Interrogations-and-Confessions-Handbook

136 A Psychology of Interrogations and Confessions
Leo, 1996a). Cassell (1996a, 1998b) refers to this as Miranda’s ‘social costs’, or
the so-called ‘lost cases’, because of the implementation of the Miranda rules
in 1966. The cost may be viewed in terms of two independent criteria: first, in
terms of how many confessions are lost because of successful defence motions at
trial to suppress the confession due to Miranda problems, or convictions being
subsequently overturned on appeal. Reviewing the relevant studies, Cassell
(1996a) admits that motions to exclude confessions under Miranda are very
rarely successful (the rate is between 0.3 and 0.7%), and convictions are very
rarely reversed on appeal. The second and more serious problem, Cassell argues,
are the ‘lost confessions’ due to suspects invoking one or more of their
Miranda rights. Once suspects invoke their legal rights it seems that few
American attorneys would advise clients to answer questions, never mind allowing
them to confess.
In contrast, in England suspects typically request legal advice prior to the
interview and a lawyer is commonly present during the interview. In spite
of this many still confess (Pearse et al., 1998). If a suspect asks for a lawyer
during the interview, it is immediately terminated and re-commences once the
solicitor has arrived. If a suspect chooses to exercise his right to silence the police
interview will still go ahead, because the police are entitled, within reason, to
ask questions, irrespective of whether or not the suspect decides to answer
them. The typical answer given by suspects who are exercising their right to
silence is to say ‘no comment’ to each question. Not all suspects can continue
to refuse to answer questions. These differences between the American and
English legal systems and procedures are of fundamental importance in terms
of potentially ‘lost confessions’.
However, in spite of the difficulties involved in comparing confession rates
across studies, it is useful to have some approximation of the frequency with
which suspects ‘confess’, or make serious self-incriminating admissions, to
crimes during interrogation. Table 6.1 gives the proportion of suspects who
made confessions in different studies. Only three of the studies are from the
United States of America (Cassell & Hayman, 1998; Leo, 1996a; Neubauer,
1974). Prior to these three studies there had been about a dozen studies in the
late 1960s that had studied the impact of the Miranda decision in 1966 on the
confession rate (so-called ‘before-and-after studies’). These studies have been
reviewed by Cassell (1996a), who argues that there was a substantial fall in
the confession rate immediately following the Miranda decision, an average
reported drop of 16% in the confession rate across 12 studies (only one study
showed an increase in the confession rate). According to his calculation, the
Miranda ruling in 1966 is responsible for the loss of 3.8% of convictions in serious
criminal cases. These studies represented the immediate or short-term
effects of the Miranda rules and they may give a misleading picture of the
current impact on the confession rate. In addition, several authors disagree
with Cassell’s analysis and interpretation of the data (e.g. Leo & White, 1999;
Schulhofer, 1998; Thomas, 1998; Weisselberg, 1998). For example, Schulhofer
(1998) has provided a critique of Cassell’s analysis and conducted his own analysis
of the relevant studies. He identifies methodological problems with Cassell’s