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Aim to End Lawlessness in Law Enforcement

New York Law Journal - April 29, 2016

By: Carol Sigmond

Fifty years ago, Miranda v. Arizona, 384 U.S. 436 (1966) made a significant impact on law enforcement to ensure that persons in custodial situations were informed of key rights prior to interrogation. Time has not dimmed this achievement.

At the time of Miranda, sleep and food deprivation, denial of counsel, threats and intimidation were commonly used by police to obtain "confessions" and "evidence." Id. 446-49. There was also substantial evidence of prevalent physical coercion. Id., citing People v. Portelli, 15 N.Y.2d 235 (police beat and burned a potential witness to obtain a statement). Miranda established procedural safeguards, including specific notice to those in custody that: (1) they had a right to counsel before questioning and (2) their statements could be used as evidence against them. Id. at 446-49

The U.S. Supreme Court has since created numerous carve outs to Miranda. See, e.g., Berghuis v. Thompkins, 560 U.S. 370 (2010) (suspect must explicitly invoke Miranda rights—mere silence is insufficient); Colorado v. Connelly, 479 U.S. 157 (1986) (changing the voluntariness standard of confessions); New York v. Quarles, 467 U.S. 649 (1984) (creating a "public safety" exception).This trend of increasing carve outs is diminishing the evidentiary safeguards of the Miranda decision. e.g., Steven Andrew Drizin, "Fifth Amendment—Will the Public Safety Exception Swallow the Miranda Exclusionary Rule," Journal of Criminal Law and Criminology, Vol. 75, Issue 3, Fall 1984 at 692.

However, attention to these carve outs—though important—is misplaced. While the rights against self-incrimination and to counsel are essential, there are equally pressing issues regarding police misconduct. As early as 1931, the National Commission on Law Observance and Enforcement noted widespread use of illegal practices by police in its "Report on Lawlessness in Law Enforcement," which continue today. The Supreme Court's step in 1966 to prevent cases built on evidence obtained by such practices was just the beginning.

Technological advances can abate these practices with consistent digital audio-visual recording of all interrogations enabling efficient viewing by judges. And, if prosecutors produce a recording of an interrogation and constitutional safeguards (such as Miranda warnings) are missing, the results of the interrogation may be suppressed. Additionally, evidence of police custodial interrogations involving torture or other abuses of power can lead to appropriate charges against the perpetrators, serving as a deterrent on future law enforcement abuses of power in this respect.

Further, the idea of "Lawlessness in Law Enforcement" is less about torture in police custody or interrogations, and more about the extra-legal deaths of ordinary citizens at the hands of the police—Freddie Gray, Sandra Bland, Water Scott, Samuel DuBose Jonathan Ferrell, Eric Harris, and Earl Garner, to name a few. If the bar wants to honor Miranda v. Arizona on its 50th anniversary, let us direct our efforts to ending the "Lawlessness in Law Enforcement" that results in such mistreatment of our citizens and focus on the original intent of this significant decision in safeguarding our constitutional rights.

This article was originally published on the New York Law Journal website. You can access it here