Adapting to Miranda: Modern interrogators' strategies for dealing with the obstacles posed by Miranda

Minnesota Law Review

Volumn 84, Issue 2, 1999, Pages 397-471

  Leo, Richard A ^a   White, Welsh S ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF PITTSBURGH   (United States)

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[No Author keywords available]

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EID: 0346189301     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (355)

1. Interrogation Transcript of McConnell Adams, Oakland County Sheriff's Dep't, Mich. 3-14 (Dec. 31, 1996) (on file with authors).
2. 384 U.S. 436 (1966).
3. See id. at 467-73.
4. See, e.g., Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 883-84 (1981) ("Miranda does not, any more than the due process test, come directly to grips with the dilemma arising from our simultaneous commitments to the privilege against self-incrimination and to a law enforcement system in which police interrogation is perceived as a necessity.").
5. See, for example, Joseph D. Grano, Criminal Procedure: Moving from the Accused as Victim to the Accused as Responsible Party, 19 HARV. J.L. & PUB. POL'Y 711 (1996)
6. and Edwin Meese III, Promoting Truth in the Courtroom, 40 VAND. L. REV. 271, 273 (1987), both of which characterize Miranda as "truth-defeating."
7. See also, e.g., Stephen Markman, The Missing Link of Federal Criminal Justice Reform, 4 CORNELL J.L. & PUB. POL'Y 542, 545 (1995) (arguing that the Miranda decision is indicative of "a pervasive willingness to subordinate the truth-seeking function to other interests").
8. See 384 U.S. at 467-68.
9. See infra note 27 and accompanying text.
10. See, e.g., Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 NW. U. L. REV. 100, 106-11 (1985).
11. 166 F.3d 667 (4th Cir. 1999).
12. See infra text accompanying notes 23-25.
13. See Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055,1082-83 (1998).
14. For a critique of Cassell's flawed methodologies, see generally Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109 (1998). As Weisselberg notes, "Cassell's methodology is problematic . . . . One, therefore, must make a series of foolhardy assumptions to conclude that any purported decrease in confession rates is due to Miranda, rather than other factors." Id. at 174.
15. For a critique of Cassell's and Fowles' failed attempt to prove that Miranda has somehow "handcuffed law enforcement" based on their multiple regression analysis of FBI clearance data, see John J. Donahue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998). Weisselberg summarizes the heart of this critique: John Donahue has analyzed the Cassell and Fowles study closely. As an initial matter, Donahue notes that FBI clearance data have proven unreliable because, in addition to the manipulation of clearance rates by local authorities, a perceived decline in clearance rates may reflect nothing more than the improved reporting of crime. . . . Donahue also doubts Cassell's and Fowles's conclusion that Miranda alone lies at the root of any perceived drop in clearance rates in the late 1960s. Cassell's regression analysis establishes only the significance of a "post-1966" variable. The regression analysis itself does not identify Miranda as the event that led to a perceived decline in clearance rates within that time period. Further Miranda should not have a substantial impact upon clearance rates because solving a crime clears it whether or not an arrest or prosecution occurs, and Miranda only operates after a suspect is in custody. . . . In the end, however, Cassell provides the wrong answers to the wrong questions. Weisselberg, supra, at 174-75.
16. When Miranda was decided, Philadelphia Police Commissioner Edward J. Bell decried the decision stating, "I do not believe the Constitution was designed as a shield for criminals." LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS 176 (1983). Similarly, Boston Police Commissioner Edmund L. McNamara complained, "Criminal trials no longer will be a search for truth, but a search for technical error." Id.
17. Thus, in Crooker v. California, 357 U.S. 433 (1958), the Court by a bare majority rejected the dissent's contention that the defendant should have the right to counsel during pre-trial interrogation so as to avoid the litigation problems precipitated by pre-trial interrogation. Justice Douglas's dissent explained the basis for recognizing the suspect's right to counsel at this stage of the proceedings: "The citizen who has been the victim of these secret inquisitions has little chance to prove coercion. The mischief and abuse of the third degree will continue as long as an accused can be denied the right to counsel at this the most critical period of his ordeal." Id. at 444 (Douglas, J., dissenting). In Spano v. New York, 360 U.S. 315, 325 (1959), decided one year later, four concurring Justices argued that a suspect who was formally charged with a criminal offense should have a right to an attorney at pretrial questioning. Moreover, other due process decisions decided during this era could be viewed as imposing per se prohibitions on interrogation tactics designed to interfere with the suspect's right to remain silent, see, e.g., Haynes v. Washington, 373 U.S. 503 (1963) (finding defendant's confession involuntary primarily because police told him he would be permitted to call his wife only after he confessed), and thus as coming "closer and closer to Miranda's outcome." Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195, 2223 (1996).
18. Geoffrey R. Stone, The Miranda Doctrine in the Supreme Court, 1977 SUP. CT. REV. 99, 103
19. (quoting WALTER SCHAFFER, THE SUSPECT AND SOCIETY 10 (1967)).
20. In his Miranda dissent, Justice White stated that there was: every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now, under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State's evidence, minus the confession, is put to the test of litigation. Miranda v. Arizona, 384 U.S. 436, 542 (White, J., dissenting).
21. Eric Pace, Ruling on Police Hailed by A.C.L.U., N.Y. TIMES, June 14, 1966, at 25 (quoting statement of John de J. Pemberton, Jr., then the director of the ACLU). Similarly, Aryeh Neier, the director of the ACLU's New York chapter stated that Miranda "doesn't go far enough in protecting those who most need protection. We do believe that a person must have the advice of counsel in order to intelligently waive the assistance of counsel."
22. YALE KAMISAR, POLICE INTERROGATION AND CONFESSIONS: ESSAYS IN LAW AND POLICY 47-49 & n.11 (1980).
23. See, e.g., Yale Kamisar, The Case, the Man and the Players, 82 MICH. L. REV. 1074, 1077 (1984);
24. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 460-61 (1987).
25. See, e.g., Richard Seeburger & R. Stanton Wettick, Jr., Miranda in Pittsburgh - A Statistical Study, 29 U. PITT. L. REV. 1, 11-16 (1967) (finding that in one detective division within Allegheny County, after Miranda, suspects' confession significantly declined, but the conviction rate remained about the same);
26. Michael Wald et al., Interrogation in New Haven: The Impact of Miranda, 76 YALE L.J. 1519, 1523 (1967) (concluding that Miranda handicapped police in New Haven, Connecticut, from obtaining a confession necessary for conviction in only 6 of 127 cases);
27. James W. Witt, Non-Coercive Interrogation and the Administration of Criminal Justice: The Impact of Miranda on Police Effectuality, 64 J. CRIM. L. & CRIMINOLOGY 320, 325 (1973) (concluding that the post-Miranda "success" rate for police interrogations in a California city declined only 2%).
28. For a detailed discussion of these and other studies, see Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 394-437 (1996);
29. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 632-52 (1996);
30. Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500, 516-47 (1996).
31. See supra note 4.
32. See, e.g., Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417, 1419 (1985) (arguing Miranda has "accentuated . . . those features of our system that manifest the least regard for truth-seeking"); Meese, supra note 5, at 273 (characterizing Miranda as "truth-defeating").
33. See, e.g., CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 37 (1993) (observing that since Miranda "[t]he 'third degree" seems to have largely disappeared from the American scene").
34. See generally WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 285-86 (1985);
35. see also Jerold Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1320, 1383 (1977) ("The police officers with whom I have spoken generally acknowledge that announcement of the Miranda warnings causes little difficulty if the warnings requirement is limited to interrogation of arrested persons at the police station or in similar settings" (e.g., a patrol car)).
36. Cassell, supra note 18, at 438.
37. Cassell & Fowles, supra note 11, at 1082.
38. See Richard A. Leo & Richard J. Ofshe, Using the Innocent to Scapegoat Miranda: Another Reply to Paul Cassell, 88 J. CRIM. L. & CRIMINOLOGY 557 (1998);
39. Stephen J. Schulhofer, Bashing Miranda Is Unjustified - and Harmful, 20 HARV. J.L. & PUB. POL'Y 347 (1997) [hereinafter Bashing Miranda];
40. Stephen J. Schulhofer, Miranda and Clearance Rates, 91 NW. U. L. REV. 278 (1996) [hereinafter Miranda and Clearance Rates]; Schulhofer, supra note 17.
41. Cassell advocates that Miranda be replaced by safeguards under which before engaging in custodial interrogation, the police would be required to give a suspect five warnings and to tape the ensuing interrogation. See Cassell, supra note 18, at 496-97. Significantly, the police would not be required to warn the suspect of his right to have an attorney present at questioning (apparently, the suspect would have no such right) and the police would not be required to obtain a waiver of the suspect's rights before commencing their interrogation. See id. at 497.
42. In post-Miranda cases, the Court has consistently referred to Miranda's requirements as prophylactic safeguards designed to provide individuals with additional Fifth Amendment protection rather than as mandated by the Fifth Amendment privilege. Thus, in New York v. Quarles, the Court stated that "[t]he prophylactic Miranda warnings . . . are 'not themselves protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" 467 U.S. 649, 654 (1984) (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)); see also Oregon v. Elstad, 470 U.S. 298, 309 (1985) (referring to Miranda's requirements as "prophylactic standards").
43. Yale Kamisar, The Warren Court and Criminal Justice, in THE WARREN COURT: A RETROSPECTIVE 116,120 (Bernard Schwartz ed., 1996).
44. See DAVID SIMON, HOMICIDE: A YEAR ON THE KILLING STREETS 199 (1991) (observing that "if the . . . intent of the Miranda decision was, in fact, an attempt to 'dispel the compelling atmosphere' of an interrogation, then it failed miserably");
45. Peter Arenella, Miranda Stories, 20 HARV. J.L. & PUB. POL'Y 375, 385-86 (1997) (suggesting that Miranda may not provide individuals with significant protection against police pressure to incriminate themselves); see also Schulhofer, supra note 4, at 884 (concluding that Miranda is "infinitely less candid than the due process balancing analysis" in that it fails to fulfill its promise to provide individuals subjected to custodial interrogation with significant protection against police pressure). But see Schulhofer, supra note 18, at 562 (concluding that "confessions are now mostly the result of persuasion and the suspect's overconfidence, not of pressure and fear").
46. Cassell attempts to quantify Miranda's precise cost to law enforcement in three steps: first, by attempting to measure the number of lost confessions stemming from Miranda's warnings and waiver requirement; second, by attempting to measure the percentage of cases in which a confession is necessary for conviction; and, third, by multiplying these two figures to estimate the number of lost convictions as a result of Miranda's warnings and waiver requirement. See Cassell, supra note 18, at 437. Cassell's attempt at informed quantification amounts to no more than elaborate speculation for at least three reasons. First, the data is simply not adequate to the task: the Miranda studies on which Cassell relies are well over three decades old and are replete with methodological flaws. See Leo, supra note 18, at 646-48; Schulhofer, supra note 18, at 506-07; George C. Thomas III, Is Miranda A Real-World Failure?: A Plea for More (and Better) Empirical Evidence, 43 UCLA L. REV. 821, 823-31 (1996). Second, Cassell selectively counts those outdated and methodologically flawed studies supporting his argument to abolish Miranda, while disregarding those studies that do not support his agenda. In his critique of Casell, Professor Schulhofer observes that: at critical points in his analysis, data are cited selectively, sources are quoted out of context, weak studies showing negative impacts are uncritically accepted, and small methodological problems are invoked to discredit a no-harm conclusion when the same difficulties are present - to an even greater extent - in the negative-impact studies that Cassell chooses to feature.
47. Schulhofer, supra note 18, at 502; see also George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 UCLA. L. REV. 933, 935-96 (1996) (concluding that Cassell's historical evidence does not support the high pre-Miranda confession rate that he claims). Third, even if confession rates have declined since Miranda, Cassell simplistically and incorrectly assumes he can isolate the precise causal impact of Miranda from all the other competing factors - such as the complex social, political and legal changes that have occurred in the United States since the mid-sixties - that might be responsible for such a change. Not surprisingly, Professor Schulhofer, in a lengthy refutation of Cassell's attempt to measure Miranda's costs, argues that Cassell's extrapolations are "simply rhetoric" and "not a serious foundation for assessing social policy." Schulhofer, supra note 18, at 546. Elsewhere, Schulhofer has cautioned that, "[r]eaders should understand that these are simply advocacy numbers, derived from indefensibly selective accounts of the available data."
48. Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21. Masquerading as sound estimates of a real world phenomenon, Cassell's advocacy numbers are little more than elaborate speculation.
49. Schulhofer makes a similar point, observing that "even if we can assume that the studies give a reliable picture of Miranda's costs thirty years ago, there is strong reason to believe that such costs were transitory and that confession rates have since rebounded from any temporary decline." Schulhofer, supra note 18, at 506.
50. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996);
51. Cassell & Fowles, supra note 11; Paul G. Cassell, Miranda's "Negligible" Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. & PUB. POL'Y 327 (1997); Cassell, supra note 18; Schulhofer, Bashing Miranda, supra note 25; Schulhofer, supra note 18; Thomas, supra note 30.
52. See, e.g., Cassell, supra note 18, at 405 (criticizing The 'Seaside City' Study," which found only a 2% drop in the confession rate after Miranda, on the ground that the study did not include "cases in which suspects were detained for questioning but never incarcerated" and "did not give any information on how the Seaside Police implemented Miranda"); Schulhofer, supra note 18, at 516-17 (observing that with respect to the Pittsburgh study, which found a substantial drop in the confession rate before and after Miranda, the pre-Miranda confession rate was "based on the study author's count of usable statements" whereas the post-Miranda confession rate for 1967 was "based on new forms that police officers began completing immediately after interrogations[;]" a difference that was likely to be important because there was no reason "to assume that officers' on-the-spot judgments about what counted as a usable statement" would be based on the same criteria as that employed by the study author). For more general criticism of the early post-Miranda studies, see Leo, supra note 18, at 647 ("[W]ith one or two exceptions, these studies - virtually all of which were conducted by lawyers or law professors not trained in the research methods of social science - are replete with methodological weaknesses [.]"); Schulhofer, supra note 18, at 506 ("Few, if any, included all necessary segments of the caseload, used proper sampling procedures, insured strict equivalence of the groups compared, and controlled for relevant causal variables other than Miranda.").
53. See, e.g., Seeburger & Wettick, supra note 18, at 6 (examining Pittsburgh's detective branch files from 1964 through the summer of 1967 for cases of homicide, rape, robbery, burglary, and auto larceny); Witt, supra note 18, at 322-23 (reviewing files from 1964 to 1968 dealing with murder, forcible rape, robbery, and burglary, in "Seaside City," a Los Angeles area enclave with a population of approximately 83,000).
54. Not surprisingly, post-Miranda studies conducted in different parts of the country reached strikingly different conclusions as to Miranda's effect on confessions. Compare Richard J. Medalie et al., Custodial Police Interrogation in Our Nation's Capital: The Attempt to Implement Miranda, 66 MICH. L. REV. 1347, 1414 app. E tbl.E1 (1968) (finding a 3% drop in the statement rate after Miranda) with Seeburger & Wettick, supra note 18, at 12 tbl.2 (showing a 16.9% drop in the confession rate after Miranda).
55. See Seeburger & Wettick, supra note 18, at 12 tbl.2 (showing that in the Pittsburgh detective division the change in the confession rate before and after Miranda varied from a slight increase in forcible sex crimes (20.4% to 21.4%) to a very significant decrease in robbery cases (61.2% to 28.9%)).
56. See SIMON, supra note 29, at 199 ("Repetition and familiarity with the process soon place the professionals beyond the reach of a police interrogation."); see also Leo, supra note 18, at 654-55 (finding on the basis of a sample of more than 170 interrogations that "a suspect with a felony record . . . was almost four times as likely to invoke his Miranda rights as a suspect with no prior record and almost three times as likely to invoke as a suspect with a misdemeanor record").
57. See Seeburger & Wettick, supra note 18, at 12 tbl.2 (finding that the overall confession rate fell from 48.5% to 32.3%).
58. During the same period, Seeburger and Wettick concluded that "before compliance with the Miranda requirements the Detective Branch obtained confessions in 54.4% of the cases and after compliance in only 37.5% of the cases." Id. at 11. The authors also concluded that during this same period "the conviction rate ... remained steady." Id. at 19.
59. In an interview conducted by Leo, one detective said: "Miranda is a stumbling block, it is a hurdle, and it is an important one. It is probably one of the most crucial points in the interrogation." Leo, supra note 18, at 663.
60. See Miranda v. Arizona, 384 U.S. 436, 448-55 (1966).
61. See, e.g., id. at 453-54 (outlining strategies employed when a suspect asserts her right to remain silent). Overcoming a suspect's resistance and eliciting a confession were also the primary obstacles that police interrogators confronted prior to Miranda.
62. See, e.g., ARTHUR S. AUBRY, JR. & RUDOLPH R. CAPUTO, CRIMINAL INTERROGATION (3d ed. 1980);
63. FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS (3d ed. 1986);
64. CHARLES E. O'HARA & GREGORY L. O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION (5th ed. 1981);
65. ROBERT F. ROYAL & STEVEN R. SCHUTT, THE GENTLE ART OF INTERVIEWING AND INTERROGATION: A PROFESSIONAL MANUAL AND GUIDE (1976);
66. DAVID E. ZULAWSKI & DOUGLAS E. WICKLANDER, PRACTICAL ASPECTS OF INTERVIEW AND INTERROGATION (1993).
67. See, e.g., AUBREY & CAPUTO, supra note 43, at 276-77 (asserting that the interrogator should size-up the suspect before the interrogation to determine which of several interrogation techniques should be employed); ROYAL & SCHUTT, supra note 43, at 61-62 (iterating various techniques that may be used to develop rapport with the suspect prior to the interrogation; among them, "[e]stablish confidence and friendliness by talking for a period about everyday subjects"); ZULAWSKI & WICKLANDER, supra note 43, at 23 (explaining the importance of taking on the role of the "mediator-negotiator" and convincing the suspect that he can find "common ground" between the prosecution and the suspect).
68. But see INBAU ET AL., supra note 43, at 234-36 (recommending that interrogators establish consensual "non-custodial" interrogations to avoid the necessity of Miranda warnings where possible); id. at 224-28 (advising interrogators not to give premature or "extra" Miranda warnings, thereby minimizing the possibility that suspects will assert their rights).
69. See supra text accompanying note 42.
70. See generally Weisselberg, supra note 11, at 135-36 (quoting from training videotape advising interrogators as to when they may question "outside Miranda" for the purpose of obtaining impeachment evidence).
71. There are other areas in which the due process test rather than Miranda is applicable. See, e.g., Oregon v. Elstad, 470 U.S. 298, 308 (1985) (stating that fruits derived from a "noncoercive" Miranda violation will not be excluded); New York v. Quarles, 467 U.S. 649, 658 n.7 (1984) (stating in dicta that when Miranda's public safety exception applies, the due process voluntariness standard provides the test for determining the admissibility of a suspect's statement). The impeachment cases are particularly significant, however, because they provide the police with a limited opportunity to circumvent Miranda even in situations where a suspect invokes his Miranda rights. See generally James L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44 STAN. L. REV. 1301, 1308 (1992) (discussing impeachment cases dealing with the admissibility of evidence when police continue to interrogate following a suspect's request for an attorney).
72. See Miranda v. Arizona, 384 U.S. 436, 476 (1966).
73. Id.
74. See infra text accompanying notes 71-177.
75. Other decisions have also broadened interrogators' opportunities to circumvent Miranda. For example, Miranda only applies to custodial interrogation. See Miranda, 384 U.S. at 444. In Berkemer v. McCarty, the Court narrowed the definition of custody, holding that a suspect is in custody when his "freedom of action is curtailed to a 'degree associated with formal arrest.'" 468 U.S. 420, 440 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). Berkemer's holding, of course, opens up the possibility that, so long as they do not effect an arrest, the police may conduct lengthy "interviews" with suspects without giving suspects Miranda warnings. See generally Kate Greenwood & Jeffrey A. Brown, Investigation and Police Practices: Custodial Interrogations, 86 GEO. L.J. 1318 (1998).
76. Miranda states: statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. Miranda, 384 U.S. at 477
77. See Oregon v. Hass, 420 U.S. 714, 721-22 (1975); Harris v. New York, 401 U.S. 222, 225 (1971). In addition, other post-Miranda decisions held that evidence derived from statements obtained in violation of Miranda would be admissible so long as the evidence was not the product of a due process violation. See Oregon v. Elstad, 470 U.S. 298, 304 (1985); Michigan v. Tucker, 417 U.S. 433, 441 (1974).
78. See Tucker, 417 U.S. at 450-51.
79. See Elstad, 470 U.S. at 302, 307.
80. See id. at 308.
81. The due process voluntariness test prohibits the introduction of confessions determined to be involuntary based on an evaluation of the circumstances of the interrogation and the individual characteristics of the suspect subjected to interrogation. For post-Miranda cases applying the due process voluntariness test, see, for example, Arizona v. Fulminante, 499 U.S. 279, 285-88 (1991); Colorado v. Connelly, 479 U.S. 157, 163-70 (1986). See generally Welsh S. White, What Is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 2014-20 (1998) (discussing post-Miranda due process voluntariness cases).
82. Of the 129 cases in which Cassell and Hayman gathered data, they report that in none of the interviews did the police continue questioning after a subject invoked Miranda rights. See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 860-61 (1996). Since Cassell and Hayman did not observe the police interviews, however, they had to rely on information related to them by the police. See id. at 861 n.123. In Leo's observation of 175 cases, interrogators continued questioning 7 of the 38 suspects who invoked their Miranda rights.
83. See Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 276 (1996).
84. In assessing how often interrogators intentionally circumvent Miranda in order to obtain statements that are admissible for impeachment purposes, Weisselberg observes that in California "training materials" instructing interrogators how to accomplish this goal were "distributed statewide." Weisselberg, supra note 11, at 136. He thus concludes that "[t]here can be no doubt that the practice . . . has spread throughout California." Id.
85. See Weisselberg, supra note 11, app. at 189-92 (citing an excerpt of transcript of training video advising interrogators as to when and how they should question suspects "outside Miranda").
86. See id. at 133.
87. If, as expected, the Supreme Court accepts certiorari in U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999) a real possibility exists that the Court would hold that the congressional statute replacing Miranda makes Miranda inapplicable in federal cases. Although predicting results in Supreme Court cases is always hazardous, the Court now contains a solid core of conservatives that might be inclined to defer to legislation replacing Miranda's "prophylactic" rules. Moreover, if the Court were to rule in favor of the government in Dickerson, this might at least be the beginning of the end for Miranda, since state legislatures would then also be free to pass statutes replacing Miranda with the voluntariness test.
88. Specifically, the extent to which questioning "outside Miranda" produces statements admissible for impeachment from suspects who responded to the Miranda warnings by invoking their right to remain silent or to have an attorney present at questioning provides a good indication of the extent to which abolishing Miranda would allow the government to obtain additional statements for use in its case-in-chief. When interrogators obtain statements admissible for impeachment from suspects who were not adequately warned of their Miranda rights in the first place, assessing the extent to which abolishing Miranda would enhance the availability of statements admissible in the government's case-in-chief is more speculative because it is difficult to determine the extent to which these suspects would have made incriminating statements if they had been given the Miranda warnings.
89. The excerpts from interrogation transcripts discussed in this Article are taken from interrogation transcripts collected by Richard Leo and Richard Ofshe from cases in various jurisdictions dating from 1987 to the present. See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENY. U. L. REV. 979, 981 n.1 (1997).
90. Justice Jackson's statement as to how the police will interpret and apply exceptions to the warrant requirement of the Fourth Amendment has general application: "[T]he extent of any privilege . . . which we sustain, the officers interpret and apply themselves and . . . push to the limit." Brinegar v. United States, 338 U.S. 160, 182 (1949) (Jackson, J., dissenting).
91. See infra notes 185-96 and accompanying text.
92. See infra notes 197-214 and accompanying text.
93. See infra notes 231-47 and accompanying text.
94. See infra notes 296-307 and accompanying text.
95. 304 U.S. 458, 462-69 (1938).
96. Miranda v. Arizona, 384 U.S. 436, 475 (1966).
97. See, e.g., Faretta v. California, 422 U.S. 806, 835 (1975) (stating that in order to waive representation by counsel at trial, a defendant must be "made aware of the dangers and disadvantages of self-representation"); Carnley v. Cochran, 369 U.S. 506, 516 (1962) (holding that in order to establish a valid waiver of trial counsel, there must be proof that "an accused was offered counsel but intelligently and understandingly rejected the offer").
98. See, e.g., Commonwealth v. Sites, 235 A.2d 387, 390 (Pa. 1967) (stating in dicta that a knowing and intelligent waiver of Miranda rights "does not occur unless there is full knowledge of the rights one is forfeiting").
99. See Colorado v. Spring, 479 U.S. 564, 574 (1987); Moran v. Burbine, 475 U.S. 412, 421-22 (1986).
100. 479 U.S. at 576-77. In Spring, the defendant was arrested on a firearms charge. See id. at 566. After being given Miranda warnings, he waived his rights. See id. at 567. The arresting officers questioned the defendant not only about the firearms charge, but also about a murder. See id. During this questioning, the defendant made an incriminating statement about the murder. See id. Later, he tried to suppress this statement and a confession stemming from it on the theory that his Miranda waiver was invalid because at the time of the waiver he was not aware of its consequences in that he did not understand the extent of the questioning he would be subjected to. See id. at 569. The Court rejected this argument, finding that once Miranda warnings are properly administered and understood, a suspect has all the information he needs to make a valid waiver. See id. at 576-77. Any "additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature." Id. at 577.
101. 475 U.S. at 422-23. In Burbine, the defendant was arrested and taken to police headquarters where an officer advised him of his Miranda rights. See id. at 416. Unknown to the defendant, the defendant's sister had secured an attorney, who attempted to reach the defendant, but was rebuffed by the police. See id. at 416-17. That evening, the defendant signed a form waiving his Miranda rights and confessed to the murder. See id. at 415, 417-18. The defendant sought to exclude his confession on the grounds that the police refusal to allow his attorney to contact him compromised his waiver. See id. at 418. In holding the defendant's waiver valid, the Court observed that as long as the defendant could fully comprehend his Miranda rights, outside events of which he had no knowledge (in this case, the attorney's attempt to contact him) could have no bearing on his decision to waive. See id. at 422.
102. An exception may apply when the suspect is so mentally handicapped that he lacks the capacity to understand the meaning of the Miranda warnings. In practice, however, courts have generally held that a suspect's mental capacity is only one of many factors to be considered when determining the validity of a waiver. See, e.g., United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990) ("[M]ental illness is only a factor to be weighed in determining the validity of a waiver."); Dunkins v. Thigpen, 854 F.2d 394, 398-99 (11th Cir. 1988) (finding suspect's waiver valid despite evidence of mental retardation).
103. 441 U.S. 369 (1979), vacating 439 U.S. 1046 (1978).
104. In Butler, the defendant was questioned by FBI agents in connection with an armed robbery and shooting. See id. at 370. The agents read the defendant his Miranda rights and gave him a waiver form to sign. See id. at 371. The defendant acknowledged that he understood his rights and said he would speak to the agents; at the same time, however, he refused to sign the waiver form. See id. The defendant then made incriminating statements. See id. The Court rejected the defendant's contention that his Miranda waiver was per se invalid because he did not sign the waiver form. See id. at 373. The Court concluded that, despite the lack of an express written statement of waiver, "[i]n at least some cases waiver can clearly be inferred from the actions and words of the person interrogated." Id.
105. See United States v. Gell-Iren, 146 F.3d 827, 829-30 (10th Cir. 1998) (finding a valid waiver where a suspect responded to a police request to waive his rights by asking to speak confidentially to a detective); Stawicki v. Israel, 778 F.2d 380, 381-84 (7th Cir. 1985) (finding a valid waiver where a suspect refused to agree to waiver, but requested to speak to a detective).
106. See supra text accompanying note 49.
107. Miranda v. Arizona, 384 U.S. 436, 476 (1966).
108. "Cajole" is defined as "to persuade with deliberate flattery, esp. in the face of reasonable objection or reluctance." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 313 (Philip Babcock Gove ed., Merriam-Webster 1981).
109. In Colorado v. Spring, 479 U.S. 564, 575-76 (1987), the Court quoted Miranda's "trickery" language, but refused to interpret it to apply to an interrogator's failure to inform a suspect that he would be questioned about a crime unrelated to the crime for which he had been arrested. Similarly, in Moran v. Burbine, 475 U.S. 412, 423-24 (1986), the Court referred to the "trickery" language, but found that the police behavior - warning the suspect of his right to have an attorney present at questioning without informing him that his attorney was attempting to contact him - while ethically questionable, did not violate Miranda.
110. See Spring, 479 U.S. at 573 (citing Burbine, 475 U.S. at 421).
111. In Spring, the Court left open the question of whether a waiver precipitated by an interrogator's affirmative misrepresentation would he valid. See id. at 576 n.8.
112. See Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); Fare v. Michael C., 442 U.S. 707, 724-25 (1979); cf. Michigan v. Mosley, 423 U.S. 96, 108 (1975) (White, J., concurring), aff'd, 254 N.W.2d 29 (Mich. 1977) (arguing that, even after a suspect initially asserts his right to remain silent, voluntariness is the appropriate standard for determining the validity of a Miranda waiver).
113. See, e.g., United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (per curiam); Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 1994).
114. United States v. Lynch, 92 F.3d 62, 65 (2d Cir. 1996) (quoting United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991)); see also State v. Knight, 459 S.E.2d 481, 493 (N.C. 1995) ("Some of the factors to be considered include (i) whether the defendant was in custody, (ii) defendant's mental capacity, (iii) the physical environment of the interrogation, and (iv) the manner of the interrogation.").
115. See, e.g., State v. Murray, 510 N.W.2d 107, 110 (N.B. 1994) (applying due process voluntariness test to determine the validity of a Miranda waiver). But see, e.g., Commonwealth v. Magee, 668 N.E.2d 339, 344 (Mass. 1996) ("Due process requires a separate inquiry into the voluntariness of the statement, apart from the validity of the Miranda waiver.").
116. See, e.g., Haynes v. Washington, 373 U.S. 503, 504 (1963) (considering as factors a sixteen-hour long questioning, a five to seven day incommunicado detention, and a police refusal to allow the defendant to phone his wife); Spano v. New York, 360 U.S. 315, 322-23 (1959) (considering as factors the defendant's low level of education, an eight-hour overnight uninterrupted interrogation session, and trickery employed by the police).
117. For a discussion of the limitations of both tests, see Mark Berger, Compromise and Continuity: Miranda Waivers, Confession Admissibility, and the Retention of Interrogation Protections, 49 U. PITT. L. REV. 1007, 1012-21 (1988).
118. For criticism of the due process voluntariness test on the grounds that it failed to provide adequate standards for the police or courts, see, for example, Lawrence Herman, The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation, 48 OHIO ST. L.J. 733, 745-55 (1987);
119. Stone, supra note 14, at 101-06. For a discussion of the shortcomings of any test that focuses on determining voluntariness, see George C. Thomas III, Miranda: The Crime, the Man, and the Law of Confessions, in THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING 7, 18 (Richard A. Leo & George C. Thomas III eds., 1998) (concluding that this is "sometimes a philosophical or psychological problem of the first magnitude").
120. See infra text accompanying notes 101-33.
121. See, e.g., Anderson, 929 F.2d at 99.
122. No cases after 1990 yielded such holding based on federal law. Search of WESTLAW, Allfeds Library (Oct. 25, 1999).
123. See Commonwealth v. Gibbs, 553 A.2d 409, 411 (Pa. 1989), aff'd, 626 A.2d 133 (Pa. 1993) (holding Miranda waiver induced by police promise to inform prosecutor of suspect's cooperation invalid because "[p]romises of benefits or special considerations . . . comprise the sort of persuasion and trickery which easily can mislead suspects into giving confessions"); Commonwealth v. Morgan, 606 A.2d 467 (Pa. Super. Ct. 1992), aff'd, 652 A.2d 295 (Pa. 1994) (holding similarly).
124. See Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (finding waiver invalid because of police admonition that it "might be worse" if suspect didn't cooperate); United States v. Pinto, 671 F. Supp. 41, 60 (D. Me. 1987) (holding that a police promise to keep the suspect out of jail if he cooperated vitiated the suspect's Miranda waiver).
125. See, e.g., United States v. Rutledge, 900 F.2d 1127 (7th Cir. 1990). In Rutledge, a suspect accused of drug possession waived his Miranda rights after he was told that "all cooperation is helpful." Id. at 1128. He subsequently confessed to dealing a substantially larger amount of drugs than the police had originally suspected, which resulted in a sentence several times longer than the one he would have received if he had not confessed. See id. The court held that the "cooperation" statement made by the police did not invalidate the suspect's Miranda waiver: "Far from making the police a fiduciary of the suspect, the law permits the police to pressure and cajole, conceal material facts and actively mislead" within certain limits. Id. at 1131; see also United States v. Bye, 919 F.2d 6, 9-10 (2d Cir. 1990) (advising a suspect that cooperation may be rewarded with leniency does not per se invalidate a suspect's waiver of his Miranda rights); United States v. Ingalls, 982 F. Supp. 315, 317 (D. Vt. 1997) ("Promises of leniency, without more, do not invalidate a Miranda waiver.").
126. See Anderson, 929 F.2d at 100; United States v. Morgan, 911 F. Supp. 1340, 1350-51 (D. Kan. 1995) (finding waiver invalid when postal inspector told suspect that he would not be permitted to invoke his Fifth Amendment privilege at trial).
127. 929 F.2d 96 (2d Cir. 1991).
128. See id. at 97.
129. See id.
130. See id.
131. See id.
132. See id.
133. Id.
134. See id.
135. Id. at 99.
136. Id.
137. Id.
138. Id.
139. Although the district court found that the defendant's Miranda waiver was involuntary, the circuit court primarily addressed the question of whether the defendant's confession was voluntary. See id. at 98. Due to the way in which it framed the issue, however, the Second Circuit seemed to view these questions as essentially the same. See id. at 98-102.
140. Id. at 100.
141. See id. at 100-01.
142. See id. at 102.
143. 92 F.3d 62 (2d Cir. 1996).
144. Id. at 64 (describing the steps of processing as "taking his fingerprints, advising him of his constitutional rights, and completing a pedigree form").
145. See id.
146. The agent asked the defendant to read his Miranda rights from an ATF form. See id. After doing so, the defendant, at the agent's request, signed a statement on the form indicating that he had read his rights. See id.
147. See id.
148. See id.
149. See id. at 65.
150. See id.
151. In applying the totality of circumstances test, the court also relied on the defendant's circumstances and actions, including the fact that the defendant chose to answer some questions and not others. See id.
152. See id at 65-66.
153. Id. at 66.
154. Id.
155. Id. (quoting United States v. Anderson, 929 F.2d 96, 100 (2d Cir. 1991)).
156. See id.
157. Id.
158. See id. The court also observed that the agent was not trying to pressure the defendant into a waiver but was responding to the situation precipitated by the defendant's questions. See id.
159. As Justice Harlan observed in his dissent, Miranda does little to alleviate one of the principal problems with incommunicado interrogation - resolving conflicts between the interrogating officers' and suspects' versions of the facts relating to critical issues. Just as the determination of whether a suspect's confession was voluntary within the meaning of the due process test often used to depend on the resolution of a swearing contest relating to what happened during the interrogation, see Miranda v. Arizona, 384 U.S. 436, 516 (1966) (Harlan, J., dissenting), the validity of a suspect's waiver now often depends on the resolution of a swearing contest relating to the events surrounding the reading of the Miranda rights. See Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. REV. 785, 808-09 (1970). When suspects and police officers differ as to critical facts, moreover, judges are likely to resolve the credibility dispute in favor of the officers. See id. For example, Professor Kamisar found in Brewer v. Williams, 430 U.S. 387 (1977), that when the interrogating detective contradicted the suspect's version of the facts, the detective invariably won the swearing contest, but when the detective disputed the defense counsel's testimony, the attorney rather than the detective was found to be credible. See KAMISAR, supra note 16, at 130.
160. Miranda, 384 U.S. at 474.
161. Id.
162. See infra text accompanying notes 138-77.
163. See infra text accompanying notes 149-51.
164. 423 U.S. 96 (1975).
165. For an excellent examination of the Mosley case, see Stone, supra note 14, at 129-37.
166. See Mosley, 423 U.S. at 104.
167. See id. at 107-08 (White, J., concurring).
168. Stone, supra note 14, at 133.
169. See id. at 135.
170. Mosley, 423 U.S. at 105-06.
171. See United States v. McClinton, 982 F.2d 278, 282 (8th Cir. 1992) (finding that when a different set of officers interrogated the suspect after he had invoked his right to remain silent, the "scrupulously honor" test was met because the police did not persist in efforts to induce a waiver); Nelson v. Fulcomer, 911 F.2d 928, 939 (3d Cir. 1990) (This is not a case . . . where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue an interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind." (quoting Mosley, 423 U.S. at 105-06)).
172. See Stone, supra note 14, at 135.
173. See United States v. Hsu, 852 F.2d 407, 410-12 (9th Cir. 1988); Jackson v. Dugger, 837 F.2d 1469, 1471-72 (11th Cir. 1988); United States ex rel. Balderas v. Godinez, 890 F. Supp. 732, 742 (N.D. Ill. 1995); Wilson v. United States, 444 A.2d 25, 29 (B.C. 1982).
174. In Hsu, the court held that the police "scrupulously honor[ed]" the suspect's right to cut off questioning even though the same officer questioned him shortly after he asserted his right to remain silent. Hsu, 852 F.2d at 410-12. The court based its holding on the officer's deferential treatment of the suspect and the fact that the officer re-advised the suspect of his Miranda rights prior to the second interrogation and the physical setting had changed. See id. at 411-12. In explaining Mosley's test, the court said that "[f]ar from laying down inflexible constraints on police questioning and individual choice, Mosley envisioned an inquiry into all of the relevant facts to determine whether the suspect's rights have been respected." Id. at 410. In Jackson, the court held that the police "scrupulously honored" the suspect's assertion of his right to remain silent even though, following his assertion of that right, the police approached him and attempted to obtain a waiver of his Miranda rights five times in six hours. Jackson, 837 F.2d at 1471.
175. 451 U.S. 477 (1981).
176. Id. at 484-85.
177. In order to trigger this protection, however, the suspect's invocation of his right to counsel must be unambiguous. See Davis v. United States, 512 U.S. 452, 461 (1994) (Kennedy, J., dissenting). See infra notes 215-30 and accompanying text for further discussion of Davis's impact on the strategy employed by interrogators when a suspect invokes his right to have an attorney present.
178. 462 U.S. 1039 (1983).
179. In Bradshaw, the suspect was arrested for furnishing liquor to a minor. See id. at 1041. He was also suspected of driving the truck that caused the minor's death. See id. An officer gave the suspect Miranda warnings and then suggested that he had been behind the wheel of the truck when the accident occurred. See id. The suspect asserted his right to an attorney and the officer immediately terminated the conversation. See id. at 1041-42. A few minutes later, the suspect said to the officer, "Well, what is going to happen to me now?" Id. at 1042. The Court split 4-4 as to whether the suspect's question, "Well, what is going to happen to me now?" constituted "initiation" of exchanges or communications within the meaning of Edwards. See id. at 1045, 1055. Speaking for four Justices, Justice Rehnquist concluded that it was "initiation" because "[allthough ambiguous, the [suspect's] question . . . evinced a willingness and a desire for a generalized discussion about the investigation." Id. at 1045-46 (plurality opinion). Although not agreeing that a suspect's waiver of his Miranda rights should depend on whether he "initiated" further exchanges with the police, Justice Powell joined the Rehnquist plurality in concluding that the suspect in this case validly waived his Miranda rights. See id. at 1051 (Powell, J., concurring in judgment). See Kamisar, supra note 28, at 124 for criticism of the way the Court applied Edwards "initiation" test in Bradshaw.
180. Bradshaw, 462 U.S. at 1045-46.
181. See supra note 153.
182. However, Edwards may be read as holding that once the suspect invokes his right to have an attorney present, the police are prohibited not only from interrogating the suspect but from attempting to induce a waiver. In Edwards, Justice White stated that the government could not establish a suspect's waiver by showing that "he responded to further police-initiated custodial interrogation." Edwards v. Arizona, 451 U.S. 477, 484 (1981). This language could be read to mean that once the suspect invokes his right to an attorney the police are prohibited from obtaining "a police-initiated waiver." Minnick v. Mississippi, 498 U.S. 146, 167 (1990) (Scalia, J., dissenting). In other words, unless the suspect "initiates" further exchanges with the police, the police are prohibited from "initiating" communications that might lead the suspect to reconsider her decision to assert her rights.
183. 632 N.E.2d 1239, 1244 (Mass. 1994).
184. See id. at 1240.
185. See id.
186. See id.
187. See id.
188. See id.
189. See id.
190. See id.
191. See id.
192. See id. at 1240-41. At Terrio's urging, the defendant talked to his father by telephone from her office before waiving his rights. See id. at 1240. Although his father reiterated that the defendant should not talk to the police about the case without having a lawyer present, the defendant persisted in his decision to waive his rights. See id. at 1241.
193. The court also held that Terrio did not violate Mosley's "scrupulously honor" test because the defendant was not interrogated before he gave a statement. See id. at 1241 n.3.
194. 446 U.S. 291 (1980).
195. D'Entremont, 632 N.E.2d at 1242 (citing Innis, 446 U.S. at 301).
196. See id.
197. Id. at 1242-43.
198. Id. at 1242 (citing Innis, 446 U.S. at 301).
199. See id. at 1243.
200. The test for whether an officer's statement constitutes interrogation is whether it is one that the officer "should know [is] reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301. Moreover, the Court added "where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect." Id. at 301-02 n.7. Arguably, Detective Terrio's statement to the suspect was designed for no other purpose than to lead the suspect to waive his right to have an attorney present and to tell his story to the detective. On the other hand, if Edwards holds that the police are prohibited from "initiating" communications relating to the waiver decision with a suspect who has asserted her right to counsel, then Detective Terrio's statement to the suspect would appear to constitute improper "initiation." See supra note 150 and accompanying text.
201. For discussions of what constitutes interrogation within the meaning of Miranda, see Yale Kamisar, Brewer v. Williams, Massiah and Miranda: What is "Interrogation"? When Does It Matter?, 67 GEO. L.J. 1, 101 (1978), reprinted in KAMISAR, supra note 16; Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 MICH. L. REV. 1209,1251 (1980).
202. As punishment for playing hooky, Tom Sawyer's Aunt Polly ordered him to whitewash her fence. Tom, however, conned his playmates into doing the job for him by convincing them that whitewashing the fence was a desirable activity rather than a chore. He accomplished this by pretending that he enjoyed the activity so much that he would not allow his friends to do any of the whitewashing for him. See MARK TWAIN, THE ADVENTURES OF TOM SAWYER 30-33 (1875). As the author explained, "Tom . . . had discovered a great law of human action, without knowing it - namely, that in order to make a man or a boy covet a thing, it is only necessary to make the thing difficult to attain." Id. at 33.
203. See, e.g., Shedelbower v. Estelle, 885 F.2d 570, 575 (9th Cir. 1989). After the defendant in Shedelbower asked for an attorney, the interrogating detectives prepared to leave the room. See id. at 572. As they were leaving, one of the detectives falsely told the defendant that the victim had positively identified him as her assailant. See id. In response, the defendant waived his right to counsel and confessed. See id. The court held that the defendant's waiver was proper because the detective's false statement to the defendant did not constitute interrogation within the meaning of Miranda. See id. at 573.
204. See Leo, supra note 18, at 645.
205. See Amsterdam, supra note 133, at 806-08.
206. Thus, in advocating that the police be required to record interrogations when feasible, Kamisar observes: [i]t is not because a police officer is more dishonest than the rest of us that we should demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human - no less inclined to reconstruct and interpret past events in a light most favorable to himself - that we should not permit him to be "a judge of his own cause." KAMISAR, supra note 16, at 137 (quoting Felix S. Cohen, Field Theory and Judicial Logic, 59 YALE L.J. 238, 242 (1950)).
207. See supra note 65.
208. See Leo, supra note 18, at 659.
209. "One might associate this style with the television character Joe Friday in the popular 1960s television show 'Dragnet.'" Id. at 660.
210. After receiving affirmative answers to the two questions, interrogators will typically ask for and receive the suspect's signed statement that he is waiving his Miranda rights. But see North Carolina v. Butler, 441 U.S. 369 (1979) (holding that a suspect's Miranda waiver may be valid even though he declines to give a written statement).
211. Interrogation Transcript of Dante Parker, Maricopa County Sheriffs Office, Ariz. 1-2 (Sept. 12, 1991) (on file with authors).
212. Interrogation Transcript of McConnell Adams, supra note 1, at 15.
213. Interrogation Transcript of Lewis Peoples, Stockton Police Dep't, Cal. 4-5 (Nov. 12, 1997) (on file with authors).
214. Indeed, sometimes the interrogator explicitly indicates that the warnings are a formality that the suspect should get out of the way by signing the waiver card. In one case, for example, the interrogator stated: In order for me to talk to you specifically about the injury with [victim's name], I need to advise you of your rights. It's a formality. I'm sure you've watched television with the cop shows, right, and you hear them say their rights and so you can probably recite this better than I can, but it's something I need to do and we can [get] this out of the way before we talk about what's happened. Richard A. Leo, Miranda's Revenge: Police Interrogation as a Confidence Game, 30 LAW & SOC'Y REV. 259, 272 (1996).
215. "The fraud that claims it is somehow in a suspect's interest to talk with police will forever be the catalyst in any criminal interrogation." SIMON, supra note 29, at 201.
216. A standard such refrain goes as follows: Listen, Joe, I talked to the witnesses and they all say you're involved in this thing. But before I file any charges, I'd like to get your side of the story. I want to hear you tell me what you did - and what you didn't do. But first, I gotta read you your rights. You watch TV, you know the drill . . . . Peter Carlson, The Seduction: Cops, Suspects and the New Art of Interrogation, WASH. POST MAG., Sept. 13, 1998, at 11.
217. Interrogation Transcript of Michael Johnson, Solano County Sheriffs Dep't, Cal. 2-3 (Apr. 26-27, 1992) (on file with authors).
218. Interrogation Transcript of Kentrick McCoy, Sacramento Police Dep't, Cal. 14-15 (Sept. 1, 1996), quoted in Ofshe & Leo, supra note 65, at 1002-03.
219. The officer's statement that "if we just talk to her and she alleges this felony crime occurred, then we're more or less obligated to make an arrest" might suggest to the suspect that if he provides the police with a scenario involving less culpability on his part (i.e., showing - as the police believe - that the incident was less "significant") the police will not be obligated to make a felony arrest. Id. at 14.
220. Interrogation Transcript of Jason Young, San Pablo/Richmond Police Dep't, Cal. 4-5 (June 21, 1997) (on file with authors).
221. Sometimes detectives modify the traditional phrasing of "Having these rights in mind, do you wish to speak to me?" to "Having these rights in mind, do you want to hear what I have to say?" or "Having these rights in mind, do you want to tell me your side of the story?" See Leo, supra note 18, at 664.
222. Interrogation of Russell Stone, Salt Lake City Police Dep't, Utah 2-4 (Dec. 5, 1995) (on file with authors).
223. Interrogation Transcript of Alan Adams, Sonoma County Sheriffs Office, Cal. 1 (July 4, 1991) (on file with authors).
224. For a fuller explanation of this interrogation strategy, see Ofshe & Leo, supra note 65, at 1006.
225. Interrogation Transcript of Alan Adams, supra note 197, at 2.
226. Id. at 5.
227. Id. at 6.
228. Id. at 8.
229. Id. at 9-10.
230. See, e.g., supra text accompanying note 192.
231. See supra text accompanying note 1.
232. Interrogation Transcript of McConnell Adams, supra note 1, at 3.
233. Id. at 14.
234. See id. McConnell Adams's subsequent statement to police was later introduced at trial, and he was convicted of first degree murder and sentenced to life in prison without possibility of parole. See James A. McClear, Iverson Killer Pleads Guilty in Jail Fight: Conviction in Struggle with Staff Will Send Adams Jr. to Maximum Security Prison, DETROIT NEWS, Feb. 13, 1998, at C4.
235. Interrogation Transcript of Vince Yarborough, Vallejo Police Dep't, Cal. 2-3 (1994) (on file with authors).
236. See Interrogation Transcript of Alex Garcia, Maricopa County Sheriffs Office, Ariz. (Oct. 26, 1991) (on file with authors).
237. See id. at 5.
238. Id. at 6.
239. Interrogation Transcript of Prudencio Sanchez, Monterey County Sheriffs Office, Cal. 37-38 (Oct. 1997) (on file with authors).
240. In all of the cases from which excerpts were drawn in this section, the suspect waived his Miranda rights and eventually made either incriminating statements or a full confession.
241. Weisselberg, supra note 11, at 189.
242. See id.
243. See supra text accompanying notes 157-77.
244. Weisselberg, supra note 11, at 189.
245. Id.
246. See id. at 190-94.
247. See id.
248. Id. at 132-40.
249. See Interrogation Transcript of Lisa Peng, Orange County Sheriffs Dep't., Cal. 120 (Jan. 8, 1994) (on file with authors).
250. Id. at 99-100.
251. Id at 120.
252. Consider the following interrogation of Martinez Davis: Interrog 1: Okay, as I said earlier, I'm going to read those rights to you again, okay? Uh, you understand that you have the right to remain silent? You understand that? Suspect: Yeah. Interrog 1: Okay. You also understand that everything you say can and will be used against you in a court of law. You understand that right? Suspect: Yes. Interrog 1: Can you speak up? Suspect: Yes. Interrog 1: Okay. You also understand that you have a right to have a lawyer and to have him present with you while you're being questioned. Do you understand that? Suspect: Yes. Interrog 1: Uh, if - if you cannot afford, uh, you know, one will be appointed for you before any questioning, do you understand that? Suspect: Yes. Interrog 1: Okay. If at anytime while you're being interviewed, if you decide, uh, you want to stop this statement, uh, we'll no longer question you and the interview will cease. Do you understand that? Suspect: Yes. Interrog 1: Okay. Now at this time do you wish to give up that right and make this statement? Suspect: If it's supposed to be better, I'll do it. Interrog 2: Okay. I mean, yes or no. Do you want to make? Interrog 1: Yes or no? Do you want to make this statement? Interrog 2: Do you want to talk about the same thing we talked about all over? Suspect: Not - not on this. Interrog 2: What? Suspect: Not on this. Interrog 2: I don't understand what you mean. Interrogation Transcript of Martinez Davis, St. Louis Police Dep't, Mo. 2-3 (Mar. 22, 1997) (on file with authors).
253. From a legal standpoint, purporting to misunderstand whether the suspect invoked one of her Miranda rights can be an extremely effective strategy. If the interrogator can establish that a reasonable person in the officer's position would not understand that the suspect was invoking her right to an attorney, then based on the Court's decision in Daw's v. United States, 512 U.S. 452 (1994), the interrogator can properly disregard the suspect's invocation of her right. In Davis, the Court "decline[d] to adopt a rule requiring officers to ask clarifying questions" when "a suspect makes a statement that might be a request for an attorney." Id. at 461. Rather, it held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Id.
254. See Interrogation Transcript of Prudencio Sanchez, supra note 213, at 40.
255. Id.
256. Id.
257. As Professor Schulhofer has pointed out, "Miranda contains not one holding but a complex series of holdings." Schulhofer, supra note 17, at 436. Thus, the Court held both "that informal pressure to speak - that is, pressure not backed by legal process or any formal sanction - can constitute 'compulsion' within the meaning of the fifth amendment" and that "this element of informal compulsion is present in any questioning of a suspect in custody." Id. In terms of regulating police interrogation practices, however, the Court's core holding barred the admission of a suspect's statement obtained during custodial interrogation unless prior to such interrogation, the interrogating officer gave the suspect the Miranda warnings and the suspect validly waived the rights iterated in those warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
258. See, e.g., Cassell, supra note 18, at 496-97 (advocating that Miranda's warning and waiver requirements be replaced by a different set of warnings and the requirement that interrogations be videotaped); Phillip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 AM. CRIM. L. REV. 303 (1987) (setting out a statutory replacement for Miranda's warnings and waiver requirement).
259. See generally Hancock, supra note 13, at 2203-32 (tracing the evolution of the pre-Miranda due process voluntariness test).
260. 297 U.S. 278 (1936).
261. See generally Yale Kamisar, What Is an "Involuntary" Confession? 17 RUTGERS L. REV. 728 (1963), reprinted in KAMISAR, supra note 16, at 1-25.
262. In 1964, the Court decided Massiah v. United States, 377 U.S. 201 (1964), and Escobedo v. Illinois, 378 U.S. 478 (1964), both holding that defendants' confessions were inadmissible because the police violated their Sixth Amendment right to assistance of counsel.
263. See supra note 3 and accompanying text.
264. See, e.g., New York v. Quarles, 467 U.S. 649, 655 n.5 (1984) (implying that a confession's admissibility under the Fifth Amendment privilege will be determined on the basis of "traditional due process" standards); Michigan v. Tucker, 417 U.S. 433, 450 (1974) (holding that the defendant's Fifth Amendment privilege was not violated because his statement was voluntary).
265. See, e.g., Oregon v. Elstad, 470 U.S. 298, 318 (1985) (holding that when statements derived from improperly obtained statements are at issue, subsequent statements may not be excluded as fruit of first statement unless first statement shown to be involuntary under due process test rather than merely obtained in violation of Miranda); Quarles, 467 U.S. at 655-56 & n.5 (stating that the due process test governs admissibility of statements falling within Miranda's public safety exception). For a humorous comment on the practical impact of the Court's exceptions to Miranda, see Albert W. Alschuler, Failed Pragmatism: Reflections on the Burger Court, 100 HARV. L. REV. 1436, 1443 (1987) (describing a fictitious police advisor explaining the Supreme Court's interrogation decisions to the police: "The Supreme Court has said that pre-Miranda voluntariness standards are part of the 'real' Constitution. Miranda is part of the Court's 'just pretend" Constitution").
266. See Mincey v. Arizona, 437 U.S. 385, 397-98 (1978).
267. See Weisselberg, supra note 11, at 127.
268. See id. at 113 (citing numerous cases).
269. See Oregon v. Hass, 420 U.S. 714, 715-16 (1975).
270. In some cases in which a suspect asserts his right to have counsel present at interrogation, the suspect might later "initiate" further communications with the police, thus allowing the police another opportunity to induce a waiver of the suspect's Miranda rights. See Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). When this happens, the suspect may waive his Miranda rights, thus enabling the interrogator to obtain an incriminating statement.
271. A statement admissible for the purpose of impeaching a defendant's credibility will not be admissible unless the defendant testifies in his defense at trial. Although the government has sometimes argued that statements obtained from a defendant in violation of Miranda may be used for the purpose of impeaching other witnesses that argument has been uniformly rejected. See, e.g., United States v. Hinckley, 672 F.2d 115, 134 (D.C. Cir. 1982) (refusing to allow the government to admit defendant's statements obtained in violation of Miranda for the purpose of rebutting defense expert psychiatric testimony); cf., e.g., James v. Illinois, 493 U.S. 307, 320 (1990) (holding that defendant's statements obtained in violation of the Fourth Amendment - which would be admissible for the purposes of impeaching the defendant's testimony - could not be used to impeach the testimony of other defense witnesses).
272. 470 U.S. 298, 308 (1985).
273. Although statements admissible only for the purpose of impeaching a defendant's credibility are obviously of less value than statements admissible in the government's case-in-chief, the former statements will often be of considerable value. Assuming the government has other sufficient evidence to present its case to the jury, the government's possession of a statement admissible for impeaching the defendant's testimony may deter the defendant from testifying, thus weakening the defendant's case and creating questions in the jury's mind as to the meaning of his silence. On the other hand, if the defendant does testify in his own defense, the admission of the government's impeaching evidence may be extremely persuasive to the jury because, even though the jury will be instructed to consider this evidence only for the purpose of impeaching the defendant's credibility, the jury will often find it difficult to follow these instructions. Moreover, in contrast to statements admitted in the government's case-in-chief, these statements will be heard by the jury late in the trial, when their potential for influencing the jury may be highest.
274. 401 U.S. 222 (1971).
275. For articles considering the impeachment exception to Miranda, see generally Jeffrey Caminsky, Rebuttal Use of Suppressed Statements: The Limits of Miranda, 13 AM. J. CRIM. L. 199 (1986); Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 YALE L.J. 1198 (1971); Kainen, supra note 48, at 1301; Stone, supra note 14, at 106-15.
276. See Harris, 401 U.S. at 225-26.
277. 420 U.S. 714 (1975).
278. In Hass, the defendant was given the Miranda warnings after he was arrested for burglary. See id. at 715. While en route to the police station, the defendant told the arresting officer that he wanted to call his lawyer. See id. The officer told the defendant that he could do that after they arrived at the police station. See id. at 715-16. While still en route to the station, the defendant asked the officer if he had to locate some of the stolen property. See Weisselberg, supra note 11, at 183 (citing Hass, 420 U.S. app. at 21-24). The officer replied that defendant was not obligated to do so, but he wanted to get the matter cleared up that night. Defendant then revealed the location of the stolen property to the officer.
279. See Hass, 420 U.S. at 723 ("If, in a given case, the officer's conduct amounts to abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness."); Harris, 401 U.S. at 224 (observing that the defendant did not claim that his confession was involuntary under the traditional due process test).
280. During the post-Miranda era, the Court has addressed the question whether a confession was voluntary under the post-Miranda due process test in three cases: Arizona v. Fulminante, 499 U.S. 279 (1991), Colorado v. Connelly, 479 U.S. 157 (1986), Mincey v. Arizona, 437 U.S. 385 (1978). See generally White, supra note 58, at 2014-20.
281. 437 U.S. 385 (1978).
282. See id. at 387.
283. See id. at 396.
284. See id.
285. See id.
286. Id. at 399.
287. See id.
288. See id.
289. Id.
290. Id. at 401.
291. See id. at 402.
292. Id. at 401.
293. See id. at 401-02.
294. Id.
295. Id. at 401.
296. In order to distinguish Hass, Mincey's broadly interpreted holding could be limited to situations in which a suspect repeatedly invokes his rights, thus making it unmistakably clear to the police that the suspect did not want to answer questions without the presence of an attorney.
297. See Mincey, 437 U.S. at 401-02.
298. See generally Hancock, supra note 13, at 2220-32 (discussing pre-Miranda due process cases in which the defendant's confession was held involuntary); Herman, supra note 93, at 747-49 (seeking to determine the meaning of a pie-Miranda involuntary confession through analyzing holdings in cases in which the Court held the defendant's confession involuntary).
299. See generally White, supra note 58, at 2014-20 (discussing post-Miranda cases decided under the Due Process Clause).
300. Colorado v. Connelly, 479 U.S. 157, 163 (1986) (quoting Miller v. Fenton, 474 U.S. 104, 109 (1985)).
301. See Oregon v. Hass, 420 U.S. 714, 723 (1975); see also supra note 252 and accompanying text.
302. See, e.g., State v. Burns, 679 A.2d 121, 135-36 (N.J. 1996) (holding defendant's statement admissible for impeachment because it was freely and voluntarily given even though police denied defendant's request for counsel before obtaining the statement); People v. Winsett, 606 N.E.2d 1186, 1199 (Ill. 1992) (holding defendant's statement voluntary even though police three times denied defendant's request for an attorney).
303. See Arizona v. Fulminante, 499 U.S. 279, 286 n.2 (1991) (applying "totality of circumstances" test, the Court took into account defendant's low intelligence, slight build, short stature, poor adaptation to prison stress, and history of psychiatric problems); Spano v. New York, 360 U.S. 315, 321-22 n.3 (1959) (considering factors such as defendant's lack of a high school education, status as "foreign-born" and failure of an army intelligence test).
304. Thus, in Mincey v. Arizona, 437 U.S. 385 (1978), the Court took into account the defendant's weakened physical condition. Id. at 398-99. In dealing with the admissibility of impeachment evidence, several lower courts have distinguished Mincey on the ground that injured defendants questioned by the police after they invoked their Miranda rights were in less debilitating physical condition than the defendant in Mincey. See United States v. Martin, 781 F.2d 671, 674 (9th Cir. 1985) (holding defendant's statement voluntary despite the fact that defendant was "groggy" from the effects of Demerol); State v. Vickers, 768 P.2d 1177, 1184 (Ariz. 1989) (en bane) (finding defendant's statement voluntary because, although he suffered from smoke inhalation, his condition "was not as serious as Mincey's").
305. See, e.g., Miller v. Fenton, 474 U.S. 104, 109 (1985) ("[C]ertain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.").
306. See Ashcraft v. Tennessee, 322 U.S. 143, 160 (1944) ("Interrogation per se is not, while violence per se is, an outlaw.") (Jackson, J., dissenting).
307. See, e.g., Powell v. State, 483 So. 2d 363, 368 (Miss. 1986) (stating in dicta that a confession "which came about as a result of threats [or] physical mistreatment . . . cannot be used at all, either in the state's case-in-chief or for impeachment purposes").
308. See, e.g., Bastides v. Henderson, 664 F. Supp. 51, 53-54 (E.D.N.Y. 1987) (holding that suspect's statement was voluntary when made after 10 hours in custody).
309. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (holding that police trickery in inducing a confession is not sufficient in itself to render the confession involuntary under the due process test).
310. See Crooker v. California, 357 U.S. 433 (1958).
311. Under the "totality of circumstances" test, a combination of these factors may, of course, be sufficient to render a confession involuntary. See, e.g., Cooper v. Dupnik, 963 F.2d 1220, 1248 (9th Cir. 1992) (finding suspect's Fifth Amendment rights were violated after police attempted to trick him into waiving Miranda rights, held him incommunicado for nearly 24 hours and repeatedly badgered him to confess even after he asserted his right to have counsel present at questioning).
312. The term questioning "outside Miranda" has been used in police training courses to describe situations in which interrogators question suspects even though statements obtained from the questioning will be impermissible under Miranda. See Weisselberg, supra note 11, at 133-36.
313. Id. at 161 (quoting Transcript of Interview of James McNally, People v. McNally 2-5 (Mar. 2, 1993)).
314. See, e.g., Linares v. State, 471 S.E.2d 208, 211-12 (Ga. 1996) (holding defendant's confession involuntary on the ground that police told defendant that any information he provided would not be used against him).
315. E.g., People v. Bradford, 929 P.2d 544, 566 (Cal. 1997).
316. E.g., Weisselberg, supra note 11, at 161 (quoting from Transcript of Interview of James McNally, People v. McNally 2-5 (Mar. 2, 1993)). In order to minimize the possibility that the suspect would believe that the statement could be used against him in any way, the detective added, "Just, this is for our edification of what happened." Id.
317. In addition, the suspect is unlikely to know that, under the Court's decisions in Oregon v. Elstad, 470 U.S. 298, 318 (1985), and Michigan v. Tucker, 417 U.S. 433, 452 (1974), evidence derived from statements obtained in violation of Miranda will likely be admissible against him.
318. See People v. Peevy, 953 P.2d 1212, 1223-24 (Cal. 1998); Bradford, 929 P.2d at 568; State v. Favero, 331 N.W.2d 259, 262-63 (Neb. 1983). In Favero, the defendant requested an attorney, but none was provided. See 331 N.W.2d at 261. The detective proceeded to question the defendant, telling him that anything he said was "off the record" and could not be used as an admission in court. See id. Although it characterized the police conduct as illegal, see id. at 262, the Nebraska Supreme Court nevertheless held that defendant's statement was admissible for impeachment purposes because it was voluntary. See id. at 263.
319. See Linares, 471 S.E.2d at 211-12.
320. See generally Weisselberg, supra note 11, at 132-40 (describing how some police officers are being trained to continue questioning a suspect who has asserted his or her Fifth Amendment rights).
321. See Miranda v. Arizona, 384 U.S. 436, 469 (1966).
322. See Weisselberg, supra note 11, at 132-40, 189-92.
323. See supra notes 286-93 and accompanying text.
324. See United States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1993) (finding that the detective told the suspect he could tell the police what happened "off the cuff").
325. See Weisselberg, supra note 11, at 161.
326. Weisselberg does not say when interrogators first began to employ this strategy. The training video cited in his article, which advises interrogators as to how to employ the strategy was apparently made in 1990. See id. at 189.
327. See supra notes 215-22 and accompanying text.
328. See supra notes 185-96 and accompanying text.
329. Interrogation Transcript of James Nimblett, San Diego Police Dep't, Cal. 36 (July 30,1990) (on file with authors).
330. Id. at 45.
331. Interrogation Transcript of Mark Alan Bradford, L.A. Police Dep't, Cal. 36 (Apr. 19, 1988) (on file with authors).
332. See People v. Bradford, 929 P.2d 544, 555 (Cal. 1997).
333. See id. at 550-51.
334. Striking the appropriate balance between the interests of law enforcement and suspects involves ethical issues as well as empirical and policy questions. See George C. Thomas III, The Twenty-First Century: A World Without Miranda?, in THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING, supra note 93, at 314.
335. See Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 116 (1997) (observing that "[t]he post-Miranda due process test provides essentially the same relatively scant guidelines on interrogation methods as the pre-Miranda test").
336. See supra notes 280-85 and accompanying text.
337. See supra note 284 and accompanying text.
338. See Stone, supra note 14, at 103.
339. See supra note 4.
340. See Schulhofer, supra note 4, at 880.
341. Even if abolishing Miranda's warnings and waiver requirement would not alter the police interrogation practices, the suspect's inability to stop an interrogation would make it more likely that interrogations would continue to the point where they would become "offensive" to our system of justice.
342. See Hancock, supra note 13, at 2232-37 (observing that, although the Court almost never overruled a due process precedent, the standards applied to determine whether a confession was involuntary "kept changing," and that, in view of the increasingly strict restraints on the police imposed by cases decided immediately prior to Miranda, these cases "foreshadowed" Miranda's outcome).
343. 357 U.S. 433, 438 (1958) (holding that the defendant's confession was voluntary even though police questioned him for several hours after denying his request to have a specific attorney present).
344. 357 U.S. 504, 508 (1958) (holding that the defendant's confession was voluntary and admissible despite the fact that the police denied him the opportunity to consult with his attorney who was present at the station house where the defendant was being interrogated).
345. See generally KAMISAR, supra note 16, at 14-22 (elaborating as to why the voluntariness terminology employed by the pre-Miranda due process cases is not only "loose and unrevealing" but also "downright misleading").
346. Even before Miranda was decided, the Inbau Interrogation Manual advised interrogators that when dealing with a suspect who refuses to answer questions or asks for an attorney or relative, they should concede to the suspect that he has the right to remain silent. See FRED E. INBAU & JOHN E. REID, CRIMINAL INTERROGATION AND CONFESSIONS 111 (1962), cited in Miranda v. Arizona, 384 U.S. 436, 453 (1966). According to this edition of the manual, "This usually has a very undermining effect. First of all, [the suspect] is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses [him] with the apparent fairness of his interrogator." Id.
347. See Miranda, 384 U.S. at 473-74; see also supra notes 134-77 and accompanying text.
348. Thus, Professor Schulhofer concludes that under our current system of interrogation "confessions are now mostly the result of persuasion and the suspect's overconfidence, not of pressure and fear." Schulhofer, supra note 17, at 561. If the suspect's ability to invoke his Miranda rights were eliminated, it seems likely that a greater proportion of confessions would be precipitated by "pressure and fear" rather than "persuasion and the suspect's overconfidence."
349. See Leo, supra note 18, at 654.
350. See Richard A. Leo, "Miranda and the Problem of False Confessions," in THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING, supra note 93, at 275.
351. See SIMON, supra note 29, at 198. Simon elaborates as follows: [T]he professionals say nothing. No alibis. No explanations. No expressions of polite dismay or blanket denials. In the late 1970s, when men by the names of Dennis Wise and Vernon Collins were matching each other body for body as Baltimore's premiere contract killers and no witness could be found to testify against either, things got to the point where both the detectives and their suspects knew the drill: Enter Room. Miranda. Anything to say this time, Dennis? No, sir. Just want to call my lawyer. Fine, Dennis. Exit room. Id.
352. See supra note 325.
353. See Thomas, supra note 30, at 837.
354. See supra note 27 and accompanying text.
355. From the government's perspective, obtaining statements admissible for the purpose of impeachment is generally not as advantageous as obtaining statements admissible in its case-in-chief. Statements admissible for impeachment will be admissible only if the suspect testifies in his defense and, even then, only for the limited purpose of impeaching his credibility. See, e.g., Harris v. New York, 401 U.S. 222, 224-25 (1971).