Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 3
Miranda’s Waning Protections: Police Interrogation Practices After Dickerson by Welsh S. White (University of Michigan Press 2001), 240 pp, cloth, $49.50.
Reviewed by Andrew E. Taslitz
The summer blockbuster movie, Minority Report, starring Tom Cruise, provides a useful entry point for discussing the content of Welsh White’s outstanding new book, Miranda’s Waning Protections: Police Interrogation Practices After Dickerson. In the film, Cruise is a detective of the future, assigned to a "Pre-Crime Unit" that uses the talents of three mutants who supposedly can foresee homicides with 100 percent accuracy. Accordingly, Cruise and his fellow cops arrest suspects for "future crimes" they have yet to commit.
The movie opens with Cruise and his fellow officers making an arrest just as a husband is purportedly preparing to kill his wife in a jealous rage. Cruise arrests the husband in the nick of time and then Mirandizes him. No trial is necessary, and Cruise quickly "halos" the husband, placing a device on his head that immobilizes him; he is then immediately warehoused in frozen stasis along with the many other pre-crime offenders. From a lawyer’s perspective, the amusing part of this scene is the utter pointlessness of warning the suspect about his rights to remain silent and to have an appointed attorney when his conviction and punishment are guaranteed, with or without the warnings.
Later, Cruise is himself accused of a future homicide. He discovers, however, that there are sometimes secret "minority reports": dissents filed by one of the mutants who disagrees with the precognitive vision of the other two. Cruise frantically searches for his own minority report, only to find that it does not exist: There is no evidence of his innocence. Yet when he’s later faced with the situation—a setup that makes him want to kill a suspect—Cruise does not do so, though the suspect ends up committing suicide. Although Cruise looks guilty, even in his own mind, he was instead innocent. But given the presence of a dead body, Cruise has a difficult time convincing the state.
Like the opening sequence in Minority Report, Welsh White suggests that Miranda warnings are too often useless. The police have developed sophisticated techniques for getting suspects to confess, usually after waiving their Miranda rights entirely. But once the suspects confess, absent the most extreme circumstances, the confession will be admitted at trial, and the suspect’s conviction will be guaranteed. And, like Cruise’s own predicament in the movie, that conviction will come to pass despite a suspect’s being entirely innocent, though the suspect may not always be certain that this is so. In short, contrary to what his book’s title might suggest, Welsh White is less interested in defending the Miranda doctrine and its reaffirmance by the recent Dickerson case (though he does approve of the doctrine as a minimal first step) than he is in pointing out its failures as a way to protect against wrongful convictions. Having documented those failures, he has a positive project as well: suggesting a way to fix the problem.
Interrogators, says White, use a variety of methods to get suspects to waive Miranda rights. Officers deliver the warnings in a neutral, flat manner, or they de-emphasize the warning’s significance after spending time building rapport with the suspect. The officers also offer suspects the opportunity to tell their side of the story, or they convince them that they are acting in their best interests. Even when suspects invoke their Miranda rights, interrogators try to encourage waiver by leaving suspects alone to stew or prompting them to change their minds. (For example, saying to the 17-year-old suspect in a rape case, "Well, the victim has told us her side of the story, so you just let me know if you change your mind and want to tell me your side too").
If these techniques fail to result in an eventual waiver, the police sometimes question anyway, knowing that under current law they can at least use the statement to impeach the defendant at trial if he or she takes the stand. Alternatively, if necessary, the police will falsely testify to facts establishing that a voluntary waiver took place. They will likely succeed in doing so because, absent corroborating evidence (which is usually unavailable given that the questioning takes place in secret), judges often resolve credibility questions in favor of the officers. Once a confession is admitted for any reason, however, the jury will convict. In White’s view, the application of these troubling techniques will today likely survive constitutional challenge in many circumstances. But, he is at great pains to point out, the existence of these techniques and their impact is not shown by his mere unsupported opinion. Rather, he explains, his descriptions are undergirded by substantial empirical and anecdotal evidence. Indeed, one of his complaints throughout the book is that the courts too often ignore the empirical data that should inform the crafting of wise doctrine and its sound application.
For White, among Miranda’s great failings is that it does not provide procedural mechanisms to aid in accurate fact finding, to overcome the too often incorrect assumption of police credibility, and to supplement the limited information for judging voluntariness that arises from the isolated nature of secret interrogations taking place in police stations.
But White’s even greater concern is not really with Miranda at all. Miranda permits interrogation once a voluntary waiver of rights is obtained without reciting any guidelines for what techniques the police may safely use in conducting their interrogations. The current version of due process doctrine does not fill this gap because due process violations are found only in extreme circumstances, such as when force or its threat, promises of protection from force, or excessively lengthy continuous interrogations are found. Current law therefore permits the use of "pernicious interrogation techniques," that is, those raising a substantial risk of a false conviction. Indeed, White offers empirical evidence that convictions resulting from false confessions are a substantial problem in serious cases, for it is in those cases that police seem to believe that obtaining a confession by questionable methods is worth the cost. White recounts a variety of techniques (a few of which will be discussed shortly) that he labels "pernicious." Indeed, it is one of the many strengths of his book that he uses a large number of transcripts from "real-world" cases to illustrate his point.
White’s solution to all these problems lies not in Miranda’s Fifth Amendment rationale, but in the Due Process Clause. He does not seek to change current due process law much, arguing that it already implicitly embraces the following principle: the police may not use interrogation methods that are substantially likely to produce untrue statements. White argues that current application of this general principle has been distorted by the courts’ ignoring the teachings of modern social science on the likelihood of certain interrogation techniques’ leading to wrongful convictions and on the problem of fact-finding accuracy concerning the circumstances under which confessions were taken.
White would strengthen due process rules in five circumstances:
1. Questioning the mentally handicapped: White recommends that a suspect’s mental handicap be taken into account and heavily weighted in determining a confession’s voluntariness under the totality of the circumstances, even where the police were unaware of the suspect’s special vulnerability. White would therefore specifically overrule the High Court’s decision in Colorado v. Connelly. White would do so because the empirical data demonstrate that "even the average level of stress built into an interrogation can be excessive and overbearing" for the mentally handicapped.
2. Lengthy interrogations: White would create the following bright-line rule: any confession resulting from more than six hours of questioning must automatically be deemed involuntary given the substantial empirical data suggesting that the risk of false confessions is unacceptably high once that threshold is passed.
3. Threats of punishment or promises of leniency: White considers any confession involuntary in which the interrogator should be aware that either the suspect or a reasonable person in the suspect’s position would perceive the officer’s statements as expressing the likelihood that the suspect will receive leniency or avoid adverse consequences if only he or she will confess. This rule circumvents the problem of police using only implicit, subtle threats, while recognizing data showing the likelihood that even innocent people will confess rather than risk unpleasant consequences.
4. Threats of adverse consequences to a friend or loved one: White would flatly prohibit such threats because of the substantial evidence that people will lie about their own guilt to save loved ones. White would again use an objective test: Would a reasonable interrogator believe that the suspect would likely perceive the interrogator’s conduct as embodying such a threat?
5. Misrepresenting the evidence against a suspect: Here White’s general rule would be that questioners may not employ tactics likely to suggest to the suspect that the evidence against him or her is so overwhelming that continued resistance would be futile. He admits, however, that this test is a case-specific one, weighing many factors, such as the nature and quality of the misrepresentation; the extent to which it seemed to establish the suspect’s guilt; and the suspect’s apparent vulnerability. He therefore tries to supplement this general rule with two more specific per se rules: first, if the lie is about the existence of scientific evidence, such as a DNA match that purportedly proves the defendant’s guilt, due process is violated; second, if the lie involves the use of fictitious lineups in which witnesses falsely claim to identify the defendant as the wrongdoer in the current case or in another, unrelated crime, that, too, violates due process. The data reveal that the risk of the innocent confessing in both situations is intolerable.
White would also address fact-finding problems concerning the voluntariness both of Miranda waivers and of the resulting confessions by again relying on the Due Process Clause. This time, White finds in that clause a constitutional mandate to record interrogations, preferably via video. White specifically roots his argument in an analogy to Jackson v. Denno. There, the Court invalidated the New York procedure allowing the same jury that determined a defendant’s guilt or innocence to determine whether his confession was involuntary. If so, the jury was supposed to ignore the defendant’s confession, even if truthful, as evidence of his guilt. The Court reasoned that it would be hard for a jury to understand the policy reasons for barring reliance on a coerced but otherwise truthful confession. Moreover, the jury’s belief in a suspect’s guilt or innocence would likely color its determination whether the confession was voluntary. Given that facts in suppression motions are often disputed, credibility critical, and the plausibility of inferences to be drawn from established facts key, the reliability of the judgment of the same jury’s deciding guilt or innocence also deciding a confession’s voluntariness was questionable. The voluntariness determination instead, explained the Court, "requires facing the issue squarely, in illuminating isolation and unclouded by other issues." Only the judge or a separate jury not deciding guilt or innocence could reliably perform that task. Furthermore, such alternative procedures would aid appellate review by offering a clear-cut determination on a central issue.
As well-known commentators later noted, Jackson did not portray the New York procedure as always or even more often than not resulting in the admission of involuntary confessions. Indeed, the Court relied on common sense assumptions rather than exploring empirical data. In White’s words, it was sufficient for the Court majority that the procedure "posed substantial threats to a defendant’s constitutional right to have a confession entirely disregarded and to have the coercion issue reliably determined." But, argues White, modern data show that a variety of forces make it hard for judges accurately to determine voluntariness themselves because of their undue willingness to believe the police. They are also keenly aware that a decision to suppress a confession might result in the acquittal of a perhaps guilty person. Neither judge nor jury is therefore likely reliably to determine the voluntariness of a confession or of a Miranda waiver. That problem could be substantially cured by recording, preferably videotaping, interrogations. Although there is no way to ensure that the police will tape all that happens, even what they choose to tape may aid the court’s credibility judgment. Furthermore, apart from credibility disputes, there will be a fuller record, revealing an officer’s loudness of voice and persistence and the suspect’s reactions (such as signs of fear, wariness, or resignation). Videotaping cannot replace the substantive protections (rights to silence and counsel) provided by Miranda but can create a procedural mechanism to give that substance life.
All of Welsh White’s suggestions are of immediate practical value to practicing lawyers. He argues for little change in the law, instead primarily insisting that current due process rules are weakly applied because they ignore the lessons of social science. Any criminal defense attorney can make ready use of the empirical data in White’s book to support a suppression motion. White’s strategy of focusing on the dangers of wrongful convictions, that is, of convicting the innocent, is also more likely to move policymakers to action in a law-and-order world than are pleas to respect the rights of the guilty. White’s book is, therefore, likely over time to have a significant practical impact (his arguments can also be raised under state constitutions—which are sometimes more protective of defendants’ rights than is the federal Constitution). Yet his book is concise, beautifully written, carefully argued, and well supported. His subtle prose will appeal to all educated readers, his creativity will excite academics, and his nuts-and-bolts practicality will have an impact on policymakers. It is no overstatement to say that this is one of the most accessible and yet important books on the law of confessions of the last 20 years. Failure to read and use it should be considered malpractice.
Andrew E. Taslitz is a law professor at Howard University School of Law in Washington, D.C. He is also chair of the Criminal Justice editorial board.
Federal Prison Guidebook
Federal Prison Guidebook by Alan Ellis, J. Michael Henderson & Samuel A. Shummon, published by the Law Offices of Alan Ellis (2002 edition); paperback; 400 pp.; $59.95 (bulk discount available), $29.95 for inmates only.
Reviewed by Carol Garfiel Freeman
Updated regularly, the Federal Prison Guidebook is an invaluable resource for attorneys who represent individuals at risk of entering federal prison. Prosecutors and judges should take time to browse the book, which provides details about the conditions experienced by defendants in each federal institution. Court personnel also will be able to use the book to identify the particular judicial district in which an institution lies by the distance from major cities.
The book provides information about the history, population, security level, and programs available at every federal institution. The book describes vocational programs, counseling and rehabilitation services, staffing and availability of health services, religious services, fitness programs, telephone policy, whether smoking is allowed, and visiting hours. Driving directions and telephone numbers of nearby accommodations for visitors add to the usefulness of the book. For inmates eligible for participation in UNICOR, the book includes wage levels for the six grade levels. For example, the reader learns that FCI Oxford is 60 miles north of Madison, Wisconsin, and served by a regional airport. Four motor inns are available in the area. Residents are medium security male offenders serving long-term sentences and are housed in one- or two-man cells that are wheelchair accessible. The institution offers GED, ESL, and other adult education courses. The University of Wisconsin offers a two-year AA degree and certificate courses in business and computer science. Apprenticeship programs are offered in several construction and industrial fields. UNICOR has an electronic cable factory that employs about 275 of the 586 inmates. The law library is open every day except Sunday. A 500-hour residential drug program is offered, and there are three full-time staff psychologists, two full-time physicians, five physicians’ assistants, two dentists, and a pharmacist. There is a well-equipped gym, aerobics classes, knitting and crocheting, and a stress reduction class. There are three full-time chaplains, and a commissary open three days a week. Visitors may visit four days a week and on holidays.
An introductory chapter describes Bureau of Prisons policies for the assignment of inmates to particular institutions and suggests ways in which an attorney may attempt to obtain a favorable placement. There is also a chapter with tips for the offender on "how to do time," a version of which appeared in the winter issue of Criminal Justice magazine (16 (no. 4) Crim. Just. 32 (Winter 2002). The book is available through Alan Ellis’s web-site at www.alanellis.com.
Carol Garfiel Freeman is a staff attorney with the United States District Court in Washington, D.C. She is also a former chair and current member of both the Criminal Justice editorial board and the Section’s Book Committee.
The Custom of the Sea
The Custom of the Sea by Neil Hanson, published by John Wiley & Sons, Inc.; 336 pp.; hardcover (1999) $24.95; paperback (2001) $19.95.
Reviewed by Carol Garfiel Freeman
Surely many lawyers will remember from law school the case of Regina v. Dudley and Stephens, L.R. 14 Q.B.D. 273 (1884), in which two sailors were indicted for murder of their shipmate, Richard Parker. In 1884, following a shipwreck, four men survived in a small boat for almost three weeks. After they had been without food for seven days and without water for five, they discussed what was to be done. The "custom of the sea" in such circumstances was to draw lots and to sacrifice the person who drew the short stick so that the remaining men could live. Parker, the ship’s boy, was in much worse physical condition than the three other seamen, Dudley (the captain), Stephens, and one Brooks. After another day had passed with no other ship in sight (the twentieth since their ship had gone down), Dudley killed the boy with Stephens’s assent; Brooks dissented. Lots were not drawn. The three surviving men "fed upon the body and blood of the boy for four days" after which another vessel appeared and rescued them. The evidence was that if they had not acted they would not have survived to be rescued, and that Parker was likely to have died first.
The case has been the subject of much discussion in first-year criminal law courses on the question whether it is murder to take an innocent person’s life to save one’s own. Neil Hanson has used Regina v. Dudley and Stephens to tell a thrilling story of a sea voyage, shipwreck, and the probably unfair use of this tragedy by the Home Office to overturn the "custom of the sea." Hanson describes life on board ship in the 1800s, cites other instances of shipwrecked sailors who had resorted to cannibalism to survive, and bases his book to a large extent on court transcripts and other documents related to the trial of Dudley and Stephens. Hanson’s description of the legal proceedings is interesting because they were both similar to and different from current American criminal trials. The case had been rigged so that it would be brought to a higher court for review. Before the evidence was concluded, the trial judge had already prepared the Special Verdict for the jury, which directed them to find certain facts. The case was then sent to the Queen’s Bench for decision on those facts, although the Queen’s Bench no longer existed as a separate court but had been merged into a single High Court of Justice. The procedure used was, according to Hanson, unorthodox and possibly unlawful, although defense counsel never raised the jurisdictional issue. The five senior judges who sat concluded that on the Special Verdict the defendants should be found guilty of willful murder, rejecting the defense of necessity. Hanson includes a brief description of nineteenth century correctional philosophy and conditions in English prisons. The death sentences imposed on Dudley and Stephens ultimately were commuted to six months’ imprisonment. Hanson brings the story to a conclusion by describing the lives of the three survivors—Dudley, Stephens, and Brooks—after their ordeal was over.