The Magazine

True Confessions

Time to revisit Miranda.

May 19, 2003, Vol. 8, No. 35 • By WILLIAM TUCKER
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TWO YEARS AGO, federal agents in Colorado responded to a complaint at the home of Samuel Patane, an ex-convict under a restraining order for beating his wife.

Patane's probation officer had warned the agents that the convicted felon had a Glock pistol and a penchant for violence. After entering the home, agents began reading Patane his Miranda warnings--the right to remain silent and to contact his lawyer. Impatiently, Patane told the feds he already knew his rights. Then he directed officers to his gun after they asked about it. Patane was indicted for possessing an illegal firearm.

As the case wended its way through the courts, however, Patane's lawyer raised objections. Because federal agents had not finished reading Patane his Miranda rights, it was argued, the gun had been seized illegally. Colorado's liberal judiciary agreed. The evidence was dismissed under the "exclusionary rule," which says evidence cannot be used in court if it has been acquired in violation of the Fourth or Fifth Amendment.

Two weeks ago, the U.S. Supreme Court agreed to review the case. U.S. solicitor general Theodore Olson argued that the Miranda warning applies only to confessions, not to hard physical evidence. But the case also offers an opportunity to review the entire 38-year history of what is perhaps the Supreme Court's most controversial criminal ruling ever.

Although Miranda is commonly remembered as having eliminated "third-degree" beatings of criminal suspects, in fact the real concern of the Warren Court's slim 5-to-4 majority was the "coercive atmosphere" of interrogation itself. "Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented," wrote Chief Justice Earl Warren for the majority. "As we have stated before . . . 'coercion can be mental as well as physical.'"

The court buttressed its decision by citing textbooks and police manuals. These how-to guides outlined "good-cop, bad-cop" routines and, above all, recommended "patience and persistence" in questioning. Justifying its decision, the Court quoted one manual's instruction that an interrogator should "patiently maneuver himself or his quarry into a position from which the desired objective may be obtained."

In truth, what the court really didn't like was confessions themselves. "The government [should] 'shoulder the entire load' [by] produc[ing] the evidence against [the suspect] by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth," wrote the majority. Perhaps influenced by too many Agatha Christie novels, the justices seemed to believe that solving crimes was a matter of brilliant deduction. Yet real detectives and prosecutors say the vast majority of their cases would go nowhere unless they can at least confront the suspects.

It's not that interrogation always leads to confession. Just as often a suspect incriminates himself by telling the police something that proves not to be true. O.J. Simpson never confessed to anything, yet his unlikely account of his actions on the night of his former wife's murder played a big role in his (albeit unsuccessful) prosecution. Ellis H. Parker, a legendary detective of the early twentieth century, had a theory. He believed the person with the best alibi was the most likely suspect in any crime. "The average person doesn't know precisely where he was every minute of the day," he wrote. "Only someone who has carefully rehearsed his whereabouts is likely to have a good story." Parker is reported to have solved 226 of 236 murders he investigated during his career.

Miranda, however, makes it possible for a suspect to refuse any cooperation with the police. And, in an important corollary, it forbids the police from drawing any negative inferences from this refusal. Fortunately this is not widely recognized or solving crimes might cease altogether. "The overwhelming number of defendants still think they're implicating themselves if they refuse to talk to the police," says one Manhattan prosecutor. "It's a good thing they do. Otherwise we'd probably lose more than half our convictions."