Miranda’s Failure

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

Related Post Roulette

31 Responses

  1. Michael Drew says:

    Agree word for word. Only question:

    Frankly, it is difficult for me to conceive of many cases where a defendant’s interrogation-induced confession would be absolutely necessary to a prosecutor’s ability to obtain a conviction where the defendant is, in fact, guilty.

    Do you really mean to say the number of cases where a guilty person can’t be convicted without a confession being admitted at trial is difficult, or do you just mean cases where conviction of an actually guilty erson without admission of a confession induced by interrogation in the absence of counsel are difficult to conceive of? I would think cases depending decisively on legitimately (i.e. with attorney present) obtained confessions can’t be so vanishingly rare, but then I don’t work in the field. And maybe, as might be inferred from your endnote, 99% of cases with confessions given with defense counsel present do not go on to trial.Report

    • Michael Drew in reply to Michael Drew says:

      …do not go on to trial, but are instead pled out, I mean.Report

    • @Michael Drew, I struggled mightily with the wording for that sentence. What I’m trying to get across is that in all but a handful of cases, sufficient evidence to convict a truly guilty person without using their confession can be found if the prosecution and/or law enforcement look hard enough and appropriately enough. Admittedly, “hard enough and appropriately enough” may often be exceedingly difficult to achieve with a given set of resources, but the point is that the evidence that can convict the defendant exists, somewhere, independent of any confession, and it is quite literally the job and burden of the prosecution to produce it. Thus, in all but rare cases, the notion that the prosecution truly needs a confession to convict one who is actually guilty is ultimately just shorthand for “the prosecution is unwilling to expend the resources necessary to obtain a conviction without a confession.”Report

      • Michael Drew in reply to Mark Thompson says:

        @Mark Thompson, That perfectly clears up what you meant, thanks. I have absolutely no insight into the question on the actual fact of the matter, but it does seem to me obvious that confessions will continue to play a role in determining defendants’ guilt at their trials, though also that defense attorneys should make them the subject of withering scrutiny in every case, and judges should be extremely alive to the many possible factors about any confession that could render it unsound, and to the fact that every single confession will be prejudicial, so it better be sound to be admitted — i.e. everything else you said in the post.

        Glad to see a post from you, by the way.Report

  2. Zach says:

    I’d just add that it is easy to see why an innocent would even be more likely to provide a confession than a guilty party, since a guilty party will often have had ample time to prepare himself for being arrested on the charge in question: few people will know their criminal procedure rights less than someone who never thought they’d be arrested, while few people will know their criminal procedure rights more than someone who fully expects to be arrested.

    I sort of follow your logic, but I doubt the statistics add up here. You’re saying that the number of innocent suspects falsely confessing to a crime (divided by the total number of innocent suspects) is greater than the number of guilty suspects confessing to a crime? I’d guess that more people provide a false alibi than provide false confessions (again normalized by the number of guilty and innocent suspects).Report

    • Zach in reply to Zach says:

      @Zach, This is different if you’re only talking about the subset of confessions that are disputed during criminal trials… though I’d still bet that more of these are confessions of actual guilty people.Report

  3. The police position, as I heard it during my time as a cops and courts reporter, is normally that an innocent person won’t confess to a crime they didn’t commit. Would you? they say.

    But I might, given how Kafkaesque the situation was. It seems like the evidence is a lot of people would. Under certain circumstances.

    The police are not only allowed to lie — that’s just the first part of the confession-eliciting technique. First they lie about evidence, and how they have enough to convict you, and then they suggest your explanation (“It was an accident,” “It was self defense,” etc.) is the one and only thing that could possibly change the situation.

    Then you talk.Report

  4. Robert Cheeks says:

    Unless someone were a drugged or insane democrat, I can not imagine freely ‘confessing’ to a crime I didn’t commit. The cops can’t beat you..can they? They can’t torture you…can they? You know your lawyer, even the state supplied mouthpiece. is on the way..right? So why confess?
    Now all that changes if I come under duress. But, is that what happens with American police? Are you implying they’re Gestapo?Report

    • Scott in reply to Robert Cheeks says:

      @Robert Cheeks,

      Mark’s real lament is that some folks are just too stupid and that the gov’t is not taking care of them as it should in the liberal’s fantasy land.

      Sorry, Miranda always was a crappy decision. I’ve never seen anything in the constitution that says that the police need to inform you of your rights. Every citizen should know their rights not expect the gov’t to tell them. It was liberal fantasy from the start.Report

      • ThatPirateGuy in reply to Scott says:


        So your position is: Providing health insurance is tyranny, Imprisoning innocent people is freedom.

        Your other position is “if I can’t imagine it then the evidence doesn’t matter.”

        You two are deeply weird. This makes for fun reading.Report

        • Scott in reply to ThatPirateGuy says:


          Providing health care is not the gov’ts job. Neither is it the gov’ts job to inform you of your rights. If some folks are so stupid that they will admit to a crime they didn’t commit, I’m not sure what the gov’t can do to help them.Report

          • Jaybird in reply to Scott says:

            @Scott, it’s the government’s job to *NOT INFRINGE* your rights, Scott.

            Some might say that someone who defends a government failing to do this is committing Treason.Report

            • Scott in reply to Jaybird says:


              I re-read my Constitution and I still can’t find the part where it says that the cops have to tell you your rights.Report

            • Jaybird in reply to Jaybird says:

              @Scott, it’s in the 9th and a bit of it in the 10th.Report

            • Scott in reply to Jaybird says:


              I suppose that is where you find the right to health care, a job and anything else you’d like the gov’t to provide you with?Report

            • ThatPirateGuy in reply to Jaybird says:



              Have you ever read anything Jaybird has written on this site? Seriously.

              I know I mentioned healthcare but honestly I only mentioned it as a contrast, because I thought everyone would agree that it would be better to have even the ‘evil socialized medicine’ that ‘everyone’ fears than to have innocent people coerced or tricked into signing false confessions that lead to their imprisonment.

              Healthcare is a red herring.Report

            • Jaybird in reply to Jaybird says:

              @Scott, this is where we get into a discussion of “negative” vs. “positive” rights.

              A negative right is the right to be left alone. Freedom of speech, for example, is a right to be left alone. One can criticize the government without being jailed, for example. One can live one’s life without being arrested for a crime one did not commit might make another decent example.

              A positive right, however, is the right to the time/materials of another. A right to health care is a right to the time of a doctor, his or her care, and (perhaps) medication. A right to eat entails a right to food provided, presumably, by someone else (compare to a right to not have one’s food that one grows taken by the government which would be the negative right).

              In any case, the right to not have one’s negative rights violated is very much part of the Western Tradition… even the rights that you don’t know about. (This is where the 9th and 10th come in.)

              If you don’t give a crap about the government protecting your rights, you shouldn’t be surprised when they start taking your stuff and redistributing it to other folks, dude. You shouldn’t be surprised at all.Report

          • ThatPirateGuy in reply to Scott says:



            Just to warm people up so that they might have some idea of what we are talking about with false confessions.


            Self-incriminating statements are often the result of a kind of cost-benefit analysis. “False confession is an escape hatch. It becomes rational under the circumstances,” says Saul Kassin, Ph.D., a professor of psychology at Williams College in Massachusetts. The most common explanation given after the fact is that suspects “just wanted to go home.”

            This often indicates an inability to appreciate the consequences of a confession, a situation that police cultivate by communicating that a confession will be rewarded with lenient sentencing. Police may also offer mitigating factors—the crime was unintentional; the suspect was provoked.

            The circumstances of interrogation are crucial. “Everybody has a breaking point. Nobody confesses falsely in an hour,” says Kassin. The suspects in the Central Park case each spent between 14 and 30 hours under interrogation. ”

            So I have two big problems with your attitude towards false confessions. One you are ok with the government imprisoning innocent people. Two you are ok with the government letting the actual criminals get off scot-free if the police can find someone somewhere to confess.Report

            • Scott in reply to ThatPirateGuy says:


              I’m not ok with the gov’t imprisoning innocent folks, however, if folks falsely confess there is not much the gov’t can do or should have to do.
              If they confess b/c they want to go home then they are stupid. I agree that the gov’t should try and find the right person but we don’t live in a perfect world.Report

            • ThatPirateGuy in reply to ThatPirateGuy says:


              How is there nothing the government can do? In cases where we don’t have ‘confessing sams’ then all the government has to do is not coerce the confession.

              Simple small reforms such as video taping all interrogations can easily be done (budget issues aside). We could improve the training that officers receive. We could change the confession rules. We have information and we have options to reduce the problem but you would rather call people stupid and shrug your shoulders. Truly, this is the conservative love of freedom and fighting of oppression in action.Report

    • Jason Kuznicki in reply to Robert Cheeks says:

      @Robert Cheeks,

      The cops can’t beat you..can they? They can’t torture you…can they?

      No, really. What planet are you from?Report

    • Aaron in reply to Robert Cheeks says:

      @Robert Cheeks, except there are a lot of well-documented cases in which people of normal intellect, later proved to have nothing to do with a crime, confessed even to capital murder.Report

  5. Aaron says:

    “In short, there is simply no justification for the continued use of confessions obtained outside the presence of an attorney as evidence in a criminal proceeding.”

    So the police would be able to question a suspect, but if he confessed to them even spontaneously the confession would be inadmissible? So the police bring in a lawyer who, after a perfunctory conference with the client, announces that the client is exercising his Fifth Amendment rights, end of interrogation? Even when a defendant is innocent, the circumstances under which a lawyer might want them to talk to the police are exceptional; if the suspect is guilty they would likely involve some level of negotiation – a plea bargain or offer to provide the state with evidence against codefendants or other crimes.

    This also raises the question, “What is a confession”? The defendant makes a statement that isn’t directly self-incriminating but in light of other evidence suggests that the defendant is lying. In an interrogation, contradictions, mistakes and inconsistencies are in effect collected by the interrogator and used to break down the defendant’s story. At what point in the process would the lawyer have to be brought in?

    I accept your point about the problem of false confessions leading to wrongful convictions. I’m skeptical of a solution that would all-but-eliminate confessions from the courtroom. (Granted, given the reality of our nation’s courts and legislatures, this is a thought exercise.) Confessions to the police are far from rare. They’re an important part of how the police close cases and how prosecutors obtain plea deals in cases that might otherwise require trials, even in minor criminal matters.Report

  6. Jaybird says:

    Let’s say that there is a crime committed. Crime X.

    Crime X was committed by Person P.

    The police arrest Person ~P… and, after a while, grind Person ~P down and get him to confess.

    I don’t see how in the flying hell the Police could possibly see this as a win. Person P is still out there. Crime X is languishing unsolved and, on top of that, the cops either think that they got the right guy *OR* they don’t care that they didn’t get the right guy and just had to arrest *SOMEBODY*.

    And, on top of that, the failure rate isn’t even an “acceptable” one out of ten, but TWICE that.

    This makes no sense to me.Report

  7. MadRocketScientist says:

    This video should be required viewing for anyone 16 & up.


  8. Francis says:

    “in all but a handful of cases, sufficient evidence to convict a truly guilty person without using their confession can be found if the prosecution and/or law enforcement look hard enough and appropriately enough.”

    Possibly true, but this is way too gross a generalization. I think you need a police detective or two to chip in here. What kind of crime are you trying to solve with non-confession evidence?

    According to my (public defender) wife, at the Compton courthouse, LA county, about 80% of all cases get pled out at arraignment. These are the cases where the evidence is so overwhelming (and the defendant has been through the system before) that the defendant essentially goes straight from arrest to guilty plea to prison. The legal system is barely involved. But of the remaining 20%, almost all of those must plead out, because taxpayers simply refuse to pay for enough courthouses, prosecutors and defense counsel to take them all to trial. And here, confession plays a huge role. Because if there aren’t the resources to take more people to trial, there also aren’t the resources to prepare all these cases for trial without confessions.

    Moreover, from the stories I’ve heard over the years, in a huge percentage of cases confession is critical because that’s all the admissible evidence that exists. “Bones” and “CSI” are TV, dude, not reality. Cases get cleared because defendent A in Case X says that defendant B is guilty of unsolved crime Y. That’s hearsay, and inadmissible. Crime Y is a commercial burglary or a drive-by shooting or drug sales or any of a number of crimes that are committed in public spaces where collecting DNA is impossible. So the only way to close Crime Y is to bring in defendant B and get him to confess.

    One final thought: if clearing a case were a matter of working it harder and smarter, a change in police chiefs should be able to make a difference. While I don’t have the stats at my fingertips, my understanding is that for certain types of crime (gang-on-gang murder, eg.) clearance rates did not change substantially even after LA brought on Bratton.Report

  9. Laryngitis says:

    I spent 25 years investigating and supervising investigations of Federal crimes.
    It is a well known fact that there are people who will confess to crimes they did not commit. There are too many reasons why to go into in this short space. A simple instance: a bank robber looking for a deal began implicating others in jobs he claimed to have done with accomplices. We threw in a couple of banks that had never been robbed. He said that he and the others had robbed them and passed a polygraph on the subject, which by the way is another voodoo device. Every major publicized crime brings people out of the woodwork eager for limelight. For some, as Madonna would put it, there is no such thing as bad publicity. Some people just want to end the interrogation process.
    The real problem is not with Miranda. The real problems are incompetent and hyper militarized police, bureaucratic pressures to clear cases, promote one’s career and move on, and most troubling, too frequently, a morally obtuse disregard for how demanding it can be to plumb the truth. The bottom line is that every confession should be regarded as suspect, the same as eye witness identifications.
    Just as an aside, there is no doubt in my mind that Guantanamo Bay Prison is packed with people who don’t belong there because of proper criminal investigative procedures being shortcutted and militarized by incompetents, zealots, and amoral thugs.Report