Friday, July 31, 2015
Tracey Maclin (Boston University - School of Law) has posted A Comprehensive Analysis of the History of Interrogation Law, with Some Shots Directed at Miranda v. Arizona (Boston University Law Review, Vol. 95, 2015) on SSRN. Here is the abstract:
Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been said that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment, and that the Miranda warnings “have become part of our national culture,” persons steadfastly against police interrogation are difficult to identify. Surely many Americans agree with Professor George Thomas when he asks: “Who claims [a right to silence] unless he has something to hide?” Moreover, Justices and legal scholars often argue that interrogation is indispensable to solving crimes. Even scholars who have provided the most compelling critiques of police interrogation would not abolish the practice.
The various facets of police interrogation and its legal history are comprehensively and skillfully studied in George C. Thomas III and Richard A. Leo’s book, Confessions of Guilt: From Torture to Miranda and Beyond. The authors explain that their book “will explore a realist explanation of the evolution of the law of interrogation and will not involve itself with high constitutional theory or international law.” The book highlights “the link between the fear of threats and the law of interrogation” and has a straightforward thesis: “A culture’s perception of threats to its existence is an important determinant of the level of interrogation pressure that its legal system will tolerate.” Implicit in this theory “is that law is, at least in part, a captive of cultural forces.” According to the authors, “the law of confessions reflects the institutions that identify, or create, deviance.”
Part I of this essay identifies a few of the many historical aspects of the law of interrogation discussed by Thomas and Leo. Part II summarizes what I find to be the most thought-provoking part of Confessions of Guilt: its discussion and critique of Miranda and its progeny. Briefly put, Thomas and Leo are not admirers of Miranda and believe that suspects might be better off without Miranda governing the law of interrogation. Finally, Part III offers two rebuttals to positions taken by the authors. Unlike Thomas and Leo, I fully support Miranda’s reliance on the Fifth Amendment’s bar against compelled self-incrimination as a constitutional basis for regulating police interrogation. Also, I have a different response to the Court’s pre-Miranda Due Process Clause cases, which provided the legal principles for regulating police interrogation by state and local police officers prior to Miranda. More specifically, I find that the pre-Miranda Court committed serious constitutional error in 1958 when it ruled that suspects did not have a “right to counsel” while undergoing police interrogation.