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6/27/00 8:00 p.m.
Miranda's Not the Real Problem
Police deception does more harm to law enforcement.

By David B. Kopel, of the Independence Institute

n the last half century, no Supreme Court Justice has been more concerned about Supreme Court decisions that "tie the hands" of the police than has Chief Justice William Rehnquist. So how could it be that Chief Justice Rehnquist authored the new opinion in Dickerson v. United States, which vigorously reaffirmed the 1966 Miranda decision? As a new Associate Justice on the Court in the 1970s, Rehnquist had frequently called for Miranda to be overturned. What happened between those days and June 26, 2000?

The answer is that the police have learned to work with — and to work around — Miranda. Delivering the Miranda warnings is, these days, little practical impediment to procuring confessions. In the Dickerson case, the fact that law-enforcement groups did not, en masse, file amicus briefs urging the Court to overrule Miranda showed how much things have changed since 1968, when law enforcement lobbies prevailed on Congress to enact an unconstitutional statute (18 U.S. Code sec. 3501) which purported to overturn Miranda. (And which was largely ignored until the lower court in Dickerson tried to follow the anti-Miranda statute, thereby setting the stage for the Supreme Court case.)

As anyone who watches television police shows knows, people who have been arrested have a right to remain silent and a right to counsel; the Miranda warnings are meant to make sure that they know about those rights. Since almost everybody watches television — and since everyone who is arrested gets the Miranda warnings — why do so many people confess anyway?

Here's why: Miranda warnings are often delivered ritualistically, and in a perfunctory tone of voice — thus making them appear bureaucratic and trivial. After hearing the Miranda warning delivered in a perfunctory voice, many suspects opt to talk to the police, in the foolish belief that they can convince the police of their innocence. (Some of these suspects actually are innocent, while most are guilty; in terms of the police's ability to procure a confession, the distinction is not decisive.)

Further, during an interrogation, every physical feature of the interrogation room reinforces the sense that the interrogator is in control, and that the prisoner is dependent. For example, the light switch may be on a faraway wall, and operable only with a key held by the detectives. Everything the prisoner might want--a cigarette, a glass of water, or a trip to the bathroom--is under the interrogator's control.

If the interrogator leaves the room to get a sandwich or something else for the prisoner, the suspect will be watched through a peephole or a one-way mirror, so the interrogators can better understand his state of mind.

While increasing the prisoner's dependence, the interrogator works — as an actor might — to build trust, by pretending that he cares about the prisoner, that he wants to hear the prisoner's story, and that he understands how difficult it may be for the prisoner to talk. The interrogator works to become the only source of social reinforcement.

The interrogator will attempt to create an image of invincibility, that he is smarter and cannier than the prisoner, and that he already has a huge amount of evidence against the prisoner. (If the interrogator really had all that evidence, of course, he wouldn't be spending so much time trying to get a confession.)

Promises of leniency will be handed out. Supposedly, the prisoner's family (or employer, or whoever else he cares about) will be more forgiving if he confesses.

The interrogator may try to make the prisoner feel that the crime really wasn't so bad, and that it is therefore all right to confess. Of course, the interrogator's pretense that he doesn't think the crime was serious will last only as long as necessary to obtain the confession.

Another technique is the denial of injury: For example, the prisoner is told that the burglar wasn't really hurt; he walked out of the hospital two hours ago. Maybe true, maybe not. Actually, the burglar could be in intensive care, and the interrogator could be laying the ground work for a murder case.

Then there's the appeal to higher loyalties. Such as: What you did is really just a very common-sense thing. Regardless of some legal technicality, the most important thing is for you to protect your family. For you, your family comes first.

The interrogator may claim to understand that the crime was not typical behavior for the subject: Frank, I can see that you are not a criminal. You're a tax-paying, home-owning, regular kind of guy. You are not some gang-banger. You are not a violent person. What happened tonight was really very unusual for you, wasn't it, Frank?

In the long run, routine deception by the police tears at our social fabric, and undermines the law-enforcement system. The more the police lie, the more skeptical juries are going to be, even when police are telling the truth.

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