Confessions

Although much of the history of the self-incrimination clause is contested, one fact is certain: When the provision was adopted, no one supposed that it applied to pretrial police interrogations in a custodial setting. The reason is simple: in late-eighteenth-century America, there were no organized police forces and there were therefore no police interrogations to which the self-incrimination clause could be applied.

Moreover, even when modern policing took hold, there were significant textual obstacles to application of the self-incrimination guarantee in the station house. By its terms, the self-incrimination clause requires two elements to trigger its protection: a defendant in a criminal prosecution must be compelled; and the defendant must be compelled to be a witness against himself. If one reads this language literally, a defendant who confesses in the station house has not been a "witness against himself" because the station house interrogation does not constitute a formal trial with witnesses. The Supreme Court has surmounted this hurdle by reading the clause to apply in circumstances where the defendant's compelled statements are subsequently introduced against him at a formal trial. Still, even this reading does not get over the compulsion hurdle. Police officers conducting station house interrogation are not ordinarily armed with subpoena power or, indeed, with any means of formal compulsion.

The Miranda Court's key analytic move was to equate compulsion with custodial interrogation. The Court said in effect that if a defendant was in custody, and if he was interrogated, then he was automatically compelled. And of course, if the defendant had been compelled, then he could not constitutionally be made a witness against himself. It followed that statements that were the product of custodial interrogation had to be excluded at trial.

If the Court had stopped at this point, the result would have been the effective outlawing of custodial interrogation. In the immediate wake of Escobedo, some members of the law enforcement community feared that this was precisely what the Court planned. In fact, however, this fear turned out to be baseless. Indeed, there is a sense in which Miranda facilitated confessions. Instead of the vague and amorphous voluntariness test, which left police guessing as to how they were to proceed, or the effective exclusion of virtually all confessions implied by Escobedo, Miranda provided the police with practical guidelines for making confessions admissible.

The first step was to dissipate the inherent compulsion created by custodial interrogation by administering the famous warnings. The Court insisted that before interrogation began, the suspect must be informed that he had a right to remain silent, that anything said by the suspect could be used against him in court, that he had the right to the presence of counsel during interrogation, and that if the suspect was indigent, a lawyer would be appointed to represent him. These last two warnings were not derived from the Sixth Amendment right to counsel, as the Massiah counsel right had been. Because station house interrogation most frequently occurs before a defendant has been formally charged, Sixth Amendment rights have not yet attached. Instead, in the Court's view, a person subject to custodial interrogation was entitled to counsel because "the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege" (384 U.S. at 436).

Because it is the product of Fifth Amendment "compulsion" that has not yet been dissipated, any statement made by an unwarned suspect subject to custodial interrogation is automatically inadmissible. Moreover, the Court made clear that even after the defendant has been warned, police are obligated to refrain from interrogation if, at any time, he invokes his rights. On the other hand, once warned, a defendant can also waive his rights. Although a valid waiver cannot be presumed "simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained" (381 U.S. at 475), the Court held that an express statement that the defendant was willing to talk without the presence of counsel might constitute a valid waiver.

At first, Miranda generated tremendous controversy. Critics of the decision raised questions about its constitutional legitimacy. They argued that nothing in the text or history of the self-incrimination clause gave the Court the authority to promulgate a set of warnings, and that there was no warrant for the irrebuttable presumption that all custodial interrogation in the absence of these warnings was compelled. The Court's defenders responded that constitutional law was full of judge-made glosses on the text designed to give it practical force and that Miranda had to be understood against the backdrop of other, failed attempts to protect self-incrimination rights in the station house.

Whatever the merits of this theoretical argument, the practical effect of the Court's decision were certainly less devastating than its most vocal critics predicted. Suspects did not suddenly stop confessing. Instead, the decision provided police with a road map that they could and did follow in order to shield confessions from challenge. Officers throughout the country reduced the warnings to a card, which was read to defendants, and reduced the waiver procedure to a checklist, which defendants executed and signed. In theory, these waivers were subject to challenge on the ground that they were not knowing and intelligent; in practice, absent extraordinary circumstances, they were usually sufficient to meet the prosecution's burden.

Ironically, there is even a sense in which Miranda's very success has undermined the argument for it. Over time, the warnings have become a fixture in popular culture, repeated endlessly in crime novels and on television police shows. Arguably, the warnings have become so well known as to reduce both the need for them and their effectiveness. Many criminal suspects already know of the warnings, and to many of them, their recitation is bound to seem like legal gobbledygook that must be ritually intoned before the real business of interrogation begins.