Benbrook Lake near Fort Worth, Texas, is the kind of place where fishermen catch sandbass and lovers wake up to a tequila sunrise. But on a December day in 1983, violence came to Benbrook Lake in the person of Ronnie Dale Gaspard. He was affiliated with the Bandidos, a motorcycle gang whose members snorted methamphetamine off the tips of knife blades, and he was going there to settle a score. Which is why he was in a car and not on his bike. Which is also why he had been drinking a large amount of whiskey.
Gaspard was giving a ride to 23-year-old Denise Sanders. As they approached the lake, Gaspard stopped the car. Sanders stepped outside, clueless. A year or so prior, she had testified against the Bandidos, sending some of them to jail for drug trafficking. She shouldn't have done that, Gaspard thought, before he got out of his car and shot her in the head.
It wasn't long before police seized Gaspard and charged him with the murder. And then something happened that is the stuff of bad television drama. The police read Gaspard his Miranda rights. "You have the right to remain silent... . You have the right to an attorney... . " Gaspard asked for a lawyer but then confessed before the lawyer arrived. When these events later came to light in court, a judge suppressed Gaspard's confession, noting that it had been taken improperly after the accused had requested an attorney--a violation of Miranda procedures. Gaspard walked out free, smirking. "Nothing ever bothered me as much as seeing that guy walk out of the courthouse," the assistant district attorney was quoted as saying. "But there's nothing I can do. He is off and free."
Cases like this are rare, but they pack an emotional punch. Conservatives have argued for years that Miranda rights are an example of the way the criminal justice system bends too far to protect the guilty. The requirement to give the Miranda warning at just the right time, in just the right way, conservatives argue, has restricted law enforcement officers, has discouraged confessions, and has sometimes freed guilty criminals based on "technicalities."
"Miranda stands out as the single most damaging blow inflicted on law enforcement's ability to fight crime in roughly the last half-century," according to Paul Cassell, a law professor at the University of Utah who has emerged as the leading opponent of the Miranda doctrine. In a case last year before the conservative Fourth Circuit Court of Appeals, Cassell argued that if a confession can be shown to have been voluntarily given, it shouldn't matter whether there was a Miranda violation. Ruling in Dickerson v. United States, the court agreed. The justices decided that Miranda merely helps protect the constitutional right to avoid self-incrimination, but that there is no constitutional right to be informed in a strictly prescribed way of the right to remain silent and to have an attorney present. The U.S. Supreme Court agreed to review the case and is expected to hear arguments in April. At stake, criminal justice observers say, is a method of handling the rights of the accused that has become widely accepted in the law enforcement community, though not always followed to the letter since the Supreme Court made its original Miranda ruling more than three decades ago.
Ernesto Miranda's Confession
In its 1966 Miranda v. Arizona decision, the Supreme Court examined Ernesto Miranda's confession to kidnapping and sexually assaulting a mentally retarded woman. It turned out that police had failed to verbally inform him of his right not to talk and to have an attorney present at questioning. Therefore, Miranda's confession was inadmissible evidence. Unless police could back up suspects' statements with a signed form showing that the suspect had "voluntarily, knowingly, and intelligently" waived his constitutional right not to incriminate himself, the Court reasoned, such statements would not be allowable.
The Miranda ruling--along with other landmark Warren Court decisions, such as Mapp v. Ohio (forbidding admission of illegally obtained evidence) and Gideon v. Wainwright (providing attorneys for indigent criminal defendants)--changed the rules of the game in significant ways. The decisions ensured a fairer balance between individual rights and the state's interest in criminal prosecution. For the most part, supporters of those decisions say, the new rules stopped the infamous "third degree" by police during interrogations--physical coercion in the form of beating suspects with a rubber hose, for example, or plunging a suspect's head into a toilet. Occasional cases of brutal police interrogations still make the news, but police investigations on the whole are more professional and physical abuse has declined, longtime observers say.
According to conservatives, though, there have been unintended consequences, such as giving people like Ronnie Gaspard an undeserved break. Cassell has argued that as many as 28,000 violent criminals may be let off the hook each year because of the Miranda rules--an astounding claim.
Could Miranda have such a sweeping effect? Critics dispute Cassell's findings, noting that he derives them from the "crime clearance rate"--the rate at which police solve crimes. Cassell calculated that early in the 1960s police solved about 55 to 60 percent of criminal cases. By the end of the decade, the rate had fallen to 45 percent. He attributes that change entirely to Miranda. "But that's junk science of the silliest sort," says Stephen Schulhofer, a law professor at the University of Chicago, who believes that police solved crimes at a lower rate because crime soared during the 1960s while funding for police departments nationwide stagnated. Tracking "clearance capacity"--the number of police officers assigned per 100 violent crimes reported--Schulhofer reported that in 1960, 115 officers were assigned per 100 felonies, but only 51 were in 1968. "I don't think there's any mystery," says Schulhofer, about why the crime clearance rate dropped. In the 1990s, it should be noted, violent crimes fell to the lowest levels since 1973, when the Department of Justice first started recording the statistics. That doesn't speak to how many people are let off on "technicalities," but it casts some doubt on the claim that Miranda has significantly undermined law enforcement.
In fact, the law enforcement community does not uniformly view Miranda procedures as an impediment. Many police authorities say the Miranda rules are a useful tool in professional police work because they force police and prosecutors to gather scientific and forensic evidence to build a solid case. And studies suggest there has not been a decline in the rate at which the accused make confessions; it continues to hover at roughly 64 percent, which is what it was in the pre-Miranda era.
Having a prosecution blocked--as Ronnie Gaspard's was--because of a Miranda violation is so unusual that many people with long careers in law enforcement have never seen it happen. "How many cases were thrown out because of Miranda?" says Sergeant Norberto Huertas, a 22-year veteran of the Hartford Police Department in Connecticut. "None that I can think of." "How many times have I been able to suppress a confession because of Miranda?" says Page Kelley, a Cambridge, Massachusetts, public defender in her 14th year. Kelley rolls her eyes. "None." According to a 1987 Chicago survey, suppression motions succeeded in less than 1 percent of criminal cases--about four cases out of 10,000.
One of the reasons police and prosecutors have learned to live with Miranda is that the rules have not radically changed law enforcement. "The majority of suspects waive their rights," says Lieutenant James Blanchette of the Hartford Police Department. "Surprising, isn't it?" The usual procedure works like this: A suspect is apprehended, informed of his rights, and then invited to talk things over. If he is willing to talk, he is given a waiver form. Signing on the line at the bottom, he attests that he is aware of his rights and is speaking voluntarily. Various studies, including one by Cassell himself, have found that suspects waive their rights at an overwhelming rate--80 to 90 percent of the time.
So while the Supreme Court looks at the question this spring of whether police departments should be held to strict Miranda procedures, there are other equally important and crucially related questions: Are Miranda rules working well enough? Are they serving their original goal of providing fairness to suspects who may be ignorant of their rights, primarily the indigent or the illiterate? Is the brick wall that conservatives see blocking police work in actual practice a minor speed bump?
Going through the Motions
At the Middlesex Superior Court in Cambridge, Massachusetts, Frank Ward seems to know everybody. He high-fives the bailiff. He asks prosecutors if they saw The Practice on TV last night. He discusses his current cases, which would normally be a breach of attorney-client privilege, if Ward were a lawyer. But he is a client, having been arrested for petty offenses ranging from larceny to drug use. By his own estimate, police have read him his Miranda rights more than 30 times, and by his own appraisal, the warnings don't do much. "Miranda is a big joke," he says. "It doesn't protect you from anything. It doesn't help or hurt you."
Ward says that officers usually usher him, handcuffed, into the booking room at the police station where another officer will read him his rights through a plexiglass window. "When they read it, you just nod and acknowledge it," he says. "They'll say, 'Do you understand?' And then you say, 'Yeah.' And then you sign the form."
Suspects waive their Miranda rights at a high rate because cops for the most part have turned them into a bureaucratic formality, according to George Thomas, a law professor at Rutgers University. "Police have learned to be very clever about giving warnings. They make them seem routine. They'll say, 'What's your name, what's your address, how old are you, and by the way, you have these rights.'"
Police usually inform suspects of the rights by reading from a wallet-sized card they carry. The training manual of the Boston Police Department tells its officers that Miranda rights "can be administered in a variety of ways." Police can give a detailed explanation if they are so inclined. "The better practice," according to the manual, "is recitation by the officer, who reads the warnings from his card." Simply reading the rights abides by the letter of Miranda, but not its spirit, since police officers should also be prepared to explain the rights to suspects, according to Dennis Roberts, a criminal-defense lawyer in Oakland, California. "I make cops do it in court," he says. "They schlepp it out, it's usually dog-eared, and then they read it in a monotone; they have no idea what they're saying. It's a talismanic incantation of the words."
According to Richard Leo, a professor at the University of California, Irvine, who studies criminal interrogations, police have developed sophisticated and deceptive tactics that allow them to bait suspects into waiving their Miranda rights. "Criminal Interrogation and Confessions," the leading training manual for police interrogations, recommends, for example, that interrogators stand in front of the suspect while holding a thick folder as a prop. While talking, the interrogator "should finger through the case folder to create the impression that it contains material of an incriminating nature about the suspect." In this manner, police not only downplay the significance of Miranda rights; they have developed subtle tactics that make a waiver seem advantageous to a suspect.
Techniques such as the following are fairly typical. In a 1996 case in Sacramento, California, police took Kentrick McCoy into custody, photographed him, and then started to interview him.
Interrogator: I also need to know the real truth because I'm not sure she's telling us the whole story.
Suspect: What, what is she trying to say?
Interrogator: Well, she's alleging that you pointed the gun at her.
Suspect: Uh-huh [negative]. Nah-uh.
Interrogator: Alright, before we, before we do that, I, like I said I know there's more to the story than she's telling us. But-- Suspect: I don't even know her, you know what I'm saying--
Interrogator: Whoa, whoa, whoa. I can't take your statement until we get through that Miranda issue.
Interrogator: You can't tell me anything until we get through that.
"There's a lot of ways to get around Miranda," a homicide detective told The Washington Post in 1998. "Most guys know how to get somebody to waive their rights."
But even if police read the rights quickly or in a perfunctory manner, prosecutors and police officers have said--and the courts have generally agreed--that there is nothing puzzling about the right to remain silent. Except for rare cases (for example, 11-year-old defendant Nathaniel Abraham, asked by Ed Bradley on 60 Minutes if he understood his Miranda rights, said, "No, no. I didn't understand. He had some white piece of paper and he's reading my rights"), the presumption--one supported by the cultural ubiquity of Miranda warnings on cop shows on television--remains that suspects already know their rights and that reading them is generally enough. "Ninety-one percent of all 13-year-olds can already recite Miranda," said Richard Moran, a professor of sociology at Mount Holyoke College, in a radio interview last June.
"Think about it," says Roberts, the criminal-defense attorney. "You're the DA, and someone says he didn't understand his rights. All you have to do is say, 'You said the confession was involuntarily given. Well, you know what a lawyer is, don't you? You understand what rights are, don't you? You know what that means; you went to third grade. Yeah, and you saw Perry Mason or Ally McBeal, right?' It's not that hard to establish."
So, if suspects understand their right to silence, why do so many go on to sign waiver forms and make confessions without the advice of a lawyer?
Understanding Your Rights
In its original Miranda ruling, the Supreme Court argued that "in-custody interrogation ... contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." By telling suspects about their constitutional rights, the Court hoped to neutralize the psychological home-field advantage of the police over the lone suspect inside the interrogation room. This was to ensure that statements would truly be voluntary and, by extension, not violate the Fifth Amendment.
Yet the tactics police departments have developed are so effective that police have even been able to extract false confessions from innocent suspects--a baffling phenomenon, but evidence that interrogations have continued to be psychologically compelling. This may be because Miranda never really addressed the most important of the "inherently compelling pressures" of police interrogations: the belief that if suspects keep quiet, they will look guilty. The root of this problem may be in the actual wording of Miranda itself. The warnings indicate the consequences of talking to the police ("Anything you say may be used against you in a court of law"). But they do not indicate the consequences of refusing to answer questions--which, in theory, should be nothing other than the continued presumption of innocence. It may be ignorance of this fact that causes suspects to waive their rights at such a high rate.
"If you have the right to remain silent, that means that there will be no adverse consequences if you don't talk," says Carol Steiker, a criminal-law professor at Harvard Law School. "But cops don't say that if you invoke Miranda, nothing bad will happen to you--but that's what it means to have a right." In fact, a suspect's refusal to speak after being read his rights cannot even be brought up at a later trial, says Anson Kaye, press secretary at the Middlesex district attorney's office in Massachusetts. In this sense, the problem with Miranda is not that suspects do not understand what it means to remain silent. It is that they do not understand the concept of rights. "[If you don't talk], they'll just make stuff up," says one criminal defendant interviewed for this story, who asked to remain anonymous. "They'll lie on your report, so it's on your behalf to just talk to them. Then they'll say you cooperated."
The original Miranda decision stated that warnings were needed "to make [the suspect] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." But how can a waiver be intelligently made if Miranda does not fully inform the suspects of the consequences of remaining silent and leaves instead the impression that silence is equivalent to guilt?
"If I were to tinker with Miranda," says Geoffrey Packard, a public defender in Cambridge, Massachusetts, "I would say, anything you say can be used against you. However, if you choose not to, that fact will not be used against you."
Miranda rights were intended to promote fair and equitable treatment for suspects who are not necessarily aware of their rights or are reluctant to exercise them. "Poor people are not going to say, 'Leave me alone, or I'll call my lawyer,'" says Packard. But they have imperfectly fulfilled their mandate by allowing police to downplay the significance of the rights they recite, or to make it seem in the suspect's interest to waive them. "I'm talking about the Mirandas of the world, the Hispanics, the blacks, the people in the ghettos and the barrios who don't know about their rights," said Harvard Law Professor Alan Dershowitz several years ago in a PBS interview. "We're not talking there about coercion necessarily. We're talking about fooling somebody into giving up a right that the Constitution gives them."
Whether it is a matter of "fooling" suspects or not, the Supreme Court has in the past recognized that there is a higher standard required by police than "going through the motions." Ernesto Miranda's own signed confession, after all, contained a typewritten paragraph saying that his statement had been made voluntarily and that he had full knowledge of his constitutional rights. But the Supreme Court ruled that because his rights hadn't been verbally explained to him, he hadn't been truly informed: "The mere fact that he signed a statement which contained a typed-in clause stating that he had 'full knowledge' of his 'legal rights' does not approach the knowing and intelligent waiver required to relinquish constitutional rights." When the Supreme Court reconsiders the case this spring, it might well ask if the Miranda warnings themselves, as they are used in actual day-to-day practice, have succeeded in giving suspects the full knowledge of the rights they are so often asked to sign away. ¤