Miranda's mistake

Michigan Law Review

Volumn 99, Issue 5, 2001, Pages 975-999

  Stuntz, William J ^a  

^a NONE

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EID: 0042202707     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290524     Document Type: Article

References (79)

1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. 120 S. Ct. 2326 (2000).
3. Compare Brief of Court-Appointed Amicus Curiae Urging Affirmance of the Judgment Below at 40-45, Dickerson v. United States, 120 S. Ct. 2326 (2000) (No. 99-5525) (arguing that Miranda should be partially overruled), with Brief for Amicus Curiae the American Civil Liberties Union in Support of Petitioner at 3-14, id. (arguing that Miranda "is an appropriate and necessary means of enforcing the Fifth Amendment").
4. Compare, e.g., Yale Kamisar, Can (Did) Congress Overrule Miranda?, 85 CORNELL L. REV. 883 (2000) (arguing that Congress cannot overrule Miranda), with, e.g., Paul G. Cassell, The Statute that Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175 (1999) (arguing, in effect, that it can and did).
5. Compare, e.g., Yale Kamisar, Can (Did) Congress Overrule Miranda?, 85 CORNELL L. REV. 883 (2000) (arguing that Congress cannot overrule Miranda), with, e.g., Paul G. Cassell, The Statute that Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175 (1999) (arguing, in effect, that it can and did).
6. Compare Dickerson, 120 S. Ct. at 2333-35 (emphasizing Miranda's constitutional roots), with id. at 2346 (Scalia, J., dissenting) (characterizing Miranda as "an illegitimate exercise of our authority to review state-court judgments").
7. E.g., Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998).
8. E.g., Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435 (1987).
9. E.g., Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826 (1987). Miranda disappointed the left for another reason as well: The Court did nothing to ensure an objective record of the interrogation, leaving suppression hearings in the same situation - swearing matches between suspects and police officers - they were in before Miranda was decided. For the classic criticism of pre-Miranda doctrine along these lines, see Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIME 85-88 (A.E. Dick Howard ed., 1965).
10. E.g., Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826 (1987). Miranda disappointed the left for another reason as well: The Court did nothing to ensure an objective record of the interrogation, leaving suppression hearings in the same situation - swearing matches between suspects and police officers - they were in before Miranda was decided. For the classic criticism of pre-Miranda doctrine along these lines, see Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIME 85-88 (A.E. Dick Howard ed., 1965).
11. One might respond that the right to be free from questioning is, as a practical matter, the same as the right to be free from compelled questioning, because police interrogation is inherently coercive. That line of argument would seem to lead to the conclusion that Miranda, or something like it, is required by the Fifth Amendment privilege. See Schulhofer, supra note 7. In fact, the conclusion does not follow from the argument. If all police interrogation violates the Fifth Amendment, the Fifth Amendment requires abolishing police interrogation. Miranda does not do that. If, on the other hand, only some police interrogation violates the Fifth Amendment, it follows that there is no blanket Fifth Amendment right to be free from questioning, only a right to be free from the kind of questioning that compels an answer. To put the point more simply, suspects' right to remain silent does not require that police officers have a duty to remain silent.
12. This is a bit of an oversimplification, for it assumes a limited version of rationality. Suspects trying to minimize the odds or the extent of their punishment would not talk to police; suspects seeking to clear their consciences might. The second type of suspect is certainly rational, but in a different sense from the first.
13. See, for example, the list of successful interrogation tactics noted in Richard A. Leo & Welsh White, Adapting to Miranda: Modern Interrogators' Strategies for Dealing with the Obstacles Posed by Miranda, 84 MINN. L. REV. 397, 431-50 (1999).
14. Brief for the American Civil Liberties Union as Amicus Curiae at 22-25, Miranda v. Arizona, 384 U.S. 436 (1966) (No. 759).
15. 384 U.S. at 469 ("The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.").
16. Id. at 475 ("If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.").
17. See infra text at notes 27-35.
18. I distinguish between false threats, which increase the pressure to confess, and false promises, which decrease it. The prime example of a false promise is a tactic that falls wholly outside Miranda's scope: the use of undercover agents. See Illinois v. Perkins, 496 U.S. 292 (1990) (holding that conversations with an undercover agent do not amount to "interrogation" covered by Miranda). The promise is that the agent is who he purports to be, that he is not working for the police. The tactic works because that (false) promise reduces the suspect's fear of talking.
19. Yale Kamisar saw this point most clearly. Yale Kamisar, What is an Involuntary Confession? Some Comments on Inbau & Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728, 742-59 (1963).
20. See, e.g., Haynes v. Washington, 373 U.S. 503 (1963) (police denied suspect's request to call his wife, and told suspect he would not call anyone until he made a statement); Rogers v. Richmond, 365 U.S. 534 (1961) (police threatened to arrest suspect's wife if suspect refused to confess); Spano v. New York, 360 U.S. 315 (1959) (officer - a childhood friend of the suspect - claimed he would lose his job if suspect refused to confess). In all three of the cases just cited, the Supreme Court overturned lower-court findings that the confessions were voluntary.
21. The need for video-and audiotaping is the one proposition that wins universal agreement in the Miranda literature. E.g., Paul Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 486-92 (1996); Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 748-51 (1997); Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 MICH. L. REV. 929, 934 n.19 (1995); Richard A. Leo & Richard J. Otshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 495 (1998); Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 153-55 (1997).
22. The need for video-and audiotaping is the one proposition that wins universal agreement in the Miranda literature. E.g., Paul Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 486-92 (1996); Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 748-51 (1997); Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 MICH. L. REV. 929, 934 n.19 (1995); Richard A. Leo & Richard J. Otshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 495 (1998); Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 153-55 (1997).
23. The need for video-and audiotaping is the one proposition that wins universal agreement in the Miranda literature. E.g., Paul Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 486-92 (1996); Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 748-51 (1997); Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 MICH. L. REV. 929, 934 n.19 (1995); Richard A. Leo & Richard J. Otshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 495 (1998); Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 153-55 (1997).
24. The need for video-and audiotaping is the one proposition that wins universal agreement in the Miranda literature. E.g., Paul Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 486-92 (1996); Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 748-51 (1997); Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 MICH. L. REV. 929, 934 n.19 (1995); Richard A. Leo & Richard J. Otshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 495 (1998); Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 153-55 (1997).
25. The need for video-and audiotaping is the one proposition that wins universal agreement in the Miranda literature. E.g., Paul Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 486-92 (1996); Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 748-51 (1997); Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 MICH. L. REV. 929, 934 n.19 (1995); Richard A. Leo & Richard J. Otshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 495 (1998); Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 153-55 (1997).
26. The best evidence for this proposition is the Court's waiver standard, which seems designed to make waivers exceptional. See supra note 14.
27. Actually, Miranda does not give suspects a right to counsel, but only a right not to be questioned in counsel's absence. The usual, and proper, response to a suspect's demand to see a lawyer is not to give him a lawyer, but to stop questioning him.
28. Miranda, 384 U.S. at 444.
29. Michigan v. Mosley, 423 U.S. 96 (1975). Mosley permits police to renew questioning after some respite. Id. at 103-07 (holding that suspect's invocation was "scrupulously honored" where police waited two hours before resuming questioning, and where the questioning was about a different crime).
30. Minnick v. Mississippi, 498 U.S. 146 (1990); Edwards v. Arizona, 451 U.S. 477 (1981).
31. At least in the government's case-in-chief. Defendant's statements can be used to impeach his testimony if he takes the stand at trial. Harris v. New York, 401 U.S. 222 (1971). There is a fair amount of argument that this rule seriously undermines Miranda. For the best discussions, see Leo & White, supra note 11, at 453-64; Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 140-70 (1998). I take no position on the merits of that argument, for I believe Miranda's regulatory mechanism cannot operate successfully regardless of what rule one adopts for impeachment.
32. At least in the government's case-in-chief. Defendant's statements can be used to impeach his testimony if he takes the stand at trial. Harris v. New York, 401 U.S. 222 (1971). There is a fair amount of argument that this rule seriously undermines Miranda. For the best discussions, see Leo & White, supra note 11, at 453-64; Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 140-70 (1998). I take no position on the merits of that argument, for I believe Miranda's regulatory mechanism cannot operate successfully regardless of what rule one adopts for impeachment.
33. There is one sense in which Conditional Talkers' preferences are quite different from a legal standard. A standard, though uncertain, is more or less constant across cases. Here, the standard is individual-specific: If a given suspect decides that the heat has been turned up too high, he invokes; another suspect, under exactly the same circumstances, might be entirely comfortable with the police tactics and so might not invoke. This feature of the invocation "standard" might, in theory, give rise to the following police tactic: ratchet up the pressure, bit by bit, until the suspect either talks or invokes. If he invokes, well, the police obviously couldn't have gotten him to talk anyway, since all pressure shy of the invocation line failed. So much for the invocation standard. But this police tactic cannot work, at least not as an ordinary practice. First, pressure cannot be fine-tuned; police officers do not have it in their power to calibrate precisely the level of stress they are imposing on a suspect. Second, it is not always true that more pressure yields higher odds of obtaining a confession. Some police interrogation tactics involve reassuring suspects, not pressuring them. Add to those two tacts another: Police do not know in advance when any particular suspect will invoke his Miranda rights; they can only know what most suspects (or perhaps most suspects of a particular type) do. It follows from those three facts that the police have a substantial incentive to avoid crossing the normal suspect invocation line, because if they do so, they may forfeit whatever chance they had (and the chance might have been substantial) at getting the suspect to incriminate himself.
34. 441 U.S. 369 (1979).
35. In Butler, the defendant refused to sign a waiver form but proceeded to talk to the police. Id. at 370-71. The Court found a valid Miranda waiver, in an opinion that emphasized that such waivers need not be explicit but can be inferred from the suspect's conduct. Id. at 373-76.
36. 479 U.S. 523 (1987).
37. Unfortunately for the police, the tape recorder didn't work, so one of the interrogating officers had to reduce the confession to writing from memory. Id. at 525-26.
38. The Court declined to adopt this explanation, see id. at 530 n.4, but it remains the most - maybe the only - plausible explanation for Barrett's behavior.
39. 479 U.S. 564 (1987).
40. Id. at 575-76.
41. 475 U.S. 412 (1986).
42. Id. at 416-18, 421-28.
43. 451 U.S. 477 (1981).
44. Id. at 484-85.
45. 498 U.S. 146 (1990).
46. Id. at 150-56. The one major exception to the pattern is Davis v. United States, which holds that only an unequivocal assertion of the right of silence or the right to counsel counts as a Miranda invocation. 512 U.S. 452, 461-62 (1994).
47. Actually, it requires even more than understanding those three warnings. A suspect might understand that he has the right not to talk but not realize he has the right to force the police to stop asking him questions. The latter right, which Edwards and Minnick establish, see supra notes 36-39 and accompanying text, is not described by any of the Miranda warnings.
48. A recent reminder of this fact is the First Circuit's decision that an FBI agent's promises of immunity to an informant were not binding. United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000).
49. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 653 (1996).
50. Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859-60 (1996) (finding only five invocations after interrogation had begun, out of a total of 126 interrogations).
51. I am assuming that at least some - and probably most - Silent Types would no longer he Silent Types if they were forced to submit to police questioning. It is one thing to stay silent when the police are not allowed to ask you questions. It is quite another to remain silent in the face of questioning.
52. Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 744-46 (1992).
53. Id. at 745-46 & n.241.
54. Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 282-83 (1996). This number probably understates the true level of police coercion, if only because the interrogating officers in Leo's study knew they were being observed. For Leo's response to this concern, see id. at 270-72.
55. Davis v. United States, 512 U.S. 452, 461-62 (1994). For an interesting critique of the requirement that suspects must take affirmative steps to invoke their Miranda rights, see Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 YALE L.J. 259 (1993).
56. Davis v. United States, 512 U.S. 452, 461-62 (1994). For an interesting critique of the requirement that suspects must take affirmative steps to invoke their Miranda rights, see Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 YALE L.J. 259 (1993).
57. E.g., JOSEPH D. GRANO, CONFESSIONS, TRUTH, AND THE LAW 218-22 (1993); Cassell & Fowles, supra note 6, at 1059; Fred E. Inbau & James P. Manak, Miranda v. Arizona - Is it Worth the Cost?, 24 CAL. W. L. REV. 185, 197-99 (1988) .
58. E.g., JOSEPH D. GRANO, CONFESSIONS, TRUTH, AND THE LAW 218-22 (1993); Cassell & Fowles, supra note 6, at 1059; Fred E. Inbau & James P. Manak, Miranda v. Arizona - Is it Worth the Cost?, 24 CAL. W. L. REV. 185, 197-99 (1988) .
59. See note 44 supra. Though I suspect that most Silent Types would cease to be silent if the police could question them, that suspicion is not critical to my argument. If only a few Silent Types would talk under questioning, the point in the text still holds: For them, Miranda stands between a chance at acquittal and certain conviction, and it does so by giving them immunity from questioning. Even if that is only true of a small number of suspects, it should be objectionable to those who believe that (1) there is nothing wrong with police questioning, and (2) truthful confessions are goo d.
60. In addition to the work of a number of other participants in this Symposium, see Ainsworth, supra note 48, at 320-21; Ogletree, supra note 8, at 1830; Irene M. Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. REV. 69, 109-15 (1989).
61. See GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 68 (1992) (noting that "a feeling of guilt motivates people towards reparative action," such as confessing). The picture is complicated by the fact that guilty suspects may also experience shame, which "makes the person want to hide from others and not reveal what happened." Id. Gudjonsson suggests that guilt feelings are likely to predominate initially - for example, when the suspect is being interrogated by the police - while feelings of shame are more likely to predominate later. Id.
62. One piece of evidence in support of this intuition is the dramatically higher rates of invocation by suspects who have prior convictions for serious crimes. See infra note 54 and accompanying text.
63. Leo, supra note 47, at 286-87. This is not to say that all suspects with felony records invoked their rights. On the contrary, more than two-thirds waived their Miranda rights. Id. at 287 tbl. 9. But the waiver rates of other groups of suspects were much higher. Id.
64. Leo found no evidence that this group exists. Id. at 291-92 (noting absence of any class effect on the success rate of police interrogation). But it may be that the group does not exist because police know the outcome of any attempt at interrogating wealthier suspects in advance. There is no way to know without overturning Miranda. 56. For a discussion of the evidence for this proposition, see William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 24-26 (1997).
65. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1997, at 437 tbl. 5.70, 439 tbl. 5.72 (Kathleen Maguire & Anne L. Pastore eds., 1998) [hereinafter 1997 SOURCEBOOK].
66. This is where Miranda's critics on the right fall down. The tacit assumption those critics make is that dockets are fixed - that no case dropped because of Miranda is replaced by another case. The opposite assumption is more reasonable.
67. Anyone who has ever spoken to a police officer about interrogation practices knows this proposition is true, but the legal literature barely acknowledges it. For an exception to that pattern, see George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 UCLA L. REV. 933, 949-50 (1996). For a discussion of how statements other than confessions are useful in developing a case against a suspect, see FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 70-76 (1986).
68. Anyone who has ever spoken to a police officer about interrogation practices knows this proposition is true, but the legal literature barely acknowledges it. For an exception to that pattern, see George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 UCLA L. REV. 933, 949-50 (1996). For a discussion of how statements other than confessions are useful in developing a case against a suspect, see FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 70-76 (1986).
69. This seems to fit with Leo's findings concerning the number of different tactics police use. Leo found four separate interrogation tactics with at least a 90% success rate, and another ten tactics with a success rate in excess of 75%. Leo, supra note 47, at 294 tbl. 14. He also found evidence that police use overlapping lists of tactics on different classes of suspects. Id. at 295-96 tbl. 15.
70. This phrase appeared most famously in Justice Stewart's concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964); Stewart used it to capture the essence of the legal standard then applied to obscenity. Id. at 197. Stewart's point, I think, was that the obscenity standard was impossible to define but quite possible, maybe even easy, to apply. For a slightly different understanding of Stewart's phrase, and a defense of the kind of judging it suggested, see Paul Gewirtz, On "I Know It When I See It," 105 YALE L.J. 1023 (1996).
71. This phrase appeared most famously in Justice Stewart's concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964); Stewart used it to capture the essence of the legal standard then applied to obscenity. Id. at 197. Stewart's point, I think, was that the obscenity standard was impossible to define but quite possible, maybe even easy, to apply. For a slightly different understanding of Stewart's phrase, and a defense of the kind of judging it suggested, see Paul Gewirtz, On "I Know It When I See It," 105 YALE L.J. 1023 (1996).
72. The difficulty defendants have in "selling" their lawyers is a function of two things: the frequency with which defendants falsely claim innocence, and the resource constraints under which defense lawyers operate. The former makes defendants incredible, and the latter makes investigating their stories impossible.
73. 1997 SOURCEBOOK, supra note 57, at 437 tbl. 5.70, 439 tbl. 5.72.
74. E.g., BARBARA BOLAND ET AL., THE PROSECUTION OF FELONY ARRESTS - 1987, at 1 (1990).
75. On the reality of false confessions, see GUDJONSSON, supra note 52, at 226-28; Johnson, supra note 19, at 729-30; Richard A. Leo, The Problem of False Confessions, in THE MIRANDA DEBATE 271, 272-73 (Richard A. Leo & George C. Thomas III, eds., 1998); Leo & Ofshe, supra note 19, at 430-31; White, supra note 19, at 108-09. For an argument that false confessions rarely, if ever, lead to convictions, see Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Convictions from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523 (1999).
76. On the reality of false confessions, see GUDJONSSON, supra note 52, at 226-28; Johnson, supra note 19, at 729-30; Richard A. Leo, The Problem of False Confessions, in THE MIRANDA DEBATE 271, 272-73 (Richard A. Leo & George C. Thomas III, eds., 1998); Leo & Ofshe, supra note 19, at 430-31; White, supra note 19, at 108-09. For an argument that false confessions rarely, if ever, lead to convictions, see Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Convictions from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523 (1999).
77. On the reality of false confessions, see GUDJONSSON, supra note 52, at 226-28; Johnson, supra note 19, at 729-30; Richard A. Leo, The Problem of False Confessions, in THE MIRANDA DEBATE 271, 272-73 (Richard A. Leo & George C. Thomas III, eds., 1998); Leo & Ofshe, supra note 19, at 430-31; White, supra note 19, at 108-09. For an argument that false confessions rarely, if ever, lead to convictions, see Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Convictions from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523 (1999).
78. The argument in this paragraph is made in more detail in William J. Stuntz, Lawyers, Deception, and Evidence Gathering, 79 VA. L. REV. 1903, 1930-33 (1993).
79. But cf. Cassell, supra note 19, at 473-78 (arguing that police in 1966 were already fairly professionalized).