Doubts About Miranda

Critics who accuse the Supreme Court of pampering criminals often cite the case of Ernesto Miranda, a confessed rapist whose conviction was reversed by the court in 1966. Miranda, say the critics, got an undeserved break. Worse, his appeal led the court to lay down ridiculously strict rules on confessions, and those rules are helping other criminals while they hamper police.

It seems to be an empty complaint. Miranda himself only won a retrial--and he was reconvicted. More important, according to studies made in New Haven and Washington, D.C., most of the criminal suspects whose constitutional rights Miranda forced the court to define, are not much better off than they were before. Surprisingly few have even tried to take advantage of the new rules, while the police have often gotten around them.

Aggressive Questioning. Before any interrogation can take place, said the court in Miranda, police must advise a suspect in "clear and unequivocal terms" that 1) he has a right to remain silent, 2) anything he says "can and will" be used against him, 3) he has a right to counsel before and during questioning, and 4) if he cannot afford a lawyer, he is entitled to have one provided by the state. Soon after the decision was handed down, the Yale Law Journal stationed student observers at New Haven police headquarters to watch the police in action. While the students were present, police advised only 25 out of 118 suspects ct all their rights. Paradoxically, the detectives got a greater percentage of confessions and incriminating statements from those who were given thorough warnings. What the police were doing, said the Law Journal, was making certain to warn people who were accused of serious crimes, then questioning those suspects very aggressively.

Recently, a similar study was carried out by the Georgetown University Law Center and published in the latest issue of the Michigan Law Review. Out of 85 suspects interviewed by Georgetown researchers, 70% claimed that they had not been properly advised of all their rights. Some 40% of those who were warned of their right to remain silent made incriminating statements anyway. Even more surprising, only 1,262 out of 15,430 persons arrested for serious crimes during the year requested the volunteer attorneys who were available to them.

The Georgetown team found that the police were violating the rules by questioning a suspect on the street before reaching the station house. All told, half of those who asked for lawyers were interrogated either on the way or at the station house before an attorney arrived. In a second article to be published early next year, the Georgetown team shows that those who took most ad vantage of the warnings had a negative attitude toward the law. Men who were less suspicious and less cynical tended to be more willing to confess.

Crisis-Laden Situation. In both New Haven and Washington, Miranda warnings were presented to suspects in a wooden, unsympathetic manner. Some suspects got the impression that if they took advantage of their rights police might get angry and throw the book at them. As the Yale study points out, a man brought in for questioning is in a "crisis-laden situation" and must make quick decisions that may affect his freedom for years. Often, he may decide to cooperate rather than provoke. Any confession obtained from such a man could hardly be said to result from a voluntary waiver of his rights, as required by Miranda.

The reports from New Haven and Washington clearly suggest that police are violating both the letter and the spirit of Miranda. And they are under little pressure to change their ways. Last spring, reacting to the politics of "law and order," Congress passed an Omnibus Crime Control Act that contains a direct attack on Supreme Court doctrine. Never mind Miranda's strict rules in federal prosecutions, says one section of the law; now judges need only consider "all the circumstances" in which a confession was obtained be fore they rule on whether it was voluntary. That was, in effect, the formula before Miranda. When the first test case reaches the Supreme Court, the justices are likely to find the new law as unacceptable as Miranda's confession.

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