Welsh S. White confessed he was surprised at some of his findings on law enforcement's use of the Miranda warning.

Speaking Out On the Right To Remain Silent

Anyone who has watched a police drama has heard the familiar Miranda warning: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

University of Pittsburgh Professor of Law Welsh S. White, known nationally for his work and research on capital punishment, has spent the last 10 years studying police interrogations and confessions. In his recent book, Miranda’s Waning Protections: Police Interrogation Practices after Dickerson, White examines Miranda and other Supreme Court confession cases, emphasizing the conflict between law enforcement and civil liberties. Published by the University of Michigan Press, the book will be nominated for the American Bar Association’s Silver Gavel Award.

In conducting his research, White was surprised at how many false confessions he found.

“I had felt, if the police interrogate somebody and they don’t torture them, normal suspects are not going to confess unless they are guilty,” he said. But the data he examined did not support this view. “In death penalty cases or in high-profile cases, when the police aren’t able to get a good lead and they feel a lot of pressure to solve the case, a false confession is surprisingly likely to happen.”

In fact, of the 13 people on Illinois’ death row who were exonerated, two had been convicted wrongfully on the basis of false confessions. In light of this, the Illinois governor, a supporter of capital punishment, issued a moratorium on the death penalty in 2000 and appointed the Illinois Commission on Capital Punishment to study the problem and suggest reforms.

In April 2002, the commission’s report quoted from White’s work and recommended implementing some of his proposals to reduce the possibility of wrongful convictions based on false confessions.

While Miranda was designed as a safeguard to protect suspects, in many ways it’s very helpful to law enforcement.

“Most suspects don’t invoke their right to an attorney because the police have a number of strategies for getting people to waive their Miranda rights,” White said. “I’d say innocent defendants are probably the least likely to invoke their rights, because they want to tell their story to the police.”

One focus of White’s book is the Miranda debate: Does Miranda impede the police and place too great a burden on law enforcement?

This debate led to the United States v. Dickerson case, in which the U.S. Supreme Court in 2000 reaffirmed Miranda v. Arizona. In that case, Paul Cassell, a subsequent George W. Bush nominee for federal judge who had been a vigorous opponent of Miranda, tried to get Miranda overturned. He failed.

“I think one reason that a conservative court reaffirmed Miranda is they know that it doesn’t really put many restraints on law enforcement and tends to give the police a certain leeway,” White explained. “If the police comply with Miranda and they get a valid waiver, it’s very hard in practice for the defendant to exclude his confession.”

The Michael Crowe case discussed in White’s book exemplifies problems with some police interrogation practices. DNA testing actually proved that teenager Michael Crowe could not have killed his sister, but he had earlier confessed to it and may have believed his confession, especially after the police told him they had physical evidence that pointed to his committing the crime. And though DNA has been an important development in clearing suspects or overturning convictions, White points out that DNA isn’t going to be available in all cases.

“Most people don’t realize that some of the young suspects—including the mentally retarded and the mentally disabled who are being questioned by the police—are really very susceptible to modern interrogation techniques and are particularly likely to give false confessions,” said White. “They may very well believe what the police suggest to them or believe they need to tell the police what they want to hear.”

Although Miranda does put some restraints on the police, White thinks there might be a better way to protect defendants from abusive interrogation techniques. One proposal made by the Illinois Commission is that all interrogations be videotaped.

White made a few recommendations of his own, too. “There should be a stricter limit on the length of police interrogations,” White said. “The police questioned Michael Crowe for eight or 10 hours, and he was a juvenile, so that makes it worse. I don’t think anyone can stand that kind of pressure.”

In addition, White thinks the police should be prohibited from lying about forensic evidence. “I don’t want to say the police can never lie to anybody or never use deception,” he explained. “But at least there should be some limits on the kind of lies or deception they can use. I think that what we’ve found, certainly what I’ve seen from looking at cases, is that these techniques place incredible pressure on even normal people.” • PLW