Miranda Morass

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

Cathy Young from the April 2000 issue

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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.