Academic

Weisselberg on Miranda

By Lawrence Solum

Charles D. Weisselberg (University of California, Berkeley - School of Law (Boalt Hall)) has posted Mourning Miranda (California Law Review, Forthcoming) on SSRN. Here is the abstract:

The article presents new field research about police interrogation tactics and training and discusses that research in light of recent science literature and judicial decisions. I argue that the safeguards of Miranda v. Arizona have become ineffective, not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of rulings that have critically weakened Miranda's supposed protections.

Miranda's warnings and waivers were intended to afford custodial suspects an informed choice between speech and silence, and prevent involuntary statements. But there never was evidence to show that a system of warnings and waivers could actually protect the Fifth Amendment privilege against self-incrimination. Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda's safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court's pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.

I also argue that Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation.

Full post as published by Legal Theory Blog on March 19, 2008 (boomark / email).