Mourning Miranda

California Law Review

Volumn 96, Issue 6, 2008, Pages 1519-1602

  Weisselbergt, Charles D ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 58049170259     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (417)

1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. See Chavez v. Martinez, 538 U.S. 760, 790 (2003) (Kennedy, J., concurring in part and dissenting in part) (stating that Miranda's procedures were designed "to reduce the risk of a coerced confession and to implement the Self-tacrimination Clause"); Connecticut v. Barrett, 479 U.S. 523, 528 (1987) ("The fundamental purpose of the Court's decision in Miranda was 'to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process.'") (quoting Miranda, 384 U.S. at 469).
3. As criminologist Richard Leo writes, interrogation training manuals and courses are "the medium through which investigators acquire their working knowledge of the constitutional law of criminal procedure, the primary source of external restraint on their interrogation practices." RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 109 (2008). The Supreme Court has also observed that "[t]he key to the [exclusionary] rule's effectiveness as a deterrent lies ... in the impetus it has provided to police training programs that make officers aware of the limits imposed by the [Constitution] and emphasize the need to operate within those limits." United States v. Leon, 468 U.S. 897, 920 n. 20 (1984) (quoting Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 MICH. L. REV. 1319, 1412 (1977) (footnote omitted)).
4. For a description of this practice, see Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 132-36 (1998).
5. See, e.g., Cal. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1045 (9th Cir. 1999); People v. Neal, 31 Cal. 4th 63, 81 (2003); People v. Peevy, 17 Cal. 4th 1184, 1202-05 (1998). Disclosure: I participated in these cases.
6. 542 U.S. 600 (2004).
7. See infra at notes 156-61, and accompanying text.
8. 542 U.S. 630 (2004). The Court held that the "fruit of the poisonous tree" doctrine does not exclude physical evidence when officers fail to give Miranda warnings. Id. at 642.
9. According to data provided by the U.S. Department of Justice, of all of the states, California had the largest number of sworn personnel (75,477) and total law enforcement employees (115,912), as well as the highest number of arrests for "Part I" crimes in 2006 (1,543,797). Part I crimes are 29 of the most serious offenses tracked by the FBI. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE UNITED STATES tbl.77 (Full- Time Law Enforcement Employees by State, 2006), tbl. 69 (Arrests by State, 2006) (2006), available at http://www.fbi.gov/ucr/cius2006/about/ index.html. As of June 2006, California had 173,453 sentenced prisoners under its jurisdiction, comprising the largest prison population of any state (and more than the entire federal system). See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, BULLETIN: PRISON AND JAIL INMATES AT MIDYEAR 2006 app. tbl.1 (2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdfpjim06.pdf. The five states with the largest prison populations were California, Texas (161,575), Florida (89,082), New York (62,950) and Georgia (51,536). See id.
10. CAL. GOV'T CODE §§6250-6276.48 (Deering 2008).
11. My requests went to fourteen county district attorney's offices, fourteen county sheriff's departments, thirteen local police departments, and the California Commission on Peace Officer Standards and Training ("POST"). Twenty-two responded with records. Another eight either responded that they had no records or referred me to other agencies (primarily to POST). One agency objected to my request and eleven failed to respond. Of the federal agencies, the Federal Bureau of Investigation did not respond but the Drug Enforcement Administration provided records.
12. See Charles D. Weisselberg, In the Stationhouse after Dickerson, 99 MICH. L. REV. 1121 (2001); Weisselberg, Saving Miranda, supra note 4.
13. CAL. PENAL CODE § 13500 (Deering 2008).
14. See CAL. PENAL CODE §§ 13503, 13510-13519.14 (Deering 2008); see also POST Directory & Reference Guide, http://www.post.ca.gov/About-Us/Directory/(last visited July 6, 2008).
15. In the past, I have strongly criticized law enforcement trainers and agencies, including POST, for instructing officers on interrogation tactics (such as questioning "outside Miranda") that directly conflict with the requirements of Miranda. See Weisselberg, Saving Miranda, supra note 4, at 167-70; Weisselberg, In the Stationhouse after Dickerson, supra note 12, at 1136-42. In the present article, I argue that law enforcement officials are for the most part aggressively seeking advantages in interrogation, but they are using openings that the Supreme Court and other courts have given them.
16. See, e.g., Blackburn v. Alabama, 361 U.S. 199 (1960); Spano v. New York, 360 U.S. 315 (1959); Brown v. Mississippi, 297 U.S. 278 (1936). The Court also flirted with a Sixth Amendment approach. See Escobedo v. Illinois, 378 U.S. 478 (1964).
17. In Bram v. United States, 168 U.S. 532, 542 (1897), the Supreme Court had earlier used the Self-incrimination Clause as a vehicle to assess the voluntariness of a statement in a federal criminal prosecution. However, the Self-incrimination Clause was not incorporated and applied to the states until 1964, when the Court decided Malloy v. Hogan, 378 U.S. 1 (1964).
18. Miranda, 384 U.S. at 467. See Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. REV. 435, 436 (1987) (characterizing Miranda as "a complex series of holdings").
19. Miranda, 384 U.S. at 467.
20. Id. at 478.
21. Id. at 478-79.
22. Id. at 479.
23. Id.
24. Id. at 475 (citing Escobedo v. Illinois, 378 U.S. 478, 490 (1964)).
25. See Miranda, 384 U.S. at 448-55 (discussing FRED E. INBAU & JOHN E. REID, CRIMINAL INTERROGATION AND CONFESSIONS (1962), CHARLES E. O'HARA, FUNDAMENTALS OF CRIMINAL I NVESTIGATION (1956), and other texts).
26. See Brief of the American Civil Liberties Union as Amicus Curiae, at 13-19 & apps. 43-67, Miranda, 384 U.S. 436 (No. 759).
27. In an early draft of the majority opinion in Miranda, Chief Justice Warren wrote that "[b]y considering these texts and other data, it is possible to obtain a fairly accurate composite of procedures followed by police around the country." Draft Opinion, Miranda (No. 759) (May 9, 1966) at 10 (on file with the Library of Congress in the Papers of William J. Brennan ("WJB Papers"), Container 145, File "Miranda, Folder #3). Warren sent the draft to Justice Brennan for comments. Brennan questioned whether the techniques were in widespread use and suggested that the manuals be characterized as presenting professional recommendations. Letter from Justice William J. Brennan to Chief Justice Earl Warren at 14-15 (May 11, 1966) (on file with the Library of Congress in WJB Papers). Warren revised the opinion accordingly. See Miranda, 384 U.S. at 448. Warren also had the Supreme Court Librarian contact the publishers of the manuals to obtain circulation data. See Weisselberg, Saving Miranda, supra note 4, at 119 n. 48.
28. Miranda, 384 U.S. at 450.
29. Id.
30. See id. at 455.
31. Morgan Cloud, George B. Sheperd, Alison Nodvin Barkoff & Justin V. Shur, Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. CHI. L. Rev. 495, 517 (2002) [hereinafter Cloud, et al., Words Without Meaning]; see also Morgan Cloud, Ignorance and Democracy, 39 TEX. TECH L. REV. 1143, 1147 (2007) (quoting Cloud et al, Words Without Meaning, supra).
32. See, e.g., Opening Brief for the Petitioner at 21-31, Westover v. United States, 384 U.S. 436 (1966) (No. 761); Brief of the American Civil Liberties Union, supra note 26, at 22-31; Brief of the State of New York, et al, as Amici Curiae, at 28-30, Miranda (No. 759).
33. See Brief for the United States at 35-37, Westover, 384 U.S. 436 (No. 761).
34. See Miranda v. Arizona, 384 U.S. 436, 483-86 (1966); see also Cloud et al., Words Without Meaning, supra note 31, at 524.
35. Id. at 537 (White, J., dissenting). More pointedly, Justice White asked: "[I]f the defendant may not answer without a warning a question such as 'Where were you last night?' without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint?" Id. at 536.
36. Id. at 444. The opinion also says that warnings must be given to a suspect who is "otherwise deprived of his freedom of action in any significant way," but that language may have been included only to indicate that "custody" means something different than a formal arrest. See id.
37. See id. at 449-50, 455.
38. Id. at 467. Further, he "must be warned prior to any questioning . .. ." Id. at 479.
39. Id. at 476.
40. FRED E. INBAU & JOHN E. REID, CRIMINAL INTERROGATIONS AND CONFESSIONS 1 (2d ed. 1967) (emphasis added).
41. See Miranda, 384 U.S. at 444, 467-73.
42. See id. at 475 (citing Johnson v. Zerbst, 304 U.S. 458 (1938), and its "high standards of proof for the waiver of constitutional rights").
43. The justices were keenly aware that different suspects have different competencies. Miranda was described as an "indigent Mexican defendant" who was "seriously disturbed." Stewart, the defendant in the case from California, was characterized as "an indigent Los Angeles Negro who had dropped out of school in the sixth grade." Id. at 457.
44. Cloud et al., Words Without Meaning, supra note 31, at 516.
45. See Miranda, 384 U.S. at 444-45 (stating that a person must be warned "prior to any questioning"); see also id. at 477 ("The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody.") (emphasis added).
46. Id. at 475.
47. Id. at 444-45.
48. See CAL. PENAL CODE § 13510(a) (Deering 2008); 11 CAL. CODE REGS. § 1005 (2008). There are currently forty academies or centers that provide POST-certified basic training. See POST, Basic Training Academies, http://www.post.ca.gov/training/academies.asp (last visited July 6, 2008).
49. See David Vessel, Conducting Successful Interrogations, FBI LAW ENFORCEMENT BULL. 1, 5 & 6 n. 15 (Oct. 1998) (noting training resources, including interrogation courses given by the Los Angeles Police Department, New Mexico Department of Public Safety, FBI and Georgia Police Academy).
50. See, e.g., POST Course Catalog, http://www.post.ca.gov/ Publications/Course-Catalog' (last visited July 6, 2008).
51. See John E. Reid & Associates, Inc., http://www.reid.com/ training-programs/r-training.html (last visited July 6, 2008).
52. For example, in June 2008, the course was offered in twenty locations around the country. See John E. Reid & Associates, Inc., Training Schedule, http://www.reid.com' training-programs/r-interview-schedule.html (last visited July 6, 2008).
53. FRED E. INBAU, JOHN E. REID, JOSEPH P. BUCKLEY & BRIAN C. JAYNE, CRIMINAL INTERROGATION AND CONFESSIONS (4th ed. 2001). For discussions of Fred Inbau and the development of the Inbau and Reid text, see LEO, supra note 3, at 108-16, and John T. Philipsborn, Interrogation Tactics in the Post-Dickerson Era, THE CHAMPION 18, 18-20 (Jan./Feb. 2001).
54. John E. Reid & Associates, Inc., Interviewing & Interrogation, http://www.reid.com/training-programs/r-interview.html (last visited July 6, 2008).
55. See John E. Reid & Associates, Inc., POST Seminars, http://www.reid.com/educational-info/r-post.html (last visited July 6, 2008).
56. See infra at notes 92-106 and accompanying text.
57. See INBAU ET AL., supra note 53, at 5-7.
58. Id. at 7-8.
59. See, e.g., POST, Learning Domain 30, Preliminary Investigation, BASIC COURSE WORKBOOK SERIES, rev. 2 2001, at 3-3 [hereinafter POST, Preliminary Investigation]; SACRAMENTO SHERIFF'S DEP'T TRAINING ACAD., CLASS HANDOUT, INTERVIEWS & INTERROGATIONS 2, 9 (Ron Wells, Instructor, 2004); DAVID E. ZULAWSKI & DOUGLAS E. WICKLANDER, PRACTICAL ASPECTS OF INTERVIEW AND Interrogation 7-9, 187-93 (2d ed. 2002). See also J.P. Blair, What Do We Know About Interrogation in the United States?, 20 J. POLICE AND CRIM. PSYCHOL. 44, 45 (Fall 2005) (noting that five leading interrogation manuals, in addition to Inbau et al., similarly distinguish between an interview and an interrogation).
60. See INBAU ET AL., supra note 53, at 93-94 (establishing rapport); id. at 121-91 (describing the "behavior analysis interview"); see also JOHN R. SCHAFER & JOE NAVARRO, ADVANCED INTERVIEWING TECHNIQUES: PROVEN STRATEGIES FOR LAW ENFORCEMENT, MILITARY, AND SECURITY PERSONNEL 39 (2003) (emphasizing rapport-building). Reid & Associates claim that "interviewers specifically trained and experienced in behavior analysis assessment can correctly identify the truthfulness of a person 85% of the time." John E. Reid & Associates, Inc., Behavior Analysis Interview, http://www.reid.com/services/r-behavior.html (last visited July 6, 2008). See also INBAU ET AL., supra note 53, at 123 (citing studies performed under grants awarded to Reid & Associates). Further, in a recent survey of over 600 police investigators, respondents on average claimed that they "can distinguish truthful and deceptive suspects at a 77% level of accuracy." Saul M. Kassin, Richard A. Leo, Christian A. Meissner, Kimberly D. Richman, Lori H. Colwell, Amy-May Leach, Dana La Fon, Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 LAW & HUM. BEHAV. 381, 389 (2007) [hereinafter Kassin et al., Self-Report Survey]. However, there is significant research to counter the claim that police can accurately assess the truthfulness of suspects. See, e.g., Saul M. Kassin, Christian A. Meissner & Rebecca J. Norwick, "I'd Know a False Confession if I Saw One": A Comparative Study of College Students and Police Investigators, 29 LAW & HUM. BEHAV. 211, 218-19, 221-22 (2005) [hereinafter Kassin et al., Comparative Study]; Christian A. Meissner & Saul M. Kassin, "He's Guilty!": Investigator Bias in Judgments of Truth and Deception, 26 LAW & HUM. BEHAV. 469, 477-78 (2002); Aldert Vrij, Samantha Mann, Susanne Kristen & Ronald P. Fisher, Cues to Deception and Ability to Detect Lies as a Function of Police Interview Styles, 31 LAW& HUM. BEHAV. 499, 512-14 (2007).
61. See INBAU ET AL., supra note 53, at 8.
62. Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOL. SCI. IN THE PUBL. INTEREST 33, 41 (2004).
63. INBAU ET AL., supra note 53, at 216.
64. See id. at 57-64.
65. Kassin & Gudjonsson, supra note 62, at 43.
66. INBAU ET AL., supra note 53, at 213.
67. Deborah Davis & William T. O'Donohue, The Road to Perdition: Extreme Influence Tactics in the Interrogation Room, in HANDBOOK OF FORENSIC PSYCHOLOGY 897, 904 (William T. O'Donohue & Eric R. Levensky eds., 2004).
68. See Kassin & Gudjonsson, supra note 62, at 43.
69. INBAU ET AL., supra note 53, at 213.
70. Id. at 232. For example, an investigator might suggest to a suspect that anyone else would have done the same thing under similar circumstances, id. at 241-43, or that the suspect might not have committed an act except for the influence of drugs or alcohol. Id. at 248-49.
71. Kassin & Gudjonsson, supra note 62, at 43.
72. INBAU ET AL., supra note 53, at 306.
73. Id. at 213-14.
74. Id. As an example, alternative questions might be: "Joe, was this money used to take care of some bills at home, or was it used to gamble?" Id. at 360. Those might be followed by a negative supporting statement such as: "You don't seem to be the kind of person who would do something like this in order to use it for gambling. If you were that kind of person, I wouldn't want to waste my time with you, but I don't think you're like that," or a supportive positive statement such as: "I'm sure this money was for your family, for some bills at home. That's something even an honest person might do, if he was thinking of his family." Id.
75. Id. at 214.
76. Id.
77. See Wicklander-Zulawski & Associates, Inc., Seminar for Law Enforcement, http://www.w-z.com/seminars-law-enforcement.php (last visited July 6, 2008).
78. Marvin Zalman & Brad W. Smith, The Attitudes of Police Executives Toward Miranda and Interrogation Policies, 97 J. CRIM. L. & CRIMINOLOGY 873, 920 (2007).
79. See POST, Preliminary Investigation, supra note 59, at 3-14 to 3-18.
80. See POST, California POST Training Network, http://www.post.ca. gov/training/cptn/certified.asp (last visited July 6, 2008). All of the POST telecourses discussed in this Article are archived at POST's library in Sacramento, California.
81. Though the distribution methods have changed over time, POST videos are sent free of charge to law enforcement agencies and basic academies in the POST program. Other law enforcement subscribers pay a fee. See POST, Video Ordering and Subscribing, http://www.post.ca.gov/training/cptn/ordering.asp (last visited July 6, 2008). DVD telecourses are automatically mailed to officers and departments that are "Certified Telecourse Presenters." See id. As of August 2007, POST listed 542 such certified presenters. See POST, Certified Telecourse (Multimedia) Presenters in the California POST Program, http://www.post.ca.gov/training/cptn/pdf/CertTelePresenterList.pdf (last visited July 6, 2008) POST also lists 615 agencies and departments as participating in the POST program. See POST, Law Enforcement Agencies, http://www.post.ca.gov/library/other/agency-page.asp (last visited July 6, 2008). By May 2006, demand for POST's programs had "increased to more than 1,300 DVD copies per program each month." POST, STATUS REPORT ON VIDEO PRODUCTIONS FOR 05-06 FISCAL YEAR (June 21, 2006) (on file with author).
82. Videotape: Interview and Interrogation Techniques Telecourse, Part II (POST Apr. 1993).
83. CAL. COMM'N ON PEACE OFFICER STANDARDS AND TRAINING, INTERVIEW AND INTERROGATION TECHNIQUES TELECOURSE, PARTS I & II, Apr. 8 & 22, 1993 at 20 (1994) (handbook accompanying telecourse), available at http://libcat.post.ca.gov/dbtwwpd/documents/ POST/55607142.pdf.
84. Id.
85. Id.
86. Id. at 20-29; see also SCHAFER & NAVARRO, supra note 60, at 31-33 (describing methods to establish and maintain dominance during an interview).
87. See Memorandum from Senior Deputy C. Flewellen to Lt. A. Kennedy, San Francisco Sheriffs Department (Sept. 26, 2000) (on file with author) (enclosing ROBERT PRESLEY INST. OF CRIMINAL INVESTIGATION, MODULE 8, INTERVIEW AND INTERROGATION, and stating that the materials were used during a course given from September 27 to October 8, 1999). The Module 8 materials include POST'S nine-step confrontation interrogation technique. For a description of the Robert Presley Institute, and the eighty-hour course, see POST, Robert Presley Institute of Criminal Investigation, http://www.post.ca. gov/training/ici/default.asp (last visited July 8, 2008).
88. See Letter from San Francisco Police Dep't Acting Lt. Daniel Curiel to author (Aug. 29, 2000) (on file with author) (enclosing PowerPoint used to instruct San Francisco recruit officers and the Inspector's Division).
89. See L.A. POLICE DEP'T., INVESTIGATION ANALYSIS SECTION, THE CONFRONTATION INTERROGATION TECHNIQUE NO. 9A (rev. Dec. 1995). The author of the manual was one of the experts featured in the 1995 POST telecourses.
90. As a San Francisco police lieutenant explains: "We have all these steps .... Depending on which technique, you might have six steps in one, and nine steps in another, and twelve. It doesn't matter how many steps you have there. Theme building is common to all of them. The rationalization is common to all of them." DVD: Interrogation Techniques (POST Mar. 2005).
91. See LEO, supra note 3, at 121-23 (describing the role of establishing rapport).
92. See Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 268 (1996). The 122 live interrogations involved forty-five different detectives from a major urban police department. The videotaped interrogations were from two different departments. See id.
93. See id. at 273.
94. See id. at 275-77, 278 tbl.5.
95. See Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. CRIM. L. & CRIMINOLOGY 219, 248-49 (2006) [hereinafter Feld, Police Interrogation]; Barry C Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 MINN. L. REV. 26, 62 (2006) [hereinafter Feld, Juveniles' Competence]. Twenty-one different officers conducted the sixty-six interrogations. Feld, Police Interrogation, supra, at 254. Sixty-eight percent of the juveniles were questioned by St. Paul juvenile officers; homicide detectives carried out another eight percent. Id.
96. Feld, Police Interrogation, supra note 95, at 254.
97. Id. at 263. For example, the juveniles were confronted with evidence in thirty-three of the interrogations. Id. at 262 tbl.3. In twenty-three of the interrogations, juveniles were accused of lying. Id.
98. Id. at 278. The most common strategies were suggesting a scenario or theme that minimized guilt (twelve interrogations), expressing empathy (ten interrogations), and offering to help (nine interrogations), or minimizing the seriousness of the conduct (nine interrogations). Id. at 277 tbl.4.
99. See Kassin et al., Self-Report Survey, supra note 60, at 386 tbl.1. California was perhaps over-represented, with 360 investigators out of 631 (55%) spread over six locations: Los Angeles, Long Beach, Santa Ana, San Bernardino, Inglewood and Westminster. See id.
100. See id. at 388.
101. Id. at 388 tbl.2.
102. See id.
103. See id. at 390.
104. For a fascinating account, see Leo, supra note 3, at 78-81, 106-116.
105. See Kassin et al., Self-Report Survey, supra note 60, at 390. I do not mean to imply that officers always isolate suspects in order to make a psychological impact. There are other reasons. As an experienced investigator told me, it is difficult for suspects to admit guilt in front of family and friends. Nevertheless, this remains a common aspect of modern interrogation.
106. LEO, supra note 3, at 25. Journalist David Simon, who spent a year with the Baltimore Police Department's homicide unit, writes: "The effect of the illusion is profound, distorting as it does the natural hostility between hunter and hunted, transforming it until it resembles a relationship more symbiotic than adversarial. That is the lie . . . ." DAVID SIMON, HOMICIDE: A YEAR ON THE KILLING STREETS 197 (Ballantine Books 1993). Further, "what occurs in an interrogation room is indeed little more than a carefully staged drama, a choreographed performance that allows a detective and his suspect to find common ground where none exists." Id.
107. See Saul M. Kassin & Karlyn McNall, Police Interrogations and Confessions: Communicating Promises and Threats by Pragmatic Implication, 15 LAW & HUM. BEHAV. 233 (1991). For an overview of research on reasons that people confess, see Kassin & Gudjonsson, supra note 62, at 46-48. Much of the writing about the impact of interrogation methods is centered on a narrower issue, the problem of false confessions. A number of researchers have documented actual cases of false confessions and have linked them to a variety of interrogation tactics. See, e.g., GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS 34-36, 158-72 (2003); Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 910-21 (2004). Let me set aside the issue of false confessions, however. I accept that the existence of false confessions lets us infer that interrogation techniques are powerful. Nevertheless, the research cannot tell us the incidence of false confessions. My central concern in this article is the impact of interrogation tactics on the ordinary suspect and her ability to decide whether to speak to police, irrespective of the suspect's actual culpability.
108. See generally Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely- Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979 (1997).
109. To be sure, I am not the only scholar who has concluded that compulsion is inherent in a custodial interrogation. For an interesting recent analysis that reaches back to Bram v. United States, supra note 17, see Lawrence Rosenthal, Against Orthodoxy, Miranda is Not Prophylactic and the Constitution is Not Perfect, 10 CHAP. L. REV. 579, 586-94 (2007).
110. See, e.g., Miranda Waivers and Invocations, POINT OF VIEW ON-LINE (Alameda Co. Dist. Attorney's Office, Cal.), 2006, available at http://le.alcoda.org/publications/ files/MIRANDAWAIVERSINVOCATIONS.pdf; Robert C. Phillips, Fifth Amendment; Miranda, Legal UPDATE (Deputy Dist. Attorney & Law Enforcement Liaison Deputy, San Diego, Cal.), Oct. 2005.
111. I have identified these sources as widely used because they are most often referenced by police and sheriffs departments in response to Public Records Act requests.
112. See POST, California POST Television Network, http://www.post.ca. gov/training/cptn/case-law.asp (last visited July 6, 2008) (providing a list of Case Law Today segments from 1995 to 2008). Case Law Today is distributed in the same manner as the POST telecourses. See POST, Video Ordering and Subscribing, http://www.post.ca.gov/training/cptn/ordering.asp (last visited July 6, 2008). As with the POST telecourses, all of the Case Law Today programs discussed in this Article are archived at the POST Library in Sacramento, California.
113. I should note my strong discomfort with the regular, long-term participation of a trial judge and an appellate justice in a monthly training program produced only for the law enforcement community.
114. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (footnote omitted).
115. 392 U.S. 1,19-20(1968).
116. 468 U.S. 420, 436-38 (1984).
117. Id. at 438-39, 440.
118. Beckwith v. United States, 425 U.S. 341, 345-47 (1976).
119. 463 U.S. 1121 (1983) (per curiam).
120. 511 U.S. 318 (1994) (per curiam).
121. Beheler, 463 U.S. at 1122.
122. 429 U.S. 492, 493-96 (1977).
123. Beheler, 463 U.S. at 1125.
124. Stansbury, 511 U.S. at 320-21.
125. Id. at 323.
126. See id. at 324-25.
127. 541 U.S. 652, 661-63 (2004). There the Court deferred to a state court finding that a juvenile was not in custody, where the juvenile was brought to the stationhouse by his parents, questioned for two hours, and confronted with evidence against him. See id. at 655-58.
128. POST, Learning Domain 15, Laws of Arrest, BASIC COURSE WORKBOOK SERIES, rev. 2 2001, at 5-4 [hereinafter POST, Laws of Arrest]. Those "restraints" include "handcuffs, guns, lockups, etc." Id. Warnings "are not required before interrogating a person who has been detained, for example, during a routine traffic stop, even though the person is not free to leave." Id.
129. Id.
130. Id. at 5-6.
131. SACRAMENTO SHERIFF'S DEP'T TRAINING ACAD., supra note 59, at 18; see also Cal. Peace Officers' Assoc., Too Much Miranda, TRAINING BULL. SERVICE, May 2006, at 2 (noting situation where officer "needlessly Mirandized" a suspect instead of giving a Beheler admonition); Cal. Peace Officers' Assoc., 5 Tips for Eliciting a Subject's Willingness to Submit to a Voluntary Interview, TRAINING BULL. SERVICE, Jan. 2007, at 6 (suggesting a series of tactics to convince a subject to come to the police station for an interview without Miranda warnings); Cal. Peace Officers' Assoc, Miranda: Custody, Interrogation, Due Process and Expectation of Privacy: People v. Leonard, (May 17, 2007) 40 Cal. 4th 1370, TRAINING BULL. SERVICE, Jan. 2008, at 2-3 (describing case where court applied "well settled rules" to determine that a suspect was not in custody during questioning in an interrogation room).
132. Phillips, supra note 110, at 3. Though the prosecutor does acknowledge that this tactic raises an issue of fact for the court, he writes, "[a] Beheler admonishment automatically takes the coerciveness out of the situation: No reasonable person would believe he or she is about to be arrested (i.e., "in custody," or "seized," for purposes of Miranda) when told that he or she is free to terminate the questioning and walk away." Id. at 18.
133. See DVD: Not All Interviews are Custodial Interrogation (POST Jan. 2006) (discussing In re Kenneth S., 133 Cal. App. 4th 54 (2d Dist. 2005)).
134. See DVD: Case Law Today: No Miranda Necessary (POST Mar. 2006) (discussing United States v. Norris, 428 F.3d 907 (9th Cir. 2005)).
135. See DVD: Case Law Today: Miranda: Custodial Interrogation (POST Nov. 2007) (discussing People v. Leonard, 40 Cal. 4th 1370 (2007)).
136. See Interrogation Law 2003, POST TELECOURSE REFERENCE GUIDE, Aug. 2003, at El, available at http://www.post.ca.gov/training/cptn/pdf/Interrogation%20Law%202003.pdf. A suspect questioned outside of the police station should be told: "You are not under arrest. Do you understand?" "[A]t a police station, you should tell the suspect, in a believable way: 'You axe free to leave or not answer any questions at any time. Do you understand?' Then you may proceed with interrogation without the need for Miranda warnings." Id. Beheler is also addressed, though in less detail, in the 1995 Interrogations/Confessions: Legal Issues and 2005 Interrogation Techniques telecourses.
137. See also ZULAWSKI & WICKLANDER, supra note 59, at 463-64 (suggesting strategies to convince a suspect not to leave).
138. As one trainer explains in the telecourse, allowing the suspect to leave shows "compliance" with Beheler. "You want to demonstrate that when you said you're free to leave, you meant it." There may be other reasons to allow a suspect to leave at least the interrogation room. Another expert, a former prosecutor, suggests: "If you choose to let the person walk out into the parking lot and get in their car you could arrest them then, which is an excellent time because you can probably search their car incident to the custodial arrest."
139. Alameda Co. Dist. Attorney's Office, Miranda: When Warnings are Required, POINT OF VIEW ON-LINE (Alameda Co. Dist. Attorney's Office, Cal.), 2005, at 8, available at http://le.alcoda.org/publications/point-of-view/filesAVebMiranda.pdf (citing People v. Aguilera, 51 Cal. App.4th 1151, 1164 n.7 (1996) (footnotes omitted)); see also ALAMEDA COUNTY DIST. ATTORNEY'S OFFICE, CALIFORNIA CRIMINAL INVESTIGATION 186 (Mark Hutchins, ed., 12th ed. 2008) [hereinafter CRIMINAL INVESTIGATION] ("Telling a suspect he is free to leave, or that he is not under arrest, are strong indications that he was not in custody," though such advisements "would have little [e]ffect if there were other circumstances that reasonably indicated the suspect was not, in fact, free to leave"); Michael Fermin, Miranda, HOTSHEET (San Bernardino Co. Dist. Attorney's Office, Cal.), May/June 2004, at 3 (telling suspect he is not under arrest may not, by itself, be sufficient to show no custody, but "the advisement is a factor the court will consider"); Phillips, supra note 110, at 19 ("[C]ustody will be found where despite a Beheler admonishment, the suspect is treated like he is in custody."); DVD: Interrogation Techniques (POST Mar. 2005) (telling police to be careful not to advise a suspect he is free to leave, and then demonstrate that he is not, such as by handcuffing the suspect or locking the interrogation room door).
140. See, e.g., United States v. McCarty, 475 F.3d 39, 45-46 (1st Cir. 2007) (Bureau of Alcohol, Tobacco and Firearms); United States v. LeBrun, 363 F.3d 715, 718 (8th Cir. 2004) (en banc) (Naval Criminal Investigative Service and Missouri Highway Patrol); United States v. Crawford, 372 F.3d 1048, 1051-52 (9th Cir. 2004) (en banc) (FBI and local police); United States v. Craighead, 539 F.3d 1073, 1078-79 (9th Cir. 2008) (FBI, Air Force Office of Special Investigations, and county sheriff).
141. See, e.g., State v. Smith, 38 P.3d 1149, 1156-57 (Alaska 2002); State v. Carrillo, 750 P.2d 883, 892 (Ariz. 1998); State v. Spencer, 892 S.W.2d 484, 486 (Ark. 1995); People v. Matheny, 46 P.3d 453, 467 (Colo. 2002); State v. Pinder, 736 A.2d 857, 874 (Conn. 1999); Chao v. State, 604 A.2d 1351, 1354 (Del. 1992); United States v. Turner, 761 A.2d 845, 852 (D.C. 2000); Fitzpatrick v. State, 900 So. 2d 495, 510 (Fla. 2005); Wilson v. State, 432 S.E.2d 211, 211-12 (Ga. Ct. App. 1993); State v. Kuzmichev, 976 P.2d 462, 469 (Idaho 1999); Luna v. State, 788
142. See Charles E. Riley, III, Finetuning Miranda Policies, FBI LAW ENFORCEMENT. BULL. 23, 24-25 (Jan. 1985).
143. See also SPECIAL AGENT EDWARD M. HENDRIE, CRIMINAL PROCEDURE GUIDE FOR DRUG AGENTS 128 (DEA 2005) ("Police informing a suspect prior to interrogation that he is not under arrest is frequently considered persuasive evidence that the suspect was not in custody during questioning."); POLICE LAW INSTITUTE, ILLINOIS POLICE LAW MANUAL 75-77 (2003) (describing Beheler warnings and circumstances of non-custodial interrogation). I know of no study on the incidence of Beheler admonitions and non-custodial interrogations. George Thomas examined the outcomes in a sample of 211 published appellate cases with Miranda issues. Of the sixty cases where no warnings were given, twenty-eight involved suspects who were found not to be in custody. See George C. Thomas III, Stories About Miranda, 102 MICH. L. REV. 1959, 1970-72 & tbl. 1 (2004). This study may indicate that suspects are often questioned out of custody.
144. The technique can backfire on officers if the other circumstances clearly indicate that a reasonable person would not feel free to leave. For example, in United States v. Colonna, 511 F.3d 431, 435-37 (4th Cir. 2007), the court of appeals reversed a conviction, holding that the defendant was in custody when questioned without Miranda warnings, even though officers expressly told him he was not under arrest. Twenty-four FBI agents executed a search warrant early in the morning, woke up the defendant, and ordered him at gunpoint to get dressed and leave his bedroom. The unwarned interrogation took place in the agent's car. See id. at 433; see also People v. Elmarr, 181 P.3d 1157, 1162-64 (Colo. 2008) (even though suspect volunteered to accompany officers to the police station, circumstances indicated that he was in custody and should have been given Miranda warnings); United States v. Craighead, 539 F.3d 1073, 1082-89 (9th Cir. 2008) (suspect was in Miranda custody when questioned by officers from three agencies in his home; although
145. See Kassin & McNall, supra note 107.
146. 446 U.S. 291, 300-01 (1980) (footnotes omitted).
147. See Miranda v. Arizona, 384 U.S. 436,479 (1966).
148. Oregon v. Elstad, 470 U.S. 298, 306 (1985).
149. Id. at 310; see also Michigan v. Tucker, 417 U.S. 433,450-52 (1974) (defendant could not exclude a witness's testimony, even though that witness was discovered pursuant to Miranda violation).
150. See Elstad, 470 U.S. at 306-09.
151. 530 U.S. 428 (2000).
152. Id. at 442.
153. See id. at 439, 440. In dissent, Justice Scalia argues that the opinion does not say that "because a majority of the Court does not believe it." Id. at 446 (Scalia, J., dissenting).
154. An entire issue of the Michigan Law Review was devoted to the case. See Symposium, Miranda after Dickerson: The Future of Confession Law, 99 MICH. L. Rev. 879 (2001).
155. See Missouri v. Seibert 542 U.S. 600, 604-06 (plurality opinion).
156. Id. at 611-12. Justices Stevens, Ginsburg, and Breyer joined Justice Souter's opinion.
157. See id. at 616 n.6.
158. See id. at 613, 615.
159. Id. at 622 (Kennedy, J., concurring).
160. See Seibert, 542 U.S. at 628 (O'Connor, J., dissenting). Justice O'Connor authored the majority opinion in Elstad.
161. Id. at 624, 626.
162. United States v. Patane, 542 U.S. 630, 635 (2004) (Thomas, J). The defendant interrupted officers as they were advising him, saying that he knew his rights. Id.
163. Id. at 636.
164. Id. at 641.
165. Id.
166. Id. at 645 (O'Connor, J., concurring).
167. Id. at 647 (Souter, J., dissenting).
168. I co-authored an amicus brief in Seibert, arguing in part for a test that would examine officers' intent objectively. See Brief of Former Prosecutors, Judges and Law Enforcement Officials as Amici Curiae Supporting Respondent, Missouri v. Seibert, 542 U.S. 600 (2004) (No. 02-1371). Speaking only for myself and not my former clients, I have come to believe that the plurality's position is better-reasoned.
169. Justice Breyer's position is not clear on this point, as he joined both the plurality opinion and concurred with Justice Kennedy "insofar as it is consistent [with a "fruits" analysis] and makes clear that a good-faith exception applies." Missouri v. Seibert, 542 U.S. 600, 618 (2004) (Breyer, J., concurring).
170. See Marks v. United States, 430 U.S. 188, 193 (1977).
171. See United States v. Rodriguez-Preciado, No. 03-30285, 2005 U.S. App. LEXIS 15601, at *52-62 (9th Cir. Jul. 29, 2005) (Berzon, J., dissenting) (arguing that Justice Kennedy's opinion is not narrower and therefore does not represent the holding of the Court).
172. See United States v. Carter, 489 F.3d 528, 535-36 (2d Cir. 2007); United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir. 2005) (panel includes Judge Alito); United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005); United States v. Courtney, 463 F.3d 333, 338-39 (5th Cir. 2006); United States v. Ollie, 442 F.3d 1135, 1142-43 (8th Cir. 2006); United States v. Street, 472 F.3d 1298, 1313-14 (11th Cir. 2006).
173. See United States v. Materas, 483 F.3d 27, 33 (1st Cir. 2007) (noting the officer acted in good faith, and discussing the plurality's test); United States v. Pacheco-Lopez, 531 F.3d 420, 427 n. 11 (6th Cir. 2008) (declining to resolve the issue because the statement would be suppressed under any applicable framework); United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004) ("at least as to deliberate two-step interrogations, " there is a "presumptive rule of exclusion, subject to a multifactor test"); United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006) (combining the tests; confessions will be excluded if made after "a deliberate, objectively ineffective mid-stream warning"); United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (no need to decide because statement is admissible under either test).
174. See Wilkerson v. State, 229 S.W.3d 896, 901-02 (Ark. 2006); Sutherland v. State, No. 222, 2006 Del. LEXIS 644, at *6-8 (Del. Dec. 11, 2006); State v. Farris, 849 N.E.2d 985, 992-94 (Ohio 2006); Vermont v. Yoh, 910 A.2d 853, 861-62 (Vt. 2006); see also State v. O'Neill, 936 A.2d 438, 453-54, 456-58 (N.J. 2007) (adopting the plurality's test as a matter of state law because the "shifting sands of federal jurisprudence provide no certainty").
175. See Jackson v. Commonwealth, 187 S.W.3d 300, 308-09 (Ky. 2006).
176. See Edwards v. United States, 923 A.2d 840, 848 (D.C. 2007) (suppression warranted under both tests); People v. Paulman, 833 N.E.2d 239, 246-47 (N.Y. 2005) (applying aspects of both tests, as well as a broader test based in state law).
177. See Weisselberg, In the Stationhouse after Dickerson, supra note 12, at 1136-54.
178. Missouri v. Seibert, 542 U.S. 600, 610 n.2 (2004).
179. See DVD: Case Law Today: Miranda: The Question-First Technique (POST Dec. 2004). The trainer notes that as discussed in other Case Law Today broadcasts, courts have more recently been critical of police tactics or techniques that are viewed as efforts to get around constitutional rights. This is presumably a reference to California decisions critical of questioning "outside Miranda."
180. See DVD: Case Law Today: Miranda: "Midstream" Miranda Warnings (POST Apr. 2006) (discussing United States v. Williams, 435 F.3d 1148 (9th Cir. 2006)). The trainer also notes that simply giving advisements after statements have been obtained is not necessarily going to cure the defect. He points out the deliberate conduct in Seibert.
181. See Cal. DEP'T OF JUSTICE, CALIFORNIA PEACE OFFICERS LEGAL SOURCEBOOK § 7.48c (Rev. Sept. 2007), § 7.48d (Rev. Sept. 2007) [hereinafter LEGAL SOURCEBOOK].
182. Id. at § 7.48c (Rev. Sept. 2007).
183. See, e.g., CRIMINAL INVESTIGATION, supra note 139, at 197 (describing the "two step" as "unlawful" because it effectively undermines Miranda); Miranda Waivers and Invocations, supra note 110, at 16 (same); Tia Quick, Legal Update News (San Diego County Dist. Attorney's Office, Cal.) Aug. 2004, at 1-3 (reviewing both Seibert and Patane and advising officers to complete the advisal even when a suspect interrupts, as in Patane.)
184. See, e.g., Phillips, supra note 110, at 30 (explaining that Elstad was limited to its facts as an unintentional Miranda violation); Quick, supra note 183, at 3 ("The real problem here is the intentional use of a technique designed to undermine Miranda....Thankfully, the Court did not overrule Elstad and continues to allow us to correct unintentional Miranda mistakes."); LEGAL SOURCEBOOK, supra note 181, at § 7.48c (Rev. Sept. 2007) (noting that the officer "deliberately violated Miranda" and admitted as such in testimony, in contrast to the "good faith mistake" of the officers in Elstad).
185. 31 Cal. 4th 63, 68 (2003). The Court ruled the defendant's statements involuntary in light of all of the surrounding circumstances, including the Miranda violations, the accused's youth, inexperience, education and intelligence, and other circumstances of the interrogation. See id.
186. See id. at 81-83 (noting also that the interrogator was trained in this practice); id. at 92 (Baxter, J., concurring) ("[O]ur community should never be subjected to cynical efforts by police agencies, or the supervisors they employ, to exploit perceived legal loopholes by encouraging deliberately improper interrogation tactics. Such practices tarnish the badge most officers respect and honor.").
187. DVD: Case Law Today: Purposeful Violations of Miranda-Slammed (POST Sept. 2003).
188. See, e.g., LEGAL SOURCEBOOK, supra note 181, at § 7.36 (rev. Mar. 2006) (saymg that officers "should not intentionally violate Miranda" and noting the holding in Neal and other cases); CRIMINAL INVESTIGATION, supra note 139, at 208 (describing "going outside Miranda" as "a tactical Miranda violation"); Recent Cases, People v. Neal, POINT OF VIEW (Alameda Co. Dist. Attorney's Office, Cal.), 2003, available at http://le.alcoda.org/publications/point-of-view/2003- articles-cases (discussing Neal in detail, including its strong condemnation of the officers); see also Phillips, supra note 110, at 6-7 (discussing Neal but not expressly referring to the practice of questioning "outside Miranda"). Training in the wake of a recent case also shows that responsible members of law enforcement have rejected questioning "outside Miranda" In People v. DePriest, 42 Cal. 4th 1, 32-33 (2007), the California Supreme Court affirmed a capital conviction where a statement taken "outside Miranda" was used for impeachment. The court discussed the issue briefly, but did not expressly condemn the officers' tactic. A training bulletin provides: "Given the usual negative reaction" by both the California and the United States Supreme Courts to police officers "purposely ignoring suspects' attempted Miranda invocations, there are those of us who strongly believe that police officers and prosecutors, being bound by . . . dictates not to engage in such conduct, should not be doing this. The failure of the Court in this case to discuss the issue does not alter this conclusion." Cal. Peace Officers' Assoc, Miranda: Ignoring an Attempted Invocation: People v. DePriest (Aug. 9, 2007) 42 Cal. 4th I, TRAINING BULL. SERVICE, Mar. 2008, at 6 (reprinting bulletin provided by Robert C. Phillips). A Case Law Today segment also reports the decision but emphasizes only the Sixth Amendment aspects of the case. See DVD: Case Law Today: Talking to Suspect Before/After Charging (POST Nov. 2007).
189. L.A. COUNTY DIST. ATTORNEY'S OFFICE, SECRET PASSAGES, THE TRUTH ABOUT Miranda 10(2005).
190. Id. at 11-12 (citations omitted).
191. Miranda v. Arizona, 384 U.S. 436,476 (1966).
192. Robert P. Mosteller, Police Deception Before Miranda Warnings: The Case for Per Se Prohibition of an Entirely Unjustified Practice at the Most Critical Moment, 39 TEX. TECH L. REV. 1239, 1264 (2007). For a detailed description of lower courts' treatment of claims that waivers should be invalidated due to deception or other "softening up" tactics, see id. at 1254-66.
193. 20 Cal. 3d 150, 158-61 (1977).
194. CRIMINAL INVESTIGATION, supra note 139, at 593-94 n.2213.
195. Police can ask routine booking questions without Miranda warnings and waivers, see Pennsylvania v. Muniz, 496 U.S. 582 (1990), but questions or actions seeking incriminating responses amount to interrogation under Innis. These must be preceded by warnings and waivers.
196. See, e.g., United States v. Glover, 104 F.3d 1570, 1582 (10th Cir. 1997) (statements by officers about possibility that defendant might be released by a magistrate on his own recognizance if he cooperated were not express promises that invalidate a waiver).
197. See, e.g., Missouri v. Seibert, 542 U.S. 600, 613-14 (2004); Collazo v. Estelle, 940 F.2d 411,417-19 (9th Cir. 1991) (en banc) (Miranda waiver and resulting statement not voluntary where officer demeaned the pre-trial role of counsel and sought to talk suspect out of seeking counsel).
198. See Mosteller, supra note 192, at 1260.
199. Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th Cir. 1988); see also Clark v. Murphy, 317 F.3d 1038, 1049 (9th Cir. 2003) (quoting Hawkins).
200. Mosteller, supra note 192, at 1261.
201. See CRIMINAL INVESTIGATION, supra note 139, at 198, 593 n. 2213.
202. United States v. Washington, 462 F.3d 1124, 1129 (9th Cir. 2006).
203. Id. at 1134 (citation omitted).
204. United States v. Peterson, 414 F.3d 825, 827-28 (7th Cir. 2005).
205. Id. at 828.
206. 437 F.3d 1128, 1137-39 (11th Cir. 2006).
207. Id. at 1139 (footnote omitted). The Eleventh Circuit would later hold in Street that Justice Kennedy's opinion is controlling. See United States v. Street, 472 F.3d 1298, 1313-14 (11th Cir. 2006).
208. Hairston v. United States, 905 A.2d 765, 770-72 (D.C. 2006).
209. Id. at 779-82.
210. Id. at 782 (citations omitted).
211. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621,661(1996).
212. Id. 662-63.
213. Id. at 664.
214. Id.
215. See 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, 432-47 (1999).
216. Id. at 440-47.
217. Id. at 438.
218. Feld, Juveniles' Competence, supra note 95, at 74.
219. See id. at. 75-77.
220. Feld, Police Interrogation, supra note 95, at 256-57.
221. Id. at 258.
222. Saul M. Kassin & Rebecca J. Norwick, Why People Waive Their Miranda Rights: The Power of Innocence, 28 LAW & HUM. BEHAV. 211,213-14 (2004).
223. See id. at 215.
224. This begins from the first contact with a suspect. In the POST 2005 Interview Techniques telecourse, for example, trainers note that if a team of officers arrests a suspect, the officer who will likely interview the suspect later should not be the person to put on the handcuffs.
225. Though the dramatizations in the telecourse generally show officers asking only rudimentary booking questions before giving warnings.
226. See ROBERT PRESLEY INST, OF CRIMINAL INVESTIGATION, supra note 87. These two steps are under the heading "Preparation." They are followed by "Behavior Analysis Interview," "Free Format Interview," and "Bait Question." After the "Preparation" section comes "9 Phase Interrogation," which is the "Confrontation Interrogation Technique." Id.
227. Videotape: Interview and Interrogation Techniques Telecourse, Part II (POST Apr. 1993).
228. See, e.g., POST, Laws of Arrest, supra note 128, at 5-4 (stating that "routine booking questions are not interrogation"); Phillips, supra note 110, at 25 (noting that neutral questions, such as booking questions and inquiries about residence and identity, do not normally amount to interrogation); LEGAL SOURCEBOOK, supra note 181, at §§ 7.21-7.22 (Rev. Jan. 2007) (describing "non- interrogation" questions, including those pertaining to booking and identification).
229. CRIMINAL INVESTIGATION, supra note 139, at 197 (footnote omitted).
230. SCHAFER & NAVARRO, supra note 60, at 55.
231. Id. at 56.
232. Id. at 57.
233. BEHAVIOR ANALYSIS TRAINING INST., CREDIBILITY ASSESSMENT INTERVIEW 28 (2001) (on file with author).
234. John E. Reid & Associates, Inc., Conducting a Custodial Behavior Analysis Interview; INVESTIGATOR TIPS, Jan.-Feb. 2008, http://www.reid.com/educational-info/r-tips.html.
235. CRIMINAL INVESTIGATION, supra note 139, at 189 (footnote omitted). The manual also warns: "When officers discuss or explain incriminating information to a suspect in custody, the courts are especially interested in whether they did so in a provocative or goading manner, or straightforwardly." Id.
236. See LEGAL SOURCEBOOK, supra note 181, at § 7.21 (Rev. Jan. 2007).
237. In other scenarios in the telecourse, officers ask only very preliminary background questions before giving warnings and obtaining waivers. See DVD: Interrogation Law Telecourse (POST Aug. 2003) (in subsequent custodial interrogation of "Sam McRoy," "Detective Stewart" tells Sam that they found evidence inside his house before giving warnings).
238. DVD: Case Law Today: Miranda: 'Indirect' Questioning (POST Sept. 2005) (discussing People v. Haley, 34 Cal. 4th 283, 300 (2004)).
239. Haley, 34 Cal. 4th at 301.
240. DVD: Case Law Today: Miranda Rule and Agreements to Listen (POST Dec. 2006).
241. Id.
242. See infra at note 380, and accompanying text.
243. See Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It-And What Happened to It, 5 OHIO ST. J. OF CRIM. L. 163, 184-88 (2007).
244. See, e.g., United States v. Scarpa, 897 F.2d 63, 68 (2d Cir. 1990) ("The questioning occurred during a two-hour car ride found to be 'relaxed and friendly.'"); cf. Quadrini v. Clusen, 864 F.2d 577, 584 (7th Cir. 1989) (the detective's casual post-waiver conversation with defendant before asking him about involvement in the victim's death "was neither deceitful nor unfair, but rather normal and accepted police investigative procedure").
245. I acknowledge a lack of psychological research on this point. In the laboratory experiment about Miranda waivers, the "hostile" condition produced more waivers by guilty suspects and fewer waivers by innocent suspects, but the differences were not statistically significant. See Kassin & Norwick, supra note 222, at 215.
246. See Miranda v. Arizona, 384 U.S. 436, 467-73, 478-79 (1966).
247. See id. at 475-76.
248. Moran v. Burbine, 475 U.S. 412, 421 (1986).
249. California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam).
250. Duckworth v. Eagan, 492 U.S. 195, 198 (1988).
251. Id. at 203.
252. Id. at 203 (citing Prysock, 453 U.S. at 361).
253. See Colorado v. Spring, 479 U.S. 564, 577 (1987).
254. See Moran v. Burbine, 475 U.S. 412, 427 (1986).
255. See, e.g., Fare v. Michael C, 442 U.S. 707, 724-27 (1979) (totality of the circumstances approach is adequate to consider a juvenile's waiver of Miranda rights; the Court analyzes knowing and intelligent standard and voluntariness under same test and using essentially the same facts and circumstances).
256. For an overview, see THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 149-92 (2d ed. 2003); Virginia G. Cooper & Patricia A. Zapf, Psychiatric Patients' Comprehension of Miranda Rights, 32 LAW & HUM. BEHAV. 390 (2008); I. Bruce Frumkin, Psychological Evaluation in Miranda Waiver and Confession Cases, in CLINICAL NEUROPSYCHOLOGY IN THE CRIMINAL FORENSIC CONTEXT (Denney, R.L. & Sullivan, J.P., eds.), 135, 140-49 (2008). There has been significant disagreement about the validation, reliability, and documentation of the Grisso instruments. See Frumkin, supra, at 162-66; Richard Rogers, Mandy J. Jordan & Kimberly S. Harrison, A Critical Review of Published Competency-to- Confess Measures, 28 LAW & HUM. Behav. 707 (2004) [hereinafter Rogers et al, Competencyto-Confess Measures].
257. See, e.g., Jeffrey L. Helms, Analysis of Miranda Reading Levels Across Jurisdictions: Implications for Evaluating Waiver Competency, 3 J. FORENSIC Psychol. PRAC, 25, 29-33 (2003) (analyzing warning language of Miranda cards issued by the state police or highway patrol in forty-eight states and several federal agencies); Rachel Kahn, Patricia A. Zapf & Virginia G. Cooper, Readability of Miranda Warnings and Waivers: Implications for Evaluating Miranda Comprehension, 30 LAW & PSYCHOL. REV. 119, 131 (2006) (collecting warnings and waivers from forty-seven counties in Alabama).
258. Richard Rogers, Kimberly S. Harrison, Daniel W. Shuman, Kenneth W. Sewell, Lisa L. Hazelwood, An Analysis of Miranda Warnings and Waivers: Comprehension and Coverage, 31 LAW & HUM. BEHAV. 177, 180-81 (2007) [hereinafter Rogers et al., Comprehension and Coverage]; E-mail from Richard Rogers to Charles Weisselberg (Oct. 1, 2007) (on file with author) (noting 448 jurisdictions).
259. Richard Rogers, Lisa L. Hazelwood, Kenneth W. Sewell, Kimberly S. Harrison & Daniel W. Shuman, The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis, 32 LAW & HUM. BEHAV. 124, 125 (2008) [hereinafter Rogers et al., Vocabulary Analysis].
260. Id. at 126. The responses from prosecutors were supplemented with warnings provided by public defenders who had responded too late to be included in the initial survey. Id. See also E-mail from Richard Rogers to Charles Weisselberg (Sept. 30, 2007) (on file with author) (noting 190 jurisdictions).
261. See Rogers et al., Vocabulary Analysis, supra note 259, at 128 tb1.2.
262. See id. at 121.
263. The source for the data is Rogers et al., Vocabulary Analysis, supra note 259, at 128 tbl.2.1 acknowledge that the survey findings are not independent of the California form warnings, as the surveys included responses from jurisdictions within California. The California form warnings are taken from the POST-approved Miranda card, reprinted infra. Because the waiver language on the flip side of the POST card is phrased as three alternative questions, I have reported the waiver and total language as a range depending upon which alternative is chosen. Further, consistent with the Rogers studies, I have omitted the question "Do you understand?" that follows each right on the POST-approved card. See E-mail from Lisa Hazelwood to Charles Weisselberg (Sept. 30, 2007) (on file with author) (study co-author, describing methodology).
264. The researchers employed a number of other measures including one test (SMOG) that assesses reading levels required for full comprehension (90-100%) of written materials. For the components of the Miranda admonition, full comprehension generally required a higher education level (up to four additional grade levels for full understanding of the concept that evidence can be used against a suspect.). See Rogers et al., Comprehension and Coverage, supra note 258, at 185 tbl.3. I am using a single measure for comparison, though I recognize that all are important.
265. See WILLIAM H. DUBAY, THE PRINCIPLES OF READABILITY 54 (2004), available at http://www.nald.ca/ fulltext/readab/readab.pdf. One difficulty with using this measure is that while some suspects may be given written admonitions of their rights, the practice in many or most jurisdictions is to give a verbal admonition. The researchers acknowledge this issue, but also note that the task of listening comprehension places additional demands on people to process information. See Rogers et al., Comprehension and Coverage, supra note 258, at 189.
266. See Kahn et al., supra note 257, at 132 (warnings collected from 47 counties had mean Flesch-Kincaid grade levels of 7.12).
267. The source for the data is Rogers et al., Vocabulary Analysis, supra note 259, at 129 tbl.3. For caveats with respect to the California data, see supra, note 263. I calculated the Flesch- Kincaid grade levels for California using the statistics function of the Microsoft Word program.
268. BUREAU OF JUSTICE STATISTICS, U.S. DEPARTMENT OF JUSTICE, PROFILE OF JAIL INMATES, 2002 2 tbl.l (2004), available at http://www.ojp.usdoj. gov/bjs/pub/pdf/pji02.pdf.
269. See BUREAU OF JUSTICE STATISTICS, U.S. DEPARTMENT OF JUSTICE, EDUC. AND CORR. POPULATIONS 2 (2003), available at http://www.ojp.usdoj.gov/bjs/ pub/pdf/ecp.pdf.
270. Following a survey of 1200 inmates, the U.S. Department of Education reported that prison inmates had lower-than-average prose, document, and quantitative literacy than adults living in households. See NAT'L CTR. FOR EDUC. STATISTICS, LITERACY BEHIND BARS: RESULTS FROM THE 2003 NATIONAL ASSESSMENT OF ADULT LITERACY PRISON SURVEY 29 (2007), available at http://nces.ed.gov/pubs2007/2007473.pdf. The survey classified literacy by category on three scales. For prose, 16% of inmates had below basic literacy levels. The percentages for below basic document and quantitative literacy were 15% and 39%, respectively. Id. at 13 fig.2-2. "Below basic" means having "no more than the most simple and concrete literacy skills." Id. at 2 tbl.1-3.
271. See Cloud et al., Words Without Meaning, supra note 31. For a less comprehensive study (but one which is consistent with Cloud et al.), see Solomon M. Fulero & Caroline Everington, Assessing Competency to Waiver Miranda Rights in Defendants with Mental Retardation, 19 LAW & HUM. BEHAV. 533 (1995).
272. See Cloud et al., Words Without Meaning, supra note 31, at 532-34.
273. See id. at 531-33, 533 n. 182.
274. See THOMAS GRISSO, INSTRUMENTS FOR ASSESSING UNDERSTANDING AND APPRECIATION OF Miranda RIGHTS 19-29 (1998) [hereinafter GRISSO, INSTRUMENTS]. The CMR in turn took the warnings from a form used for juveniles by officers in St. Louis, Missouri prior to 1980. See Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 CALIF. L. REV. 1134, 1144 n.57 (1980) [hereinafter Grisso, Juvenile's Capacities].
275. See Cloud et al., Words Without Meaning, supra note 31, at 609 tbl. 1.
276. See id. at 535-37 The control subjects were not tested, but researchers assumed an average IQ of approximately 100. See id. at 537 n.189.
277. See id. at 540-41. The vocabulary words tested were "consult," "attorney," "interrogation," "appoint," "entitled," "right," and "statement." Id. at 532. All but "statement" derived from Grisso's "Comprehension of Miranda Vocabulary" instrument. See GRISSO, INSTRUMENTS, supra note 274, at 35-44.
278. See Cloud et al., Words Without Meaning, supra note 31, at 545 fig.5; id. at 548 fig.6; id. at 550 fig.7; id. at 552 fig.8.
279. See id. at 571.
280. I report the four components separately. Cloud and colleagues did not test subjects with the warnings as a whole, nor did they ask waiver questions. As with the California warnings, I calculated the Flesch-Kincaid grade levels for the Cloud study warnings using the statistics function of Microsoft Word.
281. See Cloud et al., Words Without Meaning, supra note 31, at 609 tbl.1 (mean years of education of disabled subjects = 10.7; standard deviation = 3.3); id. at 610 tbl.2 (mean years of education of control group = 14.1; standard deviation = 2.3).
282. See Cooper & Zapf, supra note 256, at 392-97.
283. See id. at 400.
284. See id. at 398, 401 tbl.6 (noting negative correlation, though the correlation was not statistically significant for all instruments). The negative correlation was statistically significant for the CMR instrument. Id.
285. See Richard Rogers, Kimberly S. Harrison, Lisa L. Hazelwood & Kenneth W. Sewell, Knowing and Intelligent: A Study of Miranda Warnings in Mentally Disordered Defendants, 31 LAW & HUM. BEHAV. 401, 403-07 (2007).
286. Id. at 408.
287. See Grisso, Juvenile's Capacities, supra note 274, at 1149-51. The subjects included recent admittees to a juvenile detention facility, residents of a boys' town, and residents of a correctional boys' school. The adult subjects included parolees and nonoffender volunteers. See id. Eleven percent of the juveniles had IQ scores of seventy or below; 22% had scores over 100. Of the adults, 14% had scores of seventy or below; 18% had scores over 100. See id. at 1149, n. 68, 69.
288. Id. at 1157.
289. Id. at 1160.
290. See id.
291. Jodi L. Viljoen, Patricia A. Zapf & Ronald Roesch, Adjudicative Competence and Comprehension of Miranda Rights in Adolescent Defendants: A Comparison of Legal Standards, 25 BEHAV. SCI. LAW 1 (2007). The subjects' average IQ score was 82.57, with a standard deviation of 13.91. See id. at 4.
292. See id. at 9; see also Ellen Marrus, Can I Talk Now? Why Miranda Does Not Offer Adolescents Adequate Protections, 79 TEMP. L. REV. 515 (2006) (discussing research of Grisso and others).
293. See Richard Rogers, Lisa L. Hazelwood, Kenneth W. Sewell, Daniel W. Shuman & Hayley L. Blackwood, The Comprehensibility and Content of Juvenile Miranda Warnings, 14 PSYCHOL. PUB. POL'Y & LAW 63, 70 (2008).
294. See id. at 71 tbl. 1.
295. See id. at 73 tbl. 2. The option of consulting with a parent or guardian was included in twelve versions of the attorney component and in seven versions of the continuing rights warning. See id. Full comprehension (90-100%) required one to three additional grade levels. See id. at 70, 73 tbl.2.
296. Id. at 72.
297. See Floralynn Einesman, Confessions and Culture: The Interaction of Miranda and Diversity, 90 J. CRIM. L. & CRIMINOLOGY 1, 39-43 (1999) (collecting cases and discussing the issue).
298. See Richard Rogers, Amor A. Correa, Lisa L. Hazelwood, Daniel W. Shuman, Raquel C. Hoersting & Hayley L. Blackwood, Spanish Translations of Miranda Warnings and the Totality of the Circumstances, LAW & HUM. BEHAV. (forthcoming; published online Mar. 4, 2008), available at http://www.springerlink.com/content/ p08w3153g38711th/fulltext.pdf (manuscript at 4, tbl. 1).
299. See id. at 3, 5.
300. The researchers reported an average of 2.92 minor variations in translation, as well as instances of awkward language use. See id. at 3-4. They found missing components in 2.7% of warnings, dissimilar content in 21.4%, and substantive errors in 5.5%. See id. at 5 tbl.3.
301. See id. at 5.
302. See POST, Laws of Arrest, supra note 128, at 5-3 (reprinting POST-approved warnings and stating that laminated card is available from POST).
303. See, e.g., DVD: Interrogation Law Telecourse (POST Aug. 2003); Videotape: Interrogations/Confessions: Legal Issues (POST Aug. 1995); Videotape: Interview and Interrogation Techniques Telecourse, Part II (POST Apr. 1993).
304. See, e.g., DVD: Case Law Today: Miranda: How Precise Must the Advisement Be? (POST Mar. 2002); DVD: Case Law Today: Miranda: Lost in Translation (POST June 2004).
305. See, e.g., Phillips, supra note 110, at 28 ("While it is risky to play with the wording of the admonishment, the manner and method of delivery may be altered, particularly if it serves to simplify and make it more understandable.").
306. Cal. Peace Officers' Assoc, Issue: Why should law enforcement officers be discouraged from reciting Miranda warnings from memory, instead of reading from a printed card?, TRAINING BULL. SERVICE, Jan. 2006, at 7 (reprinting bulletin provided by the Los Angeles District Attorney's Office).
307. See, e.g., CRIMINAL INVESTIGATION, supra note 139, at 194 ("Minors have the same Miranda rights as adults and need not be given any special information or advice.") (footnote omitted); Phillips, supra note 110, at 38 ("As a general rule, juveniles, in respect to Miranda, are treated the same as adults."). The POST telecourses and Case Law Today videos also do not suggest any different warnings for these suspects, except to urge care in translating warnings for suspects whose first language is not English. See DVD: Case Law Today: Miranda: Lost in Translation (POST June 2004).
308. See, e.g., DVD: Case Law Today: Interrogation Law Telecourse (POST Aug. 2003) (discussing CAL. WELF. & INST. CODE § 625, which requires prompt advice of certain rights when a minor is taken into custody); Cal. Peace Officers' Assoc, Juveniles & Miranda, TRAINING BULL. SERVICE, Dec. 2006, at 2 (discussing statutory obligations and noting that because they are imposed only by California Law, "no evidence or statement should be suppressed for failure to admonish, absent a violation of the standard requirements of Miranda").
309. See id. Some reports of Miranda warnings being read to juveniles are heartwrenching. See Dennis O'Brien, 10-Year-Old Boy Faces Adult Trial in Killing, NEWSDAY, Aug. 14, 1989, at 2 (warnings read to a 10-year-old as he sat on his mother's lap).
310. See, e.g., CRIMINAL INVESTIGATION, supra note 139, at 195 ("Minors are fully capable of understanding their rights. In determining whether a minor understood his rights, the courts examine the same circumstances that are considered when the suspect is an adult.") (footnotes omitted); DVD: Interrogation Law Telecourse (POST Aug. 2003).
311. Phillips, supra note 110, at 40.
312. CRIMINAL INVESTIGATION, supra note 139, at 195 (footnote omitted). See also PHILLIPS, MIRANDA AND THE LAW 103 (Prosecutor's Notebook Volume XXII, 1999) (factors to consider under the totality of the circumstances include, but are not limited to, whether the defendant: signed a written waiver, was admonished in his native language, appeared to understand his rights, had the assistance of a translator, had prior experience with the system, and whether the rights were individually and repeatedly explained).
313. See Cloud et al., Words Without Meaning, supra note 31, at 513-14; James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414,430-31 (1985).
314. CRIMINAL INVESTIGATION, supra note 139, at 589 n. 2187; see also Miranda Waivers and Invocations, supra note 110, at 28 (containing appendix titled "Minors and impaired suspects: Proving they understand their rights").
315. See Videotape: Interview and Interrogation Techniques Telecourse, Part II (POST Apr. 1993). This occurs primarily in the context of interviewing witnesses who are not suspects, but interviews are also commonly performed on people who are or may become suspects.
316. See DVD: Interview Techniques Telecourse (POST Mar. 2005).
317. See id.
318. See Videotape: Interview and Interrogation Techniques Telecourse, Part II (POST Apr. 1993); see also INBAU ET AL., supra note 53, at 418 ("Our long-standing position has been that interrogation incentives that are apt to cause an innocent person to confess are improper.").
319. See Feld, Police Interrogation, supra note 95, at 315.
320. Jessica R. Meyer & N. Dickon Reppucci, Police Practices and Perceptions Regarding Juvenile Interrogation and Interrogation Suggestibility, 25 BEHAV. SCI. LAW 757, 771 (2007). Meyer also attended a four-day Reid & Associates seminar. She
321. 512 U.S. 452(1994).
322. See, e.g., Tague v. Louisiana, 444 U.S. 469, 471 (1980) (per curiam) (finding that the court improperly admitted a statement where the prosecution did not introduce any evidence to establish that the defendant knowingly and intelligently waived his rights).
323. See Davis, 512 U.S. at 454-55.
324. See id. at 459.
325. Brief for the United States at 29, 30,45-56, Davis, 512 U.S. 452 (No. 92-1949).
326. Davis, 512 U.S. at 458 (citing Edwards V.Arizona, 451 U.S. 477 (1981)).
327. Id. at 460-61.
328. Id. at 459 (quoting Souter, J., concurring); id. at 461-62. I note that the Court previously held that the same waiver/invocation tests for adults also apply to juveniles. See Fare v. Michael C., 442 U.S. 709, 718, 724-27 (1979).
329. See James v. Marshall, 322 F.3d 103, 108-09 (1st Cir. 2003) (habeas corpus case); United States v. Johnson, 400 F.3d 187, 194-95 (4th Cir. 2005); United States v. Suarez, 263 F.3d 468, 482-84 (6th Cir. 2001); United States v. Lee, 413 F.3d 622, 625-27 (7th Cir. 2005); United States v. Syslo, 303 F.3d 860, 865-66 (8th Cir. 2002); United States v. Brown, 287 F.3d 965, 970-73 (10th Cir. 2002); United States v. Acosta, 363 F.3d 1141, 1151-54 (11th Cir. 2004).
330. See Moore v. State, 903 S.W.2d 154, 157-58 (Ark. 1995); People v. Crittenden, 885 P.2d 887, 911-13 (Cal. 1994); People v. Adkins, 113 P.3d 788, 791-92 (Colo. 2005); State v. Rollins, 714 A.2d 1217, 1219-20 (Conn. 1998); McDougal v. State, 591 S.E.2d 788, 793-94 (Ga. 2004); People v. Christopher K., 841 N.E.2d 945, 962-65 (III. 2005); Jolley v. State, 684 N.E.2d 491, 493 (Ind. 1997); State v. Jackson, 19 P.3d 121, 124-25 (Kan. 2001); Ragland v. Commonwealth, 191 S.W.3d 569, 586-87 (Ky. 2006); State v. Payne, 833 So. 2d 927, 934-39 (La. 2002); Kaczmarek v. State, 91 P.3d 16, 27 (Nev. 2004); State v. Barrera, 22 P.3d 1177, 1184-86 (N.M. 2001); State v. Williams, 793 N.E.2d 446, 457-59 (Ohio 2003); State v. Charboneau, 913 P.2d 308, 316-21 (Or. 1996); State v. Saylor, 117 S.W.3d 239, 244-47 (Tenn. 2003); Turtle v. State, No. 72,387, 1997 Tex. Crim. App. LEXIS 87, at *26-3O (Nov. 5, 1997); Commonwealth v. Hilliard, 613 S.E.2d 579, 584-86 (Va. 2005); State v. Potter, 478 S.E.2d 742, 750-51 (W. Va. 1996); Monroe v. State, 126 P.3d 97,101-03 (Wyo. 2006).
331. See United States v. Rodriguez, 518 F.3d 1072 (9th Cir. 2008); Cuervo v. State, 967 So. 2d 155, 161-62 (Fla. 2007); State v. Holloway, 760 A.2d 223, 228 (Me. 2000); State v. Turtle, 650 N.W.2d 20, 27-28 (N.D. 2002); State v. Leyva, 951 P.2d 738, 742-43 (Utah 1997).
332. See State v. Hoey, 881 P.2d 504, 520-25 (Haw. 1994); State v. Spang, 48 P.3d 727, 732-34 (Mont. 2002); State v. Chew, 695 A.2d 1301, 1316-18 (N.J. 1997).
333. See Barnes v. Johnson, 160 F.3d 218, 225 (5th Cir. 1998) (habeas corpus case); Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir. 1995) (habeas corpus case, but directly holding that Davis applies to the right to remain silent); see also United States v. Barnes, No. 98-4460, 1999 U.S. App. LEXIS 9367 (4th Cir. May 18, 1999) (unpublished decision).
334. See James v. Marshall, 322 F.3d 103, 108 (1st Cir. 2003) (habeas corpus case); United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir. 2000); United States v. Banks, 78 F.3d 1190, 1197-98 (7th Cir. 1996), rev'd on other grounds, Mills v. United States, 519 U.S. 990 (1996); United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995); Thomas v. Lamarque, 121 Fed. Appx. 220, 222 (9th Cir. 2005) (habeas corpus case; unpublished decision); United States v. Nelson, 450 F.3d 1201, 1212 (10th Cir. 2006); see also United States v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) (assuming arguendo that Davis applies to the right to remain silent).
335. See People v. Stitely, 108 P.3d 182, 196 (Cal. 2005); People v. Arroya, 988 P.2d 1124, 1131 (Colo. 1999); State v. Owen, 696 So. 2d 715, 719-20 (Fla. 1997); State v. Robertson, 712 So. 2d 8, 31 (La. 1998); State v. Lockhart, 830 A.2d 433, 442-43 (Me. 2003); State v. Williams, 535 N.W.2d 277, 284-85 (Minn. 1995); State v. Golphin, 533 S.E.2d 168, 225 (N.C. 2000); State v. Greybull, 579 N.W.2d 161, 163-64 (N.D. 1998); State v. Aleksey, 538 S.E.2d 248, 253-54 (S.C. 2000); State v. Tiedemann, 162 P.2d 1106, 1110 (Utah 2007); State v. Bacon, 658 A.2d 54, 65-66 (Vt. 1995); State v. Farley, 452 S.E.2d 50, 59 (W. Va. 1994); Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996); see also Draper v. State, No. 147, 2002 Del. LEXIS 51, at *7 (Del. Jan. 28, 2002) (applying Davis to right to remain silent as a matter of federal law, but requiring different procedures as a matter of state law).
336. See Whitaker v. State, 71 S.W.3d 567, 572 (Ark. 2002); State v. Donesay, 959 P.2d 862, 872 (Kan. 1998).
337. In Soffar v. Johnson, 300 F.3d 588, 594 n.5 (5th Cir. 2002) (en banc), the Fifth Circuit declined to address the point, but noted that it had already held that application of Davis to the right to remain silent is not contrary to clear Supreme Court authority (and so is not a basis for habeas corpus relief), and noted also that other circuits have extended Davis to the right to remain silent.
338. Stitely, 108 P.3d at 195-96.
339. People v. Jennings, 760 P.2d 475, 482-84 (Cal. 1988).
340. United States v. Banks, 78 F.3d 1190, 1196-98 (7th Cir. 1996).
341. Clark v. Murphy, 331 F.3d 1062, 1069-72 (9th Cir. 2003).
342. State v. Henness, 679 N.E.2d 686, 695-96 (Ohio 1997); see also Burket v. Angelone, 208 F.3d 172, 197-98 (4th Cir. 2000).
343. Diaz v. Senkowski, 76 F.3d 61, 63-66 (2d Cir. 1996).
344. Lord v. Duckworth, 29 F.3d 1216, 1219-22 (7th Cir. 1994).
345. State v. Baker, No. 2004 CA 19, 2005 Ohio App. LEXIS 43, at *7-10 (Ohio Ct. App. Jan 7, 2005).
346. 467 F.3d 1208, 1212-13 (9th Cir. 2006), rev'd en banc, 516 F.3d 781 (9th Cir. 2008). The panel majority ruled that the state court, which found the statement equivocal, did not unreasonably apply clearly established federal law and habeas corpus relief was unavailable. Disclosure: I submitted a brief supporting rehearing.
347. Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008).
348. See Cate v. Anderson, No. 07-1436, 2008 WL 4454264 (U.S. Oct. 6, 2008).
349. See Marcy Strauss, Understanding Davis v. United States, 40 LOY. L.A. L. REV. 1011, 1055 (2007).
350. See id. at 1035-47.
351. Id. at 1058-59.
352. Devallis Rutledge, Davis Rules, POLICE: THE LAW ENFORCEMENT MAGAZINE, Jan. 2006, at 72.
353. Miranda v. Arizona, 384 U.S. 436, 475 (1966).
354. 441 U.S. 369, 373 (1979).
355. George C. Thomas III, Separated at Birth but Siblings Nonetheless: Miranda and the Due Process Notice Cases, 99 MICH. L. REV. 1081, 1082 (2001); see also Kamisar, supra note 243, at 180-82.
356. See Bui v. DiPaolo, 170 F.3d 232, 240-41 (1st Cir. 1999); United States v. Scarpa, 897 F.2d 63, 67-69 (2d Cir. 1990); United States v. Velasquez, 626 F.3d 314, 319-20 (3d Cir. 1980); United States v. Cardwell, 433 F.3d 378, 389-90 (4th Cir. 2005); United States v. McKinney, 758 F.2d 1036, 1044-45 (5th Cir. 1985); United States v. Stark, 609 F.2d 271, 273 (6th Cir. 1979); United States v. Banks, 78 F.3d 1190, 1199 (7th Cir. 1996); Thai v. Mapes, 412 F.3d 970, 976-77 (8th Cir. 2005); United States v. Washington, 462 F.3d 1124, 1133-34 (9th Cir. 2006); United States v. Gell-Iren, 146 F.3d 827, 830 (10th Cir. 1998); United States v. Gonzalez, 833 F.2d 1464, 1466 (11th Cir. 1987); see also United States v. Manderson, 904 F.2d 78, 78 (D.C. Cir. 1990) (unpublished disposition).
357. See Love v. State, 372 So. 2d 414, 415 (Ala. Crim. App. 1979); Smith v. State. No. 4849, 2004 Alas. App. LEXIS 62, at *8-10 (Alaska Ct. App. Mar. 31, 2004) (memorandum decision); State v. Montes, 667 P.2d 191, 194-96 (Ariz. 1983); Leshe v. State, 803 S.W.2d 522, 526-27 (Ark. 1991); People v. Whitson, 949 P.2d 18, 30 (Cal. 1998); State v. Gonzalez, 537 A.2d 460, 463 (Conn. 1988); Garvey v. State, 873 A.2d 291, 298-99 (Del. 2005); Kitt v. United States, 904 A.2d 348, 357 (D.C. 2006); Thomas v. State, 894 So. 2d 126, 136 (Fla. 2004); Williams v. State, 260 S.E.2d 879, 882 (Ga. 1979); State v. Wallace, 94 P.3d 1275, 1286-88 (Haw. 2004); State v. Law, 39 P.3d 661, 665 (Idaho Ct. App. 2002); People v. Cook, 815 N.E.2d 879, 890-91 (III. App. Ct. 2004); Cobb v. State, 412 N.E.2d 728, 735-36 (Ind. 1980); State v. Lamp, 322 N.W.2d 48, 54 (Iowa 1982); State v. Kirtdoll, 136 P.3d 417, 422-25 (Kan. 2006); Ragland v. Commonwealth, 191 S.W.3d 569, 586 (Ky. 2006); State v. Rebstock, 418 So. 2d 1306, 1309 (La. 1982); State v. Curtis, 552 A.2d 530, 531-32 (Me. 1988); Collins v. State, 447 A.2d 1272, 1275-76 (Md. Ct. Spec. App. 1982); Commonwealth v. Mandeville, 436 N.E.2d 912, 918-20 (Mass. 1982); Johnson v. State, No. A03-934, 2004 Minn. App. LEXIS 450, at *8-10 (Minn. Ct. App. Apr. 27, 2004) (unpublished opinion); State v. Brosseit, 958 S.W.2d 615, 618-19 (Mo. Ct. App. 1998); State v. Walker, 724 N.W.2d 552, 560-61 (Neb. 2006); Mendoza v. State, 130 P.3d 176, 181-82 (Nev. 2006); State v. Wambrun, 648 A.2d 1153, 1158-59 (N.J. Super. Ct. App. Div. 1984); State v. Martinez, 979 P.2d 718, 723-25 (N.M. 1999); People v. Sirno, 565 N.E.2d 479, 480 (N.Y. 1990); State v. Connley, 256 S.E.2d 234, 235-37 (N.C. 1979); State v. Lather, 853 N.E.2d 279, 280-83 (Ohio 2006); Hammer v. State, 760 P.2d 200, 202-03 (Okla. Crim. App. 1988); State ex rel. Juvenile Dep't v. Cook, 909 P.2d 202, 203-04 (Or. Ct. App. 1996); Commonwealth v. Bomar, 826 A.2d 831, 843 (Pa. 2003); State v. Torres, 787 A.2d 1214, 1225 (R.I. 2002); State v. Tyson, 323 S.E.2d 770, 771-72 (S.C. 1984); State v. Bult, 351 N.W.2d 731, 735 (S.D. 1984); State v. Crawford, No. E2005-02018-CCA-R3, 2007 Tenn. Crim. App. LEXIS 83, at *25-27 (Tenn. Ct. Crim. App. Feb 1, 2007); Garcia v. State, 919 S.W.2d 370, 387, 404 (Tex. Ct. Crim. App. 1996); State v. Leyva, 951 P.2d 738, 744-45 (Utah 1997); Cheng v. Commonwealth, 393 S.E.2d 599, 604 (Va. 1990); State v. Smith, 624 S.E.2d 474, 478-81 (W. Va. 2005); State v. Woods, 345 N.W.2d 457, 464-68 (Wis. 1984); Cheatham v. State, 719 P.2d 612, 618-20 (Wyo. 1986).
358. See People v. Stitely, 108 P.3d 182, 196 (extending Davis to invocation of the right to remain silent after an initial waiver of rights).
359. POST, Laws of Arrest, supra note 128, at 5-12.
360. See LEGAL SOURCEBOOK, supra note 181, at § 7.30 (Rev. Nov. 2005), § 7.31 (Rev. Jan. 2007), § 7.32 (Rev. May 2007), § 7.33 (Rev. Jan. 2006) (same, and collecting cases); PHILLIPS, supra note 312, at 57 (noting the different tests for invocation of the rights to silence and counsel).
361. See, e.g., LEGAL SOURCEBOOK, supra note 181, at §§ 7.30a-7.32 (Rev. May 2008). For an example of how to deal with a suspect's question about counsel, see SCHAFER & NAVARRO, supra note 60, at 57 ("If the suspect asks the question, 'Do you think I need a lawyer?' the investigator should simply state, 'I think you need to tell the truth.'").
362. Miranda Waivers and Invocations, supra note 110, at 17.
363. Id. at 17-18 (footnote omitted).
364. Id. at 18-19 (footnote omitted). This view is not unanimous among trainers. See Phillips, supra note 110, at 33 (although "the need for clarity when attempting to invoke one's right to silence is presently subject to a difference of opinion, all authorities agree that the right to counsel can only be invoked by a clear, express, and unambiguous request for an attorney").
365. See DVD: Case Law Today: Miranda: Geez! Did He Invoke or What (POST July 2003); DVD: Case Law Today: Miranda: Right to Silence 'Right Now' (POST May 2004); DVD: Case Law Today: Ambiguous Requests for Counsel (POST Mar. 2005); DVD: Case Law Today: Miranda: Unambiguous Invocation (POST June 2005); DVD: Case Law Today: Miranda: Unequivocal Invocation of Right to Counsel (POST Oct. 2005); DVD: Case Law Today: Miranda: More on Unequivocal Invocation of Right to Counsel (POST Dec. 2005); DVD: Case Law Today: Pushing the Miranda Envelope (POST Mar. 2007); DVD: Case Law Today: Initial Ambiguous Invocation of Miranda Rights (POST June 2008).
366. 518 F.3d 1072.
367. See DVD: Case Law Today, Initial Ambiguous Invocation of Miranda Rights, supra note 365 (stating that the "bottom line" is "if you got a case that is going federal or is likely to end up in federal court, it is much safer if there is an ambiguous invocation when you first advise the person of their Miranda rights ... to do the follow-up"); LEGAL SOURCEBOOK, supra note 181 at § 7.30a (Rev. May 2008) ("Although federal decisions are not binding on California state courts, the failure to follow this rule will result in suppression of the statements in a Ninth Circuit federal court.").
368. Cal. Peace Officers' Assoc, Miranda, Equivocal Invocations and an Officer's Duty to Clarify: United States v. Rodriguez (9th Cir. Mar. 10, 2008) 2008 DJDAR 3402, TRAINING BULL SERVICE, Apr. 2008, at 8 (reprinting bulletin by Robert C. Phillips). The trainer reflects that the ruling is inconsistent with his own past training and that he intends to review the case law and examine the issue further.
369. POST, Laws of Arrest, supra note 128, at 5-10.
370. Id.
371. See LEGAL SOURCEBOOK, supra note 181, at § 7.24a, § 7.24b (Rev. Nov. 2006); Phillips, supra note 110, at 43. A POST Case Law Today update makes this point as well. See DVD: Case Law Today: Implied Miranda Waivers and Spontaneous Statements (POST May 2005).
372. See CRIMINAL INVESTIGATION, supra note 139, at 196.
373. See, e.g., LEGAL SOURCEBOOK, supra note 181, at § 7.24b (Rev. Nov. 2006); Phillips, supra note 110, at 40-43; SACRAMENTO SHERIFF'S DEP'T TRAINING ACAD., supra note 59, at 15; Fermin, supra note 139, at 4.
374. See Interrogation/Confessions: Legal Issues, Interrogation and Miranda, POST TELECOURSE REFERENCE GUIDE, Aug. 10, 1995, available at http://libcat.post.ca.gov/dbtwwpd/documents/POST/ 55607143.pdf. It appears that the basic academy curriculum was also changed around 1995 to include training on implied Miranda waivers. The 1994 POST instructors' materials do not reference implied waivers, but implied waivers appear in the 1997 materials. Compare CAL. COMM'N ON PEACE OFFICER STANDARDS AND TRAINING, BASIC COURSE INSTRUCTOR UNIT GUIDE 15, LAWS OF ARREST 46-52 (1994), available at http://libcat.post.ca.gov/dbtw-wpd/documents/POST/32645626.pdf with CAL. COMM'N ON PEACE OFFICER STANDARDS AND TRAINING, BASIC COURSE Instructor UNIT GUIDE 15, LAWS OF ARREST 47-49 (Rev. 1997), available at http://libcat.post.ca.gov/dbtw-wpd/documents/POST/ 173621265.pdf.
375. See, e.g., Robert C. Phillips, Express vs. Implied Miranda Waivers, LEGAL UPDATE (Deputy Dist. Attorney & Law Enforcement Liaison Deputy, San Diego, Cal.), June 5, 1998, at 1 (criticizing "the misleading teachings of P.O.S.T." on this point, and noting that officers who obtain implied waivers "run a serious risk" of losing a confession because a judge will have to examine all of the surrounding circumstances to decide if a suspect has validly waived Miranda rights).
376. For example, a 1999 memorandum from the Chief of Police in San Jose orders officers to use the new POST warning card. The memorandum recommends that officers obtain an express waiver "wherever possible," but says that officers may "at their discretion" seek an implied waiver. Memorandum from William M. Lansdowne, Chief of Police, City of San Jose to Sworn Personnel, Subject: New Miranda Cards 2 (June 23, 1999) (on file with author). The memorandum notes that "the Santa Clara County Police Chiefs' Association agreed to follow District Attorney George Kennedy's recommendation to adopt the new cards." Id. at 1.
377. People v. Whitson, 949 P.2d 18, 30 (Cal. 1998).
378. HYATT SELIGMAN, LOS ANGELES DIST. ATTORNEY'S OFFICE TRAINING DIVISION, Miranda AND MORE 8 (2004) (on file with author).
379. JOSEPH D. SCHLOSS, SR., HANDBOOK OF ARREST, SEARCH AND SEIZURE 62 (Police Science Associates, 1980 rev. ed.).
380. The card was provided to me by POST. With only one minor word variation, these are the same warnings that have been in use since 1995.
381. Davis, 512 U.S. at 460.
382. See, e.g., WELSH WHITE, Miranda's WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON 117-18 (2001); THOMAS, SUPRA NOTE 143, AT 1969; SANDRA GUERRA THOMPSON, EVADING MIRANDA: HOW SEIBERT AND PATANE FAILED TO "SAVE " MIRANDA, 40 VAL. U. L. REV. 645, 663-65 (2006).
383. See, e.g., United States v. Washington, 462 F.3d 1124, 1134 (9th Cir. 2006) ("A person waives the right to remain silent if, after being informed of that right, the person does not invoke that right."); People v. Sirno, 565 N.E.2d 479, 480 (N.Y. 1990) (where "a defendant clearly understands his Miranda rights and promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights.").
384. Telephone Interview with Barry Feld (Sept. 17, 2007).
385. See, e.g., Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 YALE L. J. 259 (1993) (particularly addressing female speech patterns and power asymmetry).
386. See generally Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner, Davis v. United States, 512 U.S. 452 (1994) (No. 92-1949).
387. Strauss, supra note 349, at 1056.
388. See Miranda v. Arizona, 384 U.S. 436, 536 (1966) (White, J., dissenting).
389. Dickerson v. United States, 530 U.S. 428, 443 (2000).
390. By rooting its holding in the Fifth Amendment, the Supreme Court made Miranda's rules applicable to all federal and state prosecutions. Other actors have more limited powers. Congress could pass a statute regulating the conduct of federal law enforcement agencies or governing the admission of evidence in federal criminal cases. The state legislatures can do the same for state agencies and prosecutions. Some state courts, as a matter of state law, have afforded suspects greater protection than Miranda provides. See supra note 332.
391. Some of the training on Davis's unambiguous invocation rule goes well beyond the four corners of that decision, but the training is generally consistent with rulings of lower courts that have extended Davis to the right to remain silent and the initial waiver stage.
392. Missouri v. Seibert, 542 U.S. 600, 611-12 (2004) (plurality opinion).
393. See Hairston v. United States, 128 S.Ct. 491 (2007) (denying petition for writ of certiorari). Hairston was represented by Professor Peter Rutledge and former Solicitor General Seth Waxman. The petition extensively addressed the split in authority following Seibert. See Petition for Writ of Certiorari at 8-19, Hairston, 128 S. Ct. 491 (No. 07-5587).
394. In the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1218 1996, Congress amended the federal habeas corpus statute. It now prohibits granting habeas corpus relief unless the state court's adjudication of the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or was based on "an unreasonable determination of the facts in light of the evidence" presented in state court. 28 U.S.C. § 2254(d) (2000).
395. See, e.g., Obershaw v. Lanman, 453 F.3d 56, 64-65 (1st Cir. 2006) (state court not clearly unreasonable in finding that "Can I talk to a lawyer first?" is ambiguous); Clark v. Murphy, 331 F.3d 1062, 1069-72 (9th Cir. 2003) (holding that the state court was not clearly unreasonable in finding that "I think I would like to talk to a lawyer" is ambiguous); but see Abela v. Martin, 380 F.3d 915, 925-27 (6th Cir. 2004) (granting habeas corpus relief where the defendant unequivocally asked for counsel by giving the officer the lawyer's card and the officer left the room after agreeing to call counsel).
396. Moran v. Burbine, 475 U.S. 412, 424 (1986). For a discussion of the balance in Miranda, see Kamisar, supra note 243, at 169-75.
397. One can get a sense of the split from the amicus curiae briefs by law enforcement agencies and supporters on both sides of Dickerson. Compare, e.g., Brief of Amicus Curiae Fraternal Order of Police Urging Affirmance, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525) (arguing that law enforcement has not learned to "live with" Miranda because Miranda interferes with the ability of officers to solve violent crimes and take dangerous criminals off the streets) with Brief of Griffin B. Bell, et al. as Amici Curiae in Support of Petitioner, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525) (contending that Miranda promotes effective law enforcement practices and helps prosecutors secure convictions of the guilty).
398. Brief of Griffin B. Bell, et al., supra note 397, at 7-8.
399. Id. at 9-10 (quoting a former Boston Police Commissioner and a Missouri prosecutor).
400. Id. at 13. I once co-authored a brief making some of the same points. See Brief of Former Prosecutors, Judges and Law Enforcement Officials as Amici Curiae Supporting Respondent, at 5-11, Missouri v. Seibert, 542 U.S. 600 (2004) (No. 02-1371).
401. CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION-A FIRSTHAND ACCOUNT 45 (1991). Professor Rosenthal argues that Miranda's "safe harbor" is best viewed as existing within the law of waiver, instead of being based on an absence of compulsion. He writes: "The warnings do not eliminate the compulsion inherent in custodial interrogation by creating a safe harbor of voluntariness; if they did, then the Court would have held that the warnings without more could produce an admissible statement." Rosenthal, supra note 109, at 598 n.88. Rather, "the Court made plain that even with the requisite warnings, a statement is inadmissible" unless the government proves a valid waiver. Id. I agree with him in theory, though my sense of the voluntariness cases is that it does not work that way in practice. For another view of Miranda and safe harbors, see Susan R. Klein, Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030 (2001) (describing Miranda as a constitutional prophylactic rule, in comparison to a constitutional safe harbor rule).
402. Missouri v. Seibert, 542 U.S. 600, 608-09 (plurality opinion).
403. Colorado v. Spring, 479 U.S. 564, 576 (1987) (quoting United States v. Washington, 431 U.S. 181,188(1977)).
404. See Alfredo Garcia, Is Miranda Dead, Was It Overruled, or Is It Irrelevant?, 10 ST. THOMAS L. REV. 461, 496-502 (1988); see also Steven B. Duke, Does Miranda Protect the Innocent or the Guilty?, 10 CHAP. L. REV. 551, 562 (2007); Richard A. Leo, Miranda and the Problem of False Confessions, in THE Miranda DEBATE: LAW, JUSTICE AND POLICING 276-77 (Richard A. Leo & George C. Thomas, III, eds., 1998); Christopher Slobogin, Toward Taping, 1 OHIO ST. J. CRIM. L. 309, 309-12 (2003); Thompson, supra note 382, at 649.
405. Kamisar, supra note 243, at 197.
406. Dickerson v. United States, 530 U.S. 428, 442-43 (2000).
407. Id. at 444; see also Id. at 437 (citing City of Boernev. Flores, 521U.S. 507(1997)).
408. Id. at 440, 442.
409. See S. REP. No. 90-1097, reprinted in 1968 U.S.C.C.A.N. 2112, 2127-40, 2209-15; see also Yale Kamisar, Can (Did) Congress "Overrule" Miranda, 85 CORNELL L. REV. 883, 887-906 (2000) (describing the legislative process that led to § 3501); Brief for the United States at 18-20, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525) (reviewing legislative history); but see Michael Edmund O'Neill, Undoing Miranda, 2000 B.Y.U. L. REV. 185, 232 (arguing that Congress sought to craft a reasoned, balanced approach).
410. Professor Kamisar explored this issue in an article pre-dating Dickerson. He wrote that Miranda's holdings rest more on interpretations of the Constitution and a judgment about the relative needs of law enforcement and suspects than on any factual determinations or assumptions. Moreover, if Congress could overturn a ruling "by removing or correcting what it calls the unsound factual determination or factual assumption," Congress would have the power to determine what constitutes a constitutional violation. See Kamisar, supra note 409, at 918-19. I agree. Nevertheless, factual findings based upon forty years of experience after a court decision should be treated differently than contrary legislative findings right on the heels of that court decision. At the least, I think the possibility of future legislative action remains an open question. Cf. Klein, supra note 401, at 1052-68 (suggesting room post-Dickerson for a dialogue between the Court and state and federal actors, as well as between the Court and social scientists).
411. For a discussion of "necessary" and "unnecessary" deception and its relationship to police coercion, see Christopher Slobogin, Lying and Confessing, 39 TEX. TECH L. REV. 1275, 1280-91 (2007).
412. For discussions advocating videotaping, see LEO, supra note 3, at 291-305; Feld, Juveniles' Competence, supra note 95, at 90-98; Slobogin, Toward Taping, supra note 404, at 314-22; Thomas P. Sullivan, Andrew W. Vail & Howard W. Anderson III, The Case for Recording Police Interrogations, 34 LITIGATION 30 (2008). If videotaping is adopted, it is important that the entire interrogation be taped, not just some portion of it. See Mike McConville, Videotaping Interrogations: Police Behaviour on and Off Camera, 1992 CRIM. L. REV. 532. Professor Lisa Lewis advocates recording the entire police/suspect interaction, including beginning with conversations in the patrol car. See Lisa Lewis, Rethinking Miranda: Truth, Lies, and Videotape, 43 GONZ. L. REV. 199, 220-23, 227-33 (2007). There are also significant concerns to address with respect to biasing effects of camera focus on the suspect alone. See G. Daniel Lassiter, Jennifer J. Ratcliff, Lezlee J. Ware & Clinton R. Irvin, Videotaped Confessions: Panacea or Pandora's Box, 28 LAW & POL'Y 192, 193-201 (2006). For an argument that we should not expect videotaping to curb police excesses, see Rosenthal, supra note 109, at 606-08.
413. For some discussions of alternatives to Miranda, see, for example, Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175, 252-59 (1999); Cloud et al., Words Without Meaning, supra note 31, at 572-90; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500, 556-61 (1996).
414. Schulhofer, supra note 413, at 560.
415. For discussions of the history of the voluntariness doctrine and its shortcomings (especially before Miranda), 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); Kamisar, supra note 243, at 163-69; Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 111-17(1997).
416. See generally Albert W. Alschuler, Constraint and Confession, 74 DENV. U. L. REV. 957 (1997) (arguing for a test that focuses on offensive conduct, regardless of the reliability of a confession).
417. Professors Ofshe and Leo have proposed such a test. See Ofshe & Leo, supra note 108, at 1118; LEO, supra note 3, at 286-91.