Tuesday, March 16, 2010

Miranda and the Puzzle of Voluntariness

By Sherry Colb

In my column for this week, I discuss the Supreme Court's recent decision in Florida v. Powell, which upheld the Tampa, Florida version of the Miranda warnings despite their lack of clarity on the suspect's right to have a lawyer with him while police are interrogating him.  My column makes the claim that this lack of clarity is not unique to the Tampa warnings but in fact more broadly characterizes the warnings with which we have all become familiar and that at least federal courts of appeals have upheld.  I suggest in the column that this vagueness is no accident but instead represents a compromise between two objectives:  informing suspects of their rights in a way that mollifies our conscience while simultaneously permitting the police to obtain confessions from suspects who would be better off staying silent.

I want to suggest here that this tension is related to the slippery concept of "voluntariness" as we use it in the Fifth Amendment context.  When we say that a statement must be "voluntary," we mean something more than that it cannot be the product of a reflex (which is how we characterize truly "involuntary" acts).  No one contests, for example, that a confession fails the Fifth Amendment "voluntariness" test if police obtain it by threatening to kill the suspect if he doesn't talk.  Despite the fact that he is making a choice to speak (and is therefore acting "voluntarily" in the literal sense), we consider the conditions under which he chooses to speak normatively unacceptable.

Beyond threats or violence, however, what ought to qualify as too much pressure?  One possible answer that many find appealing is the notion that we may not apply the amount or type of pressure that would motivate an innocent person to give a false confession.  One of the critiques of using torture in interrogations, after all, is that it generates inaccurate intelligence.  To the extent that our concern is accuracy, we could judge the circumstances of confession by asking "Might an innocent person have said what the suspect said if faced with the pressure that faced the suspect?"

The Miranda warnings, of course, go further than the above test would go.  They are, by design, a protection against suspects feeling like they have to tell the truth.  That is, the warnings tell a suspect -- if he listens closely and follows what he is hearing -- that it is against his interest to speak (because statements he make will become evidence against him at trial) and that if he does not trust himself to stay silent, he can have an attorney with him to fortify his will.  Plainly, the right against compelled self-incrimination, as envisioned in Miranda, is a right against accurate self-accusatory statements that respond to questions posed by police in the absence of any hint of violence or the threat of retaliation.

At the time that the Court decided Miranda, a majority of the Justices found offensive the sorts of tactics that work by relaxing the suspect into feeling that he is among friends.  One such tactic is suggesting to the suspect that what he did is actually excusable.  If a suspect were innocent of killing anyone, it is hard to imagine that such tactics would induce him to say "Actually, I did kill the victim, but I was very angry at him for insulting my mother."  Justice Harlan's dissent in Miranda described it this way: "the thrust of the new rules is ... to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all.  The aim in short is toward 'voluntariness' in a utopian sense, or to view it from a different angle, voluntariness with a vengeance."

If we took such a voluntariness notion to its logical conclusion, we would simply prohibit police from asking questions of suspects in custody, outside the presence of counsel.  If "voluntary" were interpreted to mean "spontaneous," for example, it is clear that custodial interrogation (no matter how helpful the warnings) causes the suspect to confess when he otherwise would not have done so.

Seen in this way, Miranda, however interpreted, is a necessary compromise between diametrically opposed positions along a continuum -- the view that voluntariness refers to any behavior that is chosen (even if the alternative is death), and the view that voluntariness requires a spontaneous choice by the suspect, uninfluenced by police questioning.  Neither of these options is a neutral construction of either "voluntary" or of "not compelled," and we are therefore left -- perhaps ironically -- with the inescapable burden of choosing how much coercion is too much coercion to satisfy the Constitution.


egarber said...

Good stuff.

Quick question. In your Findlaw piece, you mention that MW rules don’t necessarily apply, if a statement is used to merely impeach testimony.

To clear up that fuzziness, what’s a good example of the difference between "impeaching testimony" and "direct evidence"?

Is something like this close?

1. Direct evidence: "I hid the gun under the bed."

2. Impeaching: "I used to be a carpenter" (though he never was). The prosecutor then uses this to attack the defendant’s credibility on something else – maybe a claim on the stand that he was out of town on a certain day, etc.

Sam Rickless said...

I really liked the point in your Findlaw column about how a non-lawyer might well understand the *standard* MW, namely as making a lawyer available for the purposes of a trial (but not necessarily during custodial interrogation). In fact, this underlines just how broken the MW system is.

Your post appears not to clearly distinguish (am I mistaken about this?) between two values that underlie MW. The first is that confessions should be voluntary, in the sense of being uncoerced. The second is that confessions should be accurate, so that innocent persons do not end up in jail or worse (and the real culprits at liberty to commit further crimes). My own view is that we should be far more worried about the interrogation process sans lawyer resulting in false confessions than we should be worried about the process being coercive. Of course, there is a link between the two values. Coerced confessions are likely to be inaccurate. But noncoerced confessions are also quite likely to be inaccurate too. Police are allowed to use all sorts of tactics to confuse suspects. Police are allowed to lie to suspects. These tactics, especially when used on uneducated or ignorant suspects, standardly and predictably produce false confessions when statements made by the police make it appear to the suspect that it is in his best interests to confess regardless of whether the confession is true. For example, if I tell you that your friend in the next room has implicated you and that you will get a lighter sentence if you cooperate than if you don't, you may feel it quite appropriate to confess to a crime you did not commit. A lawyer can see through this sort of tactic. That is why it is, in my view, essential that suspects be given legal representation during custodial interrogations, unless they explicitly request that no lawyer be present. Sure, the result is that there will be fewer true confessions. But that is a price society should be willing to pay, especially if it buys into the "government bears the burden of proof" system we already have.

Sherry F. Colb said...

Good comments, both.

First, on the admissibility of nonMirandized statements for impeachment, this is what I mean:

If a suspect in custody is interrogated without Miranda warnings (or otherwise in violation of Miranda) and says "I stole the Hope diamond," that statement may not be offered in evidence as affirmative proof that the defendant stole the Hope diamond. If, however, the defendant takes the witness stand and testifies "I did not steal the Hope diamond," then the nonMirandized statement ("I stole the Hope diamond") is admissible as a prior inconsistent statement to show that the defendant is not a credible witness (and that his testimony that he did not steal the Hope diamond is therefore not worthy of belief because of the vacillation).

The jury will then be told (on request of the defense) only to consider the statement as it bears on the credibility of the defendant as a witness but not as evidence that he committed the theft.

Second, on Sam Rickless's point, I agree that I did not emphasize the distinction between coercion and accuracy. I propose that one way of understanding what we mean by "coercive" or "compelled" (given that the term is quite indeterminate and inherently normative) is to say that if an suspect subjected to the tactics (which could include the tricks Sam describes) would confess under the circumstances, then the tactics are unduly coercive.

Having a lawyer present would certainly protect against such tactics, as Sam suggests. The drawback, however, is that many crimes are solved with honest confessions, and if the tactics deployed are not of the sort that would motivate innocent people to confess, then there is an argument that police should be and are permitted to pursue those tactics.

There is, of course, an additional category of tactics that are extremely coercive and thus unacceptable (such as torture) but might nonetheless produce reliable results (e.g., if the torturer does not know the right answer and seeks answers that are verifiable through investigation). From a normative point of view, most would agree that such police tactics are unacceptable, even if they don't threaten to incriminate the innocent.

egarber said...

Thanks Sherry. As to this:

The jury will then be told (on request of the defense) only to consider the statement as it bears on the credibility of the defendant as a witness but not as evidence that he committed the theft."

Seems like it would be tough for a typical citizen to separate the two.

Might the defense go further, and say something like, "admitting the statement at all unavoidably taints the core question of guilt"? I guess that speaks to your point in the Findlaw article that the Miranda ruling itself seems to also exclude the "impeachment" use.

Sam Rickless said...

Sherry --

I guess I don't agree that the term "coercive" is "quite indeterminate", even if it is, as you say, "inherently normative". The term is normative because coercion is a morally impermissible way to extract information. But "coercion" is not indeterminate, or, at least, not nearly as indeterminate as you suggest. Of course, virtually every concept is a bit fuzzy at the edges. (What *exactly* counts as consent? Malice? Negligence?) But there is a core meaning of "coercive" according to which tricky methods of interrogation (and other methods that are inherently likely to produce false confessions) are not *ipso facto* coercive. Coercion (in interrogation), according to the core meaning of the word, involves getting someone to produce information by getting her to believe that one will oneself harm her (or someone else she cares about) if she does not cooperate. On this understanding of coercion, telling someone that she will end up spending more time in jail (because of how a judge and jury will process evidence obtained from a friend of hers) is not a form of coercion.

Or consider another situation. Imagine that you come into the police station to offer information that you think will be helpful in the context of a murder investigation. You stay in the interrogation room voluntarily for 10 hours straight. The police repeatedly offer you the chance to leave, but you don't want to leave until you can get someone to believe you. But the police are all skeptical, and no one seems to be willing to take what you say at face value. One of the police officers then asks you to imagine what it might have been like to kill the victim. Wanting to be helpful, you construct an elaborate story about how the murderer might have killed the victim. The police then point out that you have no alibi, and hence might have committed the crime. You are very tired, and agree that you can't rule out the possibility of your having committed the crime. Eventually, because you aren't thinking clearly and because you are tired, you sign a document that the prosecution then uses to devastating effect at the trial that results in your conviction. There is no coercion here. The police haven't threatened you. They haven't lied to you. They have merely taken advantage of circumstances to get a desirable result: a confession. Unfortunately for everyone, the confession is false.

Or suppose that the police tell you, quite truthfully, that an eyewitness has identified you as the murderer. As you try and try to convince the police that you are innocent, you start saying things that are mutually inconsistent because your memory is starting to fail. These inconsistent statements are then used to devastating effect against you at trial.

I think that the literature on false confessions is replete with cases like this. I remember reading a great piece on this by Ofshe and Leo a few years back. We just need to recognize that the fifth amendment prohibition on compelled self-incrimination in criminal cases is grounded in two separate values: (i) freedom from coercion and (ii) accuracy. The first value does not require that a lawyer be present during custodial interrogation. But the second value does, and in a big way. (Videotaping is quite obviously not the answer.)

Sam Rickless said...
This comment has been removed by the author.
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T said...

I see Miranda Warnings as a judicially crafted remedy to curb police misconduct. On the other hand, the Common Law Voluntariness law has to do with reliability of the confession, thus the focus on the accused, not primarily the police.

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