Miranda

The Miranda Ruling: Its Past, Present, and Future

By Lawrence S. Wrightsman and Mary L. Pitman

Oxford University Press, New York, NY, 2010. 208 pages, $75.00.

Reviewed by Heidi Boghosian for The Federal Lawyer 2010

 In Miranda v. Arizona, 384 U.S. 435 (1966), the U.S. Supreme Court did not prescribe any particular words that law enforcement officers must use when they inform persons in custody that they have a right to remain silent, that anything they say can be used against them in court, that they have a right to a lawyer, and that, if they cannot afford a lawyer, one will be appointed to represent them. As a result, depending on the jurisdiction, an arresting officer may read a suspect one of a great number of differently written Miranda

warnings. The warnings may vary even within a jurisdiction; in Pittsburgh, for example, there will be a different set of warnings depending on whether one is brought into custody by the police, the sheriff, the university, or the railroad, even though all four departments are located on the same block. In all, at least 886 different written versions exist, many of them in legalese. The specific waiver component of one’s rights to remain silent and to have an attorney present can add to the difficulty of comprehension.

 The existence of so many written variations of the Miranda warnings is just one wrinkle in 44 years of fallout from the Warren Court’s decision in Miranda. In The Miranda Ruling: Its Past, Present, and Future, psychologists Lawrence S. Wrightsman and Mary L. Pitman present an interdisciplinary look—legal and psychological—at whether the current state of Miranda conforms to the Court’s intended goals. The authors deliver an intelligent examination of how subsequent decisions have subverted the original justices’ intentions and fashioned a Miranda warning that is more palatable to law enforcement officials. In Moran v. Burbine, 475 U.S. 412 (1986), for example, the Court found that the police’s failure to tell the suspect that his family had retained an attorney for him did not deprive him of information essential to his ability to waive his Fifth

Amendment rights. A few years later, in Davis v. United States, 512 U.S. 452 (1994), the Court held that the burden is on the defendant to unambiguously request counsel.

Tensions that the original Court grappled with in trying to balance the competing interests of civil liberties and law enforcement continue to inform Miranda-related jurisprudence. Although popular perceptions, born of the mass media, tend to simplify the dynamic between police and suspects as it relates to the Miranda warnings,

Wrightsman and Pitman are sensitive to nuance in showing how law enforcement has used the ruling to its advantage. One of the most interesting chapters in the book describes how police are taught to bypass Miranda, and what social scientists have observed on the few occasions in which they have watched police interrogations. “Despite what police might say, the purpose of an interrogation is to get a confession. ... [T]he challenge becomes to test the limits of the law in obtaining an admission of guilt.” The authors write that post-Miranda police interrogation training manuals still advocate the use of trickery by police and even “ignoring invocations of Miranda.”

In retrospect, the original goal seemed simple enough. The justices who deliberated Miranda wanted to ensure that suspects are told of their right to remain silent and to have the assistance of a lawyer. Acknowledging that the primary goal of police interrogation is to gain a confession, courts have long attempted to reconcile the need to mete out punishment to offenders with the presumption of innocence.

Miranda was intended to assist in balancing the interrogation room dynamic, which is by nature coercive, by allowing suspects to knowingly either invoke or waive their rights. For the most part, it has accomplished only the appearance of doing so. An indication of how few suspects understand the Miranda warnings is that, after hearing them, four out of five waive their rights to remain silent and to have a lawyer present.

 Wrightsman and Pitman identify three stages of reactions to the Miranda decision. First, crime control advocates had a negative reaction, saying that the decision would hamper police work and lower conviction rates. Surveys were conducted, and most agreed that Miranda would result in fewer confessions and statements. In addition, President Richard Nixon called the Court soft on crime.

The second stage comprised a debate over whether Miranda changed policing practices and decreased the number of confessions, and the third stage encompassed a realization by advocates of due process that the decision had little impact. The authors’ thesis that Miranda has had little impact gained support shortly after their book was released.

In Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), the Court further shifted the balance between the conflicting values of due process and crime control in favor of law enforcement. The Court ruled that suspects have a duty to speak up and say that they do not want to talk; thus, police may now issue the Miranda warnings and begin questioning if the suspect does not give a clear expression that he or she iss waiving the right to remain silent. As Pitman and Wrightsman point out, “And while we can decry the lack of a clear rule prior to Miranda, we should acknowledge that the laundry list of factors to be considered in judging voluntariness highlighted some aspects that reflect what we consider to be the main problems in implementing Miranda... including the difficulty in comprehension by some suspects and the use of deception by the police.”

The discipline of psychology is necessary in any analysis of police procedure, especially interrogations and the use of deception, and any fair assessment of Miranda, especially the “knowingly and willingly” factors, calls for a psychological perspective. The authors’ analysis of problems in the comprehension of Miranda warnings alone makes the case for the decision’s ineffectiveness. Juveniles have an especially difficult time comprehending

Miranda warnings. Their lesser cognitive capacity (some versions of the Miranda warnings run up to 47 words), their lower tolerance for interrogations, and their vulnerability to stress all contribute to the ease with which interrogators may manipulate juveniles.

All in all, writes Richard Leo, author of Police Interrogation (which I reviewed in the September 2008 issue of The Federal Lawyer), “Miranda has mostly helped, not hurt, law enforcement.” Leo adds that Miranda “has shifted courts’ analysis from the voluntariness

of a confession to the voluntariness of a Miranda waiver.” When judges find that police properly informed a suspect of his Miranda rights, they do not generally scrutinize the actual methods of interrogation that followed the waiver of those rights.

The current Supreme Court, write the authors, has “remained committed to permitting erosions of the Miranda rights. It reflects this bias not only in the decisions it makes on cases for which it has granted certiorari but also its decisions about those appeals that it rejects.”

 The Miranda Ruling recommends reforms including the presence of an advocate to ensure that suspects are told of their rights immediately and to confirm that any waiver was knowing and intelligent. The authors also suggest that videotaping the procedures

may serve as a restraint on police misconduct and allow juries to see the extent of voluntariness in confessions. Although Wrightsman and Pitman are not the first advocates to call for such reforms, their expertise in psychology, their commonsense approach, and their genuine interest in justice may make them among the more credible contributors to the field.