The right to remain silent while being questioned by police is something that all of us think we understand fairly well. We all have seen the police warn suspects of this right, known as the "Miranda warning," in countless movies and TV shows. Yet, as we commemorate the 50th anniversary of this right this month, there is much still to be learned.
When the Supreme Court created the Miranda warning, its purpose was to shield people in police custody from being forced to make statements that would later be used against them at trial. At its heart, the Miranda warning is a "procedural safeguard" - an extra lock on the door.
Before Miranda, police often induced confessions through torture, deprivation of food, and other cruel and inhumane treatment. After Miranda, police practices adapted to incorporate the Miranda warning, with police downplaying the warning through a routine announcement.
Today, suspects routinely waive their Miranda rights and talk with police, sometimes confessing to serious crimes. In fact, some have questioned whether our Miranda rights offer any real protection at all, since suspects who may lack the ability to know the consequences can and do shrug off the protection against self-incrimination so easily.
And that’s the problem. A Miranda warning is only effective when the suspect understands it and is able to make a deliberate choice to cooperate with the police. Some suspects don’t understand the warning. As a result, more states should protect vulnerable suspects, such as juveniles and those with mental illness or disability, by forbidding interrogations where lawyers are not present.
The Supreme Court has said time and again that whether a suspect’s waiver of the Miranda right to remain silent is truly "voluntary, knowing and intelligent" depends on all of the circumstances of the particular case.
Age, intelligence, mental illness, intoxication or cognitive impairment, and mental competence are all factors to be taken into account. If a suspect knew what he was doing when he decided to speak to police, then his statements can be used at trial.
In recent years, research has shown that many criminal suspects do not understand Miranda protection. Juveniles, who do not stay silent in nearly 90 percent of interrogations, often do not understand the Miranda warning and therefore do not take advantage of it.
Some have misconstrued the warning to mean that they should stay silent except to answer questions. They talk to police in order to comply with the authority figure in the room.
Likewise, research shows that people with mental disabilities are less likely to understand the Miranda warning. One recent study showed that people who have been hit by a Taser also might suffer temporarily from a cognitive impairment that affects memory and ability to process information.
Once a suspect waives Miranda rights, police use tried and true techniques to obtain confessions and incriminating statements. The police implement a high-stress, hours-long interrogation. The police are authorized to lie to the suspect about witnesses, physical evidence and even identification line-ups.
The suspect, exhausted and confused after hours of questioning, may confess just to make the interrogation end.
In theory, only the actual perpetrator should feel threatened by these techniques. But research shows that an innocent suspect also feels the threat and, perhaps thinking he will be cleared later, confesses falsely. The inability to understand the Miranda warning, then, leads not only to confessions but to false confessions.
Moving forward, the rest of the nation, including Texas, should follow the lead of 22 states and the U.S. Department of Justice to require videotaping of all police interrogations, which helps a court to better determine the voluntariness of the suspect’s statements when challenged.
States should examine their own interrogation videos, review the growing body of research on false confessions, and consider changes in law to allow vulnerable suspects to consult an attorney before being interrogated.
Research already shows that vulnerable suspects cannot knowingly waive their right to self-incrimination without first consulting with an attorney. The vitality of the Miranda warning depends on our ability to set interrogation rules that acknowledge the reality of interrogation practices and suspects’ lack of understanding of the rules.
Ranjana Natarajan is a clinical professor and the director of the Civil Rights Clinic in the School of Law at The University of Texas at Austin.
A version of this op-ed appeared in the Dallas Morning News and San Antonio Express News.
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