Friday, February 17, 2017
Christopher Slobogin (Vanderbilt University - Law School) has posted Manipulation of Suspects and Unrecorded Questioning: After 50 Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues (Boston University Law Review, 2017) on SSRN. Here is the abstract:
Fifty years after Miranda, courts still do not have clear guidance on the types of techniques police may use during interrogation. While first generation tactics (a.k.a. the third degree) are banned, second generation tactics such as those found in the famous Reid manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second generation techniques, if any, are impermissible, and has made no mention of newly developed third generation tactics that are much less reliant on manipulation. This article divides second generation techniques into four categories: impersonation, rationalization, fabrication and negotiation. After concluding, based on a review of field and laboratory research, that these techniques might well have superior “diagnosticity” to third generation techniques — and thus that police might rationally want to continue using them — it argues that the Court’s Fifth Amendment and due process jurisprudence prohibits negotiation but permits impersonation, rationalization and fabrication. At the same time, the article recognizes that these techniques can produce false confessions; accordingly, it develops evidentiary principles for determining how courts might make use of expert testimony about factors that reduce the probative value of statements obtained during interrogation (although it also questions the methodology of much of the research that might form the basis for such testimony).
To ensure the evidence necessary for this constitutional and evidentiary analysis, interrogations must be recorded. While a recording requirement has been endorsed by commentators from all points of the political spectrum, here too the Court has been silent. This article summarizes why recording is required under the Due Process Clause, the Fifth Amendment and the Sixth Amendment, not just in the stationhouse but any time after custody. The article ends with comments on how all of this should apply to interrogations of suspected terrorists. Together, these prescriptions give courts the concrete guidance the Supreme Court has failed to provide despite 50 years of caselaw.