The 50^th anniversary of Miranda v. Arizona—it was decided this month in 1966—should be the occasion for realizing that the Court’s approach to ending police coercion in interrogations failed and that new steps are essential. At the time Miranda was decided, conservatives and law enforcement officials vehemently attacked the requirement that police had to warn suspects of their right to remain silent and of their right to counsel. They saw it as making it harder for police to solve crimes and for prosecutors to gain convictions. But study after study has shown that it did not turn out that way and that Miranda has had little real effect. This raises the questions: Why and what should be done about this?

Why Miranda?

The privilege against self-incrimination was initially developed in English law, and was well established by the end of the seventeenth century. In the United States, the Fifth Amendment provides this protection and declares: “No person shall be . . . compelled in any criminal case to be a witness against himself.” But for the first century and a half of American history, few Supreme Court cases addressed or enforced this. The Bill of Rights, including the Fifth Amendment, was held to apply only to the federal government, and law enforcement was done almost entirely at the state and local level.

In Brown v. Mississippi, in 1936, the Supreme Court held that involuntary confessions violate due process. The case involved three African American tenant farmers who were forced to confess to the murder of a white farmer. The suspects confessed after they were whipped by the police and one was hung from a tree. Between 1936 and 1964, there were 34 Supreme Court cases that applied the “voluntariness standard,” under which a statement must be voluntary to be admissible, and the overwhelming majority of these were death penalty cases.

Miranda v. Arizona was a result of the Court’s perception that the voluntariness standard was inadequate to protect the privilege against self-incrimination. Voluntariness was determined from the “totality of the circumstances” and was therefore unpredictable. In assessing voluntariness, courts looked at numerous factors, including the suspect’s intelligence, education, physical health, emotional age, and past criminal record, as well as whether the suspect had been fed and allowed to sleep, the length of questioning, and whether a request to see an attorney had been denied. Courts could use these factors to justify any conclusion. Also, the test did not give police clear guidance as to what they could and could not do.

Police interrogations occurred in secret. Usually it was the word of the officers against the word of the suspect as to what took place. Additionally, the voluntariness test did nothing to address the coercion inherent when a person in custody is questioned by the police. In Miranda, Chief Justice Earl Warren’s opinion for the majority detailed the types of practices police use to gain confessions and spoke of the need to lessen the coercion inherent to custodial interrogation. The requirement that police provide warnings before questioning a person in custody was thought to be the solution for lessening coercion during police interrogations.

Miranda’s Failure

The overwhelming consensus of countless studies is that Miranda has had no effect on the ability of police to gain confessions and of prosecutors to gain convictions. In the years after Miranda was decided, studies were done in places like New Haven, Chicago, Los Angeles, and Washington, D.C. Each found that Miranda had no discernable effects. Professor Stephen Schulhofer found an initial small effect of Miranda, but said that after the first few years its effect has been “essentially nil.” Professor Richard Leo, in a more recent study, came to the same conclusion: that Miranda has had no impact on either confessions or convictions.

In fact, law enforcement, which initially vehemently attacked the decision, came to embrace it. For example, in 1968, Congress passed a provision through the Omnibus Crime Control and Safe Streets Act to overturn Miranda. Section 3501 states that confessions are admissible in federal court so long as they are voluntary, even if Miranda warnings are not properly given. This passed the Senate 72-4 and the House 369-17.

But when the constitutionality of this provision finally came before the Supreme Court in United States v. Dickerson in 2000, many law enforcement groups wrote briefs supporting Miranda. It is easy to see why. As Justice David Souter expressed: “Giving the warnings and getting a waiver has generally been a ticket of admissibility.” So long as the police properly administer the warnings, there is a strong presumption of voluntariness and admissibility of any confession. The Court in Dickerson, by a 7-2 margin, reaffirmed Miranda and declared the federal law overruling it to be unconstitutional.

So why has Miranda failed? In part, it is because the decision rested on the false premises that suspects would understand their Miranda warnings and that providing them would have an effect in decreasing the coercion inherent to custodial interrogation. But it is also because law enforcement developed countless ways of circumventing the warnings, such as by questioning suspects before they are taken into custody, or by having officers present the warnings in a way that inherently undermines them. Professor Charles Weisselberg reviewed police training videos and manuals and found that officers are routinely instructed on how to question outside Miranda and circumvent its requirements.

Also, the Supreme Court repeatedly has undermined Miranda in many decisions over the last half century. For example, in Harris v. New York, in 1971, the Court held that statements gained without proper administration of Miranda warnings still could be used to impeach suspects, providing an incentive for police to ignore Miranda, as they knew that they still could benefit from illegally obtained confessions. In Quarles v. New York, in 1984, the Court said that warnings do not have to be given where there is a concern for “public safety.” In cases like United States v. Patane (2004), the Court held that police could use the tangible evidence they gained as a result of what they learned from improperly obtained statements. Finally, in Berghuis v. Thompkins (2010), the Court ruled that a suspect must explicitly invoke his or her right to remain silent; confessing, even after a prolonged silence, was deemed a waiver of the right to remain silent.

What Now?

The serious problem that motivated the Court’s decision in Miranda persists: police interrogation is inherently coercive. The Fifth Amendment privilege against self-incrimination remains inadequately protected. Moreover, as a result of the work of the Innocence Project and its network of affiliates, we have learned of many individuals who were wrongly convicted, some of whom gave false confessions.

One important step would be to require that all police questioning—whether in the field or the station house—be videotaped. Some states long have required videotaping of police interrogation. Alaska began this in 1985 and Missouri in 1994. There is a trend toward requiring squad cars to have “dash cams” and officers to wear “body cams” so that all interactions are recorded. Video technology is now inexpensive and unobtrusive. There is no reason not to have every interrogation room equipped with a video camera that runs at all times when there is questioning. At the very least, this will provide a record of what occurred.

Another step would be to require that counsel be present at all interrogations. This actually was urged to the Court in Miranda, though the decision did not go that far. This would be a crucial step in ensuring that suspects understand their rights and in lessening the coercive nature of police interrogations. At the very least, this should be required when minors are questioned by the police. There is a bill pending right now in the California legislature that would mandate this.

Few Supreme Court cases have entered popular culture in the way of Miranda v. Arizona.  Few were as controversial when decided. And few have so failed to live up to their promise. At a time of increasing focus on police behavior, the 50th anniversary of Miranda v. Arizona should be the occasion for taking the necessary steps to finally make its promise a reality.