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![handle is hein.journals/hjlpp20 and id is 341 raw text is: MIRANDA'S NEGLIGIBLE EFFECT ON LAW
ENFORCEMENT: SOME SKEPTICAL
OBSERVATIONS
PAUL G. CASSELL*
Mirand has no effect on law enforcement. This is the story
told, and retold, by many of the nation's leading criminal
procedure academics.2 Warming to the task, some even go so far
as to maintain that the Miranda requirementss actually
facilitate[] law enforcement efforts.4 Yet, consider for a
moment the striking incongruity of the tale. To a degree
unparalleled in our nation's history, Miranda restricts police
interrogation of criminal suspects-the nerve center of crime
detection.5 It requires every criminal suspect to be encouraged,
before custodial questioning, to keep quiet. It allows suspects to
prevent any police questioning by the simple expedients of
declining to waive their rights or asking for a lawyer. Such
constraints make no difference at all!?
This Article raises some skeptical notes about this
conventional wisdom.6 The myth of Miranda's benign effects is
* Professor of Law, University of Utah College of Law. I want especially to thank
Professor Schulhofer for his willingness to debate me (both here and in other journals)
about the constitutional legitimacy and effects of Miranda. Research was supported by
the University of Utah Research Committee. Helpful comments were provided by Peter
Arenella, Joe Grano, Richard Leo, Michael McConnell, Morgan Reynolds, Bill Stuntz,
and Lee Teitelbaum. Professor Richard Fowles collaborated on the regression analysis of
clearance rates discussed in this article.
1. Miranda v. Arizona, 384 U.S. 436 (1966) (instituting the Miranda warning).
2. See Richard A. Leo, The Impact of Miranda Revisited, 86J. CIUM. L. & CIMINoLoGY
621, 645 (1996) (concluding that the view that Miranda has had a negligible effect on
law enforcement has become the conventional wisdom).
3. Miranda requires police to give suspects in custody warnings of certain rights and
to obtain an affirmative waiver of those rights before questioning. Moreover, if the
suspect asks for a lawyer at any time, the questioning must stop.
4. The Jury and the Search for Truth: Hearings on S. 3 Before the Senate Comm. on the
Judiciary, 104th Cong., 1st Sess. (1995) (testimony of Professor Carol Steiker) (on file
with author).
5. Miranda, 384 U.S. at 501 (1966) (Clark,J., dissenting).
6. Because of space limitations, I can sketch my argument here with only broad
strokes. For more detailed treatment, see my articles cited in the foomotes. For a reply
to the specific criticisms Professor Schulhofer makes in this journal, see Paul G. Cassell,](ViewImageLocal?handle=hein.journals/hjlpp20&div=22&collection=&method=preview&ext=.png&size=3)