True confessions: the long road back from Miranda.

When, during an appearance on This Week with David Brinkley about two months ago, Attorney General Edwin Meese used the word "infamous" to describe the Miranda decision--the Warren Court's ruling requiring the police to "read defendants their rights" before questioning--he generated a predictable flurry of protest. Few voices were raised in his defense, even from conservative quarters. For the principles of Miranda, although revolutionary, have been thoroughly, if grudgingly, incorporated into American life, accepted not only by the criminal-justice system but by most Americans.

The reason is relatively simple--the myth of the Miranda case is far more compelling than the reality. In the common view, Miranda was necessary to protect accused criminals from being forced toconfess through coercion or torture. Everyone is justifiably horrified at the possibly of punishing an innocent man. In order to avoid this extreme injustice, it was argued, it might be necessary at first tolet a few obviously guilty murderers, rapists, and robbers go free on "technicalities," while the police "learned the ropes." A painful price, but one most Americans eventually accepted as inevitable.

Yet twenty years later, the police still seem to "make mistakes" all the time. Confessions are continually ruled inadmissible because they have been "coerced." Despite high-quality legal counseling--New York City has a 24-hour hotline to advise officers on constitutional issues--confessions are constantly challenged successfully in the courts. Even district attorneys are not immune toblunders. Investigations carried out under highly trained prosecutors often fail to issue in a conviction because the investigators did not "observe the defendant's constitutional rights."

Why do the police and prosecutors apparently have such trouble understanding the subtleties of Miranda?

The core of the problem is that the popularly accepted justification for Miranda--avoiding forced confessions from innocent people--had almost nothing to do with the Court's reasoning on the case. Actually, the Court was dissatisfied with the whole phenomenon of confession itself. As Chief Justice Warren wrote for the majority, the police ought to be able to solve crimes without resorting to the "cruel expedient" of forcing incriminating information out of the defendants' own mouths.

In order to give the defendant every safeguard, the Miranda decision gave police and prosecutors cookbook instructions on how police interrogations were to take place. The inherent difficulty with such precise legal prescriptions, however, is that they have to represent a reasonable reflection of reality. If ordinary events do not fit the framework, future participants will face the ongoing frustration of trying to fit square pegs into round holes.

That is exactly what has happened. Both liberals and conservatives have found the results of Miranda dissatisfying. The police and public are repeatedly angered when seemingly genuine and honest--and easily verifiable--confessions continue to be discarded because the police have not "followed the rules." On the other hand, liberals are frustrated because--despite the seemingly impregnable safeguards put in place by Miranda--criminals continue to confess to horrible crimes, apparently without concern for the punishment they may be bringing down on themselves. The suspicion remains that the police are still beating people in the back of the station house.

When such frustrations plague our system, perhaps it is best to go back and re-examine the logic that created the situation in the first place. The problem with Miranda may be that the Warren majority never really understood the nature of criminal confessions.

Miranda v. Arizona, decided on June 13, 1966, served as the high-water mark of the Warren era. Only two years later, Senator Sam Ervin, soon to be called one of the nation's greatest constitutional scholars, was leading the fight against the confirmation of Justice Abe Fortas on the basis of broad-scale opposition to the Court's decisions on "the rights of defendants." Although the Warren majority never assembled itself for another major decision, Miranda was the capstone of its efforts.

More than anything, though, the Miranda decision was high drama. It pitted the well-meaning and vaguely plausible liberalism of the Warren majority against two opposing viewpoints--the logically impeccable constitutional scholarship of Justice John Harlan and the devastatingly hardnosed realism of Justice Byron White.

Justice White's dissent, in particular, is a monumentally prophetic document. The whole flavor of his criticism is captured by one bitterly reproachful passage:

I have no desire whatsoever to share the responsiblity for any such impact [this decision will have] on the present criminal process.

In some unknown number of cases the Court's rule will return a killer, a rapist, or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss of human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives, and the help of their neighbors similarly inclined. There is, of course, a saving factor. The next victims are uncertain, unnamed, and unrepresented in this case.

In March 1963, a mildly retarded 18-year-old girl in Phoenix, Arizona, reported that she had been raped by a small, light-skinned Mexican man. Several days later, after an investigation, police went to the home of Ernesto Miranda, who had a history of similar offenses. Police took him to the station house, where the young woman observed him in a lineup. She identified him as the offender.

Police then took Miranda into an adjoining interrogation room and confronted him with the victim's testimony. At first he denied any involvement in the case, but after two hours of questioning he signed a written confession. He was tried, convicted, and sentenced to twenty years in jail.

Civil-liberties attorneys seized on the case as an example of a "forced confession" and appealed the conviction all the way to the Supreme Court. On June 13, 1966, the Court overtuned it, along with three other convictions based on confessions, and announced its new "Miranda rule" for informing suspects of their rights prior to police interrogations.

In the most specific terms, the Court stated:

In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; with a lawyer, and to have a lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

The key to the presumption of innocence in our system lies in several provisions outlined in the Bill of Rights. Among them is the Fifth Amendment's guarantee that "no person ... shall be compelled in any criminal case to be a witness against himself." Traditionally, in both England and the United States, this phrase had meant that no accused person could be compelled to take the witness stand at his own trial. The question that has always nagged the system, however, is this. If a person can't be forced to testify against himself at trial, why should he be forced to cooperate with the police at any point? Answering questions at the station house is, after all, just as potentially self-incriminating as answering them in court, especially when "anything you say may be held against you."

Balanced against this are the compelling realities of police work. Like it or not, there is little the police can do, in many cases, without interrogating the suspects. With many murders, rapes, and robberies, there is little physical evidence. Eyewitness identifications, although they usually impress juries, are actually regarded as the most unreliable form of evidence by police and prosecutors. There are very few instances where an airtight case can be made from circumstantial evidence.

This does not mean that the only recourse the police have is to beat confessions out of people. Usually it is just the opposite. Guilty people often confess readily. In other caes, they offer alibis and excuses that turn out to be demonstrably false; it is only when faced with these inconsitencies and obvious falsehoods that they feel compelled to confess.

The importance of interrogation can be seen from the work of one of America's most famous detectives, Ellis H. Parker, often called the "American Sherlock Holmes." Parker, who served as chief of detective in Burlington County, New Jersey, during the early 1900s, personally solved 226 of the 236 murders he investigaged.

Parker had an unusualk theory of investigation. He believed that the person who had the best alibi was usually the guilty party. "The average person doesn't know precisely where he was every minute of the day," he often said. "he has no reason to. It is only someone who has carefully rehearsed his whereabouts who is likely to have a good story." Once Parker was able to punch holes in that "good story," his suspect usually confessed.

While popular interpretations of Miranda concentrated on the image of innocent men being beaten into confessing, even the five Supreme Court Justices who made up the Warren majority on those cases were willing to admit that beatings and police brutality were not their major concern. Rather it was confessions themselves and the whole "coercive" atmosphere of police interrogation. Wrote Chief Justice Warren for the majority:

To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," to respect the inviolability of the human personalilty, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.

Thus, it was not simple admissions like "I did it" that the Warren majority wanted to head off. It also wanted to guard defendants against self-justifying statements and alibis that later proved to be false. The Warren majoority was striking at what had long been regarded as the heart of the "detective" process.

Perhaps the easiest way to summarize the Warren majority's decision is that the Justices decided to look at things from the criminal's point of view. Would a rational person ever confess to a crime? Would an individual ever open himself to certain punishment if he were surrounded by "the proper influences," as the majority wrote?

The entire thrust of police interrogation . . . in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment . . . The compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak.

As Justice White replied in his dissent,

The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions . . . The esult adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not [and] that it is inherently wrong for the police to gather evidence from the accused himself.

The Miranda ruling addressed four cases. In none of the cases was there the slightest doubt about the individual's guilt or any reason to believe the confession had been coerced. Rather, the Court seemed to suggest the police erred by not protecting the accused sufficiently from his own poor judgment or desire to talk.

Carl Calvin Westover, one of the Miranda defendants, was a career criminal with a warrant outstanding against him in California. On March 20, 1963, he was picked up in Kansas City as a suspect in two robberies. He was booked and held overnight. The next morning he was questgioned for a few hours by local police, but he denied any involvement in the crimese.

Around noon, the FBI entered the case and began questioning him on the California charges. Ironically, the FBI already had a system for warning suspects of their rights. In fact, one of the keystones of the Warren majority's opinion was a long letter from the U.S. solicitor general testifying that the FBI had long told suspects of their "right to remain silent," and that this had not disrupted law enforcement. The Warren majority offered this as proof that such an elaborate set of rules could work.

In this instance, though, the majority said the FBI had not shown enough consideration for the rights of the accused:

Although the two law-enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. . . . Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed. [My emphasis.]

In another of the Miranda cases, Roy Allen Stewart, "an indigent Los Angeles Negor who had dropped out of school in sixth grade," came under suspicion for a series of purse-snatchings in which one victim had resisted and was beaten to death. Stewart, who was hled in jail for five days, was identified by several of the robbery victims. He was interrogated nine times before he eventually confessed, saying he "hadn't meant to hurt the woman." He was convicted and sentenced to death. The conviction was overturned by the California Supreme Court on the basis of a coerced confession, and the Warren majority upheld this decision.

As Chief Justice Warren wrote:

Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, . . . "coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition." (Blackburn v. Alabama, 1960.)

One of the chief concerns of the Warren majority was that police questioning went on out of the hearing of the Court:

Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.

As Justice White pointed out, this was demonstrably false. Most interrogation sessions were recorded, sometimes by the detective's notes, often by a profesional court stenographer. "Insofar as appears from the Court's opinion," he wrote, "it has not examined a single trancript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today."

Instead of trying to investigate real interrogations, however, the Warren majority undertook its most controversial tactic. It looked at several police manuals and commercial textbooks on polilce interrogation that were in wide circulation at the time.

The setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained."

Even without employing brutality, the "third degree" or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals . . . [My emphasis.]

Some of the tactics described in the interrogation manuals were admittedly manipulative and would easily be acknowledged as illegal today. But for the most part, the manuals recommend only what the Warren majority referred to--critically--as "patience and persistence." The books outline the "good cop, bad cop" routine, where one officer tries to win the defendant's confidence, while the other questions him harshly. One manual even recommends that, if the suspect exercises his right to remain silent, the request should be readily granted. "This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses the subject with the apparent fairness of the interrogator." For the most part, the investigative techniques to which the Warren Court objected do no more than take advantage of a common-sense grasp of human psychology.

In dealing with the defendant's right to request counsel while being questioned, the Warren majority tried to paint a picture where the attorney would somehow assist the police by "guarantee[ing] that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial." Justice Harlan quickly ravaged this hypocrisy:

The Court's vision of a lawyer "mitigat[ing] the dangers of untrustworthiness" by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arriv es there is rarely going to be a police-station confession. [Quoting Justice Jackson:] "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances."

Indeed, many defendants since Miranda have been able to have their confessions thrown out of court on the grounds that their lawyers were "incompetent" for allowing them to make statements to the police.

NOW, TWENTY YEARS after Miranda, it is almost incontestable that the decision weakened law enforcement, especially during the late 1960s and early 1970s. It is also very likely that it contributed to the surge in crime rates during that period.

In the years following Miranda, convictions won through trials stayed at a remarkably stable 10 to 12 per cent. That might lead to the belief that Miranda had changed nothing. The real action, however, was among the 90 per cent of cases that are settled by plea-bargaining. There Miranda changed everything.

Before Miranda, when police had reached a stage where they were fairly certain had solved a crime, they sought a confession to make the case airtight. Now it was not so easy, and even if the confession was obtained, it might be thrown out of court as "coerced." Somewhat less sure that they could make their cases invincible, prosecutors were more willing to bargain and regularly gave ground. And then, because motions and appeals to Miranda and other Warren decisions were clogging the courts, prosecutors became even more willing to deal.

This was anticipated by Justice White:

The rule announced today will measurably weaken the ability of the criminal law to [protect the public]. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty, and to increase the number of trials.

Justice White's prediction was right on target. An extensive study of the California superior courts over the 1960s and '70s shows a remarkabel change in the way criminal charges were resolved after Miranda.

In 1966, more than 60 per cent of accused persons pleaded guilty to the original charges, while 27 per cent of the cases were resolved by guilty pleas to reduced charges. One year later the entire pattern had changed remarkably. In 1967 alone, pleas on the original charges dropped to 42 per cent, while reduced pleas rose to 39 per cent. The change was never as dramatic after 1967, but the drift was inexorable. By 1973, 47 per cent of all cases were settled on reduced charges (up from 29 per cent) while only 39 per cent were pleaded at the original top charge (down from 60 per cent). In the same year, out of 31,000 felony arrests made in Manhattan, only 4,100 resulted in felony convictions. The vast majority were plea-bargained down to misdemeanors.

Nearly as important as Miranda's effects on police and prosecutors were its effects on the public, which was severely demoralized by seeing confessed criminals go free on "improper warnings" in a number of highly visible cases. In Philadelphia one murderer was let off because the "Miranda card" used in that city read, "anything you say may be held for or against you," thus, according to the courts, "creating a false sense of security." In another case a murderer confessed to a friend, an ex-con turned police informer, and the confession was excluded on the grounds that the informer, as a police agent, should have read the murderer his rights. The courts have allowed utterly voluntary confessions, offered by criminals with tormented consciences, to be withdrawn later on the grounds that what was voluntarily given could be voluntarily withdrawn. Not infrequently, criminals who, after consultation with counsel, nevertheless decided to confess have had their confessions thrown out subsequently on the grounds that their lawyers must have been incompetent to have allowed them to confess in the first place. In some states it almost seems as if it is illegal to confess.

There can be no doubt as to the effect of all this. There is nothing more horrifying to the average person than the sense that the state cannot even deal with confessed criminals. It is hugely demoralizing. People become afraid to stand up to crime because they fear the government is weak or not on their side. This paralyzing fear that "the criminals are winning" then becomes itself a major impediment to alw enforcement.

In 1968, Pamela Powers, a nine-year-old girl, went to the YMCA in Des Moines, Iowa, to watch her brother participate in a wrestling match. While going for candy, she was abducted by 23-year-old Robert Anthony Williams, a convicted chile molestor and escapee from a Missouri mental institution, who was staying in a hotel room on the eight floor. Williams took Pamela to his room and raped her. She died, apparently from choking on his semen.

Williams attempted to dispose of her body by carrying it through the lobby, wrapped in a blanket. A 12-year-old boy saw him and reported it to the police. Two days later, with warrants out for his arrest, Williams surrendered in Davenport, Iowa. He was advised of his rights and spoke to a lawyer in Davenport over the phone. The police captain who was scheduled to pick up Williams heard the lawyer tell Williams over the phone, "You're going to have to lead theom to the body."

The murderer had occurred on Christmas Eve, and on the ride back from Davenport the captain casually remarked, "The Powerses want to give their daughter a good Christian burial." Over an hour later, without any prompting, Williams suddenly told the police that he would take them to the body.

Williams was tried and convicted, but, in 1977, the Supreme Court ruled 5 to 4 that the police captain's statement about the "Christian burial" had been "psychologically coercive." The Court ordered a retrial. The body was admitted as evidence, since its discovery was ruled as "inevitable" (search parties were within an eight of a mile of it), but the method of its discovery was inadmissible.

Williams was convicted a second time, and appealed again. In 1983--15 years after the murder--the Eighth Circuit Court of Appeals once again overturned the conviction and ordered Iowa to either retry Williams in thirty days without the body, or let him go free. Only a rushed ruling from the Supreme Court reversed this decision and finally settled the case--for now.

It could be argued, I suppose, that these cases are simply important legal exercises carried on by judges and attorneys for the purpose of defining a redefining the law for future reference. But before I ever heard of the case, I met a 26-year-old Pamela Powers story in Des Moines. She said the Williams case had cast a pall over her entire childhood. For years she was unable to overcome the quiet terror that a man who killed a little girl was going to be allowed to go free and no one could do anything about it.

THE WARREN COURT'S efforts to "look at things from the criminal's point of view" (as the majority specifically stated in one of the Miranda cases) has had a profound impact on American life. Perhaps the strangest outcome of all, however, is that, despite all the procedural safeguards that the Warren Court put in place, criminals still regularly confess to crimes.

The Warren majority recognized this possibility from the beginning. Several parties who argued the case charged that what the Court really wanted was a "station-house attorney" permanently on hand to represent all accused criminals. The majority specifically rejected this possibility. But it did perceive the dilemma that--short of a constitutional "interpretation" that all suspects must have the aid of an attorney while being questioned by police--there was no guarantee that accused criminals weren't going to go ahead and talk to the police anyway.

Chief Justice Warren, agonizing over this dilemma in his majority opinion, wrote, "The Defendant who does not ask for counsel is the very defendant who most needs counsel." Still, the Warren majority had to admit that if the defendant waived his rights, "voluntarily, knowingly, and intelligently," there was nothing the Court could do about it.

Confoundedly, accused criminals continue to do just that. In Washington, D.C., in the late 1960s, a team of legal activists set up a 24-hour hotline offering free legal counsel to anyone brought in for questioning throughout the district. A year later, the project quietly closed down. Less than 15 per cent of all arrestees were using it.

to be sure, many confessed criminals decide afterward that maybe they would have been smarter to keep their mouths shut. But that is a different story altogether.

Every police detective I have interviewed has made the same observation. Quite contrary to the Warren Court's implicit assumption that confession is so irrational that it can only be explained by some sort of coercion, police experts say that, in one way or another, most criminals want to confess.

"They want to get if off their chests," said Mike Sheehan, a New York City police detective who has heard hundreds of confessions. "Or they may want to rationalize it. Very often they don't think they've done anything wrong. They often have kind of strange value systems. Or else they have their own interpretation of events that they want you to know. But the idea of police giving suspects the third degree in order to force confessions out of them is silly. All you hve to do is find the right framework to make them feel comfortable, and they'll usually tell you the whole story."

And so, all over the country, accused criminals continue to sign the police forms and waive their rights to silence and counsel with remarkable regularity. As one assistant district attorney told me, "God bless these people who still make statements to the police. Without them we probably couldn't prosecute 85 per cent of our cases."

There seem to be many reasons for all this. Some criminals obviously feel challenged by taking on the police. They relish the idea that they can match wits with detectives. Criminals often have a very exaggerated idea of their own intelligence and regard calling a lawyer a copout.

Other criminals plainly distrust their legal counsel--especially when it is supplied by the public defenders' office. One recent study showed that 50 per cent of all convicted criminals felt their state-supplied attorney had been worthless. This is plainly not true. Most public defenders seem to be doing a very worthy job. But to the guilty criminal, a state-supplied attorney is likely to seem just another part of "the system."

One experienced California detective has still another theory. He has found that guilty people are usually the most eager to waive their rights and get on with the interrogation. "They're usually dying to find out what the police already know," he said.

Finally, many accused people plainly see invoking their rights to silence and legal counsel as an admission of guilt, which, despite everything the courts have done to dispel this defendants know enough to invoke their right to legal counsel. As Earl Warren said, they are the ones who need it least anyway.

That is one side of the story. But there is another element to all this--one that Justice White once again anticipated in his landmark dissent. "Moreover," he wrote, "it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation."

Despite all their efforts to "put themselves in the criminal's place," the Warren majority never seems to have realized that, at bottom, most people who commit crimes know somewhere in their minds that they have done something wrong. As Dostoyevsky showed in Crime and Punishment, criminal acts separate people out from normal society in a way that most people eventually find too difficult to bear. At bottom, there is a great psychological relief in finally admitting guilt--even if it means opening the way to punishment.

Even the progressive criminologist Karl Menninger puts confession at the center of his approach to curing crime. Quoting one doctor's description of a successful pre-release program, Menninger wrote: "The thing that impressed me most was the need to confess, not only about previous misdeeds but about current temptations. The similarity between this meeting and that of an Alcoholics Anonymous group came readily to mind as member after member recited his success in painfully turning his back on an open cash register, or focibly taking himself in hand to pass up a parked car with a key still in the ig nition.... Listening to these troubled accounts of convicts grappling with inner urges they don't understand, one could become convinced of the 'addictive' nature of crime."

In Japan there is a strong ethic that favors confession to crimes. It is regarded as a step toward rehabilitation. Defendants are subjected to extensive pretrial examinations, and there is little defense mounted. Conviction rates are about 95 per cent, as opposed to about 60 per cent here. (Interestingly enough, American defense attorneys themselves usually estimate that about 90 to 95 per cent of their clients are guilty.) Japan also has crime rates about ten times lower than ours.

It is remarkable that for all the psychological studies we have about death and dying, the loss of loved ones, marriage breakups, the effects of divorce on children, etc., there is almost no contemporary literature on psychology of guilt and confession. A search of the periodical indexes over the last 15 years reveals that, although there are about 75 law articles written each year on the various subtleties of Miranda, not a single article has been written in this country over the last ten years on the psychology of why people confess to crimes.

The only article in the entire literature is a piece written in 1979 by two British sociologists, M. Hepworth and B. Turner. They noted that confession is "inherently contradictory." Although it is "part of the apparatus of state control," it also "offers the individual offender an opportunity for moral regeneration in the sense that having violated one of society's most sacred norms, he is provided with a means of reconciliation." For the society as a whole, it is "a confirmatory indication of the validity of the set of social relations within which the offender is enmeshed" and "an important means of indicating the shared humanity upon which the justification of a whole way of life is based."

My own impression is that there seem to be four basic responses to having committed a crime: denial, definace, rationalization, and confession.

Unapprehended criminals often show definace, even if they felt guilty about the crime in the first place. Many criminals start to feel "invincible," especially if they have gotten away with things a few times.

On the other hand, criminals often have the ability to deny the reality of their crimes, even to themselves. Defense attorneys I have talked with have expressed amazement at their clients' abilities to deny guilt in the face of overwhelming evidence. "I think these guys could probably pass lie-detector tests," one attorney told me. "They seem to be able to fool themselves in a way that most ordinary people find impossible."

Rationalization often accompanies confession. In fact, many confessions are in fact rationalizations. As Hepworth and Turner note, many confessions are "ways of alleviating the burden of guilt and placing part or all of the responsibility on others or on the force of circumstances."

Complete confession, with the full accompaniment of guilt and responsibility, seems to be a rare response.

Newspaper reporters often get a very good lesson in the psychology of confession when they cover politics. One of the most common occurrences during a political scandal or debate is to have one of the principals call you into his office and spend the better part of an hour and a half pouring out his heart and emptying his conscience on an issue. Then he will look at you and say, "Of course, all this is off the record."

Criminals want to confess, but they want their confessions to be "off the record." They want the psychological relief and purging that come with admitting their role in something, but they don't necessarily want to live with the consequences.

It is at this moment that the defense attorney enters. One way or another, he argues, the confession was "involuntarily, unknowingly, and unwillingly given." Why, he asks incredulously, would anyone admit to such a thing when he knew his statement would be self-incriminating?

Six months later, the trial judge encounters a neatly dressed, polite, comosed defendant who tells him sincerely that his incriminating statemqnts were coerced from him by the police. Three years later, five appellate-court judges will look at the written record of the trial and say to each other, "Why would anyonq ever admit to all this stuff? The police must have coerced him. He never would have said these things on his own."

And so, the prosecution will be forced to go back and retry the defendant "without the confession"--and without any other evidence that was produced as a result of the confession. For nothing gathered as the result of a confession is admissible evidence once the confession is ruled unconstitutional.

The result of all this can be illustrated by the case of Emmanuel Torres, a 22-year-old New York gang member eventually convicted of killing aspiring actress Caroline Isenberg after trying to rape her on a rooftop in 1984.

Torres came under suspicion because he frequented the building, where his father was the janitor. He resembled the man described by Miss Isenberg (she lived seven hours before succumbing to knife wounds). He also had a reputation for violence--and was in fact originally mentioned to police by a member of his own family.

When brought in for questioning, Torres was advised of his rights, but he refused counsel. After seven hours of questioning, he admitted to the attempted rape and murder. He argued that he had met Miss Isenberg on the elevator, that she had responded to his advances and agreed to go to the roof, but that she had then changed her mind and started hitting him--at which point he was forced to knife her in "self-defense." (This explanation was cast in doubt by an override button on the elevator that could send the car directly to the roof, bypassing all othqr stops, which would have made it possible for Torres to take Miss Isenberg there against her will.)

Torres made a videotaped confession and then wrote out his own two-page version of the story in longhand. "Hq was very articulate," said Mike Sheehan, who handled the interrogation. "His spelling and grammar wqre pqrfect."

When television and newspaper cameras caught Torres on the way to his arraingement a few hours later, he shouted at them, "She deserved it! She was a slut!" His sneering face was on the front page of the newspapers.

Five wqeks later, Torres's defense attorney, Louis Levner, filed a motion to have the confession ruled inadmissible. He argued that it was only "bragging" by a "poor guy who wanted to prove his manhood."

Torres's trial was preceded by an extensive preliminary hearing in which half a dozen New York City detectives testified for almost a week about the exact circumstances under which Torres confessed.

At the proceedings, Torres was now a changed man. No longer sneering and defiant, he sat composed at the defense table dressed in matching sports clothes, avidly following the testimony.

The defendant took the witness stand, saying he had never been read his rights and had been held incommunicado for hours by police detectives. He said the police had beaten him severely, and that he only wrote his confession after detectives threatened to cut off his hands.

In the end, Judge Stephen Crane ruled the confession admissible, saying he found the police detectives' account "totally believable." When the ruling was announced, Torres burst into tears, sobbing, "Why don't you just put the rope around my neck and hang me now? (NEw York does not have a death penalty.)

Torres was later convicted on the basis of his confession, including those made before television cameras. He is now appealing his case.

EVEN FEW confessed criminals, then, are willing to stand by their confession ver long. Once they have purged themselves of guilt feelings, or rationalized their crimes, reality sets in. At the very least, their lawyers will coach them to come up with a different story, and will routinely challenge the constitutionality of their confession.

All this, however, does not mean that people are not guilty, or that they don't confess to crimes. All it means is that after they have confessed, they have a body of law to help them repudiate their confessions. Miranda's largest impact, in the end, has not been ondefendants but on defense lawyers. They routinely arrive on the scene and charge that the police have already coerced their new clients into confessing.

But beneath these legal manipulatisons lies the truth. Trials wqre once forums in which society tried to find out what really happened. If they no longer function that way, then we must live without knowing the truth. But somehow the truth has a way of emerging anyway.

Even Ernesto Miranda eventually found this out. Although his first conviction was overturned, Miranda later confessed to a friend, who testified against him, leading to a second trial and a second conviction. He received a much shorter sentence and was back on the streets by 1973.

For a while he made a small living selling personally autographed copies of the police department's Miranda cards. Then, one night in 1976, he got into a fight at a poker game. Somebody pullqd out a knife and stabbed him in the chest. He died immediately.

The police arrived and read everybody his Miranda rights. No one felt like talking. Since there had been a fight, and nobody was willing to testify against the killer, the matter was soon dropped.

No one was ever prosecuted for the murder of Ernesto Miranda.