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When the U.S. Supreme Court ruled in Miranda v. Arizona that criminal suspects must be informed of their right to an attorney before questioning, four dissenting justices predicted that the warning and other mandated procedures would harm the ability of police to solve crimes.
One of them, Justice John Marshall Harlan, wrote that he believed the decision "entails harmful consequences for the country at large" and that "only time can tell how serious those consequences might be."
Two University of Utah professors say the passage of more than half a century has shown the seriousness of the consequences.
Law professor Paul Cassell and economics professor Richard Fowles say in "Still Handcuffing the Cops?" an analysis published in Boston University Law Review that there was a dramatic reduction in the clearance rate in some crime categories immediately after the Miranda decision was handed down in 1966.
Their statistical analysis is an update of "Handcuffing the Cops?," a 1998 report in the Stanford Law Review that analyzed FBI crime clearance rate data. In the FBI's Uniform Crime Reporting Program, an offense is cleared by arrest and prosecution, or, in some circumstances, by identifying the offender.
This year's analysis, which uses clearance data from 1950 to 2012, suggests that about 20 percent more violent crimes and 11.6 percent more property crimes would be solved each year without the Miranda requirements, Cassell and Fowles say. The equations they used take into account variables that might be responsible for changes in clearance rates, such as rising crime rates and economic downturns.
The professors say their research suggests that the reduced rate stems not from the warning about the right to remain silent, but from Miranda procedures that generally prevent police from questioning suspects in custody unless they agree to be questioned.
Cassell and Fowles propose replacing that procedure with a requirement that interrogations be video recorded.
"What's amazing to us is Miranda is 50-plus years old and it hasn't been updated," Cassell said Monday.
Videotaping would be a "win-win," Cassell and Fowles say in their analysis, because it would offer more protection for suspects against involuntary confessions "while not reducing law enforcement's ability to obtain voluntary confessions."
In the 5-4 Miranda opinion, issued on June 13, 1966, the Supreme Court said a defendant "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."
The opinion also said that when interrogation is conducted without the presence of an attorney and a statement is taken, the government must demonstrate that the defendant knowingly and intelligently waived his right to counsel.