The Law of Pretrial Interrogation

The existing rules in the United States governing the questioning of suspects in custody are based on the Supreme Court’s five to four decision in Miranda v. Arizona. The Court in Miranda promulgated a new, code-like set of rules for custodial questioning, including the creation of a right to counsel in connection with custodial questioning, a requirement of warnings, a prohibition of questioning unless the suspect affirmatively waives the rights set out in the warnings, and a prohibition of questioning if the suspect asks for a lawyer or indicates in any manner that he is unwilling to talk. These admittedly nonconstitutional standards impede the search for truth by conditioning inquiry, no matter how brief and restrained, on a suspect’s consent to be questioned, and by excluding a suspect’s statements at trial, though fully voluntary and reliable, if obtained in violation of Miranda‘s “prophylactic” procedures. Beyond their costs to the truth-finding process, the Miranda rules can also validly be criticized as inept and ineffective means of promoting fair treatment of suspects. Their imposition by judicial fiat has effectively precluded the development of superior alternative procedures.

This Report carries out a comprehensive review of the development of the law of pretrial interrogation from its medieval origins to the time of the Miranda decision; analyzes the Miranda decision itself; describes the practical effects of Miranda‘s standards and subsequent legal developments; and examines the le- ,gal rules and practices of several foreign jurisdictions relating to -the questioning of suspects and defendants. The Report recommends that the Department of Justice seek to secure a decision by the Supreme Court overruling or abrogating the Miranda decision and that the Department develop and implement an administrative policy governing the conduct of custodial questioning by the Department’s agencies.