Interrogations-and-Confessions-Handbook

286 A Psychology of Interrogations and Confessions
investigation to escape from false accusations. 12 The Court cited passages from
the police manuals recommending various psychological ploys designed to isolate
and dominate the suspect, concluding:
It is obvious that such an interrogation environment is created for no purpose
other than to subjugate the individual to the will of his examiner. This atmosphere
carries its own badge of intimidation. To be sure, this is not physical intimidation,
but is equally destructive of human dignity. 13
Miranda held that the police are required to inform the suspect that:
1. he has the right to remain silent,
2. any statements can be used against him at trial,
3. he has the right to have an attorney present during questioning, and
4. if he cannot afford an attorney, one will be provided. A suspect may assert
his right to silence at any time, even if he has begun answering questions.
These rights have to be actively waived ‘voluntarily, knowingly and intelligently’
by the accused before interrogation can commence, otherwise the resulting
confession will be inadmissible (Frumkin, 2000; Grisso, 1986, 1998a,
1998b; Hourihan, 1995). 14 The voluntariness of the waiver is determined by
the totality of the circumstances. ‘Any evidence that the accused was threatened,
tricked or cajoled into a waiver will, of course, show that the defendant
did not voluntarily waive the privilege.’ 15
The Miranda decision was highly controversial when it was decided, and several
of the Supreme Court justices strongly dissented from the majority opinion,
arguing that such a rule would discourage confessions altogether, hinder the
legitimate aims of law enforcement and allow guilty suspects to go free. 16 After
more than 30 years, the actual effect of Miranda on law enforcement remains
the subject of heated, if inconclusive, debate (Cassell & Fowles, 1998; DeFilippo
2001; Leo, 2001b; Leo & White, 1999; Weisselberg, 1998). Although both the majority
and dissent assumed that most suspects, once informed of their rights,
would naturally assert them, this has not been the case: most suspects waive
their rights (DeFilippo, 2001; Rosenberg & Rosenberg, 1989; White, 2001).
Subsequent Supreme Court decisions limited Miranda in a number of ways,
for example, by making the requirements for invocation of rights stricter and
the requirements for waiver more lenient; and by creating a vaguely defined
‘public safety exception’ (Rosenberg & Rosenberg, 1989). Statements taken in
violation of Miranda may be admissible as impeachment if the defendant testifies
at trial. 17 Leo and White describe a standard interrogation technique of
‘questioning outside Miranda’, whereby a suspect who has asserted his rights
may nevertheless be persuaded to speak ‘off the record’, mistakenly believing
12 Miranda v. Arizona, 384 US at 453.
13 Miranda v. Arizona, 384 US at 458.
14 Miranda v. Arizona, 384 US at 479.
15 Miranda v. Arizona, 384 US at 476.
16 Miranda v. Arizona, 384 US at 541 (White, J., dissenting).
17 Harris v. New York, 401 US 222 (1971).