Should the U.S Abandon the Miranda Ruling?

Paul Cassell, in his article debating the Miranda rule and how it plays into today's society, argues that this rule "places unprecedented shackles on the police" (Cassell, 1999, 173) and that the ruling overlooks and contradicts the social costs upon the system we have in place. I do not agree with Cassell, and align myself alongside several other academics in support of the belief that his ideas are incomplete and overly misleading.

Cassell's argument seems heavily burdened (or perhaps, to use his words, "shackled") with a multitude of statistics, ideas that are generally unsupported (although he argues that it is the other view's reasoning that is unsupported), and is, first and foremost, an argument that I think incorrectly focuses on the Miranda rule, thus sending readers in several directions at once. Cassell's main defense seems to be heresay, opinion, and data that are years behind what is available today. He centers his argument in complete defense of the world of law enforcement, and it is an argument that ultimately amounts to the idea that a few sentences that these lawmen are required to say to suspects as part of their job are the main reasons that their section of the criminal justice system is overworked.

Professor Richard A. Leo provides one of the more comprehensive oppositions to Cassell's argument. Not only is Leo's article more well-organized and centers its focus around more than a single opinion as Cassell's does, but Leo's findings are much more contemporary and also dive deeper into the nuances of what the data, both past and present (which Cassell does not analyze in great detail) say.

One of Leo's first points is one that agrees with the findings of many researchers (including Cassell). Leo puts himself into the group that says, yes, in the years immediately after the Miranda decision was implemented, "some police began immediately complying with Miranda...while others ignored the decision" (Younger, as cited in Leo, 2000, 1003-5). Leo makes a point to stress the idea that, as with any policy passed down from institutions above, full implementation and cooperation takes time. Many researchers then conclude as Leo does, "after an adjustment period, virtually all police began to comply with the letter of the fourfold warning" (Leiken, as cited in Leo, 2000, p. 1003).

While Cassell offers a number of statistics in his explanation of these same findings, he comes to a different conclusion than Leo and the others. Cassell stubbornly clings to his proof from aggregate data and studies of misunderstood and inconclusive anomalies like crime clearance rates that the Miranda rule had a very large impact upon law enforcement. What Cassell ignores is what Leo hones in on, however. Cassell didn't pay attention to the facts that Leo discovered. These facts amount to the conclusion that the law enforcement of this generation (which Leo makes clear are the years since 1996-years Cassell didn't take into account) are incredibly good at eliciting confessions from suspects, even while following the rules Miranda set out.

But how does he do this? Rather than delineate the differences between and definitions of clearance rates and clearance capacity, Leo forgoes much of that and instead focuses on the more (ironically so) "real world" implications, which I presume are different than the "real-world" statistics that Cassell supposed were so telling of the situation. Rather than rely on statistical evidence (which I argue is very close to the aggregate data that Cassell relied upon for a good portion of his argument), Leo looks at the issue more closely, and focuses on how those in law enforcement over these two generations have gotten those confessions, instead of simply going by the numbers that say those confessions were merely obtained. In this particular section, he first argues, "Miranda does not restrict deceptive or suggestive police tactics" (Leo, 2000, p. 1015). In short, then, the law does not inherently prevent police from getting a confession if they truly want one. Therefore, if there are no arguments that specifically examine, as Leo does, police tactics for eliciting confessions, then the "unprecedented shackles" that Cassell describes in his own article cannot exist if he does not report that he went about his research in the ways that Leo specifically indicates in his research.

Leo argues that police, either before or after Miranda was decided, found ways to come up with their confessions. He says that they "recast what would otherwise be a custodial interrogation as a non-custodial interview by telling the suspect that he is not under arrest and that he is free to leave" (Leo, 2000, p. 1017). Another way is through obtaining an "implicit waiver," which is where they read a suspect his rights, but do not ask him if he understands them. North Carolina v. Butler ruled that if the suspect responds after hearing these warnings (but not how he can use them), but then does not request to use them, it means that he has then given the police this "implicit waiver." A final, and quite common tactic that many have undoubtedly seen on television, is when police say that a suspect will get something good in return for a confession if he waives his rights.

By and by, it is clear that law enforcement has certainly figured out ways to get around Miranda's ruling, and thus the confession conundrum that Cassell speaks of simply does not exist in the "unprecedented" manner that he claims it does, and as long as law enforcement continues to use the system to its advantage, they will be in no danger of being overworked or undermined, especially by a cornerstone ruling like Miranda.

Works Cited

Leo, Richard A. (2000). Questioning the Relevance of Miranda in the Twenty-first Century. Michigan Law Review, 99. 1000-29.

Hickey, Thomas. Taking Sides: Clashing Views in Criminal Justice. Dubuque, IA: McGraw-Hill, 2007.