The attitudes of police executives toward Miranda and interrogation policies

Journal of Criminal Law and Criminology

Volumn 97, Issue 3, 2007, Pages 873-942

  Zalman, Marvin ^a   Smith, Brad W ^a  

^a WAYNE STATE UNIVERSITY   (United States)

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EID: 36849018332     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (372)

1. 384 U.S. 436 (1966); see George C. Thomas III, The End of the Road for Miranda v. Arizona?: On the History and Future of Rules for Police Interrogation, 37 AM. CRIM. L. REV. 1 (2000);
2. Colloquy, Will Miranda Survive?: Dickerson v. United States: The Right to Remain Silent, the Supreme Court, and Congress, 37 AM. CRIM. L. REV. 1165 (2000) (Professor Paul Cassell v. Mr. Robert Litt).
3. See United States v. Patane, 542 U.S. 630 (2004); Missouri v. Seibert, 542 U.S. 600 (2004); Chavez v. Martinez, 538 U.S. 760 (2003); Dickerson v. United States, 530 U.S. 428 (2000). These cases and their implications for interrogation practice are discussed in the following section.
4. Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 132-40 (1998).
5. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891 (2004).
6. Criminal procedure scholars have supported the usefulness of social scientific research in understanding the context in which legal rules are implemented and enforced. See, e.g., Susan R. Klein, Identifying and (Reformulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1063-78 (2001) (arguing that social science cannot establish constitutional norms but can assist the courts in informing legal decision-making and developing rules to protect underlying rights, but also noting that the courts do not always accurately understand or apply social science data);
7. Tracey L. Meares & Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. CRIM. L. & CRIMINOLOGY 733 (2000) (reviewing many of the more recent empirical studies of Miranda).
8. See Bradley C. Canon, Courts and Policy: Compliance, Implementation, and Impact, in THE AMERICAN COURTS: A CRITICAL ASSESSMENT 435, 435-66 (John B. Gates & Charles A. Johnson eds., 1991); see also discussion infra Part I.C.
9. The individual-state relationship lies at the core of politics and is the subject of a vast political theoretic, constitutional law, and human rights literature. It should be kept in mind, especially in empirically grounded studies of rights, that these relations occur and must be evaluated in the context of the constitutional regime that exists in a particular time and place. As it could take one or more volumes to specify the sociopolitical context of a study like ours, we forego extended discussion but only call the reader's attention to such context, which will become more salient in the conclusion to this Article.
10. Miranda v. Arizona, 384 U.S. 436 (1966).
11. Id. at 448-55.
12. Id. at 439.
13. See discussion infra Part V.B.
14. This issue is well understood by scholars who have explored the way in which police have applied the Supreme Court's interrogation rules. See, e.g., Richard A. Leo & Welsh S. White, Adapting to Miranda; Modern Interrogators' Strategies for Dealing with the Obstacles Posed by Miranda, 84 MINN. L. REV. 397 (1999) [hereinafter, Leo & White, Adapting to Miranda].
15. This Article is a policy study rather than one that seeks to develop or test theory about the impact of law on social behavior. Even a policy study rests on implicit theories about the influence of law on social behavior. We assume that the influence of legal rules on police behavior is quite complex, and that to a degree, courts are themselves influenced by the behavior of the police. The complexity of the law and society relationship was suggested by two great works of "realist" jurisprudence by Benjamin Cardozo and Oliver Wendell Holmes. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921);
16. OLIVER WENDELL HOLMES, THE COMMON LAW 5 (Mark DeWolfe Howe ed., Belknap Press 1963) (1881). Without finer quantitative data it is not possible to make firm causal statements about the mutual influences of legal rules and social behavior.
17. See HUBERT M. BLALOCK, JR., CAUSAL INFERENCES IN NONEXPERIMENTAL RESEARCH 62-94 (1964). Nevertheless, policy studies like ours can at least contribute to a better understanding of the policy environment of legal rules. In all policy writing and analyses, readers must be alert to misinterpretation that can arise from ideological or partisan use of data. A blatant and even inane use of a spurious correlation occurred when Senator John M. McClellan of Mississippi, in the debates leading to the passage of Title II of the Omnibus Crime Control Act of 1966, purporting to "overrule" Miranda, propped up in the rear of the Senate chamber a huge facsimile of the F.B.I.'s crime graph. The titles of key Supreme Court decisions were marked at the peaks along the rising line, to show the embarrassing parallel between Supreme Court activity on behalf of defendants and the crime rise.
18. FRED P. GRAHAM, THE DUE PROCESS REVOLUTION: THE WARREN COURT'S IMPACT ON CRIMINAL LAW 12 (1970). Senator McClellan's implicit assumption that increases in crime rates were the result of Supreme Court decisions (and little else) was so simplistic as to suggest that his two-variable chart was motivated more by partisan politics than the search for scientific truth.
19. Rhode Island v. Innis, 446 U.S. 291, 304-05 (1980); see LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS 196-97 (1985).
20. Weisselberg, Saving Miranda, supra note 3, at 132-40.
21. MATTHEW J. HICKMAN & BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, LOCAL POLICE DEPARTMENTS, 2003 1 tbl.1 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/lpd03.pdf (reporting 12,656 local police departments in the U.S. in 2003, not including state police agencies or sheriffs' departments).
22. Some of these studies are discussed infra, Part II. More policy-relevant information is needed. A search of the National Criminal Justice Reference Service (NCJRS) website, under "Law Enforcement - Criminal Investigation," turned up no material on interrogation or confessions out of 190 entries. Topic - National Criminal Justice Reference Service, http://www.ncjrs.gov/App/Topics/MorePublications.aspx?TopicId=166&hSortBy= &hResult sPerPage=10&reuse=1&page=1&lowerrangeboundary=13) (last visited May 7, 2007).
23. A few of the 190 items dealt with wrongful conviction and eyewitness identification techniques. The lack of federally funded studies of interrogation may be simply fortuitous or may instead reflect a lack of interest, the sensitive nature of interrogation issues, the difficulty of studying the process, or a judgment that existing knowledge is a sufficient basis for good policy-making. In contrast, Paul Cassell and Bret Hayman noted that a number of official studies on interrogation had been sponsored by the British government. Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839, 849 (1996).
24. Bram v. United States, 168 U.S. 532, 541-43 (1897).
25. Brown v. Mississippi, 297 U.S. 278 (1936) (holding that torture violates Fourteenth Amendment due process); see also Mincey v. Arizona, 437 U.S. 385 (1978).
26. See, e.g., Culombe v. Connecticut, 367 U.S. 568 (1961) (vigorous interrogation of a mentally defective or insane suspect violated due process); Spano v. New York, 360 U.S. 315 (1959) (confession obtained by importuning of police officer-friend violated due process); Payne v. Arkansas, 356 U.S. 560 (1958) (confession obtained under threat of releasing suspect to lynch mob violated due process); Leyra v. Dermo, 347 U.S. 556 (1954) (confession obtained by physician feigning help violated due process); Malinski v. New York, 324 U.S. 401 (1945) (keeping suspect naked for several hours before questioning violated due process); Ashcraft v. Tennessee, 322 U.S. 143 (1944) (excessively long interrogation without a break violated due process); Chambers v. Florida, 309 U.S. 227 (1940) (moving suspect to avoid contacting family or counsel violated due process). For contemporaneous accounts, see ALAN BARTH, LAW ENFORCEMENT VERSUS THE LAW 61-76 (1961);
27. DAVID FELLMAN, THE DEFENDANT'S RIGHTS 175-85 (1958).
28. See also WELSH S. WHITE, MIRANDA'S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON (2001).
29. Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, 318 U.S. 332 (1943).
30. Malloy v. Hogan, 378 U.S. 1 (1964).
31. Escobedo v. Illinois, 378 U.S. 478 (1964).
32. 384 U.S. 436 (1966).
33. Id. at 471.
34. BAKER, supra note 14, at 232-60.
35. Pub. L. No. 90-351, 82 Stat. 197 (1968); see RICHARD HARRIS, THE FEAR OF CRIME (1968).
36. See Yale Kamisar, Foreword: From Miranda to § 3501 to Dickerson to . . . , 99 MICH. L. REV. 879, 879-80 (2001).
37. HERBERT PACKER, THE LIMITS OF THE CRIMINAL SANCTION 147-256 (1968).
38. BAKER, supra note 14, at 272.
39. 297 U.S. 278 (1936).
40. 384 U.S. 436 (1966).
41. Dickerson v. United States, 530 U.S. 428, 463 (2000) (Scalia, J., dissenting) (emphasis in original).
42. More complex and more charitable interpretations are provided by Klein, supra note 5 (in addition to basic constitutional rights, the Supreme Court has of necessity created a variety of ancillary criminal procedure rules that may be categorized as prophylactic, safe harbor, and incidental right rules), and by Jeffrey Standen, The Politics of Miranda, 12 CORNELL J.L. & PUB. POL'Y 555 (2003) (the Supreme Court's seemingly ad hoc Miranda jurisprudence is "political" in the Platonic sense of superior statesmen carefully crafting precise decisions to fit specific cases rather than general law).
43. Davis v. United States, 512 U.S. 452 (1994); see also Kenworthey Bilz, The Fall of the Confession Era, 96 J. CRIM. L. & CRIMINOLOGY 367 (2005)
44. (reviewing LAWRENCE M. SOLAN & PETER M. TIERSMA, SPEAKING OF CRIME: THE LANGUAGE OF CRIMINAL JUSTICE (2005)).
45. Minnesota v. Murphy, 465 U.S. 420, 426-40 (1984).
46. Michigan v. Mosley, 423 U.S. 96, 100-07 (1975).
47. Duckworth v. Egan, 492 U.S. 195 (1989). For an example of how the confusion between the Fifth Amendment right to counsel established by Miranda and the Sixth Amendment right to counsel can leave an indigent suspect without any lawyer at a critical stage, with tragic results, see ROGER PARLOFF, TRIPLE JEOPARDY 32-34 (1996).
48. Leo & White, Adapting to Miranda, supra note 12, at 414-33.
49. Professor Stephen Schulhofer denotes this as "Fifth Amendment exceptionalism." Stephen J. Schulhofer, Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 MICH. L. REV. 941 (2001).
50. Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971).
51. New Jersey v. Portash, 440 U.S. 450, 450 (1979) (self-incrimination); Mincey v. Arizona, 437 U.S. 385, 398 (1978) (due process).
52. Michigan v. Tucker, 417 U.S. 433, 450-52 (1974).
53. Oregon v. Elstad, 470 U.S. 298, 307-09, 318 (1985); see Kirsten Lela Ambach, Notes & Comments: Miranda's Poisoned Fruit Tree: The Admissibility of Physical Evidence Derived from an Unwarned Statement, 78 WASH. L. REV. 757, 768 (2003) (coining the term "cured statement exception").
54. New York v. Quarles, 467 U.S. 649, 654 (1984).
55. Id. at 657.
56. See, e.g., Susan R. Klein, Miranda Deconstitutionalized: When the Self-incrimination Clause and the Civil Rights Act Collide, 143 U. PA. L. REV. 417, 419, 428, 433-34 passim (1994).
57. JOSEPH D. GRANO, CONFESSIONS, TRUTH, AND THE LAW 183-98 (1993).
58. See, e.g., Dickerson v. United States, 530 U.S. 428 (2000); Davis v. United States, 512 U.S. 452 (1994); Minnick v. Mississippi, 498 U.S. 146 (1990); Pennsylvania v. Muniz, 496 U.S. 582 (1990).
59. Dickerson, 530 U.S. at 432.
60. Id.
61. Id.
62. A symposium issue of the Michigan Law Review was devoted to attempting to unravel the meaning of Dickerson. Symposium, Miranda After Dickerson: The Future of Confession Law, 99 MICH. L. REV. 879-1247 (2001).
63. Standen, supra note 34, at 567.
64. 538 U.S. 760 (2003).
65. Id. at 770; see United States v. Bin Laden, 132 F. Supp. 2d 168, 181-82, 187 (S.D.N.Y. 2001); Marvin Zalman, The Coming Paradigm Shift on Miranda; The Impact of Chavez v. Martinez, 39 CRIM. L. BULL. 334 (2003) [hereinafter Zalman, Paradigm Shift];
66. Marvin Zalman, Reading the Tea Leaves of Chavez v. Martinez; The Future of Miranda, 40 CRIM. L. BULL. 299 (2004) [hereinafter Zalman, Tea Leaves].
67. Cal. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1050 (9th Cir. 1999).
68. The basis of a civil action against the police was not supported by the other circuits and is problematic if the privilege is viewed as an exclusionary rule, although three Justices deemed the Self-incrimination Clause the basis of a cause of action for the infliction of "severe compulsion or extraordinary pressure" in order to gain a confession. 538 U.S. at 789 (Kennedy, J., dissenting, joined by Stevens and Ginsburg, JJ.). In any event, a majority in Chavez ruled that a violation of due process may be the basis of a cause of action. See Zalman, Tea Leaves, supra note 56, at 318-19.
69. 542 U.S. 630 (2004).
70. 417 U.S. 433 (1974).
71. 542 U.S. 600 (2004).
72. 470 U.S. 298, 313 (1985).
73. Seibert, 542 U.S. at 604-05.
74. Id.
75. Id. at 605.
76. Id.
77. Id.
78. Id. at 609-11. Justice Souter's opinion referred to the Police Law Institute, a proprietary school that provides training and instructional materials for police in Florida, Illinois, Missouri, and Ohio. The Police Law Institute, http://www.policelawinstitute.org/plims/ (last visited May 7, 2007).
79. Their police training businesses include Wicklander-Zulawski & Associates, http://www.w-z.com/ (last visited May 7, 2007),
80. and John E. Reid & Associates, http://www.reid.com/training_programs/ r_training.html (last visited May 7, 2007).
81. Seibert, 542 U.S. at 617 (confession obtained by a "question-first tactic" conducted by "[s][trategists dedicated to draining the substance out of Miranda" that "threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted," held inadmissible).
82. Richard Leo, Inside the Interrogation Room, 86. J. CRIM. L. & CRIMINOLOGY 266, 266 (1996) [hereinafter Leo, Interrogation Room].
83. This is not to disvalue the importance of policy analysis but only to assert that the role of empiricism in law and government is radically different than in scientific and technological endeavors, which are defined by and impossible in the absence of scientific theory and empirical research. "Policy analysis is as much an art and a craft as a science." DAVID L. WEIMER & AIDAN R. VINING, POLICY ANALYSIS: CONCEPTS AND PRACTICE, FOURTH EDITION 37 (2005).
84. A nation, after all, can take momentous action, such as shifting the wealth of different groups via economic legislation or going to war, based on confused, conflicting, and even flatly erroneous information. See WALTER LIPPMANN, PUBLIC OPINION 11-13 (Free Press, 1997) (1922).
85. JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 14-36 (1950); George C. Thomas, III, Stories About Miranda, 102 MICH. L. REV. 1959, 1991-93 (2004).
86. Seibert, 542 U.S. at 609.
87. See EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 8-27 (1949). Standen asserts that the Miranda Court made empirical or predictive errors in believing that attorneys would be made part of the interrogation process, and that the "Court may also have made empirical mistakes in some of its post-Miranda cases." Standen, supra note 34, at 565.
88. Canon, supra note 6, at 435. Canon discusses the first generation of Miranda studies in his essay. Id. The new wave of empirical studies, which began in 1996, is a significant chapter in court decision impact research, although it is less concerned with generating and testing political science theories and more focused on an atheoretical elucidation of the process. Id.
89. Id. at 437.
90. Id. at 456.
91. Id. at 438-40; STEPHEN L. WASBY, THE IMPACT OF THE UNITED STATES SUPREME COURT: SOME PERSPECTIVES 27-42 (1970) [hereinafter WASBY, IMPACT].
92. Canon, supra note 6, at 438.
93. STEPHEN L. WASBY, SMALL TOWN POLICE AND THE SUPREME COURT: HEARING THE WORD (1976) [hereinafter WASBY, SMALL TOWN POLICE].
94. Cassell & Hayman, supra note 17; Leo, Interrogation Room, supra note 70.
95. Canon, supra note 6, at 440-44.
96. See, e.g., Don W. Brown & Robert V. Stover, Understanding Compliance and Noncompliance With the Law: The Contributions of Utility Theory, 56 SOC. SCI. Q. 363 (1975).
97. See, e.g., THOMAS CARLYLE DALTON, THE STATE POLITICS OF JUDICIAL AND CONGRESSIONAL REFORM (1985).
98. See, e.g., Stephen Wasby, The Communication of the Supreme Court's Criminal Procedure Decisions: A Preliminary Mapping, 18 VILL. L. REV. 1086 (1973).
99. See, e.g., Lawrence Baum, Implementation of Judicial Decisions: An Organizational Analysis, 4 AM. POL. Q. 86 (1976);
100. Charles A. Johnson, Judicial Decisions and Organizational Change, 14 LAW & SOC'Y REV. 27 (1979).
101. Dickerson v. United States, 530 U.S. 428, 443 (2000).
102. Richard Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000 (2001) [hereinafter, Leo, Questioning the Relevance].
103. Id. at 1001-05.
104. Id. at 1006.
105. Leo, Interrogation Room, supra note 70; Cassell & Hayman, supra note 17.
106. Leo & White, Adapting to Miranda, supra note 12, at 433-50.
107. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979 (1997) [hereinafter Ofshe & Leo, The Decision to Confess Falsely].
108. Weisselberg, Saving Miranda, supra note 3, at 132-40;
109. Charles D. Weisselberg, In the Stationhouse after Dickerson, 99 MICH. L. REV. 1121, 1128-53 (2001) [hereinafter Weisselberg, In the Stationhouse].
110. Leo, Questioning the Relevance, supra note 89, at 1009-10 (footnotes omitted).
111. Thomas, III, supra note 73, at 1963.
112. Id. at 1991-93.
113. Id. at 1973-74.
114. 401 U.S. 222 (1971).
115. 470 U.S. 298 (1985).
116. Thomas, III, supra note 73, at 1974-74, 1995-97.
117. Missouri v. Seibert, 542 U.S. 600, 604-05 (2004).
118. Thomas, III, supra note 73, at 1961.
119. FRANCIS A. ALLEN, THE HABITS OF LEGALITY: CRIMINAL JUSTICE AND THE RULE OF LAW 58-60 (1996).
120. Thomas, III, supra note 73, at 1963. The two observational studies referred to are Cassell & Hayman, supra note 17, and Leo, Interrogation Room, supra note 70.
121. E.g., JOAN A. BARTHEL, A DEATH IN CANAAN (1976); additional case studies are listed infra note 137.
122. E.g., Drizin & Leo, supra note 4; Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429 (1998) [hereinafter Leo & Ofshe, The Consequences of False Confessions].
123. For a commentary that suggests that knowledge of false confessions should force rethinking of the constitutional basis of confessions law, see Samuel C. Rickless, Commentary: Miranda, Dickerson and the Problem of Actual Innocence, 19 CRIM. JUST. ETHICS 53 (2000).
124. Brian K. Payne & Victoria M. Time, Support for Miranda among Police Chiefs: A Qualitative Examination, 25 AM. J. CRIM. JUST. 65 (2000) [hereinafter Payne & Time, Support for Miranda];
125. Victoria M. Time & Brian K. Payne, Police Chiefs' Perceptions about Miranda; An Analysis of Survey Data, 30 J. CRIM. JUST. 77 (2002) (our survey is modeled on the one developed in this study) [hereinafter, Time & Payne, Chiefs' Perceptions].
126. 530 U.S. 428 (2000).
127. Leo, Questioning the Relevance, supra note 89, at 1010.
128. Payne & Time, Support for Miranda, supra note 110; Time & Payne, Chiefs' Perceptions, supra note 110.
129. Payne & Time, Support for Miranda, supra note 110, at 67-68, 71-72.
130. Id.
131. Time & Payne, Chiefs' Perceptions, supra note 110.
132. Id. at 81 (questions 2, 3 and 12).
133. Id. (questions 13 and 16).
134. Payne & Time, Support for Miranda, supra note 110.
135. Time & Payne, Chiefs' Perceptions, supra note 110, at 82.
136. Id.
137. Chavez v. Martinez, 538 U.S. 760 (2003).
138. 542 U.S. 630 (2004).
139. 542 U.S. 600 (2004).
140. Cassell & Hayman, supra note 17, at 861.
141. Weisselberg, Saving Miranda, supra note 3, at 133-36.
142. Id. at 132-40, 160-62, 189-92. Leo, Interrogation Room, supra note 70, at 276.
143. Weisselberg, Saving Miranda, supra note 3.
144. Cal. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1045-50 (9th Cir. 1999).
145. See Dickerson v. United States, 530 U.S. 428, 438 (2000).
146. Weisselberg, In the Stationhouse, supra note 95, at 1142-43.
147. Id. at 1143-54.
148. Id. at 1162.
149. 195 F.3d 1039.
150. 538 U.S. 760 (2003).
151. Samuel R. Gross et al, Exonerations in the United States: 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 531-40 (2005);
152. Robert J. Ramsey & James Frank, Wrongful Conviction: Perspectives of Criminal Justice Professionals Regarding the Frequency of Wrongful Conviction and the Extent of System Errors, in CRIME & DELINQUENCY (forthcoming 2007);
153. Marvin Zalman, Brad Smith & Angie Kazaleh Kiger, Officials' Estimates of the Incidence of "Actual Innocence" Convictions, JUST. Q. (forthcoming 2008).
154. Drizin & Leo, supra note 4, at 906.
155. See BARTHEL, svpra note 107; EDWIN M. BORCHARD, CONVICTING THE INNOCENT: SIXTY-FIVE ACTUAL ERRORS OF CRIMINAL JUSTICE (1932);
156. GERRY CONLON, IN THE NAME OF THE FATHER (Plume 1993) (1990);
157. MARGARET EDDS, AN EXPENDABLE MAN: THE NEAR-EXECUTION OF EARL WASHINGTON JR. (2003);
158. JIM FISHER, FALL GUYS: FALSE CONFESSIONS AND THE POLITICS OF MURDER (1996);
159. WILLARD J. LASSERS, SCAPEGOAT JUSTICE: LLOYD MILLER AND THE FAILURE OF THE AMERICAN LEGAL SYSTEM (1973);
160. MARA LEVERITT, DEVIL'S KNOT: THE TRUE STORY OF THE WEST MEMPHIS THREE (2002);
161. PAUL MONES, STALKING JUSTICE (1995);
162. SELWYN RAAB, JUSTICE IN THE BACKROOM (1967);
163. MICHAEL L. RADELET, HUGO ADAM BEDAU & CONSTANCE E. PUTNAM, IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES (1992);
164. LAWRENCE WRIGHT, REMEMBERING SATAN (1994).
165. See GISLI GUDIONSSON, THE PSYCHOLOGY OF INTERROGATION AND CONFESSIONS: A HANDBOOK (2003); Ofshe & Leo, The Decision to Confess Falsely, supra note 94.
166. Drizin and Leo, supra note 4, at 929-30 (noting 125 proven false confessions); see also Leo & Ofshe, The Consequences of False Confession, supra note 108, at 444-49 (reporting 60 proven, highly probable, and probable false confessions).
167. Leo & Ofshe's results were challenged in part by then Professor (now judge) Paul Cassell. The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523 (1999).
168. Although Cassell's tendentiousness has tended to cloud the accuracy of his scholarship, see, e.g., George C. Thomas, III, Telling Half-Truths, LEGAL TIMES, Aug. 12, 1996, at 20, there is some evidence that false confessions occur primarily among teenage and emotionally and mentally impaired suspects.
169. See J. P. Blair, A Test of the Unusual False Confession Perspective: Using Cases of Proven False Confessions, 41 CRIM. L. BULL. 127 (2005).
170. Rob Warden, Illinois Death Penalty Reform: How it Happened, What it Promises, 95 J. CRIM. L. & CRIMINOLOGY 381, 382-83 (2005).
171. Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791 (2006).
172. See, e.g., FRED. E. INBAU, JOHN E. REID, JOSEPH P. BUCKLEY & BRIAN C. JAYNE, CRIMINAL INTERROGATION AND CONFESSIONS (Aspen Publishers 4th ed. 2001) (1962).
173. See DAVID M. BUCKLEY & BRIAN C. JAYNE, ELECTRONIC RECORDING OF I NTERROGATIONS (2005) (approves of videotaping and discusses physical aspects, interrogator conduct, special situations, and detectives' testimony);
174. Roberto Iraola, The Electronic Recording of Criminal Interrogations, 40 U. RICH. L. REV. 463 (2006) (reviewing recent state cases concerning videotaping);
175. G. Daniel Lassiter et al., Videotaped Confessions: Panacea or Pandora's Box?, 28 LAW & POL'Y 192, 193-94 (2006) (angle and positioning of videotaping confession can influence judgments of voluntariness);
176. Jessica Silbey, Videotaped Confessions and the Genre of Documentary, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 789 (2006) (raising caveats about the reliability of videotapes as representations of reality).
177. Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - And from Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 553-56 (1998) ("conservative");
178. Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Illinois' Problem of False Confessions, 32 LOYOLA U. CHI. L.J. 337 (2001) ("liberal").
179. Drizin & Colgan, supra note 146, at 339-40 (citing William A. Geller, Videotaping Interrogations and Confessions, in NAT'L INST. OF JUSTICE, U.S. DEP'T OF JUSTICE, RESEARCH IN BRIEF (Mar. 1993)).
180. THOMAS P. SULLIVAN, CTR. ON WRONGFUL CONVICTIONS, NORTHWESTERN UNIV. SCH. OF LAW, POLICE EXPERIENCES WITH RECORDING CUSTODIAL INTERROGATIONS (2004), available at http://www.law.northwestern.edu/depts/clinic/wrongful/documents/SullivanReport. pdf [hereinafter SULLIVAN, POLICE EXPERIENCES];
181. see Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 88 JUDICATURE 132 (2005) [hereinafter Sullivan, Custodial Interrogations];
182. Thomas P. Sullivan, Recent Developments: Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY 1127, 1129-30 (2005) [hereinafter Sullivan, Recent Developments].
183. Alaska requires the electronic recording of custodial interrogation as a matter of state due process. Stephen v. State, 711 P.2d 1156 (Alaska 1985). The District of Columbia requires the electronic recording of interrogations of persons suspected of committing crimes of violence that occur "in Metropolitan Police Department interview rooms equipped with electronic recording equipment" in their entirety; police may record interrogations occurring in other places, and any violations raise the rebuttable presumption that a resulting admission is involuntary. D.C. CODE § 5-116.01-116.03 (2006). Illinois requires the electronic recording of custodial interrogations in the investigation of all homicide crimes and provides for a number of exceptions. 20 III. COMP. STAT. 3930/7.2 (2006). Maine requires law enforcement agencies to adopt written policies with regard to "[d]igital, electronic, audio, video or other recording of law enforcement interviews of suspects in serious crimes and the preservation of investigative notes and records in such cases." ME. REV. STAT. ANN. tit. 25 § 2803-B(1)(K) (2006). Massachusetts allows a defendant to request a cautionary instruction from the trial judge in a case where "the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention" and where "interrogating officers have chosen not to preserve an accurate and complete recording of the interrogation." Commonwealth v. DiGiambattista, 813 N.E.2d 516, 533 (Mass. 2004). Minnesota mandates "a recording requirement for all custodial interrogations" under the supervisory powers of its Supreme Court. State v. Scales, 518 N.W.2d 587 (Minn. 1994). Texas requires the electronic recording of a defendant's voluntary statements in order for these statements to be admissible, but does not require the recording of entire interrogations; furthermore, a "person who swears falsely to facts" that "if true, would render the statement admissible under this article is presumed to have acted with intent to deceive and with knowledge of the statement's meaning for the purpose of prosecution for aggravated perjury" and is not "eligible for probation." TEX. CODE CRIM. PROC. ANN. art. 38.22(3)(4) (Vernon 2005). Commonwealth v. DiGiambattista, 813 N.E. 2d at 530, identified appellate opinions in Colorado, Connecticut, Hawaii, Indiana, Michigan, Mississippi, Tennessee, and Utah that, although reluctant to articulate a taping requirement as a matter of State constitutional law, have acknowledged that recording of interrogations would act as a deterrent to police misconduct, reduce the number and length of contested motions to suppress, allow for more accurate resolution of the issues raised in motions to suppress, and at trial on the merits, provide the fact finder a complete version of precisely what the defendant did (or did not) say in any statement or confession. See also United States v. Thornton, 177 F. Supp. 2d 625 (E.D. Mich. 2001) (The court noted, in dictum, that several jurisdictions videotape interrogations and that in the instant case "neither the interrogation nor confession were audio or video taped. While electronic recording is not a constitutional requirement, there is a 'heavy burden' on the government to show a suspect's waiver of rights was knowing and intelligent. . . . It certainly harms the prosecution in a close case when the court cannot evaluate the actual confession. The Court recommends that the DEA electronically record future interrogations and confessions so a reviewing court can fully evaluate whether a confession violates Fifth or Fourteenth Amendment.").
184. Zalman, Paradigm Shift, supra note 56, at 337.
185. See, e.g., Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999); Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340 (2d Cir. 1998); Riley v. Dorton, 115 F.3d 1159, 1165 (4th Cir. 1997) (en banc); Mahan v. Plymouth County House of Corr., 64 F.3d 14, 17 (1st Cir. 1995); Giuffre v. Bissell, 31 F.3d 1241, 1255-57 (3d Cir. 1994); Mahoney v. Kesery, 976 F.2d 1054, 1061-62 (7th Cir. 1992); Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir. 1989) (en banc); Davis v. City of Charleston, 827 F.2d 317, 322 (8th Cir. 1987); Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976). But see Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en banc).
186. Steven D. Clymer, Are Police Free to Disregard Miranda? 112 YALE L.J. 447, 488 (2002).
187. Martinez v. City of Oxnard, 270 F.3d 852 (9th Cir. 2001); Cal. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 1999); Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en banc).
188. 538 U.S. 760, 766-67 (2003) (Thomas, J., plurality opinion). Chavez was a complex decision in which the court rendered multiple opinions as to whether an abusive interrogation that yielded no confession violated the self-incrimination clause. The Justices in the plurality, Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas, held that even torture is not actionable under the privilege against self-incrimination, which is deemed to be only an exclusionary rule. Id. (Thomas, J., plurality opinion). Justices Souter and Breyer disagreed with Thomas' reasoning, but agreed that in this case no claim for violation of the privilege of self-incrimination existed. Id. at 778-79 (Souter, J., writing separately, joined by Breyer, J.). Three dissenters, in an opinion by Justice Kennedy, joined by Justices Stevens and Ginsburg, found that the privilege against self-incrimination is violated by the use of "severe compulsion or extraordinary pressure" during interrogation even if no confession is sought to be admitted into evidence. Id. at 789 (Kennedy, J., dissenting).
189. Id. at 779-80 (Souter, J., in an opinion for the Court). Various opinions of the majority of justices who remanded on the due process question leaned toward a finding that the interrogation violated Martinez's due process rights. See Zalman, Paradigm Shift, supra note 56, at 349-50.
190. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES (CSLLEA), 2000 (2003).
191. Chavez, 538 U.S. 760 (2003), was decided on May 27, 2003; Missouri v. Seibert, 542 U.S. 600 (2004), and United States v. Patane, 542 U.S. 630 (2004), were decided on June 28, 2004.
192. Time & Payne, Chiefs' Perceptions, supra note 110.
193. The replicated questions (numbers 1-3, 5-6, and 9-10) are identified in the Appendix with the question found in Time & Payne, Chiefs' Perceptions, supra note 110.
194. DON. M. DILLMAN, MAIL AND INTERNET SURVEYS: THE TAILORED DESIGN METHOD (2d ed. 2000).
195. Time and Payne report "a respectable response rate of 55 percent." Time & Payne, Chiefs' Perceptions, supra note 110, at 79.
196. See Appendix, Question 37.
197. Payne & Time, Support for Miranda, supra note 110.
198. Five respondents had a law and a graduate degree; four had a law degree; twenty-eight had a graduate degree; twelve had some graduate work; thirty-four had a bachelor's degree; thirteen had an associate's degree or some college work; one had a high school degree; and three did not respond. The educational level in this national sample of large police departments is higher than that reported for the Virginia chiefs by Time & Payne, Chiefs' Perceptions, supra note 110, at 80 tbl.1 (reporting that sixteen respondents had a graduate degree; twelve had some graduate work; seventeen had a bachelor's degree; forty-two had some college work; and eight had a high school degree). For example, 38.1% of the national sample had graduate or law degrees compared to 16.8% of the Virginia chiefs. Id.
199. See EARL BABBIE, THE BASICS OF SOCIAL RESEARCH 255-57 (3d ed. 2005) (1999).
200. Id. at 285; see also ROYCE A. SINGLETON, JR., BRUCE C. STRAITS & MARGARET MILLER STRAITS, APPROACHES TO SOCIAL RESEARCH 254-65 (2d ed. 1993) (1988).
201. Respondent "I." Only nine respondents of the ninety-nine who completed surveys offered written comments. We have designated them by letter
202. Canon, supra note 6, at 445-46.
203. See infra Appendix, Questions 1-3, 5-6, 9-10, 12-13, 14, 21, 25-26.
204. JEANINE BELL, POLICING HATRED: LAW ENFORCEMENT, CIVIL RIGHTS, AND HATE CRIME 48-83 (2002);
205. Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543, 552-54 (1960).
206. See WILLIAM BRATTON WITH PETER KNOBLER, TURNAROUND 242-44 (1998);
207. Bradley C. Canon, Testing the Effectiveness of Civil Liberties Policies at the State and Federal Levels: The Case of the Exclusionary Rule, 5 AM. POL. Q. 57 (1977) [hereinafter Canon, Testing the Effectiveness].
208. Time & Payne, Chiefs' Perceptions, supra note 110.
209. See infra Appendix, Questions: 4, 15, 19-20, 22-24, 27-30.
210. Thomas, III, supra note 73, at 1998.
211. 542 U.S. 600 (2004).
212. See infra Appendix, Questions: 11, 17-18, 33.
213. E.g., Symposium, Innocence in Capital Sentencing, 95 J. CRIM. L. & CRIMINOLOGY 371-651 (2005);
214. Symposium, No Longer "An Unreal Dream": Wrongful Convictions After the DNA Revolution, 41 CRIM. L. BULL. 109-94 (2005);
215. Special Issue on Wrongful Conviction, 88 JUDICATURE 67-121 (2003).
216. See infra Appendix, Questions 7-8, 35-36.
217. See, e.g., Noah Schaffer, Legacy of Supreme Judicial Court's Decision about Confessions to Police That Are Not Tape-Recorded, MASS. LAWYERS WEEKLY, Apr. 2, 2007 (Lexis news library);
218. Bob Gardinier, Police to Get Video Cameras; $50,000 Grant Will Help Four Departments Record Questioning of Suspects, TIMES UNION (Albany, New York), Mar. 23, 2007;
219. Adam Liptak, Relying on the Notepad in the Electronic Age, N.Y. TIMES, Feb. 12, 2007 (noting that "[m]ore than 500 police departments in all 50 states now make electronic recordings of at least some interrogations, often videotaping them").
220. Sullivan, Custodial Interrogations, supra note 148.
221. See infra Appendix, Questions 16, 31-32, 34.
222. The discussion of results in Section IV proceeds section by section and question by question, in accordance with the conventions of writing in social scientific journals. However, much of the text does not simply restate the information found in the tables with analysis left to the conclusion, but adheres to the freer conventions of legal discourse, offers comments, and even speculates about the results.
223. Question 12 (Table 1) was modified from that used by Time & Payne, Chiefs' Perceptions, supra note 110, at 81 tbl.2 Question 6, because their question was geared to the impending Dickerson decision. As in the Time & Payne study, we ignore missing data in reporting the results of Likert-type questions. See Time & Payne, Chiefs' Perceptions, supra note 110, at 81 tbl.2 (number (n) of responses to questions in Table 2 vary, missing data not reported).
224. Time and Payne found significant relationships between experience with Miranda measured by cases "thrown out as a result of Miranda" and positive answers to the following statements: "the Courts are too cautious with regard to interpretations of Miranda"; "too many get off easy as a result of the Miranda warnings"; "Miranda is useful in principle but not in practice"; "Miranda makes it difficult for officers to do their jobs"; "Miranda hinders voluntary confessions"; and "prosecutors have a hard time prosecuting cases when offenders exercise their rights to remain silent." Time & Payne, Chiefs' Perceptions, supra note 110, at 82-83. In contrast, there was a non-significant relation between a negative experience with Miranda and positive answers to the statement "the Court should overturn the Miranda warnings once and for all." Id. These responses suggest that a fully comprehensive study of the impact of Miranda in practice should combine observations with a survey and interviews of the detectives who conduct interrogations and their supervisors.
225. "The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date." Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Burger, C.J., concurring).
226. Weisselberg, Saving Miranda, supra note 3, at 117-25.
227. Time & Payne, Chiefs' Perceptions, supra note 110 at 81, tbl 2.
228. Respondent "C" (citing HAROLD J. ROTHWAX, GUILTY: THE COLLAPSE OF CRIMINAL JUSTICE (1997)).
229. 542 U.S. 630 (2004).
230. 542 U.S. 600 (2004).
231. The numbers of the questions appearing in this Table and the following Tables correspond to the numbering in the survey instrument found in the Appendix. The number of the question in Time & Payne's Chiefs' Perceptions survey, supra note 110, is added parenthetically.
232. Hereinafter, unless it is otherwise indicated, the term "agreement" used in the text to describe the responses to Likert-type questions means the sum of the "agree" + "strongly agree" responses, and disagreement means the sum of the "disagree" + "strongly disagree" responses.
233. Two respondents (Respondents "A" and "H"), one of whom stated that he or she did not answer these questions, said that the opinions of any police officer about a Supreme Court decision is "totally irrelevant" and that "this is not for us as police officers to say. Our role is to ensure that the rulings are followed, not to complain because they may be inconvenient to the police function."
234. See supra Part I.B.
235. The wording of the questions in Table 2 was identical in our survey and in Time and Payne's survey, from which the questions were derived. Time & Payne, Chiefs' Perceptions, supra note 110, at 81 tbl.2.
236. Question 1 reports that almost 56% of the Virginia chiefs and almost 60% of the national sample of police administrators support the view that Miranda warnings must be routinely read to prevent dismissal of the case. Time & Payne, Chiefs' Perceptions, supra note 110, at 81 tbl.2.
237. See supra note 196.
238. We report the n's from Time & Payne, Chiefs' Perceptions, supra note 110, at 81, but alter the percentage figures.
239. Respondent "D."
240. Respondent "E."
241. A similar pattern is displayed in the responses to Question 6, in which over 40% of the Virginia chiefs felt that Miranda was ineffective in practice, compared to only 14% of the executives and high-ranking officers responding in the national sample. A similar result is found in Question 3 ("Courts too cautious"): 62% of the Virginia chiefs agreed, compared to only 27% of the national respondents. These responses suggest that police executives in large departments accommodate the Miranda requirements more easily than the chiefs of Virginia police departments, who represent a spectrum of departments that include smaller agencies.
242. We speculate that national police executives may be less bothered by Miranda requirements than the Virginia chiefs in part because their spans of responsibility are broader and they have a less parochial interest in or memory of specific cases.
243. Questions in Tables 3 through 9 were designed to probe the policy issues raised in the present study and were administered to the national sample of executives of large police agencies. Further research that compares our results with those in smaller police departments might yield interesting information as to whether police procedures vary by agency size.
244. Respondent "H."
245. BRATTON WITH KNOBLER, supra note 171; Canon, Testing the Effectiveness, supra note 171.
246. BRATTON WITH KNOBLER, supra note 171; JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 172-92 (1993).
247. DAVID SIMON, HOMICIDE: A YEAR ON THE KILLING STREETS 204-20 (1991);
248. Leo & White, Adapting to Miranda, supra note 12, at 432-39.
249. Cassel & Hayman, supra note 17, at 891-904; Leo, Interrogation Room, supra note 70.
250. Question 19: 41.1% agreed that a statement taken in violation of Miranda should be used to impeach an offender's credibility on the stand (the Harris v. New York, 401 U.S. 222, 225-26 (1971), and Oregon v. Hass, 420 U.S. 714, 722-24 (1975), exception); Question 20: 42.1% agreed that a statement taken in violation of Miranda should be used to get leads about a case (the Michigan v. Tucker, 417 U.S. 433, 451-52 (1974), and United States v. Patane, 542 U.S. 630, 644 (2004), exception). Responses to Question 20 are in tension with responses to Question 14 in Table 1. See text at notes 251 to 253 infra.
251. Concerning minimization, one of the authors has proposed a "quixotic" reform (among others) that would have a pre-recorded video of Miranda questions read by a chief judge to a suspect prior to stationhouse interrogation. Zalman, Tea Leaves, supra note 56, at 366-68.
252. Re-interrogation is allowable under a variety of circumstances. See Michigan v. Mosley, 423 U.S. 96, 102-03 (1975).
253. 538 U.S. 760 (2003).
254. WASBY, SMALL TOWN POLICE, supra note 81.
255. Weisselberg, In the Stationhouse, supra note 95; Weisselberg, Saving Miranda, supra note 3.
256. 542 U.S. 600, 609 (2004).
257. See supra Table 3, Question 25.
258. See discussion supra Part II.B.
259. We speculate that because police chiefs typically belong to a statewide Chiefs' Association, they may become informed of cases of local interest or provenance through the mailings or electronic messages of the association or at annual meetings. By this and other means, it is likely that police chiefs within a state will be aware of legal developments affecting a sister department, especially where the result of the case may impact their own departments.
260. Respondent "I."
261. See Drizin & Leo, supra note 4 (demonstrating the existence of false confessions and implying that false confessions are not rare).
262. See INNOCENCE COMM'N FOR VA., A VISION FOR JUSTICE: REPORT AND R ECOMMENDATIONS REGARDING WRONGFUL CONVICTIONS IN THE COMMONWEALTH OF VIRGINIA 9-10, 42-59 (2005), available at http://www.thejusticeproject.org/press/reports/ pdfs/17241.pdf (last visited May 9, 2007).
263. Gross et al., supra note 137, at 527-28. Of these 340 official exonerations, 144 were based on DNA, and 195 on other evidence of innocence. Id. The mass exonerations include those released in the aftermath of the Ramparts police corruption episode in Los Angeles and the exonerations and gubernatorial pardons in the aftermath of the Tulia, Texas police misfeasance episode. Id. at 533-35. Also not included in official exonerations are those that resulted from a number of bizarre, ritual sex abuse prosecutions and convictions. See, e.g., EDWARD HUMES, MEAN JUSTICE: A TOWN'S TERROR, A PROSECUTOR'S POWER, A BETRAYAL OF INNOCENCE 449-53 (1999);
264. DOROTHY RABINOWITZ, NO CRUELER TYRANNIES: ACCUSATION, FALSE WITNESS AND OTHER TERRORS OF OUR TIMES (2003).
265. Gross et al., supra note 137, at 529-33.
266. Judith A. Goldberg & David M. Siegel, The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence, 38 CAL. W. L. REV. 389, 394-5, 412 (2002) (prosecutors' reaction to prisoners' requests for DNA testing range from support to resistance);
267. Seth Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. PA. L. REV. 547 (2002) (examples of prosecutorial support of and resistance to post-conviction DNA testing detailed);
268. Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B. U. L. REV. 125 (2004) (explores reasons for prosecutorial resistance and proposes reforms);
269. Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 VAND. L. REV. 171 (2005) (prosecutors ill-equipped to analyze post-trial obligations to serve justice because law on issues is limited, incentives are negative, and issues are complex).
270. Cassell & Hayman, supra note 17, at 892-904; Leo, Interrogation Room, supra note 70, at 280.
271. Blair, supra note 141, at 136.
272. John E. Reid & Associates, Inc., http://www.reid.com/ training_programs/r_interview.html (last visited May 7, 2007).
273. INBAU ET AL., supra note 144, at 5 passim.
274. Id. at 209-397 (discussing the nine steps in greater depth).
275. GUDJONSSON, supra note 140, at 7-37; Richard Leo, Miranda's Revenge: Police Interrogation as a Confidence Game, 30 LAW & SOC'Y REV. 259, at 269 passim (1996).
276. The response "do not know" was not provided as a choice. See Table 7.
277. Respondents "A," "E," and "H."
278. A similar situation exists as to the unverifiable claims of jury consultants who do not allow external researchers to evaluate the data upon which some claims of success are made. See NEIL J. KRESSEL & DORIT F. KRESSEL, STACK AND SWAY: THE NEW SCIENCE OF JURY CONSULTING 75-78 (2002).
279. See discussion supra Part II.D.
280. SULLIVAN, POLICE EXPERIENCES, supra note 148, at 6-19.
281. Id.
282. Zalman, Paradigm Shift, supra note 56, at 337.
283. 538 U.S. 760 (2003).
284. Research into police discipline could compare the frequency of discipline for interrogation issues to other issues, compare the discipline of detectives and uniformed officers, and explore whether the anticipated infrequency of discipline for interrogation issues is due to a lack of concern or because interrogations are generally conducted in a proper manner. The latter conclusion may be a result of the frequency and level of oversight of interrogations by managerial officers who monitor confessions as they occur.
285. See Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department "Pattern or Practice" Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3 (2003) [hereinafter Walker, Pattern].
286. See Cassell & Hayman, supra note 17; Leo, Interrogation Room, supra note 70; Thomas, III, supra note 73.
287. Compare supra Tables 1 and 2, with Time & Payne, Chiefs' Perceptions, supra note 110, at 81.
288. See supra Table 1, Question 12.
289. Leo & White, Adapting to Miranda, supra note 12.
290. See supra Part I.B; Schulhofer, supra note 40; Standen, supra note 34.
291. 542 U.S. 600 (2004).
292. WASBY, IMPACT, supra note 79, at 30; see also William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 (1994) (signaling between Congress and the Supreme Court).
293. See supra Table 1, Questions 13 and 14.
294. See supra Table 4, Question 15.
295. See supra Table 4, Questions 19 and 20.
296. 538 U.S. 760 (2003).
297. See supra Table 5, Question 22.
298. In this regard, Wasby's study on the communication of Supreme Court decisions to small town police is valuable, but probably made obsolete by police administrators' higher educational levels today and by the ready availability of Supreme Court opinions and case commentaries on the internet. WASBY, SMALL TOWN POLICE, supra note 81. Weisselberg's study comprehensively examined California police training materials regarding interrogation "outside Miranda" following the Dickerson decision, underscoring an implicit point in court impact communications theories: decisions can influence officers' conduct only if they are transmitted to them. Weisselberg, In the Stationhouse, supra note 95, at 1148-51. Weisselberg, however, did not conduct an empirical study of individual officers' knowledge. Id.
299. See supra Table 5, Questions 23, and 27-30.
300. See supra Table 6.
301. Weisselberg, In the Stationhouse, supra note 95, at 1148-51.
302. See supra Table 5, Questions 27-30.
303. Thomas, III, supra note 73, at 1998.
304. Id.
305. See supra Table 7, Question 11.
306. Blair, supra note 141, at 138.
307. Drizin & Leo, supra note 4, at 1001-05.
308. Such questions may be a subset of the issues of police pressures, organizational structure, and tunnel vision that combine to cause a number of wrongful convictions. See William S. Lofquist, Whodunit? An Examination of the Production of Wrongful Convictions, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 174 (Saundra D. Westervelt & John A. Humphrey, eds., 2001);
309. Dianne L. Martin, The Police Role in Wrongful Convictions: An International Comparative Study, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 77 (Saundra D. Westervelt & John A. Humphrey, eds., 2001);
310. Dianne L. Martin, Lessons About Justice from the " Laboratory" of Wrongful Convictions: Tunnel Vision, the Construction of Guilt and Informer Evidence, 70 UMKC L. REV. 847 (2002).
311. Zalman has proposed that prior to conducting a full interrogation, police should document the basis of their suspicion against the suspect in writing. Zalman, Tea Leaves, supra note 56, at 264-66.
312. SULLIVAN, POLICE EXPERIENCES, supra note 148, at 6-7.
313. See supra Table 8, Question 7.
314. See supra Table 8.
315. See supra Table 9, Questions 16, 31.
316. See supra Table 9, Question 34.
317. See supra Table 9, Question 32.
318. See supra Table 3, Question 21.
319. The scope of rule of law scholarship is vast. See, e.g., THE RULE OF LAW: NOMOS XXXVI (Ian Shapiro ed., 1994); ALLEN, supra note 105.
320. The principal of legality is, strictly speaking, a component of the rule of law, which is centered on the idea that penal laws must be written and non-retroactive and must be interpreted as placing definite limits on the power of the state to penalize individuals. See ALLEN, supra note 105 (the rule of law in criminal justice can be undermined by institutional and structural factors); JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 27-69 (2d ed. 1960) (1947).
321. HALL, supra note 272, at 27.
322. LON FULLER, THE MORALITY OF LAW 44-46 (rev. ed. 1969) (1964). The eight criteria are the existence of law, its publication, non-retroactivity, understandable rules, non-contradictory rules, rules that can be followed, stability in the law, and "congruence between the rules as announced and their actual administration." Id. at 39.
323. Goldstein, supra note 170, at 554-62.
324. The latter is a hallmark of the complete absence of the rule of law associated with despotic regimes. For a specific example, see, e.g., INGO MÜLLER, HITLER'S JUSTICE: THE COURTS OF THE THIRD REICH 174-76 (Deborah Lucas Schneider trans., 1991).
325. PACKER, supra note 29, at 154-73. A succinct example of the different political and legal views that may be encompassed under the "rule of law" is nicely phrased by Judith Shklar, who placed the highest value on democratic politics and toleration in her "barebones liberalism." She noted, My view of legalism is overtly liberal, but it is not the liberalism of the "rule of law" ideal promulgated by Friedrich von Hayek and his followers, because it does not suggest that the only function of a legal system is to provide a secure framework for the spontaneous order of the free market. JUDITH N. SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS xi (1986).
326. FULLER, supra note 274, at 96.
327. SHKLAR, supra note 277, at 1.
328. Id. at 2.
329. Id. at 157.
330. Id. at 156 (emphasis added).
331. FULLER, supra note 274, at 92.
332. Action, in a policy sense, includes the failure to act, which may be justified depending upon the circumstances. 285 FULLER, supra note 274, at 63-70, 79-81.
333. The late Richard Uviller, with great care, revealed the views of police officers that he followed in their work for a year. On the basis of common sense they sharply opposed, but would follow, state law that barred the use of a "cured" statement that would be admissible under Oregon v. Elstad, but at least one officer could not fathom the legality of a rule that allowed police to lie to suspects during interrogation. H. RICHARD UVILLER, TEMPERED ZEAL: A COLUMBIA LAW PROFESSOR'S YEAR ON THE STREETS WITH THE NEW YORK CITY POLICE 198-212 (1988).
334. Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625, 2629 (1996).
335. See Note, Laws That Are Meant To Be Broken: Adjusting for Anticipated Noncompliance, 75 MICH. L. REV. 687, at 687-88 passim (1977) (arguing that legislatures expect levels of noncompliance with some laws).
336. Weisselberg, Saving Miranda, supra note 3, at 189-92.
337. Stuart Taylor, Jr., Comment: Remote Control, ATLANTIC MONTHLY, Sept. 2005, at 37;
338. Benjamin Wittes, Comment: Without Precedent, ATLANTIC MONTHLY, Sept. 2005, at 39.
339. 538 U.S. 760 (2003).
340. Missouri v. Seibert, 542 U.S. 600, 609-10 (2004).
341. Id. at 628 (O'Connor, J., dissenting).
342. Id. at 628-29.
343. FULLER, supra note 274, at 81-91.
344. Id. at 81.
345. See, e.g., RONALD GLENSOR, KENNETH J. PEAK & LARRY K. GAINES, POLICE SUPERVISION (1999); ELI B. SILVERMAN, NYPD BATTLES CRIME: INNOVATIVE STRATEGIES IN POLICING (1999).
346. Law-abiding policing has become a global concern, along with recognition of human rights. See DEMOCRATIC POLICING AND ACCOUNTABILITY: GLOBAL PERSPECTIVES (Errol P. Mendes et al. eds., 1999).
347. HALL, supra note 272, at 27.
348. ALLEN, supra note 105, at 19.
349. SAMUEL WALKER, POPULAR JUSTICE: A HISTORY OF AMERICAN CRIMINAL JUSTICE 131-34, 170-74, 197-201, 232-39 (2d ed. 1998) (1980).
350. Walker, Pattern, supra note 240.
351. It is useful to compare our findings to empirical studies of jury selection and criminal sentencing that show that race has an effect at the individual level but that the race effect is cancelled out at the institutional level. See, e.g., David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. PA. J. CONST. L. 3, 53 (2001);
352. Travis C. Pratt, Race and Sentencing: A Meta-Analysis of Conflicting Empirical Research Results, 26 J. CRIM. JUST. 513, 519 (1998) ("At the individual level of analysis, evidence of racial discrimination in sentencing is more likely to be found, yet at the institutional level, anti-African American, pro-African American and nondiscriminatory judicial decisions may cancel each other out resulting in a statistical finding of no discrimination.");
353. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 LAW & HUM. BEHAV. 695, 698-99 (1999);
354. Billy M. Turner et al., Race and Peremptory Challenges During Voir Dire: Do Prosecution and Defense Agree?, 14 J. CRIM. JUST. 61, 64-67 (1986). Such studies can only be suggestive of the retail and wholesale effects suggested herein. They do, however, alert us to the possibility that a number, and perhaps a fairly large number, of legal violations that occur in such criminal justice processes as interrogation become "invisible" because they are not recorded and because they are not so widespread as to come to public attention through the news media.
355. Missouri v. Seibert, 542 U.S. 600 (2004).
356. See supra Table 7.
357. See NAT'L ADVISORY COMM'N ON CIVIL DISORDERS (KERNER COMM'N), REPORT (1968).
358. An egregious example of a continuous pattern of gross abuses in interrogation amounting to torture has been documented in one Chicago precinct. JOHN CONROY, UNSPEAKABLE ACTS, ORDINARY PEOPLE: THE DYNAMICS OF TORTURE 21-26, 60-87, 158-68, 225-41 (2000) (systematic torture of criminal suspects in the Area 2 precinct in Chicago for thirteen years from the late 1970s to the early 1990s);
359. Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFFALO L. REV. 1275 (1999) (same).
360. KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969) (finding unwarranted discretion in agencies controlled by the methods of confining, structuring, and checking).
361. In Anglo-American law, legal doctrines, whether they are common law doctrines or doctrines of statutory or constitutional interpretation, may go through cycles of birth, growth, application, decline, and even death. See LEVI, supra note 75, at 8-9 passim.
362. Dickerson v. United States, 530 U.S. 428 (2000).
363. Richard A. Leo, The Impact of Miranda Revisited, 86. J. CRIM. L. & CRIMINOLOGY 621, 668-71 (1996).
364. Id. at 672.
365. Id. at 671.
366. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dicterson, 530 U.S. at 443.
367. See, e.g., Marvin Zalman, Cautionary Notes on Commission Recommendations: A Public Policy Approach to Wrongful Convictions, 41 CRIM. L. BULL. 169 (2005).
368. Sullivan, Recent Developments, supra note 148.
369. Blair, supra note 141.
370. Zalman, Tea Leaves, supra note 56, at 363-66.
371. Leo, Questioning the Relevance, supra note 89, at 1026.
372. Weisselberg, Saving Miranda, supra note 3, at 117-25.