While delivering the opinion of the Supreme Court in the case Miranda v. Arizona, Chief Justice Earl Warren stated, “An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak” (Justia, “Miranda v. Arizona, 384 U.S. 436 (1966),” 2018).
Consent, believe it or not, is actually a pretty easy concept to understand: A person freely and of their own volition agrees to something. One exception is when circumstances outside the question itself are inherently coercive. Coercion is also pretty straightforward: If you don’t agree, you’ll be killed, fired or expelled. Coercion effectively takes away your ability to say “no.” If I ask you if you want a cookie, you can freely answer what you most want to do. If you want a cookie, you’ll say yes; if you don’t want a cookie, you’ll say no. On the other hand, if I hold a gun to your head, and I ask if you want a cookie, and you know that I want you to have a cookie, you’ll probably say yes even if you really didn’t want the cookie. Consent is on one hand, coercion is on the other. Easy, right?
What does this have to do with police confessions? The first thing to understand is that the most important aspect of a confession is not whether it’s true. The truth of what is said is entirely secondary. The most important aspect is whether or not the confession was coerced. A police officer can provide an entirely true account of an
unsolved crime, but if that officer obtained it by threatening someone’s life, torturing them or denying them basic rights, nobody in a civilized society should want or use it. Compelled self-incrimination is illegal at a constitutional level in the United States, and the nation’s judicial system did not design this mandate this way to get a laugh; they designed it that way because it’s important for basic human decency.
With that understood, let’s talk about Miranda Rights. Everybody probably already knows their Miranda Rights, especially if you grew up around parents who watched “Law & Order” constantly. But just so that what I’m referencing is entirely clear: “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 an attorney. If you cannot afford one, one will be provided to you. Do you understand these rights as I’ve read them to you?”
That’s not bad, huh? The police letting you know about your rights, that’s downright dandy of them. However, the police have to do this. Otherwise, everything you say in response to a question is inadmissible in court. The reason for this is that in Miranda v. Arizona, the Supreme Court ruled that unless you know about and waived your right to silence and an attorney, police questioning is inherently a coercive situation. When the Miranda Rights mandate was first established, it was seen as a radical anti-law-enforcement ruling. (Miranda v. Arizona: Rebalancing Rights and Responsibilities, “A Fear Sweeps the Nation”) Today, the American Civil Liberties Union (ACLU) view the policy as a significant civil rights victory. (ACLU Arizona, “Accomplishments,” 2018). That is how well the insidiousness of the issue has been hidden. It is not anti-law-enforcement, but quite the opposite.
At its heart, Miranda Rights rely on two lies. The first is apparent in the very statement itself. “Do you understand these rights?” isn’t really what the police are asking. What they are really asking is “Do you waive your right to an attorney and your right to remain silent?” Sure, you can re-invoke your rights at any point during questioning, but until you do, you’re considered fair game. To draw a consent-based analogy, they’re not asking if they can initiate sexual contact; they’re asking “You understand you can refuse at any time?” These two statements are not the same thing. But this is what the police does, and everybody is, for some reason, okay with it.
The second lie comes from the form of the Miranda Rights. The idea that spurred the formalization of this policy was that police custody was inherently coercive. You couldn’t answer questions freely because, if you did, you would be subject to “the third degree,” i.e. brutalization by the police. If we take the very premise that caused the court to spell out our rights—that police custody is inherently coercive—then Miranda falls apart. Why? Because Miranda rests on the assumption that you can waive your rights by answering the police’s question “Do you understand your rights?” with a “yes.” But if you are asked that question, then you are already in police custody, you are already coerced and can’t give an answer freely. It is entirely impossible for you to consent to having your rights waived. And, if you can’t waive your rights, then you can’t answer any of the other questions without still being inherently coerced. If you put a gun to someone’s head—an inherently coercive situation just like being in police custody—and you ask them to waive their right to refuse sex—a consent-based activity just like waiving your rights—the other person can say yes, but they obviously can’t actually give consent. People would consider this violation a serious crime anywhere in the United States, but when it happens in police stations, nobody cares.
The fix for this, at least at a state level, is easy. It doesn’t take more than a statute that says that any statement given to the police while a person was under police questioning is inadmissible unless the person giving the statement has an attorney present. The mere presence of an attorney in the same room is enough to change the situation so that it is no longer coercive. That’s all it would take, at least in New York: a simple majority in both houses and a few lines of text to protect the innocent. With judicial norms collapsing all around us, there is no better time to shore up the protections for the most vulnerable among us. New York State has the votes for this, it just needs to do it.