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

Crime | Policy Reports

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


  1. In one of Sherlock Holmes' stories, as a suspect is nabbed and warned immediately of his right to remain silent, A. Conan Doyle pays glancing tribute to "the magnificent fair play" of British law. However, the Miranda rules go much further than the standard British warning. Whereas in pre-Miranda days the Federal Bureau of Investigation required a warning to suspects, Justice John Marshall Harlan noted in dissent that the FBI procedures fell easily short of Miranda's "formalistic rules" for the whole country. Harlan said, "There is no indication that FBI agents must obtain an affirmative 'waiver' before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind."
  2. 384 U.S. 435 (1966).
  3. Miranda, 384 U.S. at 504 (Harlan, J., dissenting).
  4. Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).
  5. Paul G. Cassell, "Miranda's Social Costs: An Empirical Reassessment," 90 Northwestern University Law Review 387 (1996).
  6. The term "confession" rate as used here includes not only full confessions to a crime but also "incriminating statements" useful to the prosecution.
  7. Richard H. Seeburger and R. Stanton Wettick Jr., "Miranda In Pittsburgh-A Statistical Study," 29 University of Pittsburgh Law Review 1, 12-13 (1967).
  8. See Controlling Crime through More Effective Law Enforcement: Hearings before the Subcommittee on Criminal Laws and Procedure of the Senate Committee on the Judiciary, 90th Congress, 1st Session 1120 (1967) [hereinafter Controlling Crime Hearings].
  9. The study gathered evidence on "confessions" before Miranda and "confessions and other statements" after Miranda. Because this latter category is broader than the first, it is impossible to meaningfully compare the two statistics. The law clerk who actually collected the data agrees that the figures from Los Angeles "prove nothing." See Paul G. Cassell, "Miranda's 'Negligible' Effect On Law Enforcement: Some Skeptical Observations," 20 Harvard Journal of Law and Public Policy 327, 332 (1997), quoting now-U.S. Court of Appeals Judge Stephen S. Trott, who collected the data.
  10. Data from L.A. are excluded for the reasons given in the preceding note; from the District of Columbia because police did not generally follow the Miranda requirements, and from Chicago because the data are limited to homicides. See Cassell, supra note, at 418.
  11. See Cassell, supra note, at 438-39. For further discussion of this estimate, compare Stephen J. Schulhofer, "Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs," Northwestern University Law Review 500 (1997) with Paul G. Cassell, "All Benefits, No Costs: The Grand Illusion of Miranda's Defenders," Northwestern University Law Review 1084 (1996).
  12. See Paul G. Cassell and Bret S. Hayman, "Police Interrogation: An Empirical Study of the Effects of Miranda," 43 UCLA Law Review 839, 871 (1996); see also Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation: Legal, Historical, Empirical and Comparative Materials 6, 1995, Supp., concluding that a 64 percent confession rate is "comparable to pre-Miranda confession rates"; compare George S. Thomas III, "Plain Talk About the Miranda Empirical Debate: A 'Steady-State' Theory of Confessions," 43 UCLA Law Review 933, 935-36 (1996), deriving lower estimate with which to compare studies.
  13. See Cassell and Hayman, supra note, at 869. For an interesting though ultimately unpersuasive argument that the Salt Lake County confession rate is actually higher, see Thomas, "Plain Talk About the Miranda Empirical Debate," 944-53.
  14. See Cassell and Hayman, supra note, at 926-30, discussing Richard A. Leo, "Inside The Interrogation Room," 86 Journal of Criminal Law and Criminology 266 (1996).
  15. Floyd Feeney et al., Arrests Without Conviction: How Often They Occur and Why 142 (1983).
  16. See Gary D. Lafree, "Adversarial and Nonadversarial Justice: A Comparison of Guilty Pleas and Trials," 23 Criminology 289, 302 (1985).
  17. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1995 (1996) [hereinafter cited as UCR-year].
  18. Fred E. Inbau et al., Criminal Interrogation and Confessions at xiv (2d ed. 1986).
  19. Stephen J. Schulhofer, "Reconsidering Miranda," 54 University of Chicago Law Review 435, 436 (1987).
  20. Federal Bureau of Investigation, Uniform Crime Reporting Handbook 41-42 (1984).
  21. Paul G. Cassell and Richard Fowles, "Handcuffing the Cops? A Thirty Year Perspective on Miranda's Harmful Effects on Law Enforcement," 50 Stanford Law Review (1998). For more details about our analysis of clearance rates, including methodological issues, see ibid. For further discussion of this analysis, compare John J. Donohue III, "Did Miranda Diminish Police Effectiveness?," 50 Stanford Law Review 1147 (1998), confirming some aspects of the analysis and raising questions about others, with Paul G. Cassell and Richard Fowles, "Falling Clearance Rates After Miranda: Coincidence Or Consequence," 50 Stanford Law Review 1181 (1998), responding to Donohue.
  22. UCR-1966, supra note, at 27; UCR-1967, supra note, at 30.
  23. UCR-1967, supra note, at 30.
  24. See Otis H. Stephens et al., "Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements," 39 Tennessee Law Review 407 (1972); see also Otis H. Stephens Jr., The Supreme Court and Confessions of Guilt (1973).
  25. See Project, "Interrogations in New Haven: The Impact of Miranda," 76 Yale Law Journal 1519, 1611-12 (1967).
  26. See Gary L. Wolfstone, "Miranda - A Survey of Its Impact," 7 Prosecutor 26, 27 (1971).
  27. James W. Witt, "Noncoercive Interrogation and the Administration of Criminal Justice: The Impact of Miranda on Police Effectuality," 64 Journal of Criminal Law and Criminology 320, 325, 330 (1973).
  28. FBI clearance rates have been criticized as subject to interdepartmental variations in what constitutes solving or "clearing" a crime, but the figures used here come from the aggregate national clearance rate, comprised of reports filed by thousands of law enforcement agencies. Even if a particular city reported rates in a questionable fashion, our results would be unaffected if any manipulations did not change significantly in the several years surrounding Miranda or if any changes in the manipulations were relatively small in comparison to the total number of reports nationally. These are both reasonable assumptions. See James Alan Fox, Forecasting Crime Data: An Econometric Analysis 7 (1978), concluding that the problem of data manipulation is "not overly troublesome" for time series analysis that "does not involve cross-sectional data, but rather a time series from the same population"; Charles R. Tittle and Alan R. Rowe, "Certainty of Arrest and Crime Rates: A Further Test of the Deterrence Hypothesis," 52 Social Forces 455, 456 (1974), although manipulation is possible, "such biases would seem to be distributed throughout the various police departments so that the validity of a study which examines internal variations in the entire body of data . . . would be unaffected.".
  29. See Stephen J. Schulhofer, "Miranda and Clearance Rates," 91 Northwestern University Law Review 278, 291 (1996).
  30. UCR-1994, supra note, at 208 Table 25.
  31. This is known as "extreme bounds analysis." For further explication, see Cassell and Fowles, supra note, at 1103-06.
  32. See Cassell, supra note, at 464-66, on collecting the available evidence.
  33. Peter W. Greenwood, An Analysis of the Apprehension Activities of the New York City Police Department 18-19 (1970).
  34. See United States v. Leon, 468 U.S. 897, 908 n.6 (1984), citing Thomas Y. Davies, "A Hard Look at What We Know (and Still Need to Learn) about the 'Costs' of the Exclusionary Rule: The NIJ Study and Other Studies of 'Lost' Arrests," 1983 American Bar Foundation Research Journal 611, 621, 667.
  35. Compare Charles Murray, Losing Ground: American Social Policy, 1950-1980, at 117 (1984), reviewing crime statistics and concluding: "Put simply, it was much more dangerous to be black in 1972 than it was in 1965, whereas it was not much more dangerous to be white."
  36. See Cassell, supra note, at 473-74, collecting references.
  37. Richard A. Leo, "From Coercion to Deception: The Changing Nature of Police Interrogation in America," 18 Crime, Law & Social Change 35, 51 (1992).
  38. Fred P. Graham, The Self-Inflicted Wound 22 (1969).
  39. Miranda, 384 U.S. at 448-49.
  40. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 93 (1967).
  41. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 326 (1991).
  42. Miranda, 384 U.S. at 505 (Harlan, J., dissenting).
  43. See generally Joseph Grano, Confessions, Truth and the Law 173-98 (1994).
  44. 417 U.S. 433 (1974).
  45. Ibid. at 443-44.
  46. Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).
  47. See Office of Legal Policy, U.S. Department of Justice Report to the Attorney General on the Law of Pre-Trial Interrogation 40-41, 58-61 (1986).
  48. Miranda, 384 U.S. at 467.
  49. William Schaefer, The Suspect and Society (1967); Henry Friendly, "The Fifth Amendment Tomorrow: The Case for Constitutional Change," 37 University of Cincinnati Law Review 671, 721-25 (1968); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 76-77 (1997).
  50. See Barry Latzer, "Toward the Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation," 87 Journal of Criminal Law and Criminology 63, 101-11 (1996), suggesting this approach through disincorporation of Miranda.
  51. Miranda, 384 U.S. at 467.
  52. See Harold J. Rothwax, Guilty: The Collapse of Criminal Justice 237 (1996); Cassell, supra note, at 486-92; Paul G. Cassell, "Protecting the Innocent from False Confessions and Lost Confessions - and from Miranda," 88 Journal of Criminal Law and Criminology 497 (1998).
  53. See Cassell, supra note, at 489-92.
  54. See 18 U.S.C. § 3501 (1992); see Davis v. United States, 114 S. Ct. 2350, 2358 (1994) (Scalia, J., concurring), arguing § 3501 "reflect[s] the people's assessment of the proper balance to be struck between concern for persons interrogated in custody and the needs of effective law enforcement"; United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975), concluding that § 3501 is constitutional; U.S. v. Rivas-Lopez, 988 F. Supp. 1424 (D. Utah 1997), also concluding that § 3501 is constitutional.
  55. 384 U.S. at 504 (Harlan, J., dissenting).

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