By Dave Kopel
This is a longer version of an article that appeared in National Review Online, June 28, 2000. More articles by Kopel on the Fifth Amendment and the Sixth Amendment.
In the last half-century, no Supreme Court Justice has been more concerned about Supreme Court decisions which “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 re-affirmed 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 detailed by Sociologist Richard Leo (University of California-Irvine), police today use a variety of deceptive techniques to extract confessions these days. Because the deceptions are not “coercive” (according to judicial interpretation), the resulting confessions are almost always admitted into evidence.
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 arrest gets the Miranda warnings—why do so many people confess anyway?
Professor Leo explains that suspects are often put into a physical environment—such as a small, isolated, soundproof room—which is designed to make them want to talk. After the isolation, the appearance of a police officer may seem like a welcome form of human contact. Then, the "police routinely deliver the Miranda warnings in a perfunctory tone of voice and ritualistic behavioral manner, effectively conveying that these warnings are little more than a bureaucratic triviality."
Of course the Miranda warnings are not trivial. No matter how strong the other evidence, a confession will make things much worse for a suspect. A confession often makes a major difference in the district attorney's willingness to prosecute the case, and his willingness to accept a plea bargain. If the confession gets before a jury, the defendant’s prospects of acquittal are virtually nil.
After hearing the Miranda warning delivered in a perfunctory voice, many suspects opt to talk to the police, in the foolish believe 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.)
Use of brute physical force ("the third degree") has become much rarer as a result of increased judicial supervision of the police in the last several decades. Deception, rather than physical force, has become the norm for interrogation.
During an interrogation, every physical feature of the room reinforces that the interrogator is in control, and that the prisoner is dependent. For example, the light switch may be on a far away 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.
Seating is strategically arranged to promote cooperation. The interrogator will probably sit next to the prisoner, or diagonal to him, rather than across the table. To heighten anxiety, the interrogator may move into the prisoner’s personal space, then begin backing off when he begins to confess.
If the interrogator leaves the room to get a sandwich or something else for the prisoner, he will be watched through a peephole or a one-way mirror, so the interrogators can better understand his state of mind.
By isolating the prisoner, the interrogator attempts to instill feelings of anxiety, restlessness, and self-doubt. Left alone for long periods, the prisoner may think he is being ignored, and will therefore be happy to see the interrogator return.
Ideally, from the interrogator's viewpoint, the prisoner begins to develop "Stockholm syndrome," in which persons held under total control begin to identify with and empathize with their captors. Stockholm syndrome can occur after as few as ten minutes of isolation in captivity.
While increasing the prisoner’s dependence, the interrogator works, as an actor, 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.
There is no law against outright lies or other deceptions on the part of the police during an interrogation. Thus, an interrogator may take a large file about an unrelated topic, write the prisoner’s name on top of the file, and leave the file where the prisoner may "surreptitiously" glance at it--and thus believe that the police have a huge file of evidence on him, when in fact they may have no file at all.
Likewise, the prisoner may be told that a witness has identified him, or that one of his friends has confessed and implicated him, or that certain physical evidence proves his guilt. Any of these statements may be complete fabrications. He may be given a lie detector test, and then told that he failed it, regardless of the actual result. (Polygraph tests are virtually worthless as forensic tools; nervous innocent people are more likely to fail the test than are self-assured, guilty psychopaths.)
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, he wouldn't be spending so much time trying to get a confession.)
If the prisoner has a religious background, it will be exploited by the interrogator, regardless of the interrogator's own religion. The prisoner may be told that confession is "the Christian thing to do" (which it is, if the prisoner committed an actual crime that harmed an innocent person, but not if he only committed a victimless crime).
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.
Almost certainly, the prisoner will be told that the prosecutor and the judge will be more lenient if he confesses. This is a complete lie. The district attorney will be more lenient if there is no confession, and he can't make a strong case, and therefore has to settle for a plea bargain. Nothing the police promise in the interrogation room is binding on the police, much less on the district attorney.
There are five "techniques of neutralization" which the interrogator may use in order to make the prisoner feel that the crime really wasn't so bad, and that it is therefore alright to confess. Of course the interrogators' pretense that he doesn't think the crime was serious will last only as long as necessary to obtain the confession.
Let’s imagine that the police want to bring an attempted homicide case against a homeowner who shot a burglar. The first technique is called "denial of responsibility," allowing the subject to blame someone else for the offense. For example, "it was really the burglar's fault for breaking in; he's the one to blame for getting shot." (This is true, but it's the homeowner, after all, the police are interrogating after arrest.)
Another technique is the "denial of injury." For example, "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.
In the "denial of the victim," the interrogator will suggest that the victim deserved what he got.
"Condemnation of the condemners" is always popular. For instance, "the real problem is all those anti-gun nuts who let the criminals go loose, but don't want guys like you to defend themselves." True enough, but when the policeman saying this is holding the homeowner prisoner, the policeman’s expressions ought to be taken with a very large grain of salt.
Finally, there's the "appeal to higher loyalties." Such as, "What you did is really just a very common sense thing. You said that regardless of some legal technicality, the most important thing is for you to protect your family. For you, your family comes first." True again, but the man saying this wants the prisoner to confess to the legal technicality, so he can be prosecuted for it. If the policeman really cared about the right to self-defense, he wouldn't be interrogating the homeowner in the first place.
A close cousin to the denial strategies are "normalizing" techniques, in which the interrogator claims to understand that the crime was not typical behavior for the subject: "Frank, I can see that you are not a criminal. You 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?"
A suspect, whether innocent or guilty, has nothing to gain by talking. He is not going to outsmart the police interrogator, who has a wealth of experience. Even if the suspect does not end up producing a full confession, he may reveal details which will help the government build a case against him.
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.
Moreover, there are about six thousand false convictions for felonies every year in the United States. (Huff et al, "Guilty Until Proven Innocent," Crime & Delinquency, vol. 32, pages 518-44, 1986). False confessions are one of the major reasons for the conviction of innocent persons.
But as Chief Justice Rehnquist pointed about, mere delivery of the Miranda warnings serves to insulate almost every confession from a claim that it was “involuntary” or “coerced.” So ironically, Miranda keeps judges and juries from giving any serious consideration to not relying on confessions that are the products of sophisticated deception and psychological coercion. No wonder that so many police departments—and Chief Justice Rehnquist—have decided that living with Miranda isn't so bad after all.
Sources: Richard Leo, "Police Interrogation and Social Control," Social and Legal Studies, vol. 3, pages 93-120 (1994); "From Coercion to Deception: The Changing Nature of Police Interrogation in America," Crime, Law and Social Change, vol. 18, pages 35-39 (1992); Jerome Skolnick and Richard Leo, "The Ethics of Deceptive Interrogation," Criminal Justice Ethics, vol. 11, pages 3-12 (1992).