Miranda’s Social Costs: An Empirical Reassessment

Abstract

Common sense suggests fewer persons will confess if police must warn them of their right to silence, obtain affirmative waivers from them, and end the interrogation if they ask for a lawyer or for questioning to stop, as required under Miranda v. Arizona. Yet the conventional academic wisdom is that Miranda’s effects are negligible. Perhaps more surprisingly, no one has bothered to quantify Miranda’s effect on the criminal justice system so as to explain what a “negligible” effect is and how many dangerous criminals such an effect involves.

This Article contends that the conventional academic wisdom about Miranda’s effects is simply wrong. In defense of this thesis, this Article makes the first attempt to advance the Miranda debate beyond the prevailing qualitative level. It proceeds in six parts. Part I briefly describes the proper methodology for assessing Miranda’s costs. Part II reviews the available empirical evidence concerning Miranda’s effect on confession rates and on the role of confessions in obtaining convictions. Part III then specifically quantifies Miranda’s costs, both in terms of lost cases and more favorable plea bargains for defendants. Part IV responds to anticipated challenges to these results. Part V examines whether this concept of a cost to Miranda is a “legitimate” one. Finally, Part VI assesses Miranda’s costs and concludes that they are unacceptably high, particularly because alternatives such as videotaping police interrogations can more effectively prevent coercion while reducing Miranda’s harms to society.

Keywords: Victim, Crime Victim, Impact Statement, Criminal Justice, Sentencing