Sundby on Interrogation Law

Scott E. Sundby (University of Miami School of Law) has posted The Court and the Suspect: Human Frailty, the Calculating Criminal, and the Penitent in the Interrogation Room (Washington University Law Review, Vol. 98, No. 1, 2020) on SSRN. Here is the abstract:

 

For the past century, the Supreme Court has swung back-and-forth between a laissez faire approach to police interrogation and the far more regulatory approach exemplified by Miranda v. Arizona. Indeed, it would be quite understandable if someone were to develop constitutional vertigo in tracing the Court’s meanderings through the various constitutional byways of the Due Process clause, the Sixth Amendment right to counsel, and the Fifth Amendment privilege against self-incrimination. The Court’s failure to bring coherence to its case law has offered up a legal piñata for scholars and judges to take a swing at as the search continues to figure out the proper role for the Bill of Rights in regulating police interrogation.

This Article brings a new perspective to that quest by arguing that much of the Court’s muddled jurisprudence regarding police interrogation is a result of the Justices’ differing views of why individuals confess.

The linchpin to all of the Court’s various approaches to police interrogation is the deceptively simple question of whether the suspect “voluntarily” decided to confess and waive his rights. As it turns out, answering the voluntariness question requires making assumptions about human behavior that transform the decision maker into as much psychotherapist as fact finder. By focusing intently on who the Justices envision as the suspect being questioned and the reasons why they confess, we discover that the Justices over time have espoused two fundamentally different characterizations of who is in the interrogation room: that of the “rugged individual” and that of the “susceptible individual.” Given that these two distinct views of the human psyche reside side-by-side within the Court’s jurisprudence, it becomes understandable that the Court’s confession law has a distinctly schizophrenic cast.

This framework, however, does more than to help explain the confusion surrounding the case law. By bringing these two competing visions out into the open, a direct examination from both an empirical and doctrinal viewpoint can be made of their underlying assumptions about human behavior. This examination shows that much of the Court’s current reliance on the rugged individual view is premised on assumptions that are belied by science. And, as the Article explains, the choice of characterization not only has a profound impact on how the constitutional rule is shaped, but has critical ramifications for matters such as lost convictions, false confessions, and the balance of power between the government and citizen.