A confounding problem in assessing the costs of the search and seizure exclusionary rule is the wide
variation between cities in compliance with the Fourth Amendment. See Bradley C. Cannon, Is the Exclusionary
Rule in Failing Health? Some New Data and Plea Against a Precipitous Conclusion, 62 KY. L.J. 681, 703-25
(1974). To the extent that inter-city variation on Miranda compliance exists, it should produce an
underestimation of Miranda's costs. If police fail to comply with Miranda, that will only obtain a confession that
is suppressible later. Yet that later "lost confession" will not be reflected in a lower confession rate and,
therefore, will never enter the cost equation.
n350 Witt, supra note 89, at 324 n.40.
n351 Cyril D. Robinson, Police and Prosecutor Practices and Attitudes Relating to Interrogation as
Revealed by Pre- and Post-Miranda Questionnaires: A Construct of Police Capacity to Comply, 1968 DUKE
L.J. 425.
n352 Id. at 466.
n353 See Van Kessell, supra note 7, at 118 (attributing lower Seaside City figures to, inter alia, "the fact
that, since it confronts a less severe crime problem than the other cities studied, it has more resources to devote
to the interrogation process").
n354 See infra notes 367-73 and accompanying text (discussing noncustodial "interviews" as a way of
avoiding Miranda's restraints on "interrogation"). But cf. Cassell & Hayman, supra note 47 (reporting that police
conduct noncustodial telephone interviews to save time). That such caseload pressures increase law enforcement
incentives to plea bargain cases in large cities has been documented elsewhere. See, e.g., JONES, supra note
314, at 192 (pleas higher in heavily populated states); 2 LaFAVE & ISRAEL, supra note 3, at 559 (plea
pressures heaviest, for serious criminals, in busy urban courtrooms). But see, e.g., MILLER ET AL., supra note
313, at 65 (rural prosecutors quicker to plead).
n355 See infra notes 439-48 and accompanying text.
n356 Robinson, supra note 351, at 441.

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n357 See supra notes 183-85 and accompanying text (Table 1). Data from the District of Columbia and Los
Angeles are not included because they are unreliable for the reasons discussed in Part II. Population data are for
1967 and come from the U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED
STATES 1969, at 19-20 (1969) (standard metropolitan statistical area), except for "Seaside City," for which the
population figure comes from the author's description of the city. See Witt, supra note 89, at 322. The total
population of New York is used for New York County and Kings County on the grounds that it more accurately
reflects the urban pressures felt by New York City police and it makes no sense to subdivide population totals
there on a county-by-county basis. Data from Chicago were included to provide a more substantial data base. Cf.
supra note 185 (noting concerns about Chicago study).
n358 The relation was significant at the .02 level. The adjusted R<2> was .54.
n359 FED. BUREAU OF INVESTIGATION, supra note 299, at 190 (figures derived from table 12).
n360 See, e.g., LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS 405 (1983); Schulhofer, supra
note 39, at 456.
n361 Green, supra note 155, at 16.
n362 LaFAVE & ISRAEL, supra note 3, § 6.5(c), at 484 n.30; see SAMUEL WALKER, SENSE AND
NONSENSE ABOUT CRIME: A POLICY GUIDE 131 (3d ed. 1994) ("Suspects are likely to be more
knowledgeable [about Miranda rights] today [than in the 1960s], but more recent studies have not been done.");
cf. David Dixon et al., Safeguarding the Rights of Suspects in Police Custody, 1 POLICING & SOC'Y 115, 122
(1990) (finding rapid increase in requests for legal advice by juveniles in British city from 1984 to 1987 under
new interrogation regime, due in part to the spread of information).
n363 Poll Finds Only 33% Can Identify Bill of Rights, N.Y. TIMES, Dec. 15, 1991, at 33; see WALKER,
supra note 362, at 130 ("most kids on the street know about" Miranda).
n364 Criminals have particular incentives (avoiding prison) and information sources (criminal confederates)
that might suggest they would be at least as well-informed as the general public. On the other hand, criminal
suspects may be less intelligent than the general population. See JAMES Q. WILSON & RICHARD J.
HERRNSTEIN, CRIME AND HUMAN NATURE 148-72 (1985).
n365 See WALKER, supra note 362, at 131 (citing Medalie et al., supra note 133); see also Lawrence S.
Leiken, Police Interrogation in Colorado: The Implementation of Miranda, 47 DENV. U. L. REV. 1, 14-16
(1970) (noting limited awareness of Miranda rights in 1969 sample of incarcerated suspects). But cf. William
Hart, The Subtle Art of Persuasion, POLICE MAG., Jan. 1981, at 14 (reporting that experienced interrogators
saw "no indication that today's suspects were more sophisticated than those of past years").
n366 See Griffiths & Ayers, supra note 132, at 312 (noting that refusal to make incriminating statements by
draft evaders increased after they were given more information about their rights).
n367 KEVIN N. WRIGHT, THE GREAT AMERICAN CRIME MYTH 140 (1985); see also Van Kessell,

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supra note 7, at 105-06. The same phenomenon has been alleged in Britain; see, e.g., ANDREW SANDERS ET
AL., ADVICE AND ASSISTANCE AT POLICE STATIONS AND THE 24 HOUR DUTY SOLICITOR
SCHEME 56-66 (1989) (documenting police ploys to discourage requests for counsel under new interrogation
rules).
n368 Schulhofer, supra note 39, at 457; see SIMON, supra note 318, at 193-207 (discussing ways in which
police have adapted to Miranda); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE
AND THE EXCESSIVE USE OF FORCE 58-59 (1993) (same); cf. David Dixon, Politics, Research and
Symbolism in Criminal Justice: The Right of Silence and the Police and Criminal Evidence Act, 20
ANGLO-AM. L. REV. 27, 39-40 (1991) (discussing police learning to work with new interrogation regulatory
regime in Britain).
n369 SKOLNICK & FYFE, supra note 368, at 58; Jerome H. Skolnick & Richard A. Leo, The Ethics of
Deceptive Interrogation, CRIM. JUST. ETHICS, Winter/Spring 1992, at 5; see, e.g., UVILLER, supra note 14,
at 52 (giving example of New York City "interview" to avoid Miranda).
n370 WRIGHT, supra note 367, at 140.
n371 See Robinson, supra note 351, at 474 (86% of police departments in nationwide survey received
advice about Miranda within one month of the decision).
n372 Miranda v. Arizona, 384 U.S. 436, 444 (1966). After the decision, some confusion remained as to
whether "focus" was also a triggering event for the Miranda rules. See Kenneth W. Graham, Jr., What is
"Custodial Interrogation"?: California's Anticipatory Application of Miranda v. Arizona, 14 UCLA L. REV. 59,
114 (1966) (discussing Miranda, 384 U.S. at 444 n.4).
n373 See, e.g., 2 BLACK & REISS, supra note 183 (police gave advice of rights in only 3% of field
encounters); Yale Kamisar, "Custodial Interrogation" Within the Meaning of Miranda, in CRIMINAL LAW
AND THE CONSTITUTION -- SOURCES AND COMMENTARIES 335, 341 (Jerold H. Israel & Yale
Kamisar eds., 1968) ("I think it is quite legitimate to read Miranda as encouraging the police to engage more
extensively in pre-arrest, pre-custody, pre-restraint questioning.") (remarks from CLE conference on Miranda
during the summer of 1966); Medalie et al., supra note 133, at 1361 (guidance given to D.C. police one month
after Miranda noted that "the critical point is the time the arrest is made or the person's freedom of action is
limited"); James R. Thompson, What Miranda Requires, PUBLIC MGMT., July 1967, at 191, 196-97 (training
bulletin distributed to the Chicago Police Department on Sept. 23, 1966 noting noncustodial questioning
possibilities); see also Yale Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49
CORNELL L. REV. 436, 452 (1964) (describing police training in pre-arrest "interview" tactics in 1958).
n374 See Yale Project, supra note 8, at 1552.
n375 See supra notes 79-82 and accompanying text (describing pre-Miranda rulings in Philadelphia); supra
notes 170-71 and accompanying text (same in Los Angeles); see also Neal Milner, Comparative Analysis of
Patterns of Compliance with Supreme Court Decisions, 5 LAW & SOC'Y REV. 119, 128 (1970) (noting
"anticipation" of Miranda by more professional police organizations).

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n376 INBAU ET AL., supra note 212, at 24.
n377 Cassell & Hayman, supra note 47.
n378 See supra notes 139-44 and accompanying text (discussing failure to implement decision in D.C.);
supra notes 116-26 and accompanying text (discussing failure to implement decision in New Haven); see also
Leiken, supra note 365, at 30 (finding allegations that Denver police ignored requests for counsel in 1969).
n379 See Van Kessell, supra note 7, at 102 & n.532 (collecting evidence on this point); see also Cassell &
Hayman, supra note 47 (finding consistent police compliance with Miranda in Salt Lake County in 1994); cf.
Roger C. Schaefer, Patrolman Perspectives on Miranda, 1971 LAW & SOC. ORD. 81, 88 (finding both underand over-compliance with Miranda by Minneapolis police officers in 1968).
n380 See BAKER, supra note 360, at 404-05 (describing training given to police on how to implement
Miranda).
n381 See, e.g., Leiken, supra note 365, at 10 (noting better information about and training in Miranda
requirements in Denver in 1969 than in New Haven in 1966).
n382 See generally MILNER, supra note 336, at 224-32 (discussing relation between police
professionalization and Miranda).
n383 See Markman, supra note 23, at 947; see also Gerald M. Caplan, Miranda Revisited, 93 YALE L.J.
1375, 1466-67 (1984) (reviewing LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS (1983)).
n384 For example, the New Haven project observed many police practices designed to "accommodate"
Miranda that were in fact impermissible. In violation of Miranda's waiver requirements, detectives would give
suspects their rights "then immediately shift to a conversational tone to ask, 'Now, would you like to tell me
what happened.'" Yale Project, supra note 8, at 1552. In violation of Miranda's right to counsel requirements,
when a suspect showed an interest in counsel "the police usually managed to head him off simply by not helping
him to locate one." Id. In violation of Miranda's questioning cut-off rules, detectives would "coax" suspects into
talking when they tried to end the questioning. Id. at 1555. Similarly, in New York, police did not always allow
a suspect to invoke the right to silence. See VERA INST. OF JUSTICE, supra note 24, at 43.
n385 A pre-Miranda study in Detroit reported that the confession rate fell from 60.8% in 1961 to 58.0% in
1965. See Souris, supra note 166, at 255.
n386 Witt, supra note 89, at 325 (table 3).
n387 Id. at 326 (noting that fewer suspects were interrogated in 1968 than in earlier years).
n388 Van Kessell has suggested that Seaside City's lower drop in the confession rate (only 2%) when
compared to other cities should be "attributed to the fact that, by the time of the 'Seaside City' study, police were

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able to adapt their interrogation techniques to comply with Miranda." Van Kessell, supra note 7, at 118. The
time-series development of the data makes this suggestion implausible.
n389 See Seeburger & Wettick, supra note 32, at 13 & n.36.
n390 Id.
n391 Id. at 13 n.36.
n392 Id. Another explanation is that the first sample included only "cleared" cases while the second sample
included uncleared cases. See ALI REPORT, supra note 56, at 133.
n393 Week-by-week data from the Philadelphiastudy from June 19, 1966 to February 19, 1967 likewise
show no discernable pattern. Controlling Crime Hearings, supra note 45, at 201.
n394 See supra notes 109-15 and accompanying text (discussing Yale Project, supra note 8, at 1573).
n395 See Markman, supra note 23, at 947 (concluding that the "assertion that this damage [to law
enforcement] has been alleviated through the adjustment of police practices to Miranda's requirements is . . .
unsupported by any empirical evidence").
n396 Neubauer, supra note 319, at 105 (table 2). This number may slightly overstate the number of
incriminating statements obtained, because a few of the statements in the cases may not have been incriminating.
Id. at 105 n.10.
n397 Leiken, supra note 365, at 19 (table 2). Leiken defined the term "confession" as "a statement made
with the realization that it might be damaging." Id. at 12.
n398 LaFree, supra note 339, at 298.
n399 FEENEY ET AL., supra note 17, at 142 (table 15-1).
n400 The authors of the study give no definition for their category of "admitted being at the scene." In fact,
a substantial number of these statements may not have been incriminating because the conviction rate for those
who admitted being on the scene was not, generally speaking, significantly different than the conviction rate for
those who made no statements at all. See id. at 142 (table 15-1). In an earlier study using a similar methodology,
the authors reported that only 15% (3 out of 20) of such on-the-scene admissions were "essential" to the case. 2
FEENEY & WEIR, supra note 18, at 38.
n401 FEENEY ET AL., supra note 17, at 142 (derived from table 15-1).

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n402 Id.
n403 Leo, supra note 145.
n404 Id. at 268 (table 7) (117 out of 182 suspects).
n405 Leo's category of "some incriminating information" was apparently expansively defined as embracing
"implausible or contradictory denials that the detectives believed corroborated other evidence pointing to the
suspect's guilt or that could be used successfully to impeach a suspect's credibility . . . ." Id. at 268 n.4 (emphasis
added). Many things said by a suspect could be viewed by the detectives as potential "impeaching" information
about credibility. Supporting the interpretation that some of these statements were not significantly incriminating
are the facts that many of the suspects in Leo's sample (31%) were not even charged, id. at 273, and that
prosecutors are particularly likely to charge suspects where they have strong incriminating statements. See supra
notes 41-49 and accompanying text. Also supporting this interpretation is the lower (and relatively more
objective) figure of 24.2% "confessions" in Leo's data, which corresponds roughly to the "confession" figures in
other studies that suggest lower overall incriminating statement rates. See, e.g., FEENEY ET AL., supra note 17,
at 142; Cassell & Hayman, supra note 47. Leo's 76% ratio of incriminating statements to total statements is also
considerably higher than reported in most other studies. Leo, supra note 145 (finding 76% of all statements to be
incriminating). See supra notes 86-89 and accompanying text (collecting studies that support a 50% ratio).
n406 Leo, supra note 145, at 268 (table 7) (24.2% of suspects gave confessions, 17.6% gave partial
admissions).
n407 Leo does not appear to claim that his statistics measure overall police success. Id. at 295-97 (drawing
conclusions from his statistics but not claiming that his rate corresponds to other overall police confession rates).
Others, however, have not given the study so limited a reading. See, e.g., SLOBOGIN, supra note 5, at 6 (Supp.
1995) (concluding that Leo's confession rate is "comparable to pre-Miranda confession rates").
n408 First, Leo's sample consisted of cases in which police actually interrogated a suspect. Leo, supra note
145, at 262. Accordingly, the sample excludes the presumably significant fraction of cases where police never
obtained a confession because they never interrogated. See, e.g., FEENEY ET AL., supra note 17, at 143 (table
15-2) (finding that 18.5% of arrested burglary suspects in Jacksonville, Florida and 20.1% in San Diego,
California are not interrogated); Cassell & Hayman, supra note 47 (finding that 21.0% of suspects were not
interrogated in Salt Lake City). Second, Leo's study included only custodial interrogations. Yet police have, to
some extent, shifted to noncustodial interrogations to avoid Miranda. See, e.g., Jerome A. Skolnick & Richard
A. Leo, The Ethics of Deceptive Interrogation, CRIM. JUSTICE ETHICS, Winter/Spring 1992, at 5. It appears
that noncustodial interrogations are less productive than custodial interrogations. See Cassell & Hayman, supra
note 47 (finding that noncustodial interrogations were less successful). Third, Leo only studied interrogation by
detectives. See Leo, supra note 145, at 256-57, 456-57. It appears that detectives are more successful at
extracting statements than are other police officers. See FEENEY ET AL., supra note 17, at 144 (table 15-3);
Cassell & Hayman, supra note 47 (finding detectives more successful). Finally, as a measure of admissible
confessions, Leo's figures must be reduced by a couple of percentage points to reflect cases in which police
obtained inadmissible statements in violation of Miranda by continuing questioning after invocations of rights.
See Leo, supra note 145, at 263. Adjusting only for these four factors so as to render Leo's study comparable to
other confession studies produces an overall success rate of somewhere below 38.7%. See generally Cassell &
Hayman, supra note 47, at app. B (explaining and defending these adjustments in greater detail).

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n409 Almost a third of Leo's sample (60/182) consisted of videotapes of "interrogations performed" by two
Bay-area police departments in cases that were no longer pending. Leo, supra note 145, at 452, 474 n.10.
Neither department had a policy of necessarily storing videotapes. Id. at 474 n.10. It seems quite likely,
therefore, that the videos on hand for academic analysis included only interrogations that "got off the ground,"
not interrogations where suspects promptly invoked their rights or were otherwise generally uncooperative. This
would artificially increase the percentage of confessions Leo found in his sample.
n410 Cassell & Hayman, supra note 47.
n411 Id. 42.2% of suspects actually questioned give incriminating information. Id. About 4% more
volunteered incriminating information that was relatively unimportant. Responding to the confession rate
reported in our study, Professor Thomas claims it should be adjusted upwards to 54% for various reasons. See
Thomas, supra note 105. We find his justifications for this adjustment unpersuasive. See Cassell & Hayman,
supra note 47.
n412 Apart from the Bay area study discussed at supra notes 403-09 and accompanying text, the only recent
rate above 50% is from Jacksonville, Florida (51.3%), which includes 18.4% of suspects who merely
acknowledged being at the scene. Moreover, the statement rate in Jacksonville is much higher than data gathered
simultaneously under identical methodology from San Diego. The reason for the difference appears to be that
"the evidentiary standard for arrest and charge is considerably higher in Jacksonville." FEENEY ET AL., supra
note 17, at 225. Jacksonville police apparently arrest only where there is "clear cause" while San Diego police
may arrest where evidence is not as strong. If suspects are more likely to confess when the evidence against
them is strong, as the empirical evidence suggests, see supra note 214 and accompanying text, one would expect
the Jacksonville police to obtain more confessions. If this explanation for the high rates of confessions in
Jacksonville is correct, the results in Jacksonville are generalizable only to jurisdictions that question a suspect
following an arrest with quite strong evidence. In this respect, it may be that the lower San Diego results are
more typical. See, e.g., SIMON, supra note 318, at 448 (reporting the observation that Baltimore detectives too
often "bring someone down and go at them in the interrogation room with no real ammunition").
n413 All of the data have been discussed previously in this Article, with the exceptions of Cities A and B
from California, see Barrett, supra note 306, at 43-44; and Sacramento through Kings County, see Brief of the
National District Atty's Ass'n, supra note 91, at 6a-7a (column for confessions/prosecutions). The data for
Sacramento through Kings County are probably not as solid as other data recounted here, as the methodology
used by the National District Attorneys Association is unclear.
To achieve some measure of consistency, Table 3 includes only studies that reviewed a range of criminal
offenses and thus does not include the Oakland robbery study, 2 FEENEY & WEIR, supra note 18, at 38 (18%
confession rate and 36% on-the-scene admission rate); the Chicago homicide study, see supra notes 165-67 and
accompanying text; and a more recent study of homicide cases by Newsday, Thomas J. Maier & Rex Smith,
Reliance on Getting Confessions Tied to Abuses, Weakened Cases, Dec. 7, 1986, at 5, 27 (data on high statement
rates for homicide cases in Suffolk County and six other large suburban counties). The Newsday data also suffer
from the problem that they are unclear whether they involved statements rather than incriminating statements.
See id. at 27, 28 (data described both ways).
n414 See generally Cassell & Hayman, supra note 47 (arguing that data actually supports the conclusion
that confessions fell after Miranda). But cf. generally Thomas, supra note 105 (responding to Cassell & Hayman
and arguing that there is insufficient evidence to suggest that confession rates have changed at all since Miranda

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). Even if the empirical evidence suggested that confession rates have now returned to pre-Miranda levels,
proponents of the rebound hypothesis must also establish that any increase in confession rates is attributable to
improved police abilities to minimize the effects of Miranda rather than to improved interrogation techniques
generally or other factors. Put another way, if better police techniques have boosted confession rates since 1967,
that does not disprove the thesis suggested here: that confession rates would increase still further if Miranda's
restrictive requirements were eliminated.
n415 See, e.g., Lippman, supra note 20, at 37.
n416 See, e.g., Pennsylvania v. Muniz, 496 U.S. 582 (1990) (deciding whether "booking questions" require
Miranda warnings).
n417 Rhode Island v. Innis, 446 U.S. 291, 304 (1980).
n418 KAMISAR ET AL., supra note 39, at 507 ("Almost everyone expected the so-called Burger Court to
treat Miranda unkindly. And it did -- at first. But it must also be said that the new Court has interpreted Miranda
fairly generously in some important respects."); UVILLER, supra note 14, at 207-08 (observing that "not
withstanding some uneasiness with the Miranda doctrine, most courts have adhered to it firmly, even extending
it" to other situations); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 676 & n.11 (1992)
(noting that the Burger Court extended the Miranda doctrine in several significant respects). See generally
Stephen A. Saltzburg, Foreword: The Flow and Ebb of Constitutional Criminal Procedure in the Warren and
Burger Courts, 69 GEO. L.J. 151, 153 (1980) ("The differences between the Warren and the Burger decisions
tend to be more at the margin than at the heart of the constitutional principles for which the Warren Court is
remembered.").
n419 See, e.g., Stansbury v. California 114 S. Ct. 1526, 1528-31 (1994) (per curiam); California v. Beheler,
463 U.S. 1121, 1123-26 (1983); Oregon v. Mathiason, 429 U.S. 492, 494-96 (1977) (per curiam).
n420 451 U.S. 477 (1981).
n421 KAMISAR ET AL., supra note 39, at 508.
n422 Edwards, 451 U.S. at 484-85.
n423 Ainsworth, supra note 4, at 103; see, e.g., Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v.
Roberson, 486 U.S. 675 (1988).
n424 See infra notes 623-30 and accompanying text.
n425 KAMISAR ET AL., supra note 39, at 508 (citing Rhode Island v. Innis, 446 U.S. 291 (1980)).
n426 467 U.S. 649 (1984).

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n427 See, e.g., The Supreme Court, 1983 Term, 98 HARV. L. REV. 87, 140-51 (1984); Marla Belson, Note,
"Public Safety" Exception to Miranda: The Supreme Court Writes Away Rights, 61 CHI.-KENT L. REV. 577
(1985); Mary M. Keating, Note, New York v. Quarles: The Dissolution of Miranda, 30 VILL. L. REV. 441
(1985).
n428 Daniel Brian Yeager, Note, The Public Safety Exception to Miranda Careening Through the Lower
Courts, 40 U. FLA. L. REV. 989, 991 (1988).
n429 United States v. Ochoa-Victoria, 852 F.2d 573 (9th Cir. 1988); United States v. Brady, 819 F.2d 884
(9th Cir. 1987); United States v. Eaton, 676 F. Supp. 362 (D. Maine 1988); People v. Gilliard, 234 Cal. Rptr.
401 (Cal. Ct. App. 1987); People v. Cole, 211 Cal. Rptr. 242 (Cal. Ct. App. 1985); State v. Turner, 716 S.W.2d
462 (Mo. Ct. App. 1986); Ohio v. Moore, 1987 WL 16872 (Ohio Ct. App. 1987) (unpublished opinion); State v.
Kunkel, 404 N.W.2d 69 (Wis. Ct. App. 1987).
n430 See Cassell & Hayman, supra note 47 (out of a sample of 173 interrogations, only 1 involved an
arguable instance of public safety questioning).
n431 Cf. CRAIG D. UCHIDA ET AL., POLICE EXECUTIVE RESEARCH FOUND., THE EFFECTS OF
UNITED STATES V. LEON ON POLICE SEARCH WARRANT PRACTICES (1987) (finding that good faith
exception to the exclusionary rule had little practical day-to-day impact on the processing of criminal cases).
Uviller offers the interesting suggestion that police tend to overestimate restrictions on their authority, see
UVILER, supra note 14, at 79, which might explain why police are reluctant to move in directions suggested by
favorable court rulings.
n432 See generally Thomas, supra note 29 (lamenting the lack of empirical data on confession rates);
Cassell & Hayman, supra note 47 (agreeing with Thomas on this point); see also generally Thomas, supra note
105 (concluding that we must accept the hypothesis of a constant stream of confessions until we have more
empirical evidence).
n433 Seeburger & Wettick, supra note 32, at 6-7. Sex crimes and auto larceny were artificially
underrepresented in the sample. Id. at 7.
n434 Controlling Crime Hearings, supra note 45, at 200.
n435 Id. at 1120.
n436 Witt, supra note 89, at 323.
n437 See Yale Project, supra note 8, at 1537.
n438 See Controlling Crime Hearings, supra note 45, at 223 (Kings County study of "crimes such as
homicide, robbery, rape, and felonious assaults"); Green, supra note 155, at 16 (Kansas City study of
"suspects"); Seeburger & Wettick, supra note 32, at 26 n.51 (New Orleans study of "persons arrested").

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n439 Seeburger & Wettick, supra note 32, at 11 (table 1). Separate data (not before-and-after data) gathered
from detective's files over the summer of 1967 found the confession rate for murder to be higher than for other
crimes (40% vs. 26.6% on average), but this is likely an anomaly caused by the tiny sample involved -- only two
murder confessions. Id. at 13 (table 3).
n440 Id. at 11 (table 1). The explanation for the small decline for sex offenses may be that the confession
rate for such crimes was by far the lowest pre-Miranda rate (only 21.9%) and therefore may not have had very
far to fall under the Miranda rules.
n441 See BARRIE L. IRVING & IAN K. McKENZIE, POLICE INTERROGATION: THE EFFECTS OF
THE POLICE AND CRIMINAL EVIDENCE ACT 1984, at 95 (1989).
n442 Cassell & Hayman, supra note 47 (47.1% of property offenders questioned successfully versus 35.2%
violent offenders; sample size of 173; statistically significant only at 90% confidence level).
n443 Neubauer, supra note 319, at 105, 111-12. Neubauer found that, in property crimes, 56% of suspects
confessed, while in nonproperty crimes, 32% confessed. Id. at 105 (table 2). The "non-property crimes"
apparently included some nonviolent offenses, such as offenses involving narcotics and indecent liberties with a
minor. Id. at 104 n. ***; see also THOMAS GRISSO, JUVENILES' WAIVER OF RIGHTS: LEGAL AND
PSYCHOLOGICAL COMPETENCE 37 (1981) (finding that juvenile refusal-to-talk rate tended to be greater in
cases involving offenses against persons than in property or possession cases).
n444 See Medalie et al., supra note 133, at 1414 (table E-2). The statement rate for identified offenses is
auto theft 80%; larceny-theft 62%; housebreaking 58%; assault 57%; homicide 57%; drug offenses 50%;
robbery 35%; sex offenses 33%; weapons 25%. Id. at 1415 (table E-2).
n445 VERA INST. OF JUSTICE, supra note 24, at 33, 43.
n446 Seeburger & Wettick, supra note 32, at 14 n.37. The D.C. study also found that suspects charged with
property offenses are less likely to request counsel. Medalie et al., supra note 133, at 1416 (table E-3(2)).
n447 See MICHAEL McCONVILLE, ROYAL COMM'N ON CRIMINAL JUSTICE, CORROBORATION
AND CONFESSIONS: THE IMPACT OF A RULE REQUIRING THAT NO CONVICTION CAN BE
SUSTAINED ON THE BASIS OF CONFESSION EVIDENCE ALONE 32 (1993) (reporting that police
success in obtaining confessions is strongly associated with offense type, ranging from 68.0% for taking without
consent, 65.7% for theft, 64.8% for burglary, 62.5% for drug offenses, down to 39.0% in offenses involving
personal violence, 36.8% in criminal damage cases, and 23.9% in public order offenses); Barry Mitchell,
Confessions and Police Interrogation of Suspects, 1983 CRIM. L. REV. 596, 602 (76% confession rate for
property crimes, but only 64% for crimes of violence); Stephen Moston et al., The Incidence, Antecedents and
Consequences of the Use of the Right to Silence During Police Questioning, 3 CRIM. BEHAV. & MENTAL
HEALTH 30, 37 (1993) (right of silence used in about 23% of serious cases, but only 8% of trivial cases). But
see BALDWIN & McCONVILLE, supra note 196, at 25-26 (no consistent relationship found). The British data
also suggest that suspects request counsel more often in more serious cases. See DAVID BROWN,
DETENTION AT THE POLICE STATION UNDER THE POLICE AND CRIMINAL EVIDENCE ACT 1984,
at 22 (1989); ANDREW SANDERS ET AL., ADVICE AND ASSISTANCE AT POLICE STATIONS AND

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THE 24 HOUR DUTY SOLICITOR SCHEME 30 (1989).
n448 Yale Project, supra note 8, at 1647.
n449 SIMON, supra note 318, at 198-99. Simon suggests that the impact of Miranda is thus limited to
professionals. Id. at 199. To make his point, Simon reports the following story:
In the late 1970s, when men by the names of Dennis Wise and Vernon Collins were matching
each other body for body as Baltimore's premier contract killers and no witness could be found to
testify against either, thing got to the point where both the detectives and their suspects knew the
drill:
Enter room.
Miranda.
Anything to say this time, Dennis?
No, sir. Just want to call my lawyer.
Fine, Dennis.
Exit room.
Id. at 198.
n450 Neubauer, supra note 319, at 105 (table 2).
n451 Id. at 105 (table 2).
n452 Id. at 104 (table 1).
n453 Yale Project, supra note 8, at 1644.
n454 Id. (figures derived from table A) (statistically significant at the .05 level); see also GRISSO, supra
note 443, at 37 (stating that for juveniles, "refusal to talk tended to increase with the number of prior felony
referrals at the time of interrogation"); Hart, supra note 365, at 14, 16 (reporting that successful interrogators
find that "professional criminals are . . . hard to question" and that "even the most finely honed tactics often
fail"; "if they're professionals, they pretty much know . . . not to say word one").
n455 Leo, supra note 145, at 277.
n456 See ROYAL COMM'N ON CRIMINAL JUSTICE, REPORT 51 (1993) (reporting that police found
experienced criminals less likely to answer questions); SOFTLEY, supra note 195, at 69, 75 (observing that
suspects with a criminal record are significantly more likely to exercise right to silence and to request counsel);
Moston et al., supra note 447, at 38 (table 4) (finding that 21% of suspects with criminal history stayed silent as
compared with only 9% of suspects without). But cf. Moston et al., supra, note 447, at 39 (table 7) (interaction
of legal advice with criminal history complicates relationship). A prior record effect is reported in a 1968
Denver study. See Leiken, supra note 365, at 20-21 (finding that suspects with nine or more previous arrests
were slightly less likely to confess and that suspects with more than one prior felony conviction were slightly
less likely to confess). However, the samples involved in reaching this conclusion are so small as to make this

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conclusion extremely fragile.
n457 Cassell & Hayman, supra note 47 (finding no difference and speculating that failure to find such an
effect might stem from a broad definition of "prior record").
n458 VERA INST. OF JUSTICE, supra note 65, at 138 (finding that "the adult criminal justice system may
not be catching in its net the kind of criminal citizens worry about most -- the violent stranger").
n459 See supra notes 272-74 and accompanying text.
n460 See supra Table 2 (excluding Kings County and New Orleans estimates as too high and excluding Salt
Lake County estimate for other reasons).
n461 See infra note 472.
n462 See, e.g., Kenneth R. Kreiling, DNA Technology in Forensic Science, 33 JURIMETRICS J. 897
(1993); M.A. Farber, Key Fiber Evidence in Atlanta Case Could be Focus of Long Legal Battle, N.Y. TIMES,
July 1, 1981, at A15.
n463 See PETER W. GREENWOOD ET AL., THE CRIMINAL INVESTIGATION PROCESS 144
(1977).
n464 Cf. WALKER, supra note 362, at 140-42 (collecting empirical evidence suggesting that improvements
in detective work do not change the crime clearance rate).
n465 FEENEY ET AL., supra note 17, at 155 (of 400 robbery cases, 3 involved fingerprints; of 419
burglary cases, 8 involved fingerprints; of 66 assault cases, 3 involved fingerprints); GREENWOOD ET AL.,
supra note 463, at 154 (table 10-3) (less than 2% of burglary cases solved through fingerprints); VERA INST.
OF JUSTICE, supra note 65, at 82 (only 1 of 20 burglary defendants apprehended through fingerprint match).
See generally WALKER, supra note 362, at 142 ("In reality . . . fingerprints rarely solve crimes.").
n466 See, e.g., FLOYD FEENEY ET AL., ARRESTS WITHOUT CONVICTION: HOW OFTEN THEY
OCCUR AND WHY -- FINAL REPORT -- APPENDIX VOLUME C-45 (1983) (table C-16-12).
n467 BALDWIN & McCONVILLE, supra note 196, at 19.
n468 Id. at 19.
n469 MICHAEL McCONVILLE, CORROBORATION AND CONFESSIONS: THE IMPACT OF A
RULE REQUIRING THAT NO CONVICTION CAN BE SUSTAINED ON THE BASIS OF CONFESSION
EVIDENCE ALONE 14 (1993); see also JOHN BALDWIN & TIMOTHY MOLONEY, ROYAL COMM'N
ON CRIMINAL JUSTICE, SUPERVISION OF POLICE INVESTIGATION IN SERIOUS CRIMINAL

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CASES 55 (1992) (observing that special forensic techniques rarely employed); IRVING, supra note 194, at
116-17 (reporting that police officers believe that forensic evidence rarely solves cases).
n470 See Yale Project, supra note 8, at 1588 & n.180.
n471 See PAULINE MORRIS, ROYAL COMM'N ON CRIMINAL PROCEDURE, POLICE
INTERROGATION: REVIEW OF LITERATURE 13 (1980) (Research Study No. 3); Richard H. Kuh, The
"Rest of Us" in the "Policing the Police" Controversy, 57 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 244,
245 (1966); Van Kessell, supra note 7, at 129; see also Leo, supra note 267, at 99 (officer explained that
"getting a confession makes the investigator's job a lot easier, and his work more efficient. If he gets a
confession (or even good admissions) he doesn't have to spend hours tracking down witnesses, running
fingerprints, putting together line-ups, etc.").
n472 See, e.g., Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964) ("a system of criminal law enforcement
which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than
a system which depends on extrinsic evidence independently secured through skillful investigation") (citing
STAFF OF SENATE COMM. ON JUDICIARY, 81ST CONG., 1ST SESS., REPORT OF SUBCOMMITTEE
TO INVESTIGATE ADMINISTRATION OF THE INTERNAL SECURITY ACT (Comm. Print Feb. 25,
1956) and noting "false confessions obtained during the Stalin purges of the 1930s").
n473 Jonathan Rubinstein, Just Adding More Police is a Cop-Out, SAN DIEGO UNION-TRIB., Mar. 7,
1994, at B5.
n474 SIMON, supra note 318, at 192.
n475 See id. at 75; see also IRVING, supra note 194, at 116.
n476 Cf. PETER W. GREENWOOD, THE NEW YORK CITY RAND INST., AN ANALYSIS OF THE
APPREHENSION ACTIVITIES OF THE NEW YORK CITY POLICE DEP'T 31 (1970) (recounting
conflicting data on the workload-affects-case-success hypothesis).
n477 Leo, supra note 145, at 373.
n478 SIMON, supra note 318, at 453.
n479 Id. at 456.
n480 Id. at 458.
n481 See Witness Intimidation Called Growing Problem, N.Y. TIMES, Aug. 7, 1994, at A13. See generally
Paul G. Cassell, Balancing the Scales of Justice: The Case for and Effects of Utah's Victims' Rights Amendment,
1994 UTAH L. REV. 1373, 1410 (collecting sources on problem of witness intimidation).

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n482 See Hart, supra note 365, at 15 (reporting that experienced, expert interrogator in Albuquerque
believes "'the importance of interrogation is increasing because it's getting harder and harder to get witnesses to
testify'").
n483 See generally GEORGE P. FLETCHER, WITH JUSTICE FOR SOME (1995); Skolnick & Leo, supra
note 369, at 9.
n484 See supra Table 2 (confessions necessary in 61.0% of confession cases in Salt Lake County in 1994;
studies in the 1960s found confessions necessary in 26%).
n485 See supra notes 433-38 and accompanying text.
n486 Souris, supra note 166, at 263-64.
n487 Seeburger & Wettick, supra note 32, at 15 (table 4).
n488 BALDWIN & McCONVILLE, supra note 196, at 33.
n489 Neubauer, supra note 319, at 106.
n490 See FORST ET AL., supra note 48, at 23, 25 (tables 3.3, 3.5) (physical evidence available in 65% of
nonviolent property offenses, 50% of robbery offenses, and 32% of other violent offenses). However, Forst and
his colleagues also report that two lay witnesses are available for slightly more robberies and other crimes of
violence than for property crimes. Id. at 23 (table 3.3) (48% for robbery, 39% for other violent offenses, 36% for
nonviolent property offenses).
n491 William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903, 1932 (1993)
(citing U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 546 (table 5.53)
(Timothy J. Flanagan & Kathleen Maguire eds., 1991)).
n492 Id.
n493 Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the
Exclusionary Rule in Search-and-Seizure Cases, 83 COLUM. L. REV. 1365, 1394 (1983); see Davies, supra
note 6, at 630 ("The exclusionary rule itself generates no cost beyond the implicit tradeoff in the Fourth
Amendment between the apprehension of criminals and the preservation of civil liberties.").
n494 But see Akhil R. Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 793-95 (1994)
(suggesting difficulties with this position).
n495 417 U.S. 433 (1974).

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n496 Id. at 443-44.
n497 Id. at 446; see Withrow v. Williams, 113 S. Ct. 1745, 1752-53 (1993) (collecting numerous cases
describing Miranda rights as "'prophylactic' in nature").
n498 For further explanation of this point, see generally GRANO, supra note 23, at 173-98; Paul G. Cassell,
The Costs of the Miranda Mandate: A Lesson in the Dangers of Inflexible, "Prophylactic" Supreme Court
Inventions, 28 ARIZ. ST. L.J. (forthcoming 1996).
n499 See infra notes 511-19 and accompanying text.
n500 Of course, even isolated instances of coerced confessions should be strongly condemned.
n501 NATIONAL COMM'N ON LAW OBSERVANCE AND ENFORCEMENT, REPORT ON
LAWLESSNESS IN LAW-ENFORCEMENT 3 (1931); see also EMANUEL H. LAVINE, THE THIRD
DEGREE: A DETAILED AND APPALLING EXPOSE OF POLICE BRUTALITY (1930); Note, The Third
Degree, 43 HARV. L. REV. 617 (1930).
n502 297 U.S. 278 (1936).
n503 Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation in
America, 18 CRIME, LAW & SOC. CHANGE 35, 52 (1992) ("Although Miranda is the most famous
confession case, it was Brown that exercised the greatest influence on coercive practices . . . .").
n504 Leo, supra note 267, at 97.
n505 Leo, supra note 503, at 49.
n506 See Hart, supra note 365, at 8 ("'Ironically, . . . even more credit [for reducing brutality] should go to
the authors of interrogation manuals [than to the courts]. They convinced cops that not only was violence bad,
but that there was no need to resort to it.'") (quoting University of Michigan law professor Yale Kamisar).
n507 See generally THOMAS J. DEAKIN, POLICE PROFESSIONALISM: THE RENAISSANCE OF
AMERICAN LAW ENFORCEMENT (1988) (discussing the professionalization of American police forces);
ROBERT M. FOGELSON, BIG-CITY POLICE 219 (1977) ("Most departments had been pretty much
transformed in the thirty-years or so since the Wickersham Commission report of 1931.").
n508 Leo, supra note 267, at 38.
n509 Id. at 51.

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n510 Leo, supra note 145, at 357 (citing American Bar Foundation Study Documents, Univ. of Wisconsin,
Madison, Criminal Justice Library).
n511 FRED P. GRAHAM, THE SELF-INFLICTED WOUND 22 (1970); see Fred E. Inbau & James P.
Manak, Miranda v. Arizona -- Is it Worth the Cost?, PROSECUTOR, Spring 1988, at 31, 36.
n512 Miranda v. Arizona, 384 U.S. 436, 447, 448 (1966); see also id. at 450, 499 (Clark, J., dissenting)
("The examples of police brutality mentioned by the Court are rare exceptions to the thousands of cases that
appear every year in the law reports.").
n513 PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE, THE
CHALLENGE OF CRIME IN A FREE SOCIETY 93 (1967); see JAMES Q. WILSON, VARIETIES OF
POLICE BEHAVIOR 48 (1968); Leo, supra note 503, at 52.
n514 Controlling Crime Hearings, supra note 45, at 350, 351.
n515 See supra notes 116-26 and accompanying text.
n516 Yale Project, supra note 8, at 1549.
n517 GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL
CHANGE? 326 (1991). Professor Gerald M. Caplan has suggested that "before Miranda, charges of physical
force, questioning in relays, and sustained incommunicado detention were common; after Miranda, they became
far less frequent. . . . [Miranda] curbed the police in their historic excesses . . . ." Caplan, supra note 383, at
1382-83. He acknowledges that "this observation cannot be documented by reference to particular studies," but
asserts that it "does not seem controversial." Id. at 1383 n.38. For the reasons given in this Article, Caplan's
opinion is controversial; indeed, given the empirical evidence collected here, it is incorrect. The timing on this
scenario fails, as it attributes changes in police behavior that were occurring well before Miranda (and perhaps
continuing at times distant from Miranda) to the decision itself.
n518 WAYNE R. LaFAVE, ARREST: THE DECISION TO TAKE A SUSPECT INTO CUSTODY 386
(1965); see also Barrett, supra note 306, at 42 (reporting California data in 1960 that most interrogations lasted
under two hours).
n519 Yale Project, supra note 8, at 1558.
n520 Saul M. Kassin & Lawrence S. Wrightsman, Confession Evidence, in THE PSYCHOLOGY OF
EVIDENCE AND TRIAL PROCEDURE 67, 77 (Saul M. Kassin & Lawrence S. Wrightsman eds., 1985).
n521 Such challenges are rarely made today and even more rarely granted. See supra notes 15-19 and
accompanying text (discussing small numbers of motions to suppress).
n522 See Younger, supra note 175, at 256 (table I) (reporting that prosecutors rejected 2 out of 202 requests

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for complaints because statement "not admissible due to Dorado," the California predecessor to Miranda).
n523 Id. at 257 (2 of 139 confessions not received). These two were rejected for reasons other than the
Dorado requirements, id., suggesting that they may have been rejected because of voluntariness concerns.
Tangentially related data come from Harry Kalven and Hans Zeisel's famous jury study, which found that
there was a "disputed confession" in as many as 20% of tried cases. HARRY KALVEN, JR. & HANS ZEISEL,
THE AMERICAN JURY 173 (1966). However, because the study involved contested court trials, it would not
reflect the presumably substantial number of cases in which uncontested confessions led to guilty pleas.
Moreover, a "disputed" confession is not necessarily the same thing as a coerced confession. See id.
n524 Miranda v. Arizona, 384 U.S. 436, 505 (1966) (Harlan, J., dissenting).
n525 See Rosenberg & Rosenberg, supra note 4, at 78 ("A nationwide epidemic of ruthless police
interrogation could be eradicated by distributing small printed cards to the alleged culprits and instructing that
the contents be read to apprehensive suspects."); Evelle J. Younger, Prosecution Problems, 53 A.B.A. J. 695,
698 (1967) ("Miranda will not affect the brutal or perjurious policeman -- he will continue to extract confessions
without reference to the intonations ofthe Supreme Court; and when he testifies, he will simply conform his
perjury to the latest ground rules.").
n526 See White, supra note 2, at 13.
n527 Leiken, supra note 365, at 22 (finding that defendants claimed, after Miranda, that police had made
promises or threats to get confessions).
n528 MILNER, supra note 336, at 227.
n529 OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 98.
n530 Id.; cf. George C. Thomas, III & Marshall D. Bilder, Aristotle's Paradox and the Self-Incrimination
Puzzle, 82 J. CRIM. L. & CRIMINOLOGY 243, 278 (1991) (noting the paradoxical quality of the Miranda
debate in which the decision's defenders frequently argue that it has had little effect).
n531 See, e.g., BOTTOMS & McCLEAN, supra note 197, at 115, 16 (94% British admission rate among
defendants pleading guilty; only 4% claimed that police forced them to confess); IRVING, supra note 194, at
133, 148 (65% British confession rate with observers present; no physical violence of any kind observed and no
formal complaints of maltreatment); IRVING & McKENZIE, supra note 441, at 93-94 (64% British admission
rate with observers present despite "virtual elimination" of persuasive questioning tactics under new reform
rules); MILLER, supra note 207, at 38, 65 (71.6% Canadian confession rate with videocameras running and
short periods of questioning; no cases of police misbehavior on tape and "if anything, police questioning appears
to be excessively careful to avoid all possible suggestions of force, threats, inducements, or the creation of an
atmosphere of oppression"; allegations of misconduct before taping not a major problem); SOFTLEY, supra
note 195, at 80, 85 (61% British confession rate with observers present; in many cases, no special tactics noted;
police never resorted to use or threat of physical violence and psychological pressure not extreme).

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n532 One other reason for doubting that the disappearance of coercion affected confession rates is that the
interrogation literature suggests that coercion may actually hinder police efforts to obtain confessions. INBAU
ET AL., supra note 212, at 5 (explaining that verbal or physical abuse of a suspect "can severely hinder a
subsequent interrogation by a competent interrogator"); Hart, supra note 365, at 10 (reporting that expert FBI
interrogator believes "'when an interviewer starts getting aggressive and shouting, most people clam up. . . .
Taking a hard, forceful line often creates more barriers'"); cf. O. JOHN ROGGE, WHY MEN CONFESS 198
(1959) ("The KGB looks upon direct physical brutality as an ineffective method of obtaining the compliance of
the prisoner. Its opinion in this regard is shared by police in other parts of the world.") (internal quotation
omitted).
n533 Note that the claim is limited to the argument that the confession rate drops found in the
before-and-after studies from 1966 to 1967 are not explained by a reduction in coerciveness. One could believe
that police interrogation has generally become less coercive over the last several decades and still accept this
claim.
n534 See, e.g., Ellis, supra note 222, at 848; cf. George C. Thomas III, An Assault on the Temple of
Miranda, 85 J. CRIM. L. & CRIMINOLOGY 807, 814 (1995) (calling for more research on this question).
n535 To be useful for public policy purposes, the claim would have to be that Miranda has some special
effect in preventing the conviction of innocent defendants, not just defendants generally, as making prosecution
more difficult always might help some innocent person avoid conviction. See SIDNEY HOOK, COMMON
SENSE AND THE FIFTH AMENDMENT 32-33 (1957); see also Stephen J. Schulhofer, Some Kind Words for
the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311, 331 (1991).
n536 See infra notes 577-86 and accompanying text (discussing value of videotaping in protecting innocent
persons).
n537 See infra notes 636-45 and accompanying text (advancing this argument).
n538 See, e.g., GUDJONSSON, supra note 203.
n539 Id. at 228.
n540 Cf. Yale Project, supra note 8, at 1611 (reporting that "most detectives claim an innocent man has
never confessed in New Haven"). Again, this is not to suggest that any such case is anything other than a great
tragedy.
n541 See GUDJONSSON, supra note 203, at 232 (noting common personality factor of false confessors of
"good trust of people in authority"); Gisli H. Gudjonsson, One Hundred Alleged False Confession Cases: Some
Normative Data, 29 BRIT. J. CLINICAL PSYCHOL. 249, 249 (1990) (finding alleged false confessors highly
suggestible and compliant).
n542 See, e.g., GUDJONSSON, supra note 203, at 252 (discussing case of Peter Reilly, who did not
exercise his Miranda right to a lawyer because "I hadn't done anything wrong"); Roger Parloff, 1993: False

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Confessions, AM. LAW., Dec. 1994, at 33, 34 (reporting that suspect who would later give false confession
waived rights because "I had nothing to hide"). See generally Corey J. Ayling, Comment, Corroborating
Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 WIS. L. REV. 1121,
1194-98 (arguing that Miranda rules have limited utility in preventing false confessions).
n543 GUDJONSSON, supra note 203, at 226.
n544 Note, Voluntary False Confessions: A Neglected Area in Criminal Administration, 28 IND. L.J. 374,
380 n.26 (1953).
n545 Skolnick & Leo, supra note 369, at 3, 8.
n546 Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40
STAN. L. REV. 21, 57 (1987) (table 6).
n547 See Stephen J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet
Study, 41 STAN. L. REV. 121 (1988).
n548 Bedau & Radelet, supra note 546, at 57.
n549 Skolnick & Leo, supra note 369, at 10 (citing C. Ronald Huff et al., Guilty Until Proven Innocent:
Wrongful Conviction and Public Policy, 32 CRIME & DELINQ. 518, 523 (1986)).
n550 Huff and his colleagues' "conservative" estimate is based on a survey of judges, prosecutors, and
others familiar with the Ohio and American criminal justice systems, in which most of the respondents indicated
that the number of wrongful convictions in the United States was more than "never" and "less than one percent."
Huff, supra note 549, at 523 (table 2). From these data, Huff and his colleagues simply attached the value of .5%
(one in 200) to the estimated number of wrongful convictions. Of course, the range covered by the response
"less than one percent" extends as low as .0001% (one in a million). Huff and his colleagues offer no good
reason for estimating the value to be .5% rather than .0001%. Indeed, the only specific estimate of a total
number of wrongful convictions came from a judge in Ohio who, based on his familiarity with all of the state's
major cities, suggested that he had the "strong suspicion that each year in Ohio, at least one or two dozen
persons are convicted of crimes of which they are innocent." Id. at 522. Assuming that a "strong suspicion"
standard is appropriate here, one can combine a conservative estimate of a "dozen" wrongful convictions each
year in Ohio with the fact that approximately 3.6% of all index crimes are committed in Ohio, see FED.
BUREAU OF INVESTIGATION, supra note 299, at 60-62 (table 4), to suggest that approximately 333 (12 x
(1/3.6%)) wrongful convictions occur around the country each year.
n551 The error rate can be derived using the methodology of Huff and his colleagues, see Huff et al., supra
note 549, at 523, as follows: total 1993 arrests for index offenses = 2,848,400, see FED. BUREAU OF
INVESTIGATION, supra note 299, at 217; conviction rate = 50%; total convictions, therefore, are 1,424,200.
Dividing wrongful convictions (350) by total convictions produces an error rate of .02%. The error rate would
be about four times lower if one used total arrests rather than arrests for only index crimes.

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n552 Eyewitness identification was found to be the major factor, responsible for nearly 60% of the cases of
wrongful conviction in their data base. Huff et al., supra note 549, at 524. Police error was the next most
important factor, but they offered no examples of error corresponding to confessions. See id. at 528-29. "False
confessions" were mentioned briefly at the end of the catalogue of causes of errors as a factor which is "either
less prevalent or about which less is known." Id. at 533; see also Arye Rattner, Convicted but Innocent:
Wrongful Conviction and the Criminal Justice System, 12 LAW & HUM. BEHAV. 283, 286 (1988). But cf.
RUTH BRANDON & CHRISTIE DAVIES, WRONGFUL IMPRISONMENT: MISTAKEN CONVICTIONS
AND THEIR CONSEQUENCES 47 (1973) (finding false confessions to be the leading cause of wrongful
imprisonment after misidentification in Britain).
n553 For example, even making the dubious assumption that false confessions fell ten-fold after Miranda,
that would mean roughly 350 fewer false confessions (35 false confessions x 10-fold decrease) out of a total
number of roughly 100,000 lost cases from Miranda.
One other indirect suggestion of the relative infrequency of false confessions comes from a study of 229
Icelandic prisoners, which found that none of the 229 had made a false confession with regard to the offense for
which they were currently serving a sentence. Gisli H. Gudjonsson & Jon F. Sigurdsson, How Frequently Do
False Confessions Occur? An Empirical Study Among Prison Inmates, 1 PSYCHOL. CRIME & LAW 21, 23
(1994). Among these prisoners with extensive records and "frequent previous contacts with police," id. at 24, 27
(12%) claimed to have made a false confession during a police interview at some point in their criminal careers.
Id. at 23. In another study in Iceland, none of 74 prisoners claimed to have made a false confession. Gudjonsson
& Petursson, supra note 214, at 298. These small figures for false confessions come from an "inquisitorial legal
system." Gudjonsson & Sigurdsson, supra, at 25.
n554 Stuntz, supra note 491, at 1931.
n555 Id. It should be noted that Stuntz believes that some of the Miranda rules, such as the waiver rule, also
help innocent suspects. See id. at 1948.
n556 See Witt, supra note 89, at 328 (table 5) (finding no significant change in ability of suspects to clear
themselves after Miranda).
n557 See Van Kessell, supra note 7, at 129 (advancing similar argument).
n558 See supra Table 3 (pre-Miranda confession rates might be around 60%).
n559 See supra notes 183-85 and accompanying text (reliable studies suggest 16% drop in confession rate).
n560 Cf. Yale Project, supra note 8, at 1586 (suggesting that 2 of 90 suspects (2%) were believed by the
study's authors to be innocent).
n561 The bigger haystack problem is not refuted by the fact that the hypothetical prosecutor will save time
from the 3.8% of all cases that will no longer be prosecutable because of Miranda. To begin, the prosecutor
must spend time culling the unprosecutable cases. Moreover, the pool of nonconfessors might shrink from 55 to
51, leaving more cases without confessions to wade through than before Miranda. Finally, the prosecutor will

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likely need to spend more time in assembling cases against the nonconfessors. See supra note 319 (suspects
more likely to go to trial when they have not confessed).
n562 Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN.
L. REV. 671, 680 (1968); see Akhil R. Amar & Renee B. Lettow, Fifth Amendment First Principles: The
Self-Incrimination Clause, 93 MICH. L. REV. 857, 861-62 (1995) (advancing this position with respect to
current Fifth Amendment interpretations); Dripps, supra note 62, at 716 (advancing this position with respect to
the Fifth Amendment in general); Erwin N. Griswold, The Right to be Let Alone, 55 NW. U. L. REV. 216, 223
(1960) (conceding that "it was a mistake" to attempt to defend the Fifth Amendment on the ground that it
protects the innocent). But see Schulhofer, supra note 535, at 330-33 (arguing that the Fifth Amendment helps
innocent persons).
n563 The low percentage is derived by using all cases in the criminal justice system as the denominator.
One might reasonably argue that, from the perspective of criminal justice reform, the proper focus is not on all
cases in the system, but rather only on those cases that cannot be successfully prosecuted. Because about half of
all cases today "fail" for one reason or another, see FORST ET AL., supra note 48, at 167 (figure 1), Miranda is
responsible for 7.6% of the failed cases in the system.
n564 See supra notes 292-346 and accompanying text.
n565 United States v. Leon, 468 U.S. 897, 908 n.6 (1984) (citing Davies, supra note 6, at 621).
n566 Id.
n567 Compare 3.8% lost cases from Miranda with 0.6% to 2.35% lost cases from the exclusionary rule.
n568 See generally Cassell, supra note 481, at 1376-85 (considering the crime victim's perspective).
n569 See OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 125-27 (describing the case of
Ronnie Gaspard).
n570 See David Clifton, Unsolved Murders Reach 13 in 1994: Grief Goes On When Killers Go Unpunished,
SALT LAKE TRIB., Jan. 2, 1995, at D1.
n571 Caplan, supra note 383, at 1384-85.
n572 Cf. Supplemental Brief for the United States as Amicus Curiae, Supporting Reversal [on reargument]
at 3, Illinois v. Gates, 462 U.S. 213 (1983) (No. 81-430) ("The freeing of even one guilty defendant by virtue of
an irrational rule may exact a greater cost than society should be expected to bear.").
n573 Nor does this Article attempt to address broader issues of interpreting Fifth Amendment
self-incrimination principles. For thoughtful discussions of these issues, see Amar & Lettow, supra note 562;
OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 107-17.

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n574 ALI REPORT, supra note 56, at 11-15; AMERICAN LAW INST., A MODEL CODE OF
PRE-ARRAIGNMENT PROCEDURE § 130.4 (1975); see also Yale Kamisar, Equal Justice in the Gatehouses
and Mansions of American Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIMES 85-86 (A.E. Dick
Howard ed., 1965).
n575 See, e.g., CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE
REVOLUTION 85 (1993); OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 105; Phillip E.
Johnson, A Statutory Replacement for the Miranda Doctrine, 24 AM. CRIM. L. REV. 303 (1986); George Dix,
Putting Suspects' Confessions on Videotape, MANHATTAN LAW., Apr. 25, 1989, at 12; Leo, supra note 145,
at 401-14; see also Jonathan I.Z. Agronsky, Meese v. Miranda: The Final Countdown, A.B.A.J., Nov. 1, 1987,
at 86, 90 (reporting that "experts on both extremes of the political spectrum were enthusiastic about the idea of
videotaping confessions").
n576 See supra notes 524-30 and accompanying text.
n577 WILLIAM A. GELLER, U.S. DEPT. OF JUSTICE, POLICE VIDEOTAPING OF SUSPECT
INTERROGATIONS AND CONFESSIONS: A PRELIMINARY EXAMINATION OF ISSUES AND
PRACTICES -- A REPORT TO THE NATIONAL INSTITUTE OF JUSTICE 115-19 (1992); Ingrid Kane,
Note, No More Secrets: Proposed Minnesota State Due Process Requirement that Law Enforcement Officers
Electronically Record Custodial Interrogation and Confessions, 77 MINN. L. REV. 983, 1011 (1993) (calling
for recording of interrogations because suspects "would be afforded more protection from physical and
psychological abuse"); Comment, Let's Go to the Videotape: A Proposal to Legislate Videotaping of
Confessions, 3 ALB. L.J. SCI. & TECH. 165, 175-76 (1993) (collecting evidence that videotapes help control
police brutality); Duncan Campbell, Videos of Interviews "Would Help Police," GUARDIAN (London), Dec. 9,
1991, at 8 (reporting that videotaped suspects believed opportunities for abuse were reduced); see also Frederick
C. Foote, Note, Self-Incrimination Issues in the Context of Videotaping Drunk Drivers: Focusing on the Fifth
Amendment, 10 HARV. J.L. & PUB. POL'Y 631, 638 (1987) (describing interrogated suspect who looked into
the camera and said "I guess I can't accuse you guys of police brutality").
n578 But see J.A. BARNES & N. WEBSTER, POLICE INTERROGATION: TAPE RECORDING 44
(1980) (reporting that international survey found that "challenges to the authenticity of recordings of police
interrogations seldom, if ever, arise" and tamper-proof security devices are available); GELLER, supra note 577,
at 119 ("We found not a single allegation in any jurisdiction we visited that police or prosecutors had
intentionally tampered with recorded videotapes . . . ."); GRANT, supra note 207, at 75 (reporting that two-year
Canadian study of videotaping found no allegations of tampering with tapes); Comment, supra note 577, at 179
("most recorders are now equipped with an internal time/date stamp" and "noticeable breaks in the continuity of
the tape may lead to questions concerning what happened during the gaps").
n579 See Rosenberg & Rosenberg, supra note 4, at 102 n.205 (asserting, without empirical or other support,
that a "recording requirement is too easily subject to circumvention, permitting officials to coerce the suspect
before capturing an ostensibly voluntary account on film or tape"). But see GELLER, supra note 577, at 117
(only a "few" claims of coercion before or after videotaping in Kansas City); GRANT, supra note 207, at 42, 77
(two-year Canadian study of videotaping found that allegations of police misconduct about the period before
taping have "not turned out to be a major problem in court to date" and in the few allegations of off-camera
"rehearsals" the courts did not find a problem with the taped confession; few challenges to statements overall).

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n580 See, e.g., SKOLNICK & FYFE, supra note 368, at 266 ("To the degree possible, we should routinely
videotape police conduct during those occasions where propensities to excessive force are most likely to occur:
[e.g.,] . . . interrogation . . . ."); Yale Kamisar, Foreward: Brewer v. Williams -- A Hard Look at a Discomfiting
Record, 66 GEO. L.J. 209, 243 (1977) (concluding that without recording the Miranda "temple" is "a house built
upon sand"); Leo, supra note 145, at 410 (concluding after field research on police interrogation and extensive
review of the literature on police brutality that "the video-taping of custodial interrogations will reduce police
improprieties during interrogation"); see also BRANDON & DAVIES, supra note 552, at 64 (recommending
recording of confessions to avoid wrongful convictions).
n581 See, e.g., Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986); see also Caplan, supra note 184, at 1475
(recording "would provide an accurate record by which the judiciary could evaluate the police pressure on the
suspect"); cf. G. Daniel Lassiter & Audrey A. Irving, Videotaped Confessions: The Impact of Camera Point of
View on Judgments of Coercion, 16 J. APPLIED SOC. PSYCHOL. 268 (1986) (finding that camera point of
view is important in evaluating coercion).
n582 See, e.g., Arthur E. Sutherland, Jr., Crime and Confession, 79 HARV. L. REV. 21, 31-32 n.28 (1965)
(noting reversal of conviction in case involving confession where "the persistent questioning in the strong voices
of the two policemen, the low-pitched responses of the weary prisoner asserting his innocence over and over, his
final surrender of will, all emerge convincingly from the sound-record").
n583 See Kamisar, supra note 580, at 238-40. In Australia, because of allegations of police "verballing"
(that is, fabricating verbal confessions), the High Court recently held that police must record all confessions or
the jury will receive a cautionary instruction suggesting police testimony may be unreliable. McKinney v. R., 65
A.L.R. 241 (Austl. 1991). See generally BRADLEY, supra note 575, at 111; ROYAL COMM'N ON
CRIMINAL JUSTICE, REPORT 60-61 (1993) (discussing the admissibility of interrogations that have not been
tape-recorded).
n584 See LAWRENCE S. WRIGHTSMAN & SAUL M. KASSIN, CONFESSIONS IN THE
COURTROOM 134-35 (1993) (describing efforts to use examination of tape of confession to demonstrate that it
was false); Gisli Gudjonsson, The Psychology of False Confessions, NEW L.J., Sept. 18, 1992, at 1277 ("As
police behaviour becomes more controlled and better monitored by improved procedures, including tape
recording, then more attention is likely to be placed on the identification of individual vulnerabilities when
disputing the reliability of confession statements . . . .").
n585 See Parloff, supra note 542. I will not discuss the false confession of a fourth person, who appeared to
be motivated to obtain publicity.
n586 Id. at 38. To the same effect is Philip Weiss, Untrue Confessions, MOTHER JONES, Sept. 1989, at
20, 20 ("The police made just one mistake: they turned on a tape recorder during Sawyer's sixteen-hour
interrogation. Were it not for that recording, Sawyer would have stayed a nobody, good-bye kind of guy . . . who
looked like he sure might have killed somebody and had even said as much.").
n587 Videotaping may also allow more effective presentation of the prosecution's case. See UVILLER,
supra note 14, at 186-87; Ronald K.L. Collins & David M. Skover, Paratexts, 44 STAN. L. REV. 509, 543
n.181 (1992).

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n588 GELLER, supra note 577.
n589 Id. at 54 (figure derived from table 1).
n590 Id. at 108 (figure 21).
n591 Id. at 107 (figure 20).
n592 Id. at 109, 110, 119-23, 125, 148, 149.
n593 Id. at 82-83; see also BARNES & WEBSTER, supra note 578, at 45 (finding costs for nationwide
police recording in Britain minimal provided that routine transcription of the tapes is avoided); GRANT, supra
note 207, at 76 (finding that cost of less than 1% of police force vehicle budget will finance force-wide
videotaping system).
n594 GELLER, supra note 577, at 152; cf. BARNES & WEBSTER, supra note 578, at 42, 47 (describing
survey results of American police departments that record police interrogations as conveying the impression that
advantages outweighed disadvantages; some indication that suspects were inhibited from talking by recording).
n595 GELLER, supra note 577, at 103.
n596 Id. at 70; see also id. at 99-103 (discussing police concerns about discretionary videotaping becoming
mandatory).
n597 CODE OF PRACTICE ON TAPE RECORDING (1988), in ZANDER, supra note 202, at 429. See
generally ZANDER, supra note 202, at 124-32 (discussing the Code of Practice on Tape Recording).
n598 ROYAL COMM'N ON CRIMINAL JUSTICE, REPORT 26 (1993).
n599 See generally CAROLE F. WILLIS ET AL., THE TAPE-RECORDING OF POLICE INTERVIEWS
WITH SUSPECTS: A SECOND INTERIM REPORT 34-35, 73 (1988) (discussing the effects of taping on
obtaining confessions).
n600 David Dixon, Politics, Research and Symbolism in Criminal Justice: The Right of Silence and the
Police and Criminal Evidence Act, 20 ANGLO-AM. L. REV. 27, 46 (1991). This confirms the conclusion
reached by other observers that the recent decline in the confession rate in Britain is attributable to other aspects
of the interrogation regulatory regime. See, e.g., supra note 203 and accompanying text.
n601 GRANT, supra note 207, at 28.
n602 Id. at 80. The study reported that "only a small minority refuse 'on camera' to be videotaped (4.8%)."

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Id. at 73-74. The "refusal-to-be-taped" figure of 4.8% may be artificially deflated because it is derived by taking
suspects who refused to be taped and dividing by all suspects, including suspects who were never asked to give
a taped statement. Id. at 32. The proper measure for such a figure is the number of suspects who refused to be
taped divided by the number of suspects asked to give a taped statement. This calculation generates a more
worrisome 12.1% (69/569) refusal-to-be-taped rate. See id. at 32 (figure derived from table 1). It is not clear
from the report whether suspects were interviewed after they refused to be taped.
Also cutting against the study's conclusion is the higher incriminating statement rate in the "control" city of
Oakville -- 87.0% -- vs. 71.6% in Burlington with videotaping. Id.(figures derived from Table 1). However, an
alternative explanation for the higher Oakville rate is that police interviewed far fewer suspects overall -- 59%
vs. 71% in Burlington. Id. at 31. Perhaps the suspects who were interviewed in Oakville were those against
whom the police had stronger cases and who were, therefore, more likely to confess. See supra note 214 and
accompanying text.
n603 VERA INST. OF JUSTICE, supra note 71, at 53.
n604 Cassell & Hayman, supra note 47 (finding questioning successful 60% of the time for recorded
interrogations, 45% for nonrecorded interrogations).
n605 Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985); see also Mallott v. State, 608 P.2d 737, 743 n.5
(Alaska 1980). Minnesota recently required taping as well. State v. Scales, 518 N.W.2d 587, 591-93 (Minn.
1994). Other states have rejected such a state constitutional requirement. See, e.g., State v. Kekona, 886 P.2d
740, 746 (Haw. 1994); Jimenez v. State, 775 P.2d 694, 695-97 (Nev. 1989); State v. Villareal, 889 P.2d 419, 427
(Utah 1995).
n606 Parloff, supra note 542, at 38 (quoting Chief Judge Alexander Bryner of the Alaska Court of Appeals).
n607 Id.
n608 GELLER, supra note 577, at 107 (figure 20).
n609 INBAU ET AL., supra note 212, at 176-78 (citing LUPPO PRINS, SPECIAL STUDY FOR THE
MEMBERS OF THE AUSTRALIASIAN FORCES: SCIENTIFIC AND TECHNICAL AIDS TO POLICE
INTERVIEW-INTERROGATION (1983)). But see ARTHUR S. AUBRY, JR. & RUDOLPH R. CAPUTO,
CRIMINAL INTERROGATION (3d ed. 1980) (recommending recording).
n610 GELLER, supra note 577, at 64-65 (finding that 4% of police agencies that videotape confessions do
so covertly).
n611 Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986); see also Kamisar, supra note 11, at 150 (stating that
striking a balance "is the way Miranda's defenders -- not its critics -- have talked about the case for the past
twenty years").
n612 See Robinson, supra note 351, at 482 (reporting that after Escobedo but before Miranda 90% of police

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and prosecutors said they advised suspects of their right to silence).
n613 Sidney E. Zion, Prosecutors Say Confession Rule Has Not Harmed Enforcement, N.Y. TIMES, May
18, 1966, at 27.
n614 Id. The right to counsel warning presumably involved counsel at arraignment, not appointed counsel
during interrogation.
n615 Sidney E. Zion, Advice to Suspect Found Police Aid, N.Y. TIMES, Feb. 28, 1966, at 18.
n616 Miranda v. Arizona, 384 U.S. 436, 483 (1966). The Miranda Court went on to equate the limited FBI
practice of warning of rights with the Miranda requirements -- an equation that was clearly wrong. See
GRAHAM, supra note 511, at 181-82 (noting that "important differences" made Miranda "far more generous");
OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 39-40 (calling FBI practice "basically
different"); see also Miranda, 384 U.S. at 521 (Harlan, J., dissenting).
n617 After Escobedo, Detroit police gave the following warning to suspects in custody once the
investigation began to focus on them: "'I am Detective . . ., and I wish to advise you that you have a
constitutional right to refuse to make any statement. You do not have to answer any questions which are put to
you, and anything you do say may be used against you in a Court of Law in the event of prosecution. You are
further advised that you have a right to counsel.'" See Souris, supra note 166, at 255 n.15.
n618 Id. at 255. The Yale Law Journal recounting of the study, see supra notes 238-41 and accompanying
text (noting conflicting versions of study), reports a rise in confessions after Escobedo, noting that "confessions
were given in 64.7 percent of the 2,620 completed prosecutions in 1961, and 65.6 percent of the 2,234
prosecutions in 1965 completed at the time of the survey." Yale Project, supra note 8, at 1641.
n619 See Seeburger & Wettick, supra note 32, at 8; see also Commonwealth v. Negri, 213 A.2d 670 (Pa.
1965) (holding that confession not admissible unless suspect has been warned of the right to remain silent and
the right to counsel).
n620 Yale Project, supra note 8, at 1569.
n621 See supra notes 78-85 and accompanying text.
n622 See supra notes 191-210 and accompanying text.
n623 See ALI REPORT, supra note 56, at 140 (77% of suspects did not execute waiver of rights form in
New Orleans, as inferred from number of suspects who executed form); VERA INST. OF JUSTICE, supra note
71, at 76 (68.3% of suspects in a survey of all 22 different precincts in New York City asserted right to silence
or their Miranda right to counsel); James Ridella, Miranda One Year Later -- The Effects, PUB. MGMT., July
1967, at 183, 187 (64% of suspects did not execute waiver of rights form in New Orleans, as inferred from
number of suspects who executed form); VERA INST. OF JUSTICE, supra note 71, at 40 (58.9% of suspects in

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a six-month survey of one New York precinct in which all interrogations were recorded asserted right to silence
or right to counsel); Seeburger & Wettick, supra note 32, at 13 n.37 (42.8% of suspects in Pittsburgh "refused to
talk"; study describes these suspects as invoking their "constitutional right to remain silent"; figure includes
26.6% of suspects who "requested counsel"); Controlling Crime Hearings, supra note 45, at 201 (40.7% of
suspects in Philadelphia "refused to give a statement after the Miranda warnings"); Medalie et al., supra note
133, at 1361 n.55, 1367 (three of seven suspects (42.9%) in D.C. refused to sign Miranda waiver forms); id. at
1372 (29 of 85 defendants -- 34% -- in D.C. requested counsel after police began partial compliance with
Miranda); id. at 1366 n.68 (30.6% of suspects in D.C. informed the police at some point in the process that they
did not wish to talk or to continue to talk); Leiken, supra note 365, at 19 (28% of suspects in Denver did not
make a statement to police) (figure derived from table 2); Yale Project, supra note 8, at 1571 n.135 (18 of 81 -22.2% -- suspects in New Haven asked to see a lawyer or a friend); id. at 1566 (23 out of 127 -- 19.5% -suspects in New Haven who were questioned "refused to talk" (figure derived from table 12 by dividing suspects
who refused to talk by suspects questioned, which was obtained by subtracting those "not questioned from total
interrogations"); FEENEY ET AL., supra note 17, at 143 (17.8% of burglary suspects in San Diego refused to
answer questions); Yale Project, supra note 8, at 1578 (10 of 81 -- 12% -- suspects in New Haven whose
conduct could be analyzed invoked right to silence); Seeburger & Wettick, supra note 32, at 14 n.37 (17% of
suspects in Chicago claimed either their right to remain silent or their right to counsel) (figure derived by
implication from numbers of suspects claiming "neither their right to remain silent nor their right to counsel");
Witt, supra note 89, at 325 (8.7% of suspects in Seaside City refused to talk); Neubauer, supra note 319, at 104
(4.4% of suspects in Prairie City refused to sign custodial interview form acknowledging only that they
understood their rights; in 25.4% of cases, no further information was available); 2 FEENEY & WEIR, supra
note 18, at 134 (3 of 71 -- 4.2% -- robbery suspects refused to answer questions); FEENEY ET AL., supra note
17, at 143 (4.0% of burglary suspects in Jacksonville, Florida refused to answer questions); see also GRISSO,
supra note 443, at 36 (9.4% of juveniles referred to police for felonies refused to talk; refusal rate increased with
age, reaching 12-14% for 15- and 16-year-olds); id. at 185 (5.6% of parents advised children to assert right to
silence during interrogation; 2.3% advised children to assert right to counsel).
n624 The wide variance in the percentages is probably explained, in part, by the fact that some studies
report figures on suspects who refused to waive their rights while others report suspects who simply declined to
make a statement. Of course, refusing to waive rights and refusing to talk about an offense are separate matters,
but the studies often fail to distinguish between the two.
n625 Leo, supra note 145, at 262.
n626 Cassell & Hayman, supra note 47. If suspects who were never given Miranda warnings and suspects
who invoked before police were successful are included, 12.1% of all suspects in the sample invoked their
rights.
n627 See, e.g., Seeburger & Wettick, supra note 32, at 13 n.37.
n628 See supra note 267.
n629 See supra notes 300-11 and accompanying text.
n630 Indirect support for the conclusion that the right to counsel in particular is responsible for confession
rate reductions comes from a post-Miranda survey of police officers in Tennessee and Georgia, which found that

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42% identified the right to counsel as the warning most likely to interfere with their investigation -- more than
any other warning. See Otis H. Stephens et al., Law Enforcement and the Supreme Court: Police Perceptions of
the Miranda Requirements, 39 TENN. L. REV. 407, 425 (1972) (table VIII). Similarly, the 1967 Vera Institute
report on monitored interrogations found that suspects most frequently asked questions about the right to
counsel warning. VERA INST. OF JUSTICE, supra note 24, at 29.
n631 Cf. OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 107-10 (suggesting modified
warnings); Johnson, supra note 575, at 304 (same).
n632 See also Johnson, supra note 575, at 308-09 (advancing similar recommendation).
n633 See MILNER, supra note 336, at 228.
n634 Continued persistence to convince a suspect to change his mind will, at some point, render a
confession involuntary and thus inadmissible under Fifth Amendment principles. Other approaches to handling
the problem of continued police pressure could also be considered. See, e.g., Johnson, supra note 575, at 305,
310 (proposing that police be allowed to "make a pitch" for cooperation to a reluctant suspect but not engage in
a "prolonged campaign of wheedling, coaxing, and nagging").
n635 Cf. 18 U.S.C. § 3501 (1988) (restoring the pre-Miranda voluntariness test for admissibility of
confessions in federal cases).
n636 See generally Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE
DAME L. REV. 403, 487-501 (1992) (noting creation of "inflexible constitutional boundaries" by the Court).
n637 Miranda v. Arizona, 384 U.S. 436, 467 (1966).
n638 See BRADLEY, supra note 575, at 29; OLP PRE-TRIAL INTERROGATION REPORT, supra note
13, at 61. This probably was a result of the fact that Miranda's author, Chief Justice Warren, did not really agree
with allowing alternatives and thus hedged the language, which had been suggested by other Justices. See OLP
PRE-TRIAL INTERROGATION REPORT, supra, at 61 (citing BERNARD SCHWARTZ, SUPER CHIEF:
EARL WARREN AND HIS SUPREME COURT -- A JUDICIAL BIOGRAPHY 53-57, 589-93 (1983)).
n639 OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 99.
n640 See supra notes 202-04 and accompanying text (British reforms); supra note 206 and accompanying
text (Canadian reforms); LAW REFORM COMM'N OF CANADA, WORKING PAPER 32: QUESTIONING
SUSPECTS (1984) (same); supra note 583 (Australian reforms).
n641 Mark Berger, Legislating Confession Law in Great Britain: A Statutory Approach to Police
Interrogations, 24 U. MICH. J. L. REF. 1, 64 (1990).
n642 Miranda, 384 U.S. at 467 ("It is impossible for us to foresee the potential alternatives for protecting

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the privilege which might be devised by Congress or the States in the exercise of their creative rule-making
capacities.").
n643 Id. at 524 (Harlan, J., dissenting).
n644 Id. at 542 (White, J., dissenting).
n645 Id. at 542-43 (White, J., dissenting).
* [Editors' Note: Professor Stephen J. Schulhofer has written a reply to this Article, which follows
immediately. Professor Cassell's rejoinder to Professor Schulhofer will appear in the next issue of the
Northwestern University Law Review.]

 

 

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