'Truth Machines' and Confessions Law in the Year 2046
18 Pages Posted: 1 Sep 2011
Date Written: January 1, 2008
This paper was presented at the Michael E. Moritz College of Law, Ohio State University, on the fortieth birthday of Miranda v. Arizona. It seeks to imagine what the law of interrogation will be like forty years hence. Miranda’s goal was, at least in part, to guarantee a decorous interrogation process that respects the dignity and autonomy of the suspect. Miranda’s imagined regime is in stark contrast to the interrogation in several cases from 1940-65 where the police interrogated suspects relentlessly over a period of days. Because most suspects waive their Miranda rights, Miranda’s promise of a low-pressure, dignified interrogation process has been largely un-fulfilled. It also appears exceedingly unlikely that a low-pressure process can be achieved through legislation or a return to a robust Miranda rule. But, the paper argues, there is nothing wrong with high pressure police interrogation as long as we could be relatively confident that the suspects being interrogated are guilty. The paper argues that the most significant danger posed by high-pressure police interrogation, now thoroughly documented by DNA exonerations, is that innocent suspects will incriminate themselves. Thus, the goal of interrogation law going forward should be to reduce the risk that innocent suspects are interrogated. In service of that goal, the paper imagines “truth machines” that could separate the guilty from the innocent with a high degree of certainty.
Keywords: Lisenba v. California, DNA exoneration, Miranda, 1960s, Warren Court, Ashcraft, third-degree, Yale Kamisar, Alfredo Garcia, Chavez v. State, Michael Crowe, Jackson Burch, police deception, Chavez v. Martinez, lie detector, Richard Leo, Albert Alschuler
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