The Miranda Sham

The NY Times has an article about a fascinating study published by the Standard Law Review called The Substance of False Confessions (pdf), which details an analysis of forty cases in which people confessed to crimes they were later proven to be innocent of.  And the study is an excellent display of how police elicit confessions, what prosecutors do with those confessions, and what these people do intentionally and unintentional to convict the people they believe to be guilty of crimes.

And one of the biggest problems is the Miranda Sham.  While Miranda was originally conceived as a way of reinforcing our right to not self-incriminate, it's now used as a way of locking in statements, giving a technicality by which judges and juries can toss out witness testimony and ignore conflicting evidence, as long as certain words were uttered to the defendant before they were coerced into confessing.

And the whole thing is a sham.  We have the right to remain silent and if someone doesn't want to confess to a crime, we shouldn't be allowed to pressure them into doing so.  And in all of the cases presented in this study, the defendants were tricked into confessing.  They didn't want to confess and didn't even know the necessary details to confess, but due to their lack of intelligence (and more importantly, lack of lawyer), they inadvertently gave up their right to silence, though they had no intention of doing so.

In one case, one innocent person was not only pressured into confessing, but also pinned the crime on four other people.  Three of the other four also confessed.  The one who didn't had a lawyer.

Lawyers for All

And of course, had they been provided with lawyers, none of them would have confessed. Nor would they have endured lengthy interrogations, often involving lies and abuse. They didn't want to confess, but they didn't know how to not confess. And that's simply not how our system should work. We have the right to remain silent, and that right shouldn't only exist for those with the brains to demand it.  People who are too dumb to refuse to speak without their lawyer are the ones who need a lawyer the most. 

As the article states "In twenty-six of the forty cases—or sixty-five percent—the defendant was either mentally disabled, under eighteen at the time of the offense, or both."  And yet their confessions, without the presence of an attorney, were considered valid, even when experts testified that these individuals lacked the mental ability to understand what they were confessing to.  A schizophrenic who hears the "voice of God" during an interrogation is not a reliable confessor.

And just imagine if the right to bear arms was enforced similarly.  As if you only have that right if you actively pursue obtaining a gun, and the police can lock you up for hours, trying to trick you into giving them your gun; after which you've waived your right to possess it.  And then, during your trial, it's argued that you didn't have the right to bear arms because you had voluntarily waived the right, and therefore broke the law when you possessed a gun you didn't have the right to possess.

And yes, that's ludicrous.  But no more ludicrous than our current system of tricking people into confessing, and then acting as if those coerced confessions are rock-solid evidence that trumps all other evidence.  And this applies to guilty people as much as the innocent.  The right to remain silent isn't just a nicety.  It's a fundamental part of our system, which is why it made it in The Bill of Rights top five. 

If someone truly chooses to waive their rights, that's fine.  But if someone wants to remain silent, we don't have the right to trick them out of it.  That completely negates the whole purpose of having it in the first place.  The Constitution isn't just for the intelligent.