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Article Excerpt
I. INTRODUCTION
A. FRAMEWORK OF THIS STUDY B. CONSTITUTIONAL CONFESSIONS LAW: A BRIEF OVERVIEW C. IMPACT AND COMPLIANCE RESEARCH II. PRIOR RESEARCH AND POLICY ISSUES A. REACTIONS TO MIRANDA: RECENT RESEARCH B. INTERROGATION "OUTSIDE MIRANDA" C. FALSE CONFESSIONS AND PSYCHOLOGICAL INTERROGATION PRACTICES D. REFORMING INTERROGATION PRACTICES: SPOTLIGHT ON VIDEOTAPING E. LEGAL AND ADMINISTRATIVE CONTROLS ON POLICE INTERROGATION III. METHODOLOGY A. SAMPLE AND SURVEY INSTRUMENT B. RESEARCH ISSUES IV. RESULTS AND DISCUSSIONS A. ATTITUDES AND PRACTICES CONCERNING MIRANDA B. INTERROGATION OUTSIDE MIRANDA AND MIRANDA-MINIMIZATION C. FALSE CONFESSIONS: ATTITUDES AND PRACTICES D. ELECTRONIC RECORDING OF INTERROGATIONS AND CONFESSIONS E. CIVIL AND ADMINISTRATIVE CONTROLS ON INTERROGATION V. CONCLUSIONS A. CONTRIBUTIONS OF THIS STUDY B. THE "GAP PROBLEM" AND THE RULE OF LAW C. WHITHER MIRANDA? APPENDIX
I. INTRODUCTION
A. FRAMEWORK OF THIS STUDY
Important issues of confessions law and police interrogation practices are presently on the constitutional and public agendas. The Supreme Court's recent decisions have left confessions law almost as confused today as it was before 2000, when the Court was on the verge of overruling Miranda v. Arizona. (1) The stage is set for additional judicial refinement. (2) Long-standing questions about the impact of legal rules on police interrogation practices have become more urgent with the knowledge that a number of police departments have taken advantage of Miranda "loopholes" to flout some Miranda rules. Is knowledge and practice of interrogation "outside Miranda" widespread or is it confined to its apparent region of origin? (3) Questions about the effectiveness of legal controls on police behavior are even more pointed now that it is known that police interrogation, with some regularity, generates false confessions that contribute to wrongful convictions. (4) Are police administrators aware of or concerned about false confessions? Knowledge that abusive interrogation causes some false confessions has led to calls for reform, chief among them the videotaping of interrogations. How prevalent is the recording of interrogations by police departments?
Answers to such questions are important to legal and criminal justice scholars and to policy-makers, including legislators, judges, and law enforcement administrators. (5) Supreme Court rulings, of course, are implemented by the police, and an understanding of the "law in action" includes knowledge of police attitudes and opinions as well as descriptions of interrogation practices. This study explores these issues concerning interrogation practices through a survey of administrators of large police agencies. A variety of related issues are examined, including executives' global attitudes toward Miranda, their knowledge of and attitudes toward evasion of Miranda rules (a practice known as interrogation "outside Miranda"), their beliefs about links between aggressive psychological interrogation and false confessions, their support for the electronic recording of interrogations, and their views on legal and administrative sanctions for abusive interrogations. This legal impact research study (6) is designed to explore policy issues rather than to advance or test theories of legal impact, although impact theory helps to illuminate some of our findings.
The importance of this subject, indeed of most aspects of criminal procedure, transcends its specific boundaries and raises fundamental questions about the relationship of individuals and the state in our constitutional order. (7) The enormous power held by police officers over confined suspects during routine interrogation sessions was adumbrated in Chief Justice Earl Warren's classic Miranda opinion. (8) He initiated his comments on the isolation, secrecy, and concomitant lack of knowledge about what transpires in the interrogation room and on the various techniques recommended by proponents of psychological interrogation (9) with the reminder that "[t]he cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime." (10) An appreciation that the most mundane interrogation session involves the application of state power, even at the retail level, raises questions about whether deviations from courts' rulings by police officers undermine the values of legality that undergird our constitutional system. We comment on this subject in the Conclusion. (11)
The complexities of the subject at hand and the nature of the institutions being studied ensure that a single study will never be comprehensive. For example, Miranda law is a composite of many rules, is in flux, and, as a result of the Supreme Court's ideological divisions, is somewhat self-contradictory. After four decades, compliance with Miranda cannot be measured simply by the frequency with which the warnings are read prior to interrogation. (12) These factors preclude a simple causal model in which legal rules have a direct and unidirectional effect on police practices. Police behavior will be the result of multiple social and administrative causes, and it is likely that some level of mutual causation is at work. (13) In a notable example, Chief Justice Burger, appointed to the Supreme Court by President Nixon in part to unravel the Miranda decision, stayed his hand as it became clear that police enforced Miranda in a manner that weakened its effectiveness. (14) While the Supreme Court's post-Miranda decisions have been influenced in part by the Court's reactions to and perceptions of police behavior, evidence also supports the view that when implementing the law, the police have reacted in complex ways based on their own perceptions of the mixed signals sent by the Court. (15) Research into American policing is further complicated by the great diversity in size, experience, and professionalism among the approximately twelve thousand local law enforcement agencies in the United States. (16) Finally, law compliance is never perfect and is influenced by a number of cultural, situational, and administrative or structural factors. The behavior we study--police interrogation--is far from a simple, discrete event and, as noted, raises a number of pressing legal and policy issues. A single study based on one survey can illuminate the subject and provide helpful policy information but has to be triangulated with other relevant research to provide a full understanding of the subject.
With these limitations in mind, the survey research reported in this Article amplifies existing knowledge regarding interrogation policies, including the link between interrogation and false confessions, and procedures that tend to undermine the effectiveness of Miranda. It supplements empirical studies of police interrogation published in the past decade. (17) The survey asked attitude and fact questions. In addition to questions on specific policy issues (such as false confessions), the survey also asked questions about knowledge of recent developments in confessions law and interrogation practices. Finally, we explore the drop-off in law compliance that may result from confusing and oft-changed rules. If following the Supreme Court's gyrations on confessions law is challenging to practicing lawyers, it is likely to be even more so for police administrators, given their broad responsibilities and lack of specialized legal training. Having information regarding administrators' knowledge, as well as their opinions, is important in the formulation of sound policy.
Section I.B presents a brief overview of aspects of confessions law relevant to the research issues addressed in this study. Section I.C sets this study in the context of impact research that has been conducted mainly by political scientists. In Section II, we review prior research concerning the policy questions addressed by the survey. Section II.A reviews the second wave of major empirical studies of the impact of Miranda on police interrogation practices that were conducted since 1996. This literature grounds our survey questions, which inquire into the general attitudes of police officials toward Miranda. Sections II.B-II.E review the relevant research in regard to specific policy issues that form the basis of the remaining questions in our survey: interrogation "outside Miranda," false confessions and psychological interrogation practices, the videotaping of interrogations, and legal and administrative controls on police interrogation. Section III describes our research methodology and specifies the research-policy questions addressed by this study. Section IV presents the results of the survey and includes policy-oriented discussions of the findings. Finally, Section V reviews the contributions that our findings make to better understand the policy issues presently surrounding Miranda and discusses the meaning of the results for the rule of law.
B. CONSTITUTIONAL CONFESSIONS LAW: A BRIEF OVERVIEW
Prior to Miranda, the Supreme Court constitutionalized the common law rule that excluded involuntary confessions from trial evidence. The voluntariness test was applied in federal cases under the Fifth Amendment privilege against self-incrimination (18) and in state cases under the Fourteenth Amendment Due Process Clause. (19) Over the next three decades, the Court decided a series of due process cases finding that overbearing police practices, short of torture, violated the voluntariness test. (20) The Supreme Court was more proactive in federal cases, using its supervisory authority to strike down confessions obtained after prolonged interrogation. (21) In the 1960s, an invigorated and liberal Supreme Court incorporated the Fifth Amendment privilege against self-incrimination (22) and ruled that an interrogated suspect has a fight to counsel under limited conditions. (23) Within two years of those rulings, the Court, dissatisfied with the voluntariness test, issued its arguably most famous decision, Miranda v. Arizona. (24) Miranda did not outlaw police interrogation or require that defense attorneys be present, but sought instead to tame abusive practices by the relatively anodyne practice (in hindsight) of informing criminal suspects that they actually have a constitutional right to remain silent in the face of police questioning--a right that they could exercise in the context of police interrogation. (25)
Miranda, bitterly criticized by the political right and by most prosecutors and police chiefs, was an important domestic issue in the 1968 presidential campaign. (26) Intense dislike of Miranda led Congress to pass Title II of the Omnibus Crime Control and Safe Streets Act of 1968, (27) a law purporting to overrule the decision and to reinstate the voluntariness test in federal cases. (28) The Supreme Court's lack of clarity in interpreting Miranda for the guidance of police officers is best understood by viewing post-Miranda law as a field of ideologically charged political conflict between a Court divided (more or less) between conservative "crime control model" advocates and liberal supporters of the "due process model" of criminal justice. (29) The liberal Warren Court that decided Miranda by a 5-4 margin was soon replaced by a more conservative Court. (30) It is telling that in the three decades between Brown v. Mississippi (31) and Miranda v. Arizona, (32) more than thirty due process confessions decisions led the Court to decide that a more clear-cut rule was needed. Yet as Justice Scalia noted in his dissent in Dickerson v. United States, "in the 34 years since Miranda was decided, this Court has been called upon to decide nearly 60 cases involving a host of Miranda issues." (33) This fact, raised by Justice Scalia to show that Miranda was no more "workable" than the voluntariness test, instead indicates that a conservative Court, unable or unwilling to kill off Miranda, has inconsistently applied its holding in the four decades since its promulgation. (34)
The Court's ideological division produced a set of rules that upheld but watered down Miranda protections. For example, police are not required to clarify a suspect's inarticulate question about obtaining counsel if it is not an explicit request for a lawyer; (35) questioning by a probation officer bent on obtaining an incriminating statement and turning it over to the police does not require a Miranda warning; (36) a suspect who has claimed the right to silence may be re-interrogated under certain conditions despite Miranda's categorical prohibition; (37) and misleading warnings have all been upheld. (38) These and other cases are straightforward attempts to interpret Miranda so as to weaken its legal controls on police interrogation. (39)
In another set of cases, the Court injected an intriguing anomaly into confessions law that brought Miranda to the brink of extinction and opened the door to police practices that undermined Miranda in practice. (40) These cases declared that the Miranda warnings were not in themselves constitutional rights but rather prophylactic devices designed to protect the underlying privilege against self-incrimination. As a result, the Court created three categories of collateral use of improperly obtained statements and one clear exception to the Miranda rule.
In these cases, Miranda was violated either by not giving warnings, by reading defective warnings, or by ignoring a suspect's invocation of rights. The first collateral use, impeachment, allows illegally obtained statements to be read to a jury where a suspect took the stand and testified in contradiction to a statement made during interrogation; the statement is admitted to impeach the suspect's veracity and not to prove guilt. (41) The Court so ruled even though it does not allow statements obtained in direct violation of the Due Process or Self-Incrimination Clauses to be used for impeachment. (42) In the second collateral use, derivative "leads," even though statements resulting from Miranda-violated interrogations are not admissible in court, information derived from the statements could be used by the police as leads to further incriminating evidence. (43) The rule excluding such derivative evidence in search and seizure law, the "fruits of the poisonous tree" doctrine, was held not to apply to Miranda violations. The third form of collateral use, cured statements, occurs when a suspect incriminates himself after questioning not preceded by Miranda warnings and then makes a second confession after warnings are properly administered in a subsequent interrogation. The first, unwarned admission is inadmissible, but the post-Miranda confession is admissible. (44) Finally, a public safety exception was created, admitting statements made in answer to unwarned police questions when the questions concerned immediate threats to public safety. (45) The exception was based on the reasoning that Miranda is not a constitutional rule. (46)
These doctrinally confusing cases led legal scholars to develop a number of theories to explain the confusion created. Liberal defenders of Miranda thought that the Court was preparing to overrule the case. (47) Some conservative scholars questioned these rulings as inapposite in that the Court has no jurisdiction to impose a non-constitutional rule on the states. (48) Nevertheless, the Court continued to support the basic Miranda rules. (49) Such doctrinal gyrations have become a minefield for police officers who wish to fairly apply the law.
The prophylactic cases threatened the constitutional legitimacy of Miranda, but a collision was slow in coming. Finally, in 2000, the Supreme Court was confronted with a Court of Appeals decision holding that under 18 U.S.C. [section] 3501, an otherwise voluntary confession (under the due process voluntariness test) was admissible in a trial even though Miranda warnings had not been read. (50) The lower court ruled that Miranda was not a constitutional decision "and that therefore Congress could by statute have the final say on the question of admissibility." (51) In a surprising about-face, Chief Justice Rehnquist, an architect of the prophylactic theory, held that Miranda is "a constitutional decision of this Court" and "may not be in effect overruled by an Act of Congress." (52) Although the Court in Dickerson "saved" the Miranda rule, it did not touch the exceptions, leaving the possibility that Miranda would be alive but neutered. (53) In doing so, the Court seems to have created a unique Fifth Amendment niche that can be viewed either as constitutionally unstable or as having "manufacture[d] immunity from criticism on legal grounds." (54) Three Supreme Court decisions following Dickerson paint a more nuanced picture.
Chavez v. Martinez (55) was a civil case in which a person subjected to abusive interrogation sought damages for injuries to his civil rights. Leaving aside the reasoning of its fractured decision, a plurality of the Supreme Court held that the Fifth Amendment is an exclusionary rule and that "core" violations occur only when coerced statements are entered into evidence, not when the coercion occurs. (56) Chavez was important as a practical matter because it undermined the Ninth Circuit's ruling (described below) that allowed civil suits for injuries resulting from interrogation "outside Miranda." (57) The effect of Chavez was to eliminate a strong sanction against police departments that were deliberately flouting Miranda rules. (58)
Chavez was followed by two decisions in 2004 that split on the collateral use of statements obtained after Miranda violations. United States v. Patane (59) allowed a gun into evidence that came to the attention of an officer through brief questioning preceded by incomplete Miranda warnings. This decision confirmed the derivative "leads" collateral use exception of Michigan v. Tucker. (60) In Missouri v. Seibert, (61) to the contrary, the Court distinguished Oregon v. Elstad, (62) in which a Mirandized confession was held admissible under the cured statements exception after police had obtained an earlier admission without administering any warnings. Unlike Elstad, where the failure to administer warnings during the first questioning appeared to be inadvertent, the failure to read warnings in Seibert was part of a deliberate and carefully orchestrated two-step procedure. A woman, suspected of being involved in the arson of her mobile home by her teenaged son that led to the death of an occupant, was brought to a police station from the hospital where her son was recuperating at about 3:00 a.m. (63) The arresting officer was instructed not to read the Miranda warnings. (64) The interrogating officer questioned the unwarned Ms. Seibert for about a half-hour, using leading statements that indicated that she was involved in the arson with the intent of killing the youth. (65) After she made an admission, the officer allowed a fifteen minute break. (66) Thereafter, an interrogation session preceded by Miranda warnings began, and the officer confronted Ms. Seibert with her incriminating statements made in the previous session. (67) This mode of interrogation was taught to officers as an appropriate procedure by a proprietary training business. (68) By striking down the confession obtained by the "Missouri two-step" in Seibert, the Court has kept Miranda alive as a functioning rule that allows some meaningful judicial control over police interrogation practices. (69) Whether this support of the Miranda rule will continue or whether it will be reduced only to an exhortatory exercise depends on Supreme Court decisions in the wake of Seibert.
C. IMPACT AND COMPLIANCE RESEARCH
Professor Richard Leo began his empirical study of interrogation by referring to the "'gap problem'--the gap between how law is written in the books and how it is actually practiced by legal actors in the social world." (70) This abiding concern of legal realism and one of its successors, law and society scholarship, ought to be an important element in the calculations that are used in legal decision-making; one would think that legal impact studies would be common and that judges would use such knowledge in their decisions. In fact, however, the link between the empirical knowledge generated by legal impact studies and judicial decision-making is tenuous. This is in part because the effects of governmental policy-making or law-making cannot be known with the same precision as the effects, e.g., of modern medicines or engineering. In these more scientific endeavors, research and practice are tightly linked. (71) Public issues and even legal decisions may be driven by odd mixtures of knowledge, calculation, imagery, emotion, ideology, personality, and fortuitous events. (72)
In the appellate judicial sphere, "facts" are constructs that have been filtered through a trial process and can produce suspiciously altered realities. (73) Nevertheless, when the Supreme Court makes decisions, the Justices are surely aware of some likely effects of their decisions on society. However, this process is often a matter of guesswork in a sea of ambiguity. Justice Souter acknowledged as much in Missouri v. Seibert when he opined that the Court had no statistics on the frequency of the Miranda-avoidance practices encountered in that case. (74) This lack of empirical knowledge did not stay the Court's decision, nor could it in this and other cases if the law is to function at all. Legal decision-making proceeds incrementally, one case at a time, and the empiricism that counts is the "facts" of the case, as interpreted by the deciding court. (75)
Despite the rough reality of legal policy-making, it remains important to attempt to gauge the impact of legal decisions, especially Supreme Court decisions, on society. "Impact research" is, therefore, an essential component of political science/judicial process scholarship, even if its "golden age" (1960-1975) has passed. (76) The impact of legal decisions involves four populations: the decision-maker (the court); the interpreting population (lower court judges, attorneys, legal scholars, and police legal advisors); the implementing population (police supervisors and officers); and the consumer population (suspects). (77) Impact studies of the Miranda doctrine have focused on the relationship between the Supreme Court and the police and have tended to be atheoretical. (78) A number of terms identify the breadth of this kind of research. The total effect of a Supreme Court's decision on society is such a broad concept as to complicate empirical study. Impact is taken to reflect the broad but measurable effects of decisions, while compliance implies a narrow focus on the extent to which a decision is followed or evaded by interpreting or implementing populations. (79)
Compliance involves two categories of responses by implementers: an acceptance decision, which is "the actor's psychological reaction to the decision," and a behavior response, or "what an actor actually does in response to a decision." (80) To the extent that a broad survey cannot plumb the depth of a respondent's feelings, conclusions about support for Miranda ought to be triangulated with interview studies, such as the study conducted by Wasby in which small-town police and other officials were interviewed to gauge their receptiveness to recent Supreme Court criminal procedure decisions. (81) Similarly, observational studies of interrogation offer a baseline for comparison with the survey results. (82)
At least four overlapping, mid-level theories have been advanced to explain the causal mechanisms involved in compliance with or avoidance of court decisions. (83) Very few studies have applied utility theory, which explains compliance in terms of weighing the material and psychological costs and benefits of compliance. (84) Likewise, few studies have applied legitimacy theory, where a key explanatory variable in compliance is the degree to which the implementer believes the court's authority to render its decision is supported by the society's "political structure." (85) Communications theories attempt to relate compliance to the clarity of the Court's decision and the extent to which implementers know abut the decision. (86) Organizational theories explore the relationships between compliance and the organizational goals of institutional implementers. These include analyses of organizational tension and inertia as compliance factors. (87)
This study is primarily concerned with policy questions rather than with impact theory. It is an impact study, however, in that it measures knowledge of legal cases, acceptance of Miranda and recent confessions decisions, and compliance with Miranda in the respondents' agencies. This study also explores policy issues that go beyond the specific question of compliance with Supreme Court decisions. The policy issue of false confessions, for example, involves legislation, administrative regulations, and state court decisions, such as those relating to videotaping interrogations. Were the primary goal of this Article theory testing, however, questions would focus more on knowledge of decisions and the states of mind of the respondents. Further, the use of mailed surveys alone may not generate the kind of data required to sustain a meaningful theoretical study. As noted in the introduction, Miranda doctrine has grown so complex and has been part of policing for such a long time that a theoretical study of Miranda's impact should include its broad impact and the spiral of mutual influences between the police and the Court. The oft-repeated quotation in Dickerson, that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," (88) is a notable example of the broad influence of a case returning to influence a subsequent judicial decision. In sum, this study, although not designed to generate or test legal impact theory, is strengthened by considering the theoretical implications of impact studies, and in turn provides data that may be useful in advancing impact and compliance theories.
II. PRIOR RESEARCH AND POLICY ISSUES
This section briefly explains the origin of the present study as an extension of recent survey research and describes five issues concerning the intersection of policing and confessions law. These issues are: knowledge held by the police about recent developments in Miranda law; interrogation "outside Miranda"; the role of police interrogation in generating false confessions; videotaping interrogations; and legal and administrative controls on interrogation practices.
A. REACTIONS TO MIRANDA: RECENT RESEARCH
From the time of the Miranda decision, empirical studies have focused on compliance and attitudes toward the decision. Richard Leo's summarization of twelve "first generation" empirical studies of Miranda conducted between 1966 and 1973 led to five broad conclusions. (89) These studies demonstrated that (1) the immediate reaction to Miranda among varying police departments was inconsistent, but that soon all police departments complied with the letter of the Miranda warnings; (2) suspects frequently waived their Miranda rights; (3) once suspects waived, the police psychological interrogation methods criticized in Miranda continued to be employed; (4) suspects continued to confess and make incriminating statements during police interrogation; and (5) clearance and conviction rates were not adversely affected. (90)
After a two-decade hiatus, another round of Miranda studies was published. Leo divides them into quantitative studies of the impact of Miranda on confession and conviction rates and "those that qualitatively seek to assess Miranda's real world impact on how police issue warnings and elicit waivers, whether and how they comply with or circumvent Miranda's requirements, and Miranda's effects on police interrogation methods and confessions." (91) This qualitative research includes two important observational studies of interrogations in four...
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