Two University of Utah researchers — law professor Paul Cassell and economics professor Richard Fowles — recently published a study arguing that Miranda Rights as they exist today “handcuff the cops” and prevent them from solving crimes in some cases. Their findings run counter to conventional academic findings on the topic.
Enshrined in the Fifth Amendment to the Constitution is a right commonly referred to as the right against self-incrimination — a protection against being forced to confess involvement in a crime. It gives those accused the right to refuse to give testimony against themselves or otherwise answer questions that might incriminate them. Black’s Law Dictionary, which is frequently cited by the Supreme Court, said the amendment, “requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself.”
The right was first used in Europe to protect individuals against forced confessions they made as a result of physical torture, but this rule changed in England when torture became illegal.
After torture became illegal, a new method of coercive questioning was developed called the ex-officio oath, which required suspects to swear on their soul’s salvation that they were answering all questions truthfully. In the 17th century, Puritans sought to cleanse the state religion of what they viewed as doctrinal corruption. Their religious activity was severely limited as a result and courts even sought to prosecute some Puritans. Puritans, labeled dissenters, were often asked to name fellow congregants while under the oath. If a defendant did not take the oath they were assumed guilty. If they agreed to take the oath they could either remain silent and risk contempt of court or answer questions that might incriminate themselves and others.
When the Puritans fled England they took with them the belief in the right against self-incrimination, which was eventually written into the U.S. Constitution. The right creates an inherent tension in the course of criminal investigations — balancing the rights of individuals with the pursuit of justice.
Nearly 200 years later, in 1966, the Supreme Court heard the case Miranda v. Arizona. In a 5-4 split opinion, they held that a confession made by a suspect while in police custody could only be used in court if the prosecution could prove that the defendant had been made aware of their rights to an attorney and against self-incrimination, and they understood those rights and formally waived them before making the confession. These became known as the Miranda Rights.
The ruling mandates that police give a formal statement to suspects before they are questioned, stating, “the person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.”
Implicitly, it required that police obtain permission from a suspect before questioning them, although this was altered in a 2010 Supreme Court ruling. In their study, Cassell and Fowles said most police agencies still abide by the rule as it previously stood.
The dissenting Supreme Court justices in Miranda vs. Arizona feared that the police would be less effective as a result of the ruling. One wrote that in “some unknown cases, the Court’s rule will return a killer, rapist or other criminal to the streets and to the environment which produced him, to repeat his crimes whenever it pleases him.”
Problems with Miranda Rights
Cassell and Fowles found after extensive research into confession and clearance rates that some of those concerns were warranted.
There is very little data on confession rates in the country, but the information that is available suggests a decrease in confessions to crimes immediately following the Supreme Court’s ruling. The two acknowledge concerns that false confessions are sometimes made as a result of police coercion, but said that this is very rare. They also said Miranda Rights don’t provide strong protections against coerced confessions in the first place. Since suspects with prior criminal records and those who are guilty may be more likely to exercise their Miranda Rights, they don’t protect those who need protection.
In order to reliably conclude that Miranda Rights impact police work negatively, the two looked at clearance rates. Data from the FBI shows a significant fall in the rates of cases which are “cleared,” or closed, by police in the wake of the ruling nearly 50 years ago.
Their results suggest that about 20 percent more violent crimes and 11.6 percent more property crimes would be solved each year without the Miranda requirements.
When looking at available data on the Miranda reading, the two researchers concluded it wasn’t the warning that reduced police effectiveness, but the procedures which require suspects to waive rights before questioning and also mandate questioning to stop once a suspect has requested a lawyer. They said, “while the Miranda rules seem to envision suspects consulting with counsel and then answering questions, as a practical matter that does not occur.” Further they assert that, “As a practical matter, police never provide suspects with an attorney if they ask for one,” meaning that questioning commonly never continues if an attorney is requested.
They suggest those two requirements be removed from the law, and the warning be altered to read —
1) You have the right to remain silent.
2) Anything you say may be used as evidence.
3) You have a right to an attorney when we bring you before a judge.
4) If you cannot afford an attorney, the judge will appoint one for you without charge.
5) We are required to bring you before a judge without unnecessary delay.
Under their suggestions, a suspect would be questioned without an attorney present and they would not have to waive their rights before the police could begin questioning them. “In our view, police officers should be free to give suspects their warnings and, after ascertaining that suspects understand those warnings, proceed to questioning them,” Cassell and Fowles said.
Cassell and Fowles believe that these changes would help police be more effective in solving crime. In order to protect individuals brought into police custody for questioning in place of the two existing procedural requirements, they suggest that all police interrogations be recorded by video. They believe this would protect suspects from inappropriate police pressure like illegal forms of coercion and help ensure false confessions aren’t forced.
The two researchers hope that awareness of the costs of Miranda Rights will prompt true cost-benefit analysis of the issue, and said that the Supreme Court ruling isn’t “the only way to regulate police questioning.”
They wrote, “It is time for Miranda’s defenders to acknowledge these facts and begin a frank discussion about how we can do better.”
@EliseAbril
