Susan R. Klein (University of Texas School of Law) has posted Transparency and Truth during Custodial Interrogations and Beyond (Boston University Law Review, Forthcoming) on SSRN.
Here is the abstract:
My goal in this symposium is not to disrespect the Warren Court Revolution. The Court’s constitutionalization of the rules of criminal procedure during the 1960s were quite clearly necessary at the time they were imposed, in large measure to end the miserably unjust treatment of African Americans living in the South, and in part to foster the values of privacy, autonomy, fairness, and protection of the innocent enshrined in the Bill of Rights but ignored by many state criminal justice actors. The three most famous and important decisions by the Warren Court were vital to the health of the criminal justice system when they were rendered. The exclusionary remedy incorporated in Mapp v. Ohio was critical in persuading peace officers to learn about and then protect Fourth Amendment values; the Miranda v. Arizona warnings seemed the only way to limit abusive police behavior at the stationhouse while still encouraging uncompelled confessions, and the right to counsel offered in Gideon v. Wainwright was essential to separating guilty from innocent defendants. Unfortunately, and perhaps somewhat ironically, doctrine concerning the Fourth and Fifth Amendments have been contorted in their definitions and subject to a constant stream of exceptions by the Burger, Rehnquist, and Roberts Courts. They have come to contribute to and in fact embody the now unnecessarily adversarial and deceptive nature of many citizen-peace officer encounters.
The upshot of our last fifty years of constitutional criminal procedure rules combined with certain historical events I describe below is that some citizens and law enforcement may view each other as the enemy. This is not useful to law enforcement’s primary purpose of protecting us from harm and separating the innocent from the guilty. What are we to do with such a messy and quite frankly depressing state of affairs? At this juncture, it might be preferable to shape rules that are less adversarial and more inquisitorial. It certainly would be an improvement to announce transparent rules. Rather than having decision rules for cases and conduct rules for officers, we need one set of clear and well publicized rules that everyone knows and follows. And that set of rules need not be the same in every jurisdiction, so long as what officers tell citizens is the truth.
Confining my remaining comments to the fifth amendment context, in Part II, I argue that the Miranda warnings, regardless of their intent and effect at the time, have become perverse and ought to be retired for five reasons. (1) They are false and deceptive. (2) They assist primarily guilty recividists and the wealthy, all other suspects waive their rights. (3) They fail to achieve either of their stated goals of “adequately and effectively” apprising suspects of their rights and regulating police conduct. Instead, suspects are confused and deceived, and the fact that the Miranda warnings were read essentially guarantees that any subsequent statements are admissible, regardless of whether they are “voluntary” within the meaning of the due process “totality of circumstances” test. (4) They fail to identify and exclude false confessions. The innocence movement has demonstrated that the majority of false confessions are from juveniles and those with mental disabilities, and the Miranda warnings are ineffective on these groups. (5) They are incompatible with historical practice and our current shared moral values. In Part III, I recommend that jurisdictions begin replacing Miranda warnings with more effective and transparent alternatives, a move I believe is permissible under current Supreme Court doctrine. I propose that mid-sized to large police departments add a new “magistrate” position, appointed through the judicial branch, to their police station staff, and supplement or replace custodial interrogation by the police with more civilized recorded questioning of felony suspects by these magistrates. Arrestees would be informed that they have no right to avoid custodial interrogation of some kind, and offered accurate descriptions of their actual options. I further suggest that the practice of producing false evidence to encourage suspects to confess be strictly prohibited, and the use of deceit during custodial interrogation be discussed and limited NY public officials and reduced to writing. Transparency in the interrogation process would be a civilizing influence and would lead to more accurate information. Allowing local legislatures to create the rules regulating interrogations would shift blame for any deceit permitted away from police officers, fostering improved relationship between law enforcement personnel and the citizens they serve.
Finally, in Part IV, I begin to imagine a world in which police official used deception only when absolutely necessary, and only with the advance agreement of local public officials. Not only would any warnings given be accurate ones, but perhaps some of the most egregious deceptive practices during interrogation would be limited. This might bleed over into undercover sting operations, as many courts are already finding ways to expand the entrapment defense. The use of predictive and community policing and other evidence-based law enforcement tools might be possible if the relationship between officers and citizens improves, especially in minority communities. Numerous practices that might be effective in ferreting out the guilty and preventing crime in the first place rely on cooperation with the community. Such cooperation is almost impossible without some transparency and trust as foundations of the relationship. Amending Miranda would be a start.