Handcuffing the Cops: Miranda's Harmful Effects on Law Enforcement

Policy Reports | Crime

No. 218
Saturday, August 01, 1998
by Paul G. Cassell

Moving Beyond Miranda

"The Court held that the Miranda rules are only safeguards and not a constitutional requirement."

Today, with the benefit of 30 years of interpretations, we know the Miranda mandate is not a constitutional requirement.43 Specifically, the Court has held that Miranda rules are only safeguards whose purpose is to reduce the risk that police will violate the Constitution during custodial questioning. This means that the Miranda rules can be changed without impinging on the Fifth Amendment - without, that is, compelling a defendant to witness against himself. Typical of this line of cases is Michigan v. Tucker,44 in which the court explained that Miranda established a "series of recommended 'procedural safeguards.' ... The [Miranda] Court recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected."45

What Miranda Requires. The Court has based these safeguards on a purely pragmatic, cost-benefit assessment. The Court has specifically stated that the Miranda rules rest not on constitutional requirement but rather are a "carefully crafted balance designed to fully protect both the defendant's and society's interests."46 While the Court has never said precisely what costs it is willing to tolerate in this cost-benefit calculation, it has likely understated their magnitude, as the new evidence presented in this study demonstrates. The Court's calculation of Miranda's costs and benefits becomes even more problematic when the possibility of reasonable, less harmful approaches to regulating police questioning is factored in. When the Court announced Miranda in 1966, significant efforts to reform the rules regarding interrogations were under way.47 The decision itself seemed to invite continued exploration of such alternatives, promising that "[o]ur decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform."48

Exploring Alternatives. The Court's promise has proven to be an empty one. In the three decades since Miranda, reform efforts have been virtually nonexistent. The reasons are not hard to imagine. No state is willing to risk possible invalidation of criminal convictions by using an alternative to Miranda.

The failure to explore other approaches cannot be attributed to lack of viable options. For example:

  • The states might be permitted to videotape interrogations as a substitute for the Miranda procedures.
  • The states might be allowed to bring an arrested suspect before a magistrate for questioning.49
  • The Court might simply abandon the grand social experiment of and return to the long-standing "voluntariness" test for the admissibility of confessions.50

"There are viable options, such as videotaping interrogations."

Videotaping might be the best solution to the problem of regulating police interrogations envisioned in Miranda's encouragement to "Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws."51 Videotaping would better protect against police brutality, end the "swearing contest" about what happens in secret custodial interrogations and allow suspects who are manipulated into falsely confessing to prove their innocence.52 At the same time, even when coupled with limited warnings of rights, videotaping does not appear to significantly depress confession rates.53

Questioning under the supervision of a magistrate would offer more judicial oversight than Miranda, but might be structured so as to result in more evidence leading to conviction. But, as with videotaping, because of constitutional issues lurking in the background and the Court's failure to indicate whether this might be a permissible alternative to Miranda, this approach has remained nothing more than hypothetical for criminal procedure professors.

Finally, the voluntariness test that was the prevailing approach to assessing confessions in this country for almost two centuries is supported by the notion that Constitutional interpretation ought to be consistent with the framers' intent. The voluntariness standard is also supported by an explicit though largely untested congressional directive, making it the touchstone for admitting confessions in federal cases.54

"It appears that Miranda has, as its critics charge, ‘handcuffed the cops.'"

The evidence collected here argues in favor of earnestly considering these alternatives to Miranda. Justice Harlan's dissenting opinion warned that the new rules were "a hazardous experimentation" with the country's safety whose full effects "only time could tell."55 The experiment's results are now in. The data suggest that Miranda has seriously harmed society by hampering the ability of the police to solve serious crimes. Indeed, based on crime clearance rates, Miranda may be the single most damaging blow to the nation's crime-fighting ability in the last half century. In short, it appears that Miranda has, as its critics charge, "handcuffed the cops." It is time to consider removing those shackles and regulating police interrogation in less costly ways.

NOTE: Nothing written here should be construed as necessarily reflecting the views of the National Center for Policy Analysis or as an attempt to aid or hinder the passage of any bill before Congress.

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