Note: This is the second post of a three-part series on inquisitorial procedure and its lessons for the U.S. criminal justice system. The first post explained the importance of making the results of the investigation fully available to the defense counsel and to the judge, as a check on prosecutorial overreach. This post addresses the role of the accused or suspect in giving information.
Part II: The Defendant as a Source of Information
As civil law systems demonstrate, the practice of allowing an adverse inference from a suspect’s silence has a civilizing and truth-promoting effect on interrogations. In contrast, our Miranda regime has been a complete failure.
For a lawyer from a common-law system, perhaps the most shocking feature of inquisitorial procedure is the expectation—and normal reality—that the defendant speaks. I remember the first time I saw a French public hearing in a criminal case, the equivalent of a trial. The presiding judge described how two murdered bodies had been found in the defendant’s garage. Then he paused and looked searchingly at the defendant. “Did you kill them?” he asked. Astounded, I swung my eyes around the courtroom. Surely defense counsel were leaping up to object. Surely the other listeners were just as flabbergasted as I was. But no, everyone else sat calmly waiting for the answer. Later I learned that this was a routine question. The defendant blushed, looked down, and said “No.” Then the presiding judge went on to ask the defendant where he was and what he was doing the night of the murders. Much of the hearing was a conversation between the presiding judge and the defendant, interspersed with witnesses.
The advantages of hearing directly from the defendant are vast. The defendant normally is close to the events at issue. Often he is the person who knows most about the events. Even if not, at a minimum, he knows where he was at the time of the events. Hearing his account saves an immense amount of time. If he lies or contradicts his previous statements, that can also be revealing to the finder of fact. There is an effort to understand the defendant as a human being. He has agency, and is able to speak in his own words.
The common-law systems put many obstacles in the way of the defendant speaking. As I and Gordon Van Kessel have explained, inquisitorial systems remove the common law’s disincentives for the defendant to speak. (See Renée Lettow Lerner, The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour d’assises, 2001 Ill. L. Rev. 791; Gordon Van Kessel, European Perspectives on the Accused as a Source of Testimonial Evidence, 100 W.Va. L. Rev. (1998).)
By far the most important reason why defendants speak in inquisitorial proceedings is that an adverse inference will be drawn from silence.
In theory, some of these systems—including France and Germany—do not allow an adverse inference to be drawn from the defendant’s silence. In practice, in the French proceedings I have seen, a refusal to speak would be devastating. The fact that defendants regularly speak in German proceedings as well indicates a similar situation. French defense counsel told me that they always advise their clients to speak.
It is a wholly natural, and morally proper, assumption that a person credibly accused of a crime should respond. An accused who will not respond to a credible allegation raises understandable suspicions. When I go into my kitchen and discover half a pan of brownies vanished, with only a few crumbs where they should be, I question my three children (when I can find them). If, in response to the question, “Did you eat the brownies?” one of them refused to answer, I would assume the worst. My children understand that, and as a result, they are never silent after such a question. The response is outraged denial or a lame excuse. (“I only had a few. I was sooo hungry after school!”)
This same moral stance that we take in everyday life, most legal systems apply in a criminal case. Persons in those systems expect the defendant to respond to a serious allegation. They do not accept our questionable rationale that because the consequences of a criminal conviction can be great, the defendant is entitled not to speak, with no adverse inference drawn from silence. The consequence of crime to a victim and to society is great as well.
In one sense, drawing an adverse inference from silence would not require a major shift in our system. The practice is fully compatible even with adversarial systems. In the past, in many jurisdictions in the United States, prosecutors routinely used to comment on a defendant’s silence at trial, and sometimes even judges did as well. Only in 1965 did the U.S. Supreme Court’s decision in Griffin v. California, 380 U.S. 609, end that practice. Today, English prosecutors and judges may comment on a defendant’s silence at trial, as long as they add the caveat that there may be reasons other than guilt why a defendant would not speak.
Interrogation with no adverse inferences from silence
Of course, we hardly ever hold trials anymore. Now, the more important question is what happens during interrogation. Here is where the practice of allowing an adverse inference from silence has a great civilizing effect.
This may seem to be a surprising claim. In theory, it may seem as if we in the United States are the more civilized ones, providing greater protection to the defendant. But a comparison of our interrogation practices with those of other systems reveals that, in actual operation, our system is deeply unappealing and even morally repulsive. A protection for the suspect can form too great a bar to gathering information, and to valid criminal convictions. Society will not endlessly tolerate the guilty going free. Unpleasant work-arounds involving intense pressure are the result.
The 1966 decision Miranda v. Arizona, 384 U.S. 436, made it clear that no adverse inference could be drawn from a defendant’s silence once the required warnings were given before interrogation. But waiver of those rights is permitted. The Miranda court seemed to assume that waiver would be a difficult and rare phenomenon. Police wailed and gnashed their teeth, fearing that the Miranda decision would result in a drastic curtailment of police interrogation. For professional criminals and very knowledgeable suspects, that is indeed the case. They know to invoke their right to counsel unequivocally, and no interrogation can take place.
But concerning less knowledgeable suspects, both the police and the courts proved to be more flexible than anticipated. Police began to adopt all kinds of clever psychological tactics to minimize the importance of the Miranda warnings and to get a waiver. And courts accepted those tactics. The widespread current procedure of recording interrogations seems to have made little dent in police practices. Police isolate suspects from any means of psychological support, and set up interrogation rooms with the suspect’s chair bolted to the floor, to intensify suspects’ sense of powerlessness and dependence. Detectives launch into boring monologues, dropping Miranda rights into the middle of them, as if in passing. They slide over a written Miranda waiver form to initial and sign as if it were yet another piece of meaningless bureaucratic boilerplate. If a suspect expresses hesitation or asks a question about the warnings, detectives obfuscate the warnings’ meaning or downplay their significance. Interrogators falsely portray dire legal consequences from a failure to speak, and paint a rosy picture of future help if a suspect does talk. And detectives lie about or misrepresent the evidence. (“We ran a test and found the victim’s blood-spatter on your sneakers.”) They ask leading questions that can trigger false confessions. They fake sympathy and minimize the suspect’s responsibility to get more admissions. (“He came at you, right?” “I hit my woman too, when I get angry.”) This list could go on.
Above all, the primary goal of anyone conducting an interrogation in the United States is to prevent clear invocation of the right to counsel. Because when that happens, as one detective told me, “It’s Miller time.” Time to go home. No further questioning can occur, per Edwards v. Arizona, 451 U.S. 477 (1981). The person who likely knows a fair bit about what happened—and certainly a lot about what he did—is shut off as a source of information.
Interrogation with adverse inferences from silence
Contrast these interrogation practices with what happens in a system that allows adverse inferences to be drawn from silence. Many of these systems not only permit, but require defense counsel to be present during interrogations. Defense counsel in the United States invariably tell their clients not to talk to police, so no interrogation occurs in their presence. Defense counsel in other systems routinely advise their clients to say something.
As a result, counsel is present, and prevents many of the unsavory tactics police feel it necessary to use in the United States. This includes especially lying about the evidence. In France, for example, a defense lawyer is able to consult the investigative file before interrogation of the client takes place. The suspect has a source of psychological support, and is less likely to be intimidated or cajoled into a false confession or a misleading statement. Counsel can help to protect a suspect from a poor performance that might mislead an investigator, and can point out ambiguities and ask for clarification.
Getting information from a suspect directly, in a civilized manner, is a great help to discovering what happened. From the standpoint of society, it is vital to an effective criminal justice system. Griffin and Miranda’s rule prohibiting an adverse inference from silence has proved to be worse than useless and should be overturned.
The next post in this series shows the importance of some form of adjudication on the merits in criminal cases, even in abbreviated proceedings such as plea bargains. It explains how this can happen.
Author Biography: Renée Lettow Lerner is Donald Phillip Rothschild Research Professor of Law at George Washington University Law School. Professor Lerner works in the fields of U.S. and English legal history, civil and criminal procedure, and comparative law. She advises judges, lawyers, and government officials from the United States and countries in Europe, Latin America, and Asia about the differences between adversarial and nonadversarial legal systems. She writes extensively about the history of American juries. She has a book forthcoming with Oxford University Press in the Very Short Introduction Series entitled The Jury. She is the author, with John Langbein and Bruce Smith, of the book History of the Common Law: The Development of Anglo-American Legal Institutions (2009). Professor Lerner received an A.B. summa cum laude in history from Princeton University. She was a Rhodes Scholar at Oxford University, where she studied English legal history. At Yale Law School, she was Articles Editor of the Yale Law Journal. She served as a law clerk to Justice Anthony M. Kennedy of the U.S. Supreme Court and to Judge Stephen F. Williams of the U.S. Court of Appeals for the District of Columbia Circuit. From 2003 to 2005, she served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice.