Miranda Morass.

The Supreme Court may repeal your right to remain silent. What should come next?

The "Miranda rule," which makes a confession inadmissible in a criminal trial if the accused was not properly advised of his rights, has been so thoroughly integrated into the justice system that any child who watches television can recite the words: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney..." Yet the 1966 Supreme Court ruling in Miranda v. Arizona remains the subject of often heated debate. To many conservatives, it embodies liberalism's worst sins, from unbridled judicial activism to an unholy sympathy for "criminals' rights." To most liberals, it represents not only respect for civil liberties but protection for the most socially vulnerable individuals against the coercive powers of law enforcement.

The reality is far more complicated and interesting. While law-and-order conservatives routinely underestimate or wave off the dangers of police coercion, civil libertarians similarly understate Miranda's negative effects on crime control. The irony, however, is that Miranda does relatively little to prevent some of the most insidious police abuses--or to protect the innocent.

The Miranda debate is newly relevant: Last December, the Supreme Court agreed to take a case--U.S. v. Dickerson--which could lead to a reversal of the landmark decision later this year. Dickerson stems from a relatively obscure footnote in U.S. legal history (see "Silent Right," June 1999). In 1968, Congress enacted a statute (Section 3501 of the U.S. criminal code) essentially nullifying Miranda in federal prosecutions and making all voluntary confessions admissible. The law was rarely used by federal prosecutors, and in 1997, the Justice Department formally stated that it would not be enforced. Two years later, the conservative U.S. Court of Appeals for the 4th Circuit in Virginia forced the issue when the government appealed a federal judge's decision to suppress the statements of an accused bank robber who had confessed before being read his rights. Section 3501 was not invoked in the appeal, but the appellate panel cited it in reinstating the confession and chided the Justice Department for refusing to apply the law. The court's action was prodded by a brief from the right-of-center Washington Legal Foundation, written by Utah College of Law professor Paul Cassell, a persistent and vocal critic of Miranda.

While the outcome of Dickerson will technically affect only cases tried in the federal courts and in the District of Columbia, it is likely have a major impact on the state level as well. The Supreme Court has repeatedly noted that Miranda warnings are not a constitutional right but a "prophylactic" safeguard of the Fifth Amendment privilege against forced self-incrimination. If the court finds that the congressional action overriding Miranda is constitutional, the states will be free to pass laws that similarly supplant Miranda. While at least two Supreme Court justices--Clarence Thomas and Antonin Scalia--are known to favor reversing Miranda, it is hard to predict which way the court will go. But some experts such as Tim Lynch, director of the Cato Institute Project on Criminal Justice in Washington, D.C., believe that U.S. 3501 is likely to be upheld as perfectly legal.

So what would law enforcement be like in a world without Miranda? Imagining that outcome underscores the deeper issues at play. Lynch thinks that the constitutional reasoning behind Miranda is shaky. "The Fifth Amendment says the state can't coerce a confession," he explains. "The flaw in Miranda is that it says that any un-warned statement by the suspect to the police is coerced." Lynch believes that the pre-Miranda standard on confessions--voluntary vs. involuntary--was correct, though often misapplied by pro-police judges. "Suppose an individual under arrest is sitting in a police station and two detectives come in and ask, 'Why did you kill your wife?' and he starts telling them," says Lynch. "Under Miranda, that would be inadmissible if the warnings have not been given. It's not persuasive to me that these are coerced statements."

Robert Bidinotto, editor and co-author of Criminal Justice? The Legal System versus Individual Responsibility (1995), argues that defenders of liberty should be concerned with violations of individual rights not only by the state but by criminals. Bidinotto argues that when "relevant and reliable" evidence is suppressed on procedural grounds, neither the lawbreaker nor the government agent who has acted improperly is held accountable for his misconduct; the legal process ceases to be a "search for truth," and "the only one who suffers is the crime victim."

Indeed, some applications of Miranda do seem to fly in the face of justice and common sense. Particularly infamous is the case of Robert Anthony Williams, who was arrested in Iowa in 1968 as a suspect in the disappearance of a young girl. On the drive to jail, after Williams had invoked his right to remain silent, a police captain mused that the girl's parents wanted to give her a "Christian burial"; an hour later, Williams volunteered to lead the police to the body. His murder conviction was reversed by the Supreme Court on the grounds that the captain's remark was "psychologically coercive." Williams was convicted again, with no mention of how the body was found. Then, an appellate court ruled that the body was inadmissible too, having been located through a tainted confession. This time, the Supreme Court disagreed--using the somewhat shaky argument that the discovery of the body was "inevitable" anyway--and the conviction was reinstated. Notably, in the end, Williams did not "walk" due to Miranda. In fact, hardly any defendants ever do, with fewer than 1 percent of arrests eventually resulting in suppressed confessions.

Even when they grant that virtually no confessed criminals go free because of Miranda, critics often claim that the rules have "handcuffed" law enforcement in less visible ways. That's the case made by Paul Cassell, the law professor who argued the anti-Miranda side in the Dickerson appeal before the 4th Circuit. In several law review articles, Cassell, a former federal prosecutor, marshals data which show that after the Miranda ruling, the confession rate fell by about six percentage points nationwide and as much as 20 points in some urban areas, while the rate at which violent crimes are solved dropped from 60 percent to around 45 percent (where it remains). Cassell and other Miranda opponents also contend that Miranda greatly strengthened the position of defendants in plea bargaining: In the wake of the ruling, a much higher proportion of guilty pleas were to reduced charges.

There may be other variables that partly explain these changes. (For instance, the lower rate of clearance for violent crimes may have had something to do with higher crime rates and overburdened police departments.) Nonetheless, Cassell seems to have made a pretty solid dent in the conventional wisdom that Miranda has not hampered law enforcement. Of course, even if his interpretation is absolutely correct, one could argue that this is a fair price to pay for protecting the rights of the accused. But how well does Miranda do that?

Randy Barnett, a Boston University law professor and author of The Structure of Liberty: Justice and the Rule of Law (1998), believes that Miranda was instrumental in changing police culture: "Perhaps even more important than the effect the warnings have on suspects, they have a profound effect on those who repeat them day in and day out. They remind [the police] that suspects have rights that need to be respected."

Other Miranda supporters, however, are far less sanguine. Protections for suspects' rights, they argue, are commonly seen as hurdles to get around. While Miranda rules ban any questioning after the suspect has invoked his rights, the courts give police great leeway in the tactics that can be used once the suspect waives them. Indeed, the police are even free to lie about evidence to facilitate confessions. For example, in 1994, New York's highest court upheld the conviction of Martin Tankleff, who, at the age of 17, confessed to murdering his adoptive parents after being interrogated for hours and being told that his dying father (who, in fact, was found dead) had named him as the killer.

Tankleff now maintains that his confession was a lie caused by psychological manipulation at a time of extreme stress. His case is one of 29 in which, according to a 1998 article in the Journal of Criminal Law and Criminology by University of California at Irvine criminologist Richard A. Leo and UC-Berkeley sociologist Richard J. Ofshe, innocent people have been convicted of serious crimes because of false confessions. While Leo and Ofshe's claims about the innocence of some of these defendants have been challenged, at least nine indisputably confessed to crimes they hadn't committed. In addition, there are dozens of known cases in which people were browbeaten into confessions and eventually exonerated before going to trial--but not before spending months in jail.

Consider, for instance, the 1991 case in which Arizona factory worker Leo Bruce confessed to killing nine people at a Buddhist temple near Phoenix. After 13 hours of questioning, Bruce confessed and implicated two friends, who in turn confessed. A few weeks later, however, the three were released after the real killers were caught with the murder weapon. (It also turned out that Bruce's "accomplices" had been in jail during the massacre.)

How can someone confess to a crime he didn't commit? The people caught up in these situations tend to be socially marginal, uneducated, and not very smart. They may feel that they won't be able to clear themselves regardless of their innocence and might as well get it over with. Ironically, the innocent may be the least likely to avail themselves of the right to remain silent and the most likely to let their guard down. The Miranda warning may even help lull them into a false sense of security by reassuring them that the police will treat them fairly.

Is there, then, too much concern for procedural correctness when it comes to confessions, or too little protection from coercion? In fact, both criticisms are valid. A cynic might even suggest that the real reason some people in law enforcement profess devotion to Miranda is that as long as the formalities are observed, the circumstances of confessions aren't examined too closely.

If Miranda is reversed, some observers fear a return to once-common police abuses (such as questioning suspects for hours on end without food, water, or bathroom breaks). Others say that not only will such outright coercion still be outlawed, but the practice of advising suspects of their right to remain silent and to have an attorney will survive. Even a Miranda foe like Cassell favors preserving these warnings--though he would do away with the requirements that the suspect must explicitly waive his rights before he can be questioned and that all questioning must stop if he utters the word "lawyer." Any law that supplants Miranda will have to offer some safeguards against forced confessions; in fact, whether the defendant was read his rights is one of the criteria set down in U.S. Section 3501 for determining if a confession was voluntary, though failure to give such warnings would not automatically invalidate a confession.

Beyond whatever procedural protections are at play, however, there are other effective ways to prevent police coercion. The justices who issued the Miranda ruling were troubled by the fact that "interrogation still takes place in privacy," resulting in "a gap in our knowledge" as to what happens. Thirty-four years later, this gap can be easily filled with a camcorder, allowing judges or even juries to decide if a confession was tainted by coercion or deceit. Already, at least 2,400 police and sheriffs' departments nationwide (about 15 percent of the total) audiotape or videotape not only confessions but interrogations; videotaping is required by law in Alaska and Minnesota. In 1997 in Alaska, Richard Bingham was acquitted despite confessing to a rape and murder: On tape, jurors saw that Bingham, who suffered from alcoholic blackouts, confessed to the crime but kept missing all the cues the interrogators fed him as they steered him to the correct details.

The value of recording interrogations is one point on which the Washington Legal Foundation's Cassell and UC-Irvine's Leo agree, despite holding radically different views on issues from the Miranda rule to the frequency of wrongful convictions. Cassell hopes that repealing Miranda--which, he says, has "petrified the law of pre-trial interrogation"--will give states an incentive to mandate videotaping.

With a Supreme Court decision likely by June, we may find ourselves living in that post-Miranda world in short order. But whether the high court upholds or strikes down those rules, the videotaping of confessions and interrogations--and arrests for that matter--would inject some much-needed common sense into the system. It might even bring closer the elusive ideal of the legal process as a search for truth.

Contributing Editor Cathy Young ([e-mail]) is the author of Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality (The Free Press).