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.