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LEXSEE 90 NW. U.L. REV. 387
Copyright (c) 1996 Northwestern University Law Review
Northwestern University Law Review
Winter, 1996
90 Nw. U.L. Rev. 387
LENGTH: 25075 words
ARTICLE: MIRANDA'S SOCIAL COSTS: AN EMPIRICAL REASSESSMENT
NAME: Paul G. Cassell *
BIO:
* Associate Professor, University of Utah College of Law. Dean Lee Teitelbaum, Ahkil Reed Amar, Craig
Bradley, Kingsley Browne, Lionel Frankel, Joseph Grano, Richard Leo, William Pizzi, William Stuntz, Gordon
Van Kessel, and Welsh White provided helpful comments on an earlier draft. I gratefully acknowledge the
support of the University Research Committee and the College of Law Faculty Development Committee, and of
the research librarians and their assistants at the College of Law, who patiently tracked down various obscure
references.
SUMMARY:
... Justice White argued in his dissenting opinion in Miranda that "in some unknown number of cases the Court's rule
will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his
crime whenever it pleases him." ... Quantifying Miranda's effect on the confession rate is quite difficult because one
cannot simply tote up the number of "lost confessions" by looking at a law enforcement bulletin or court docket. ...
First, we can examine the "before-and-after" studies of custodial interrogation under Miranda. Second, we can compare
the confession rate in the United States under Miranda with the confession rate in other countries that follow different
approaches to regulating police interrogation. ... Even before Miranda, the Pittsburgh Police Department had met many
of the decision's requirements, including the requirements of advising a suspect of the right to remain silent and of the
right to counsel (although not counsel free of charge). ... Academic defenders of Miranda who discuss the Pittsburgh
data usually note that, while the study found a decline in the confession rate, it also found that the conviction rate and
clearance rate did not. ... Combining these figures, 41% of suspects who received some of the Miranda warnings
confessed as compared to 55% who received no such warning -- a 14% change. ... The data reviewed in the preceding
sections should allow us to make a general estimate of Miranda's costs in terms of lost cases. ...
TEXT:
[*389] [EDITOR'S NOTE: PART 1 OF 2. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON
LEXIS TO ACCOMMODATE ITS LARGE SIZE.]
INTRODUCTION
Justice White argued in his dissenting opinion in Miranda that "in some unknown number of cases the Court's rule

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will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his
crime whenever it pleases him." n1 Common sense suggests the same conclusion: Surely fewer persons will confess if
police must warn them of their right to silence, obtain affirmative waivers from them, and end the interrogation if they
ask for a lawyer or for questioning to stop. Yet today, with more than a quarter of a century of experience with the
Miranda rules, legal academics generally take the opposite view -- that Miranda has had only a "negligible" effect on
law enforcement. n2 For example, the nation's leading criminal procedure hornbook concludes that "little has changed
since Miranda was decided." n3 The great majority of law review articles on Miranda likewise assert that the decision
has had no significant effect on police effectiveness in obtaining confessions and, indeed, often refer to this proposition
as though it were an empirically demonstrated fact. n4 Many of the most widely used criminal procedure textbooks
contain the same definitive pronouncement. n5
[*390] Given this wide agreement that Miranda's effects are negligible, it is perhaps a little surprising that no one
has quantified Miranda's effects on the American criminal justice system. Legal scholars have assayed this type of
"cost" (in terms of "lost arrests") for the Fourth Amendment search and seizure exclusionary rule. n6 But for Miranda,
no one has bothered to explain what a "negligible" effect is and how many dangerous criminals such an effect involves.
This Article contends that the conventional academic wisdom about Miranda's effects is simply wrong. As
common sense suggests, Miranda has significantly harmed law enforcement efforts in this country. In defense of this
thesis, this Article makes the first (and admittedly preliminary) attempt to advance the Miranda debate beyond the
prevailing qualitative level. n7 Justice White was, of course, correct in concluding that we will never know exactly
how many criminals have avoided conviction because of Miranda's requirements. n8 However, "from a policy
perspective, what is needed is not precise numbers so much as a sound estimate of the general level of [Miranda's]
effects." n9
This sort of meticulous cost analysis is also important in light of the Supreme Court's recent portrayal of the
Miranda rules. The Court has described Miranda as "a carefully crafted balance designed to fully protect both the
defendants' and society's interests." n10 Even Miranda's most ardent defenders choose to view the decision in terms of
costs and benefits. n11 But any supposed "balancing" of interests requires some attempt to measure the weight on the
cost side of the [*391] scales. n12 This Article provides a metric for doing so and also for assessing the costs of
alternatives to Miranda, such as videotaping police interrogations.
This Article proceeds in six parts. Part I briefly describes the proper methodology for assessing Miranda's costs.
Miranda's effects should be measured not by looking at suppression motions filed after police have obtained a
confession, but rather by examining how many confessions police never obtain because of Miranda. Part II reviews the
available empirical evidence concerning Miranda's effect on confession rates and on the role of confessions in obtaining
convictions. Read together, these studies suggest that Miranda has resulted in a lost confession in roughly one out of
every six criminal cases and that confessions are needed to convict in one out of every four cases. Part III then
specifically quantifies Miranda's costs, both in terms of lost cases and more favorable plea bargains for defendants. It
suggests that each year Miranda results in "lost cases" against roughly 28,000 serious violent offenders and 79,000
property offenders and produces plea bargains to reduced charges in almost the same number of cases. Part IV responds
to some anticipated objections that might be raised to the extrapolations that my calculus involves. Part V examines
whether this concept of a cost to Miranda is a "legitimate" one. Finally, Part VI assesses Miranda in light of these costs
and concludes that they are unacceptably high, particularly because alternatives such as videotaping police
interrogations can more effectively prevent coercion while reducing Miranda's harms to society.
I. THE METHODOLOGY OF CALCULATING MIRANDA'S Costs
A. The Wrong Analysis -- Suppression Rates
One possible way of assessing Miranda's costs is to look at how many confessions are suppressed because of
Miranda violations. In some cases Miranda suppression motions have led to the release of dangerous criminals. For

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example, in Texas a member of the Bandidos motorcycle gang killed a young woman who had testified against the
gang. He confessed to the killing, but his confession was suppressed because he had received routine assignment of
counsel before confessing. n13 He walked out of the courtroom "with a big [*392] smirky grin on his face," leaving
the parents of the victim to say they had lost faith in the system. n14
While these cases are dramatic, defenders of Miranda respond -- quitecorrectly, according to the existing empirical
data -- that the suppression of confessions leading to the release of criminals, much less dangerous criminals, is quite
rare. Peter Nardulli's detailed study of nine medium-sized counties in Illinois, Michigan, and Pennsylvania in the late
1970s found that, out of 7035 cases studied, only one conviction (.071%) was lost as the result of a successful Miranda
suppression motion. n15 Nardulli's similar study in the city of Chicago in 1983 found that, out of 3626 cases studied,
only about one conviction (.028%) was lost as the result of motions to exclude confessions. n16 Similar conclusions
came from a study conducted by Floyd Feeney, Forrest Dill, and Adrianne Weir, who gathered data in Jacksonville,
Florida and San Diego, California and found that -- at most -- two of 619 cases (0.3%) could be said to have been
dropped because of Miranda problems with the confession. n17 Other studies suggest a similarly minimal impact of
suppression motions on convictions. n18 To complete the picture, [*393] studies find that convictions are rarely
reversed on appeal because of a motion to suppress under Miranda. n19
Based on these small percentages, it has been argued that Miranda has had only a minimal effect on law
enforcement. For example, Professor Mathew Lippman, citing the Nardulli figure of 0.071% of cases lost due to
Miranda, has asserted that "the Miranda exclusionary rule has had a negligible impact on the ability of the police to
obtain confessions." n20 Similarly, Professor Paul Marcus has argued that evidence that suppression motions are rarely
granted "mutes the concern" about Miranda's harm. n21 Nardulli himself has read his data as supporting the
proposition that the "exclusionary rule[] -- as applied to . . . confessions -- has a truly marginal effect on the criminal
court system." n22
These arguments fail to appreciate the true extent of the problems Miranda creates for law enforcement. Analysis
of numbers of suppressed confessions tells us only about what happens to cases when police obtain confessions. It tells
us nothing about cases in which police fail to obtain confessions because of the Miranda rules. As Professor Joseph
Grano has written, this calculus does not consider "the loss of statements that are never obtained because of Miranda,
voluntary statements that would help a trier of fact to determine truth." n23 Suppression motion analysis simply
ignores these "lost cases." Indeed, whatever impact shows up in suppression motion analysis is not a substitute for the
costs of lost confessions; it is a cost that must be added on top. n24 In any event, proof that law enforcement [*394] is
rarely harmed by suppressed confessions does not negate the contention that law enforcement is often harmed by
confessions never being obtained. To focus on the admittedly tiny fraction of cases that go forward but are later lost
because of a Miranda suppression motion is to confuse the exceptional cost with the typical one. n25
B. The Right Analysis -- Lost Confessions
To quantify Miranda's costs from lost cases, we must examine whether Miranda has produced any lost confessions
through its combination of warnings, waivers, and questioning cut-off rules. It now appears to be common ground that
the Miranda litany dissuades at least some suspects from talking. That is why Miranda's defenders carefully claim that
Miranda's costs are negligible rather than nonexistent.
A lost confession from Miranda does not necessarily translate into a social cost. Even when Miranda has resulted
in a lost confession, prosecutors may have enough other evidence to obtain a conviction. In assessing Miranda's costs,
therefore, we need quantification not only of changes in the confession rate due to Miranda but also of the proportion of
cases in which a confession is needed to convict. These two variables can then be multiplied together to determine
Miranda's costs. For example, if Miranda reduced confessions by 20% and confessions were needed in 20% of those
cases to convict, then Miranda's costs would be 4% of all cases (20% x 20%). Some sophisticated defenders of Miranda
acknowledge that this is the proper methodology. n26 This approach is similar to that used in studies assessing the cost
of the Fourth Amendment exclusionary rule. n27

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II. THE EMPIRICAL EVIDENCE ON MIRANDA AND CONFESSIONS
In developing evidence on the magnitude of lost cases from Miranda, one can take either a qualitative or a
quantitative approach. [*395] While some of the academic commentators have made qualitative assessments, n28 it
seems likely that a hardheaded look at the quantitative information will give a better picture of Miranda's effects. This
Article adopts a quantitative approach and surveys the available statistical evidence on the need to assess Miranda's
effects. This Part first examines the quantitative information available on the change in the confession rate caused by
Miranda. It then turns to the quantitative information available on the need for confessions for successful prosecutions.
A. Studies on the Drop in the Confession Rate
Quantifying Miranda's effect on the confession rate is quite difficult because one cannot simply tote up the number
of "lost confessions" by looking at a law enforcement bulletin or court docket. Instead, what is required is some
comparison of the number of confessions n29 obtained outside of the Miranda regime with the number obtained under
it. Two possible data sources suggest themselves. First, we can examine the "before-and-after" studies of custodial
interrogation under Miranda. Second, we can compare the confession rate in the United States under Miranda with the
confession rate in other countries that follow different approaches to regulating police interrogation.
1. Before-and-After Studies. -- With regard to a change in the confession rate due to Miranda, the best evidence, if
available, would probably be "before-and-after" assessments of changes in the confession rate in various American
cities conducted after Miranda. n30 Studies in a single jurisdiction automatically hold constant a variety of factors that
might otherwise confound comparative analysis. n31 Several such studies have been done, although they vary in
quality. These studies allow preliminary estimates of the change in the confession rate due to Miranda.
[*396] (a) The Pittsburgh Study. -- Perhaps the best study on Miranda's effect on confessionrates was published
by Professors Richard H. Seeburger and R. Stanton Wettick, Jr. They surveyed Pittsburgh detective branch files from
1964 through the summer of 1967 for cases of homicide, rape, robbery, burglary, and auto larceny. n32 Even before
Miranda, the Pittsburgh Police Department had met many of the decision's requirements, including the requirements of
advising a suspect of the right to remain silent and of the right to counsel (although not counsel free of charge). This
advice, however, was not given at the beginning of questioning, but rather was "woven into" the conversation between
the suspect and the officer. n33
The Pittsburgh study concluded that Miranda did reduce the confession rate. n34 Before Miranda the detectives
obtained confessions from 48.5% of suspects; after Miranda the rate was 32.3% -- a 16.2% drop n35 in the confession
rate. n36 The same findings continued in a second sample drawn in the summer of 1967. The confession rate was an
even lower 27.1% n37 -- a drop of 21.4% from the pre-Miranda rate. n38 Combining the two samples produces a
post-Miranda confession rate of 29.9% -- an 18.6% drop from the pre-Miranda rate.
Academic defenders of Miranda who discuss the Pittsburgh data usually note that, while the study found a decline
in the confession rate, it also found that the conviction rate and clearance rate did not. n39 These are indirect measures
of Miranda's effects on confessions, and there is no reason to rely on them in preference to the direct data on confession
rates.
Turning first to the conviction rate data, relying on such a measure to gauge Miranda's impact is problematic.
Conviction rates can [*397] vary widely for reasons that have nothing to do with confessions. n40 More important,
conviction rates do not capture all of the "lost cases" from Miranda. n41 If a police or prosecutorial agency drops a
case before a suspect is ever formally charged, the case never shows up in the conviction rate statistics. n42 Because
Miranda weakens cases in the investigative process before charges are ever formally filed (by preventing police from
obtaining confessions), much of Miranda's impact is not captured in conviction rate data.
If my argument is correct, we should find that, after June 1966, charges were brought in fewer cases. n43
Unfortunately, the Pittsburgh study did not collect sufficiently comprehensive evidence on grand jury and other

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pre-indictment dismissals that would allow verification of this hypothesis. However, according to the study's authors,
the incomplete figures available "offer some support to this explanation." n44 In particular, before Miranda the grand
jury refused to indict for 13.6% of the cases; after Miranda it refused for 15.9% of the cases in 1966 and 16.3% of the
cases in the first three quarters of 1967. n45 The difference between the pre-Miranda figure of 13.6% and the 1967
figure of 16.3% is 2.7% -- close to what one might expect under the model developed in this Article. n46 In addition to
grand jury presentment, there are other points at which cases weakened by Miranda [*398] were screened out. n47
The criminal justice literature recognizes that prosecutorial screening plays an important role in the process n48 and
thus that studies that fail to account for prosecutorial screening are less useful. n49 If we could determine the
post-Miranda change in cases excluded by prosecutors in Pittsburgh, we would probably discover the balance of the lost
cases that comprise the cost figure identified here.
Turning next to the possibly stable crime clearance rates found in Pittsburgh, n50 this is also an understated
measure of Miranda's effects. Like suppression rates and conviction rates, clearance rates do not capture all of the "lost
cases" that might result from Miranda. To see this, note that, for statistical purposes, police can record a crime as
"cleared" when they have identified the perpetrator and placed him under arrest. n51 A later conviction, or even an
indictment, is not a requirement for a crime to be cleared. The police, of course, can arrest and "clear" a crime on a
probable cause standard n52 -- a standard well below the beyond a reasonable doubt standard required for conviction
at trial. If Miranda reduces the number of confessions obtained from arrested suspects, and if some of these lost
confessions are needed for prosecutors to convict, that fact will not necessarily be reflected in the clearance rate data.
n53 The finding of a 2.7% decline in the grand [*399] jury's willingness to indict is one example of a screening
mechanism in action not captured in the clearance rate data. n54
Professor Welsh White has offered one last reason for disbelieving the Pittsburgh study's finding that confession
rates fell after Miranda. He concludes that a problem of "sampling bias" infects the study's conclusions because the
study "focused on a detective branch composed of highly professional officers who may have been particularly
conscientious in complying with Miranda." n55 Why a sample drawn from a jurisdiction that followed Miranda is
"biased" when considering the effects of Miranda is unclear. n56 In any event, the prevailing view now is that law
enforcement generally complies with Miranda. n57 In sum, the Pittsburgh study shows a substantial 18.6% change in
the confession rate due to Miranda; stable conviction and clearance rates do not cut against this conclusion. n58
(b) The New York County Study. -- District Attorney Frank Hogan of New York County, New York gathered
statistics concerning Miranda's effects in his cases. For six months before the Miranda decision, his office kept records
of the number of admissions used in presenting cases to the grand jury in almost all felony cases (excluding homicides).
n59 Cases that went to the grand jury in New York County were the more solid and serious criminal cases. n60 From
December 1965 through May 1966, 49.0% of the felony defendants made incriminating statements. n61 After Miranda
(from July 1966 to December 1966), the number of incriminating statements dropped to 14.5% of [*400] the cases.
n62 Thus, the change in the confession rate due to Miranda in New York County was 34.5%.
Professor Stephen Schulhofer discounts these figures on the grounds that they involved presentations of confessions
by prosecutors to the grand jury, not the number of confessions actually obtained by police officers. n63 The decline,
claims Schulhofer, should be attributed to "Miranda's partial retroactivity, which prevented use of nearly all
pre-Miranda confessions in the immediate post-Miranda period." n64 Yet the study tabulated post-Miranda data for the
period of July through December 1966, which would allow for some dissipation of the effect of pre-Miranda
confessions going to the grand jury. n65 More importantly, Hogan reported that "only 15% confessed in the six months
after the Miranda ruling and 49% confessed before." n66 Thus, as then-Assistant Attorney General Stephen Markman
has concluded, "barring misrepresentation by the report, this implies that pre-Miranda confessions were presented to
grand juries regardless of their inadmissibility at trial, or that the number of cases affected by retroactivity was not
statistically significant." n67 This interpretation is fully confirmed by Hogan's qualitative assessment that "the
Miranda caution significantly inhibits the making of a statement by a suspect to a [*401] police officer." n68 It is also
supported by Hogan's separately tabulated data on homicides, which plainly involved post-Miranda questioning of
suspects. n69 The data show that after Miranda 30% of homicide suspects interrogated refused to make a statement --

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a number significantly higher than the pre-Miranda experience. n70
Regardless of how one interprets Hogan's report, another study undercuts Schulhofer's speculation that the low
confession rate in New York County is attributable to Miranda's "partial retroactivity" rather than to a decrease in
police success in obtaining confessions. In 1967, the Vera Institute conducted a comprehensive study of confessions in
New York City, which has been virtually ignored by Miranda's academic defenders. The study involved two parallel
efforts to collect data on confessions in New York. In August and September 1967, the Institute collected 1460 reports
of interrogations of suspects in felony and "finger-printable misdemeanors" from 22 different Manhattan precincts. n71
From April to October 1967, the Institute collected 806 tape recordings of interrogations in the 20th Precinct in New
York City. n72 Both of these surveys reported extremely low confession rates that are close to Hogan's reported
post-Miranda figure of 14.5% and far below Hogan's pre-Miranda figure of 49.0%. n73 The Manhattan survey found
that only 3.1% of suspects gave confessions and 13.7% made admissions, for a total incriminating statement rate of
16.8%. n74 The 20th Precinct survey found an incriminating statement rateof 23.7%. n75 Unfortunately, because the
Vera Institute did not collect pre-Miranda data on confession rates, its findings do not allow exact quantification of a
change in the confession rate. n76 But the low confession [*402] rates found by the Vera Institute parallel Hogan's
post-Miranda rate, which strongly suggests that Hogan's reported drop in the confession rate to 14.5% is accurate.
(c) The Philadelphia Study. -- Then-Philadelphia District Attorney Arlen Specter surveyed the most serious
offenses prosecuted in Philadelphia, such as homicide, robbery, rape, burglary, aggravated assault, battery, and larceny,
from 1964 to February 1967. n77 Based on discussions with "police officials and experienced district attorneys,"
Specter estimated that 90% of suspects arrested before June 1964 gave some type of statement. n78 Following the
Supreme Court's June 1964 decision in Escobedo v. Illinois, n79 the Philadelphia Police Department gave limited
warnings, presumably advising suspects that they had the right not to say anything and that anything said would be used
against them. n80 Specter estimated that the number of suspects giving statements fell to 80%. n81 In October 1965,
the United States Court of Appeals for the Third Circuit ruled that suspects must be advised of their right to consult
counsel before making any statement. n82 Between October 17, 1965 and the Miranda decision in June of the
following year, the Detective Division of the Department began compiling statistics concerning statements. During this
period, 68.3% of individuals arrested gave statements. n83 In June 1966, Miranda was announced. From that time
until February 1967, only 40.7% of individuals arrested gave statements. n84
The Philadelphia study examined "statements" to the police, not "incriminating statements." n85 To compare this
data with the other [*403] data reviewed in this Article, we need some measure of the relation between the number of
statements and incriminating statements. Specter reports that when the police were obtaining statements in 90% of their
cases, "frequently the statements did not constitute admissions or confessions, but they were very helpful in later
investigation." n86 More concrete evidence comes from the Pittsburgh study, which reported that of suspects who
talked, roughly half confessed, n87 and from the Vera Institute survey, which found that of suspects who talked,
roughly 60% confessed or made incriminating admissions. n88 Other studies suggest similar results. n89 Using 50%
as a conservative estimate of the relationship of confessions to total statements and assuming that the relation remained
constant from 1964 to 1967 n90 produces the following numbers in Philadelphia: An estimated 45% of suspects
confessed before Escobedo, n91 an estimated 40% of suspects confessed after Escobedo but before the Third Circuit
ruling, 34.2% of suspects confessed after the Third Circuit ruling but before Miranda, and 20.4% of suspects confessed
after Miranda. Thus the overall change in the confession rate in Philadelphia brought about by these court rulings was
from roughly 45% to 20.4%, a net change of 24.6%.
The Philadelphia study has been attacked on several grounds. First, Professor Harold Pepinsky argues that District
Attorney Specter "wanted to prove Miranda's deleterious effects" and therefore may have "taken a biased sample after
Miranda." n92 Such ad hominem attacks [*404] are unpersuasive. Taking a biased sample would have required quite
an elaborate bit of statistical legerdemain because Specter's study involved not one, but two separate samples that would
need to be skewed: (1) the post-Escobedo but pre-Miranda sample and (2) the post-Miranda sample. Assuming Specter
intended to take a biased sample to attack court-created procedural requirements, this motive existed when the first
sample was drawn. Specter therefore would have needed to come up with not only the means to cook the books on the

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first sample, but also to discover additional ways to further slant the second.
Professor Pepinsky also contends that because Specter measured refusals to give statements rather than the
confession rate, the police "may have obtained these results after Miranda simply by giving perfunctory warnings to
many suspects and pro forma asking for waivers in many cases where before Miranda they would not have even
botheredto initiate an interrogation." n93 But this argument also overlooks the fact of two sets of data involving
warnings, required in the first instance by the Escobedo decision and in the second instance by Miranda. This
speculative possibility also ignores the fact that the police would likely interrogate in most of the serious criminal cases
involved in the study. Finally, to achieve the desired results, hundreds of police officers would have had to secretly
conspire together for criminal justice research purposes -- an unlikely event. n94
Finally, based on the premise that "arrest rates for crimes have been rising steadily over the last few years" because
of community pressures to crackdown on crime, Professor Pepinsky contends that the Philadelphia samples "could be
expected to comprise those cases with progressively less evidence." n95 Because it is harder to obtain confessions in
such cases, the rising arrest rates "alone" could account for the rise in the rate of refusals to make statements. n96 It
would be surprising, to say the least, to find that changing arrest patterns would trigger a 24.6% change in the
confession rate in the year or two covered by the study. But beyond that, Professor Pepinsky cites no authority for the
proposition that arrest rates were dramatically rising in Philadelphia or anywhere else. n97 In sum, the critics of the
Philadelphia [*405] study offer no good reason for disbelieving its finding of a substantial post-Miranda drop in the
willingness of suspects to give statements.
(d) The "Seaside City" Study. -- James W. Witt surveyed the effect of Miranda on police in "Seaside City," an
enclave in the Los Angeles area with a population of 83,000. n98 Witt reviewed files from 1964 to 1968 for cases
dealing with murder, forcible rape, robbery, and burglary. n99 He found only a 2.0% percent drop in the confession
rate after Miranda, from 68.9% to 66.9%. n100 One possible explanation for the low figure is that Witt examined
"onlythose cases in which suspects were actually arrested and incarcerated by the Seaside City Police Department. This
eliminated all cases in which suspects were detained for questioning but never incarcerated." n101 Cases where
suspects were "never incarcerated" might include those where Miranda took its toll. This suggestion gains strength
when coupled with the fact that, contrary to Witt's statistical findings, most detectives in Seaside City reported that
"they were getting many fewer confessions, admissions and statements." n102 Witt also did not give any information
on how the Seaside Police implemented Miranda. It is possible that they did not follow all of the Miranda requirements.
n103 Finally, even before Miranda, the Seaside police were already giving warnings to suspects, as required by a 1965
California Supreme Court decision. n104 Thus, Witt's "before-and-after" Miranda figures do not capture any effect on
suspects' willingness to confess caused by warnings. n105 In [*406] sum, the Seaside City study found only a modest
decline in confession rates, which probably understates Miranda's effects.
(e) The New Haven Study. -- While each of the four preceding studies found a negative impact on the confession
rate from Miranda, a study by the editors of the Yale Law Journal of interrogations in New Haven concluded that
Miranda did not have such an effect. n106 The study's conclusions have assumed a central role in the prevailing
academic view that Miranda has not had harmful effects. A close review of the study, however, demonstrates that this
conclusion results from a misreading of the underlying data.
The editors of the Yale Law Journal studied interrogations by the New Haven police during the summer of 1966,
immediately after Miranda, by placing two students in the New Haven police station at all times during that summer.
n107 They observed all 127 interrogations at the station. n108 To obtain pre-Miranda data for comparison, the editors
also reviewed approximately 200 cases from 1960 to 1965 to compare with their 1966 sample. n109 Although the
"methodological difficulties" in examining the earlier files made them "very cautious about [their] findings," they
discovered that "there was a decline in success from 1960 to 1965 and probably a greater decline from 1965 to 1966.
The data suggest a decline of roughly 10 to 15 percent from 1960 to 1966 in the number of people who gave some form
of incriminating evidence over the entire time." n110 Given that during the summer of 1966 New Haven police were
"successful" in questioning 48.2% of the time, n111 this would place the pre-Miranda confession rate in the area of

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58% to 63%.
[*407] The editors believed that this decline could have been caused by factors other than the Miranda warnings.
In particular, they pointed to the 1960-1965 sample containing "more serious crimes, more cases with a large amount of
evidence available at the time of arrest, and more juveniles" -- all factors correlated with interrogation success. n112
The editors also suggested that the Miranda rules may have provided the detectives with an excuse for avoiding the
"laborious process of statement-taking when they felt it unnecessary for obtaining a conviction." n113 Also, the editors
believed that the interrogation process had become "considerably less hostile" from 1960 to 1966, a change attributable
to court decisions and new administration in the police department. n114 Finally, the editors noted that suspects might
have become generally less cooperative "not because of specific warnings but because mass-media publicity and
grapevine communication concerning Court decisions expanding protection of criminal suspects have made citizens
generally more aware of their rights." n115
At the same time, the editors ventured their conclusion that "not much has changed after Miranda." n116 This was
certainly correct in New Haven during the summer of 1966 because the New Haven police did not comply with the
requirements of the decision. The Yale editors found that the New Haven police gave full Miranda warnings to less than
a quarter of the suspects they interrogated. n117 Beyond that, it appears that the police did not comply with the most
harmful Miranda rules. n118 In particular, the New Haven police failed to follow Miranda's requirement of obtaining
an affirmative waiver of rights from a suspect before questioning. The New Haven police did not receive waiver of
rights cards until "near the end of the observation period." n119 Even this card, however, likely would not satisfy
Miranda because it did not contain any language in which a suspect waived his rights. n120 Moreover, it appears that
the typical format for questioning did not include obtaining a waiver. n121 Indeed, the editors of the Yale Law Journal,
no less than the New Haven police, may not have focused [*408] on Miranda's affirmative waiver of rights
requirement, n122 perhaps because the editors designed their study before Miranda was announced. n123 Nor did the
police adhere to their Miranda obligations to stop questioning when a suspect requested counsel or when a suspect tried
to exercise his right to remain silent. n124 All of these failures lead to suppression of confessions under Miranda. It is
therefore interesting to note that the study did not contain any information on whether the prosecutors successfully
introduced the confessions in court.
The study, then, is not really a "before-and-after" study, but rather a "before-and-before" study -- it reveals only
what interrogation looked like before police began complying with Miranda. n125 The study's authors admitted as
much in noting that "our study took place immediately after the Miranda decision. It is quite possible that some of our
findings, particularly with regard to the giving of warnings and the impact of warnings on suspects, would have changed
had we begun six months later." n126
If examined carefully, however, the study does contain data that is consistent with the studies cited here finding that
Miranda reduced confession rates. The editors of the study gave their judgment that Miranda warnings affected "only
eight of 81 suspects whose conduct could be analyzed," n127 and only three of those eight suspects refused to give a
confession. n128 But a cross-reference reveals that an additional ten suspects indicated that they "wanted to terminate
the interrogation, but the police violated Miranda by continuing the interrogation and obtained incriminating evidence."
n129 Because such statements are suppressible or would never have been obtained if police [*409] complied with
Miranda (as police now appear generally to do n130 ), these ten cases should properly be included as a "cost" of the
Miranda decision. Adding the three cases in which the editors concluded that the warnings affected the interrogation
outcome to the ten cases in which the Miranda questioning cut-off rules required termination of the interview reveals a
16% drop in confessions due to Miranda in New Haven. n131 The Yale Study, then, is fully consistent with the studies
discussed earlier finding a confession rate decline after Miranda. n132
(f) The Washington, D.C. Study. -- Another favorite study of Miranda's academic defenders was conducted by
Richard J. Medalie, Leonard Zeitz, and Paul Alexander, who collected data on the effect of Miranda on interrogation in
the nation's capital. n133 For present purposes, the important data in the study come from interviews with 260 persons
who had "been subjected to arrest procedures in the District of Columbia during 1965 and 1966" n134 -- 175 before

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Miranda and 85 after Miranda. n135 The data came from the defendants' reporting about what had happened to them.
n136 The study reported only a 3% drop in the statement rate, from 43% to 40%, after the [*410] haphazard
implementation of Miranda in the District. n137 If half of the statements were confessions, as suggested previously,
n138 the confession rate in the District fell from 21.5% to 20% -- only a 1.5% drop from the Miranda requirements.
While Miranda's defenders have been quick to draw favorable conclusions from the study, n139 it shows little
about Miranda's overall effects because the D.C. police, like the New Haven police, generally did not follow
Miranda-prescribed procedures during the study period. Many suspects apparently did not receive proper Miranda
warnings. Medalie et al. reported that only 30% of defendants received all four Miranda warnings. n140 Reviewing
the study, the British Royal Commission on Criminal Procedure concluded that the study's figures "cannot be taken at
their face value since there is uncertainty whether the appropriate warnings were always given to suspects." n141 It
also appears that the police failed to follow the important Miranda waiver procedure. The study reported that of 85
post-Miranda defendants, only seven were asked to sign a "Consent to Speak" form, and only four actually signed it.
n142 In addition, the police did not comply with Miranda's questioning cut-off rules. When suspects indicated that they
did not wish to talk, the police frequently asked them to reconsider or otherwise continued the interview. n143 When
suspects requested counsel, the officers did not stop questioning, but instead often continued pending the attorney's
arrival. n144
The study is also questionable because its data appear to have been presented in a tendentious, if not dishonest,
fashion. Richard Leo has pointed out that "buried deep" in a "clumsily organized appendix" to the study the authors
report that 52% of the post-Miranda defendants and 44% of the pre-Miranda defendants were never even [*411]
interrogated. n145 Medalie et al. criticized the D.C. police for failing to give warnings to many of the defendants, but
as Leo notes, "it is utterly dishonest to criticize the police for failing to provide . . . Miranda warnings when . . . [there
was] no legal obligation to do so." n146 The study suffers from other similar problems of slanted presentation of the
data. n147
Since these biases were all in service of the position that Miranda was a "proper safeguard" of suspects' rights and
that police should do more to implement the decision, n148 it is hardly surprising that nothing in the published report
of the study's results suggests that Miranda was harming the confession rate. Read carefully, however, the study does
contain some information suggesting that, at least where police complied with the Miranda rules, the confession rate
dropped. After Miranda, 55% of those suspects who did not receive a warning about either the right to counsel or the
right to remain silent gave statements, as compared to 40% who gave statements after receiving the warning about the
right to remain silent n149 -- a 15% change in the rate. Similarly, 46% gave statements after receiving the warning
about the right to counsel n150 -- a 9% change from the 55% who gave statements without any such warnings.
Combining these figures, 41% of suspects who received some of the Miranda warnings confessed as compared to 55%
who received no such warning -- a 14% change. n151 While there may be some difficulties with using the data to
establish this kind of [*412] precise confession rate change, n152 one must acknowledge that the study contains data
about warnings consistent with a confession rate drop after Miranda.
Pointing towards the same conclusion, the study found that Miranda resulted in more requests for counsel. While
64% of suspects requested counsel after being advised of stationhouse counsel, only 17% made such a request after
being advised about the right to nonstationhouse counsel, 23% after being advised about the right to silence, and 12%
after being advised about neither the right to counsel nor the right to silence. n153 Under Miranda's rules, these
suspects could not have been questioned by police until counsel arrived. Of course, after counsel arrives, questioning is
rarely fruitful. n154
While these facts might suggest that the D.C. study could be used as support for the position that Miranda harmed
the confession rate, perhaps the safest conclusion to draw is that we can say little about Miranda's effects in D.C. -- both
because the D.C. police had not yet implemented the Miranda rules and because the study's authors may have presented
their evidence in a tendentious way.

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(g) The New Orleans Study. -- Some limited comparative data on Miranda's effects comes from New Orleans.
Professors Seeburger and Wettick, the authors of the Pittsburgh study, compiled data provided by the New Orleans
Police Department. The Department reported that since the adoption of the Miranda requirements, "988 out of the 3506
persons (28.2%)arrested waived their rights and made incriminating statements." n155 For the two-year period before
[*413] Miranda, the Department estimated that about 40% of arrested suspects made incriminating statements, n156
an estimate that appears to be reasonable. n157 This suggests an approximate 11.8% reduction in the incriminating
statement rate in New Orleans after Miranda.
(h) The Kansas City Study. -- Sketchy comparative data about the effect of Miranda in Kansas City is available. A
few months after the decision, Chief of Police Clarence M. Kelley reported that about 12% fewer suspects were giving
"statements." n158 Assuming conservatively that Kelley was referring to all statements rather than incriminating
statements, n159 and applying the 50% relation of statements to confessions discussed earlier, n160 this would still
suggest a 6% drop in the confession rate.
(i) The Kings County Study. -- District Attorney Aaron Koota of Kings County, New York (otherwise known as the
Borough of Brooklyn) reported that before Miranda for crimes such as homicide, robbery, rape, and felonious assault,
approximately 90% of suspects gave statements. n161 Following the decision (between June and September 1966),
59% gave statements. n162 Relying on the previously [*414] discussed estimate that 50% of statements are
confessions, n163 this would mean that the confession rate went from 45% n164 to 29.5% after -- a 15.5% drop in the
rate before Miranda.
(j) The Chicago Homicide Study. -- Another statistic comes from Chicago. Then-Professor James R. Thompson of
Northwestern University School of Law reported in July 1967 that a study by the Chicago state's attorney's office found
that the number of confessions by arrested homicide suspects had dropped about 50% since the Escobedo decision in
1964. n165 To make this figure comparable to other data discussed in this Part, we must convert this change in the
number of confessions to a change in the confession rate. To come up with a rough conversion, we can posit that
confessions were obtained in about 53% of all homicide cases before Escobedo (as indicated in one study in a city close
to Chicago n166 ). If so, a 50% drop in the rate would mean a post-Miranda confession rate of 26.5% and a change in
the confession rate of 26.5%. I have been unable to locate any further information about this study. n167
(k) The Los Angeles Study. -- Los Angeles County District Attorney Evelle J. Younger undertook a three-week
survey regarding the effects of the Miranda decision in Los Angeles. The Los Angeles County District Attorney's
Office distributed survey forms on June 21, 1966. The survey ended three weeks later on July 15, 1966. n168 The
results of the survey indicated that confessions and admissions were present in 50.2% of the requests for felony
complaints received from police agencies during this survey period. n169
It is possible to devise a before-and-after Miranda figure for Los Angeles by comparing this data with a separate
survey compiled the [*415] previous year by the District Attorney's Office regarding the effect of People v. Dorado,
n170 a decision handed down by the California Supreme Court on January 29, 1965. Dorado required California law
enforcement officers to warn a suspect in custody of her right to counsel and her right to remain silent. n171 The Los
Angeles District Attorney's Office sampled cases during the week of December 13-17, 1965, approximately eleven
months after Dorado. n172 The post-Dorado survey found that confessions or admissions were present in 40.4% of the
requests for felony complaints received from police agencies during the survey period. n173 Thus, comparing the
post-Dorado survey with the post-Miranda survey gives the impression that the confession rate rose by about 10% after
Miranda, from 40.4% to 50.2%.
The notion that Miranda would cause an immediate, substantial increase in the confession rate seems paradoxical,
and one should hesitate before ascribing this to the Los Angeles data. n174 Most important, it is impossible to compare
directly the post-Dorado data with the post-Miranda data, as the questionnaires were different in at least one important
respect. The District Attorney's Office had questions about the accuracy of the post-Dorado data. n175 Accordingly, it
apparently redesigned the study questionnaire. n176 As part of the redesign, the questionnaire was changed from

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asking about "confessions and [*416] admissions" to asking about a "confession, admission or other statement." n177
Because many suspects make "other statements," n178 this amorphous category likely swelled the number of
post-Miranda cases lumped together with "confessions and admissions."
There are also other serious problems. Because the Miranda survey was conducted only a few weeks after the
decision, some of the post-Miranda data actually may have been pre-Miranda data. n179 In addition, since the surveys
involved requests for complaints from the police, they would not detect those cases in which police agencies were
unable to obtain a vital confession and therefore did not request a complaint. The District Attorney's Office
acknowledged that "we cannot tell from this present survey how many cases we are not even seeing from the police
agencies." n180 Finally, it appears that the District Attorney's Office viewed the Miranda requirements and the
Dorado requirements as essentially indistinguishable. n181 Thus, the study is not really a before-and-after study, but
rather an "after-and-after" study. n182 Based on these problems, it is difficult to draw any comparative conclusions
from the data.
(l) Summary of the Before-and-After Studies. -- All of the quantitative studies of changes in the custodial confession
rate due to Miranda are summarized in Table 1, which follows. n183 As can be seen, [*417] excluding the unreliable
comparison made by extrapolating from two different Los Angeles surveys, all studies report a drop in the confession
rate after the Miranda decision, most in double digits. This directly contradicts the prevailing myth in legal academe.
n184 The change in rate ranges from 34.5% for New York County to 2.0% for Seaside City. The "reliable" studies
n185 -- from Pittsburgh, New York County, Philadelphia, Seaside City, New Haven, Kansas City, Kings County, and
New Orleans -- show confession rate drops of 18.6%, 34.5%, 24.6%, 2.0%, 16.0%, 6%, 15.5%, and 11.8%, for an
average reported drop of 16.1%. In other words, based on the comparative studies, the best estimate is that Miranda
results in a lost confession in roughly one out of every six criminal cases in this country. [*418]
TABLE 1 -- ESTIMATES OF CHANGES IN THE CONFESSION
RATE DUE TO MIRANDA
City

Confession

Confession

Change

Major

Rate Before

Rate After

Pittsburgh

48.5%

29.9%

-18.6%

N.Y. County

49.0%

14.5%

-34.5%

Philadelphia

45% (est./der.)

20.4% (der.)

-24.6%

"Seaside City"

68.9%

66.9%

-2.0%

?

New Haven-

58-63% (est.)

48.2%

-10-15%

Yes

?

?

-16.0%

D.C.

21.5% (der.)

20.0% (der.)

-1.5%

Yes

Kansas City

?

?

-6% (der.)

?

Kings County

45% (est./der.)

29.5% (der.)

-15.5%

New Orleans

40% (est.)

28.2%

-11.8%

?

Chicago homicides

53% (der.)

26.5% (der.)

-26.5%

?

Los Angeles

40.4%

50.2%

+9.8%

Yes

Problems?

1960-66
New Havencalculated

Average of
Studies Without

-16.1% *

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90 Nw. U.L. Rev. 387, *418

Major Problems
est. = estimated
der. = derived
* Excluding Chicago homicide study for reasons given in note 185, supra.
2. International Comparisons. -- An alternative way of determining the change in the confession rate caused by
Miranda is to compare confession rates in this country under Miranda with confession rates in other countries that do
not follow Miranda's requirements. n186 Chief Justice Warren's decision in Miranda made something of an
anticipatory comparison, arguing that "the experience in some other countries also suggests that the danger to law
enforcement in curbs on interrogation is overplayed." n187 He then examined the practices in England, Scotland, and
other countries, described the restrictive features of the interrogation regimes there, and concluded that "there appears to
have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules."
n188 While the accuracy of the Chief Justice's description of the practices in these countries has been powerfully
challenged, n189 our concern here is [*419] whether the confession rates in these countries suggest anything about
the validity of my estimate that Miranda reduced the American confession rate by about 16%. n190 I will examine
data from the two obvious countries for comparison: Britain and Canada.
(a) Britain. -- Britain is a good country for comparison. The historically-prevailing English approach gave suspects
the equivalent of the first two Miranda warnings, but did not employ the other features of the Miranda system -- e.g.,
the right to counsel during questioning and waiver requirements. n191 The available studies suggest very high
confession rates under this approach. A study conducted in Worcester found that suspects gave full confessions or made
other incriminating statements in 86% of all cases. n192 A study of cases at the Old Bailey found an incriminating
statement rate of 76%. n193 An observational study in Brighton found that 65% of observed interrogations produced
incriminating statements. n194 An observational survey of four police stations in West Yorkshire, Nottinghamshire,
Avon and Somerset, and the Metropolitan Police District (London) found that police obtained incriminating statements
in 61% of their interrogations. n195 A study of cases heard in the seven Crown Court centers in London found that a
total 71.2% of defendants gave incriminating information. n196 Finally, interviews with a sample of defendants drawn
[*420] randomly from Sheffield court records found that 94% admitted their guilt to police. n197 While recent (and
highly publicized) examples of coerced confessions have been responsible for several miscarriages of justice in Britain,
n198 it seems unlikely that the high overall British confession rate is attributable to such tactics. n199
Although varying definitions and methodologies make exact comparisons difficult, these reported English
confession rates are substantially higher than the post-Miranda confession rate in the United States. As Professor
Gordon Van Kessell concluded after a comprehensive review of the available literature, "it can generally be said that a
substantially greater percentage of English than American suspects subjected to questioning make damaging
statements." n200 Comparing the reported British confession rates (ranging from 61% to 84.5%) with the American
post-Miranda rates (generally in the range of 30% to 50% n201 ) suggests that the estimate made here of a 16% drop in
the confession rate after Miranda is quite reasonable.
The British experience not only allows us to assess confession rates without Miranda rules, but also allows us to
review what happens as a country moves to a Miranda-style regime. In the 1980s, Britain adopted a more heavily
regulated structure for police interrogations, one that in many respects tracks Miranda. In 1984, Parliament adopted the
Police and Criminal Evidence Act ("PACE") to regulate, among other things, the process of custodial questioning of
suspects. As required by PACE, the Home Office followed up with the Code of Practice for the Detention, Treatment
and Questioning of Persons by Police Officers in 1985 and with the Code of Practice on Tape Recording in 1988. n202
These enactments provide a series of safeguards for suspects, including imposed access to counsel during questioning
and recording of interrogations.

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British confession rates have recently started to decline towards American levels as this Miranda-style interrogation
regime has been put into effect. Summarizing the available studies in 1992, Gisli [*421] Gudjonsson noted that "the
frequency with which suspects confess to crimes in England has fallen in recent years from over 60% to between 40 and
50%. This appears to have followed the implementation of PACE, which came into force in January 1986. The reasons
for this decrease seem to be associated with the increased use of solicitors by detainees and changes in custodial
interrogation and confinement procedures." n203 Interestingly, the post-PACE drop in the British confession rate
(from over 60% to between 40% and 50%) corresponds roughly with the post-Miranda confession rate drop suggested
in this Article. Because of law enforcement concerns, Parliament recently modified the warnings given to suspects and
made other changes to encourage more confessions. n204
(b) Canada. -- Another good country for comparison is our neighbor, Canada. Until recently, the Canadian police
gave Miranda-style warnings concerning the right to remain silent, but did not follow the rigid Miranda waiver
requirements and questioning cut-off rules. n205 Since 1982, Canadian law on interrogation has moved towards the
Miranda requirements because of the passage of Section 10(b) of the Canadian Charter of Rights and Freedoms. n206
Canada apparently had confession rates substantially higher than the rates in this country. The only data on
Canadian confession rates I have located come from a study in July 1985 of the Halton Regional Police Force in
Ontario, Canada. The study reported the results of a two-year pilot project involving the videotaping of all interviews at
the police station for crimes more serious than traffic and drunk driving offenses in Burlington compared with standard
police interrogation in Oakville. Despite the presence of video cameras to prevent police misconduct, the Burlington
officers obtained confessions or incriminating [*422] statements in 68% of their interviews. n207 The confession rate
is even higher if one excludes the 4.8% of suspects who refused to be videotaped; of those agreeing to be videotaped,
71.6% made inculpatory statements. n208 In the "control" city of Oakville, police obtained incriminating information
in 87.0% of the interviews. n209 These Canadian confession rates are substantially higher than any recently reported
rate here, which suggests that Miranda may be inhibiting American suspects. n210
In sum, contrary to the predictions made in the Miranda decision, rough comparisons with Britain in particular and
Canada to a lesser extent suggest that the Miranda rules have reduced the confession rate. While more detailed analysis
is certainly warranted, this alternative means of assessing Miranda's effect on the confession rate confirms calculations
based on the before-and-after studies.
B. Studies on the Necessity for Confessions
Said the cop as he viewed with contrition
The defendant's bloody condition,
"For the case that's not sure
There is really no cure
Like a solid, substantial admission." n211
Of course if confessions were not needed for criminal convictions, the Miranda debate would be of little
consequence. It appears to be common ground, however, that in at least some cases a confession is necessary for a
successful prosecution. The debate focuses on how often a confession is necessary. As with allegations of changes in
the confession rate, the dispute has often been conducted at the qualitative [*423] level. Critics of Miranda charge that
confessions are often necessary; defenders claim they are only rarely needed. n212 As with the confession rate issue,
resort to the extant empirical data may be a more helpful approach.
Three brief methodological issues should be noted before diving into the various statistics. First, estimates of the
number of "necessary" confessions tend to be somewhat more subjective than the statistics on the total number of

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90 Nw. U.L. Rev. 387, *423

confessions just reviewed. n213
Second, for purposes of the cost calculation in this Article, we would like to see "necessity" statistics for the
confessions that were lost because of Miranda. For example, given the Pittsburgh study's 18% drop in the confession
rate, we would like to know what portion of the 18% involved losses of confessions necessary for conviction. For
apparent reasons, such statistics are not available: Even where aggregate statistics suggest a change in the confession
rate stemming from Miranda, it is usually not possible to point to any particular criminal case without a confession and
know whether a confession would have been given in the absence of the Miranda regime. Thus, we must use some sort
of aggregate necessity statistic and assume that it applies to the confessions lost because of Miranda.
Using aggregate statistics probably understates Miranda's costs. The available empirical evidence suggests that a
suspect is more likely to confess when the evidence against him is strong and he knows "the jig is up." Conversely, a
suspect probably has greater incentives not to confess when he believes -- correctly -- that the authorities will be unable
to make a case against him without a confession. n214 As a consequence, [*424] the lost confession cases are likely
to be those where the evidence is weaker than the overall run of cases and thus where a confession may often be
necessary to convict.
Third, most of the "confession necessity" studies may be flawed because they do not consider that a suspect's
confession might lead police to incriminating evidence. n215 If so, the evidence might be so incriminating that it
would be viewed as rendering the confession "unnecessary" -- even though the evidence would never have been
available without the confession. The studies generally fail to consider this possibility, and they may all therefore
understate the real importance of confessions to convictions. n216 With these caveats in mind, we turn to the existing
quantitative data on the importance of confessions.
1. The Pittsburgh Study. -- The previously discussed Pittsburgh study by Professors Seeburger and Wettick contains
statistics not only on the frequency of confessions but also on their necessity to obtaining convictions. Seeburger and
Wettick deemed a confession necessary where, in their judgment, "a conviction would not have been likely without the
use of a confession and any additional evidence obtained as a result of the confession." n217 In making this
determination, they "assumed the competent gathering of available evidence, average presentation of the case by
counsel for both sides, decisions based on the merits of the case at the arraignment and trial levels and cooperation by
witnesses (other than the defendant and his family) who supplied evidence to the police during their investigation."
n218
Seeburger and Wettick found that a confession was needed to convict in roughly 20% of all cases. n219 They also
found that a confession [*425] was necessary in roughly 25% of cases involving confessions (both pre- and
post-Miranda). n220
2. The New York County Study. -- New York County District Attorney Frank Hogan testified before Congress
concerning the importance of confessions in cases prosecuted by his office. A survey of 91 homicide cases in his office
awaiting trial or disposition in 1965 disclosed that 25 of the cases (27.5%) "would have lacked legally sufficient
evidence for trial without the defendant's statement." n221 While Hogan does not give any estimate with respect to
whether alternative means of investigation would have been successful in the absence of a confession, n222 one might
reasonably assume a certain degree of thoroughness in investigating homicide cases. n223
3. The Los Angeles Study. -- The Los Angeles District Attorney's Office reported figures on the importance of
confessions in cases prosecuted in 1965 and 1966. The 1965 survey found that for 26.2% of criminal complaints
involving confessions or admissions, the issuing deputy district attorney concluded that the confession or admission was
needed to sustain a conviction. n224
The 1966 (post-Miranda) survey did not report a figure for the importance of confessions at the complaint stage.
Instead, it reported figures for 649 defendants who had trials or pleaded guilty during a three-week period in the

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90 Nw. U.L. Rev. 387, *425

summer of 1966. n225 Of these cases, in 67 (roughly 10%) the prosecutor believed that an incriminating statement
[*426] or admission was needed for conviction. n226 Surveying cases only where there was a trial or guilty plea is
subject to the criticism that it fails to reflect cases that were dropped at earlier points in the process because of weakness
in the state's evidence. n227 Moreover, the 10% figure fails to reflect the fact that a large number of defendants (103)
in the survey were acquitted at trial. In most of these cases, it might fairly be said that a confession was "necessary" for
conviction. n228 If the acquittals are added to the cases in which a statement was needed for conviction, the
importance of the confession figure rises to 26.2% (170/649), almost the same result reported in the 1965 survey. On the
other hand, both the 1965 and 1966 surveys may slightly overstate the importance of confessions in that they do not
consider whether other investigative means could have produced evidence to secure a conviction. n229
4. The New Haven Study. -- The Yale Project developed an elaborate coding system to record their observations
about whether a confession was necessary for obtaining a conviction. The Project editors called their system the
"Evidence-Investigation Scale" because it focused on two critical issues: the amount of evidence against a suspect
without a confession and the investigative alternatives open to police. n230 Based on these two factors, the editors
developed a matrix to categorize the need for interrogation as either "essential," "important," "not important," or
"unnecessary." n231
[*427] Using these categories, the editors estimated that, of the 90 cases they observed, interrogation was
"essential" in 3.3% and "important" in 10.0%. n232 The editors combined the "essential" and "important" categories
into an "interrogation necessary" category, which was therefore estimated to be 13.3% of total cases. n233 The Yale
Project data can be used to derive a necessity figure for confession cases only. The editors observed 49 cases involving
a "successful" conclusion to interrogation; of these, in only four (8.2%) was interrogation deemed necessary to solve the
case. n234
The Yale Project figures for necessary confessions are lower than the figures reported by most of the other studies
previously discussed. The reason may be a rather curious labelling used by the Project editors that appears to
significantly understate the importance of confessions. The editors called interrogation "not important" even where no
plausible investigative alternatives existed and the evidence (besides the confession) was sufficient only to take the case
to trial but not to obtain a conviction! n235 The editors did not report their data in order to allow any assessment of the
importance of this unusual labelling for the results. The Yale Project figures are thus likely to understate confession
necessity.
5. The "Seaside City" Study. -- The "Seaside City" study by Professor James W. Witt used the Yale
"Evidence-Investigation Scale" to review the files involved in the study. Professor Witt concluded that interrogation
was essential in 16% of cases and important in 8%, for a total interrogation "necessary" figure of 23.6%. n236 The
Seaside figure might be conservative because it follows the curious labelling used by the Yale editors. Possibly
offsetting this problem, Professor Witt conceded a possible tendency "to overestimate the amount of evidence needed
for conviction in some cases" because of court decisions expanding the rights of suspects. n237
[*428] 6. The Detroit Study. -- Detroit Chief of Detectives Vincent W. Piersante compiled statistics on the
importance of confessions in prosecutions for serious crimes for 1961 and for a nine-month period in 1965.
Unfortunately, interpreting his study is difficult because I have been unable to locate a copy of his original data. Instead,
I have been able to locate three different recountings, which report different figures. First, Theodore Souris, a Justice on
the Supreme Court of Michigan, published an article and appended what appears to be the Piersante study. n238 This
reprinting shows that confessions were deemed "essential" in 13.1% of 1445 prosecutions surveyed in 1961 and in
11.3% of 1358 prosecutions in 1965. n239 Second, the Yale Law Journal cites the same study with a later date of
publication for the proposition that confessions were essential in 23.6% of a 1961 sample of 2620 completed
prosecutions and 18.8% of a 1965 sample of 2234 completed prosecutions. n240 Finally, Chief Piersante participated
in a panel discussion of Miranda, in which he reportedly said that confessions were essential in 23.6% of his 1961
sample of 2630 prosecutions (in agreement with the Yale Law Journal figure) and in 15.2% of his 1965 sample of 2769
prosecutions. n241

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Regardless of which recounting of the data is used, Piersante's figures probably understate the importance of
confessions because they pertain to "felony prosecutions," which apparently means something later than a preliminary
juncture in the process. As a result, Piersante's data do not appear to include cases that were screened from prosecution
because of insufficient evidence -- including cases that were not prosecutable because they lacked a confession. n242
In view of the significance of prosecutorial screening, this renders his ultimate figures suspect. It is also unclear what
definition of "essential" Piersante used. n243
7. The Kings County Study. -- District Attorney Aaron E. Koota of Kings County, New York reported that from
June 1966 to the end of September 1966, 316 suspects were interrogated for crimes such as [*429] homicide, robbery,
rape, and felonious assault. n244 Of these, 130 refused to make any kind of statement. Koota estimated that sufficient
evidence to prosecute existed without a confession in 30 of these cases. n245 A straightforward calculation from this
data would suggest that confessions are needed in 76.9% of cases without confessions (100/130).
Such a calculation presents several problems. To begin, Koota's figure of only 30 cases with sufficient evidence to
prosecute appears to be a rough estimate. n246 His testimony reveals nothing about the methodology for his
calculations. Moreover, it is unclear whether Koota considered the possibility of other avenues of investigation to obtain
evidence other than interrogation. n247
8. The Sobel Study. -- Judge Nathan R. Sobel, a Supreme Court Justice in Kings County, New York, surveyed
completed criminal cases raising confession issues in his jurisdiction from 1962 to 1964. Of 47 cases in which a
confession issue was involved, Sobel believed that the confession was "essential" or "helpful" in 10 (21.3%). n248
Apart from the small sample size, about which Sobel himself cautioned, n249 there is a substantial question about the
representativeness of a sample drawn from completed and appealed court cases. For example, Sobel did not survey
cases involving acquittals. n250 Thus, the study is not particularly useful.
[*430] 9. The Jacksonville and San Diego Study. -- Floyd Feeney, Forrest Dill, and Adrianne Weir conducted a
detailed survey of robbery, burglary, and stranger felony assault cases handled in Jacksonville, Florida and San Diego,
California in 1978 and 1979. n251 While they did not directly report a necessity rate, they found that in all categories
in both cities (except for felony assault in Jacksonville) the percentage conviction rate for confession cases was much
higher than in nonconfession cases. From this data, one might be able to infer a confession necessity rate by calculating
the difference between the conviction rates. For example, in burglary cases in San Diego, there was a 73% conviction
rate in confession cases, but only a 47% conviction rate in nonconfession cases, which might imply a necessity rate of
26% (the difference between the two). n252 This methodology produces an average necessity rate of 18.7% in
Jacksonville and 28.3% in San Diego, the mean difference within the three offense categories. However, one must be
cautious about such an inference. As the study documented in great detail, cases can result in nonconviction for a
variety of reasons, such as police release of suspects, district attorney rejections, and pretrial diversion. n253 Without
knowing that these processes operate uniformly in both confession and nonconfession cases, we cannot be certain that
we have derived a reliable necessity rate. n254
10. The Oakland Robbery Study. -- Floyd Feeney and Adrianne Weir performed an earlier study of robbery
investigations in Oakland. They concluded that, at least for the crime of robbery, "confessions are relatively
unimportant, being judged as essential for only five-to-ten percent of the charged suspects." n255 This statistic is
misleading. It is derived by taking essential confessions in confession cases and then dividing by all cases -- even
though the authors never assessed whether confessions were essential in nonconfession cases. n256
[*431] Looking just at confession cases, one arrives at a much higher percentage of confessions deemed as
essential. Of 35 confession and admission cases, six of the incriminating statements were deemed "essential to the case"
n257 -- a rate of 17.1%. Even this rate may be too low since it was obtained by the authors overriding the assessments
of the investigating sergeants, who indicated that 10 of 35 incriminating statements (28.5%) were essential. n258 The
authors explained that they were substituting a "single, uniform standard," but they did not explain what that standard
was. n259 Their uniform standard probably related to the ability of the police to arrest or detain, not to the ability of

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90 Nw. U.L. Rev. 387, *431

the prosecution to convict. n260 In particular, the authors apparently failed to list incriminating statements as
"essential" even where suspects were released before charging because of lack of evidence and even where suspects
were acquitted at trial. n261 In light of these problems, the study should be read as suggesting that incriminating
statements are essential to the charging process in at least 17.1% of all robbery cases. Beyond that, the authors' data do
not allow further assessments on confession necessity. n262
11. The Middle America and Chicago Studies. -- Peter Nardulli has performed two exclusionary rule studies that
contain confession data allowing estimation of a confession necessity rate. His study of nine counties in three
mid-American states (Illinois, Michigan, and Pennsylvania) found that the defendant was convicted in 87.6% of cases in
which a motion to suppress a confession was denied, while the rate was 58.3% when the motion was granted. n263 His
later study in Chicago found that the conviction rate was 94.1% when the motion to suppress a confession was denied,
but 66.7% when the motion was granted. n264 The difference between these figures might be regarded as a necessity
rate, suggesting necessity figures of 29.3% in middle America and 27.4% in Chicago. As noted above, however, one
must be cautious about such an interpretation.
[*432] 12. Bay Area Study. -- Richard Leo conducted a detailed analysis of interrogations in three cities in the
California Bay area in 1993. n265 While he did not directly report a necessity figure, he found that suspects who gave
incriminating statements to police were much more likely to be convicted. In all, 69% of suspects who provided
incriminating information were convicted, compared to 43% of those who did not. n266 From this data, one might
infer a necessity rate by taking the difference between the conviction rates -- in this case, 26%. n267 However, one
must be cautious about such a conclusion for the reasons explained above. n268
13. Salt Lake County Study. -- The most recent data on the importance of confessions to convictions come from my
1994 study in Salt Lake County, Utah. n269 In 59 cases in which police questioning was "successful" (in obtaining a
confession, incriminating statement, or other useful information), prosecutors were asked to characterize the importance
of that success. Following the classifications of the Yale Project, my study found that prosecutors considered 22.0% of
the incriminating statements "essential" and 39.0% "important," which suggests (again using the Yale Project
methodology) that incriminating statements were "necessary" in 61.0% of the cases in [*433] which they were
obtained. n270 Along the same lines, the study found that 78.3% of those suspects whom police successfully
questioned were convicted of some charge, as compared to 49.3% for those unsuccessfully questioned -- a difference of
29.0%. n271
14. Summary of Confession Necessity Studies. -- The studies on the importance of confessions in obtaining
convictions are summarized in Table 2. As can be seen, the studies report that confessions are needed in somewhere
between 10.3% to 29.3% of all cases (excluding the unusual Kings County and Oakland calculations n272 ) and
between 8.2% to 61.0% of cases involving confessions. Excluding my own recently completed study n273 and
examining the "reliable" estimates n274 from Pittsburgh, New York County, Los Angeles (post-Dorado), and Seaside
City produces an average estimate of confessions needed to convict in 23.8% of all cases and in 26.1% of confession
cases. [*434]
TABLE 2 -- ESTIMATES OF THE IMPORTANCE OF CONFESSIONS
FOR CONVICTION
Confessions

Confessions

Needed --

Needed --

Major

All Cases

Confession Cases

Problems?

Pittsburgh

20.2%

25.9%

N.Y. County

27.5%

City

Los Angeles-

26.2%

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90 Nw. U.L. Rev. 387, *434

post-Dorado
Los Angeles-

10.3%

Yes

post-Miranda
New Haven

13.3%

8.2%

Yes

Seaside City

23.6%

?

Detroit-1961

13.1%

Yes

11.3%

Yes

23.6%

Yes

18.8%

Yes

15.2%

Yes

76.9% (der.)

Yes

(Souris)
Detroit-1965
(Souris)
Detroit-1961
(Yale L.J.)
Detroit-1965
(Yale L.J.)
Detroit-1965
(Piersante)
Kings County
Sobel

21.3%

Yes

Jacksonville

18.7% (der.)

Yes

San Diego

28.3% (der.)

Yes

Oakland

17.1+%

Yes

Middle America

29.3%

Yes

Chicago

27.4%

Yes

New Orleans

75% (est.)

Yes

Bay area

26% (der.)

Yes

Salt Lake

61.0%

*

County
Average of

23.8%

26.1%

Studies
Without Major
Problems
est. = estimated
der. = derived
* No problems, but excluded for other reasons. See note 273, supra.
Two cross-checks can be made to these estimates, which suggest that they are, if anything, conservative
assessments of the need for confessions. n275 First, recent studies in Britain have reached similar [*435] conclusions.
Perhaps the most detailed information on the need for confessions in England comes from Baldwin and McConville,
who took a sample of 1000 cases (500 guilty pleas, 500 not-guilty pleas) to two highly respected assessors, who

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90 Nw. U.L. Rev. 387, *435

independently evaluated the importance of any statements obtained from the accused to a successful prosecution. n276
The first assessor estimated that, without the statements, 21.2% of all cases would fail to reach even a prima facie level
and an additional 3.3% would probably result in an acquittal. n277 Combining these figures produces a necessity
estimate of 24.5% of all cases. The second assessor estimated that 21.0% would not reach a prima facie standard and an
additional 10.8% would result in an acquittal, n278 for a necessity estimate of 31.8%. n279 The assessors also
evaluated the overall importance of the statement to the prosecution's case as a whole. In the 500 not-guilty cases, the
first assessor thought that in 29.5% the accused's statements made "all the difference between a strong case and no
case"; the second assessor put the figure at 31.8%. n280 In the 500 guilty pleas, the first assessorthought that the
statements made all the difference in 32.4%; the second assessor estimated the figure to be 27.5%. n281 Assuming that
the difference between having "a strong case" and "no case" is equivalent to determining whether a confession is
necessary to convict, these estimates suggest a necessity figure of between 27.5% and 32.4%.
Julie Vennard reported similar results for contested trials in English magistrates' courts for simple assault and small
property offenses. n282 She did not report a necessity figure, but did present evidence on the extent to which
confessions were involved in [*436] obtaining convictions. Within the direct evidence cases, there was a 100.0%
conviction rate with confessions and a 76.6% rate without confessions. n283 It might be argued that the difference -24.4% -- reflects the extent to which confessions are necessary for conviction. Similarly, within the circumstantial
evidence cases, there was a good 85.7% conviction rate with confessions and a 51.5% rate without. n284 This suggests
a 34.2% necessity rate. In sum, the British data fully confirm the estimate made here that confessions are needed to
convict about 23% to 26% of the time.
A second confirmation of the accuracy of the estimate comes from various studies of the "attrition rate" of criminal
cases after arrest, which generally finds that more than 25% of all cases are dropped, many for lack of evidence (e.g.,
lack of a confession). A study performed in the District of Columbia found that insufficiency of the evidence was the
reason for rejection at screening in 34% of all cases. n285 A five-city study found that evidence problems accounted
for a large proportion of rejections of felony cases at screening, ranging from 17% in Cobb County, Georgia to 56% in
Salt Lake City, Utah. n286 Based on a review of these and other studies, Brian Forst estimates that 38% of all adult
felony arrests in the country are weeded out by the prosecutor. n287 This prosecutorial screening accounts for
three-fourths of the adult felony cases that fail to end in conviction. n288 Forst notes that "the vast majority of all
felony cases dropped by the prosecutor are rejected due to insufficiency of the evidence." n289 Given this estimate of a
significant percentage of rejections of cases for insufficient evidence and adding in the percentage of cases with
sufficient evidence only because of the presence of a confession, an estimate that confessions are needed in around 23%
to 26% of all cases to convict seems, if anything, too low. More generally, the case attrition data suggests that Miranda
inflicts its cost precisely in this area where the system is weakest, by [*437] diminishing the confession rate and thus
reducing the evidentiary strength of the prosecution's case. n290
III. CALCULATING MIRANDA'S COSTS
The data reviewed in the preceding sections should allow us to make a general estimate of Miranda's costs in terms
of lost cases. To be sure, in view of the limited number of studies, one must approach this endeavor with some caution.
Nonetheless, there is probably considerable heuristic value in making a rough calculation of Miranda's impact on the
criminal justice system. n291
A. Direct Costs in Terms of Lost Cases
As explained in Part I, the appropriate method for assessing Miranda's effects is to look at the number of cases that
are "lost" due to Miranda. n292 Expressed as a formula, the direct costs of Miranda in terms of the percent of lost
convictions per year can be determined as follows:
(1) change in confession rate because of Miranda (in terms of suspects confessing/suspects questioned)
x

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90 Nw. U.L. Rev. 387, *437

(2) cases in which confessions are needed to convict (in terms of confessions needed/suspects
confessing). n293
The absolute number of criminals who might escape conviction because of Miranda can be determined by multiplying
that percentage figure by the absolute number of criminal suspects questioned.
The preceding sections provide some tentative estimates that allow a preliminary estimate of the costs of Miranda.
For an estimate of the change in the confession rate, I will use the average of the reliable before-and-after Miranda
studies, which report a mean 16% reduction in the confession rate; for an estimate of the importance of confessions, I
will use the average of the reliable studies on the subject, [*438] which report that confessions are needed in 24% of
cases involving confessions. n294 Combining these figures produces the following result:
16% x 24% = 3.8%
In other words, the existing empirical data supports the tentative estimate that Miranda has led to lost cases against
almost four percent of all criminal suspects in this country who are questioned.
In addition to the cautions about these figures noted elsewhere in this Article, one definitional point should be
emphasized. These "lost cases" are not necessarily the same as lost convictions. What these figures estimate is the
additional number of cases in which, due to Miranda, a defendant did not confess and that confession was needed to
convict. It may be that some viable criminal cases that are presented to prosecutors will be dismissed or pled down for
reasons that have nothing to do with the Miranda decision. Nonetheless, most of the lost cases assessed here are
probably cases that would "stick," that is, cases that would have ultimately resulted in a conviction. n295 While studies
suggest that many cases are lost due to attrition as they work their way through the criminal justice system, the main
reason for that attrition is evidentiary weakness in the case. n296 A confession shores upa weak case unlike any other
single piece of evidence, n297 and prosecutors are probably particularly disinclined to plead down cases with
confessions. n298
While defenders of Miranda may argue that a 3.8% "cost" is acceptable given Miranda's benefits, critics will
respond that the apparently small percentage figure multiplied across the run of criminal cases constitutes a large
number of criminals. Although I will defer until Part VI full discussion of whether Miranda's costs are high or low, it
might be useful to calculate an absolute number of criminal cases lost because of Miranda. To estimate such a number,
it is necessary to multiply the percentage figure previously reported (3.8%) by the number of suspects interrogated. No
national (and few if any local) statistics are available on the number of suspects interrogated. A surrogate number is the
number of suspects arrested for particular crimes. Statistics on the number of "persons arrested" each year in [*439]
this country are readily available in the Federal Bureau of Investigation's annual Uniform Crime Reports ("UCR").
n299
Persons arrested seems to be an appropriate figure for extrapolation. n300 Although "arrest" can be defined
differently by various police agencies, n301 the operational definitions for reporting purposes seem to coalesce around
events such as "brought to the station" n302 or "booking." n303 These appear to be definitions that would correspond
with police opportunities for custodial interrogation. n304 Indeed, the definition of arrest might understate the number
of custodial situations, not only because some arrests are not reported, n305 but also because some police agencies
commonly interrogate a suspect at the stationhouse without considering this to be an arrest. n306
Using arrest figures also has the advantage of corresponding roughly to the statistics used to calculate confession
rates. For example, the Pittsburgh study examined all files for cases cleared by the detective branch. n307 Cases are
typically cleared by an "arrest." The New York County study used the slightly different figure of confessions "used in
presenting cases to [the] grand jury," but such presentment typically occurred only "after arrest." n308 The
Philadelphia study used "individuals arrested" as the base measure. n309 The Seaside City study involved cases in
which "suspects were actually arrested and incarcerated by the Seaside City Police Department." n310 [*440] Using

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90 Nw. U.L. Rev. 387, *440

arrest figures, we can calculate total lost cases as follows. For 1993 (the most recent year for which statistics are
available), the UCR's Crime Index reports 754,110 arrests for violent crimes and 2,094,300 arrests for property crimes.
n311 Multiplying the Miranda cost figure (3.8%) by the UCR index arrest figures suggests that in 1993 Miranda
produced roughly 28,000 lost cases against suspects for index violent crimes and 79,000 lost cases against suspects for
index property crimes. The violent crime figure can be divided into specific crimes, specifically 880 murder and
nonnegligent manslaughter cases, 1400 forcible rape cases, 6500 robbery cases, and 21,000 aggravated assault cases.
These lost numbers only reflect crimes counted in the FBI's crime index. The FBI also compiles an estimated total
number of arrests for each year. n312 Using the same methods, additional lost cases in 1993 for crimes outside of the
crime index were more than 500,000, including: 57,000 lost cases for driving under the influence;44,000 lost cases for
assaults (not including aggravated assault); 42,000 lost cases for drug offenses; 19,000 lost cases for forgery and fraud;
12,000 lost cases for vandalism; and 9000 lost cases for weapons violations (carrying, possessing illegally, etc.).

Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental RightsSearch & SeizureExclusionary RuleCriminal Law &
ProcedureInterrogationMiranda RightsCustodial InterrogationCriminal Law & ProcedureInterrogationVoluntariness
FOOTNOTES:

n1 Miranda v. Arizona, 384 U.S. 436, 542 (1966) (White, J., dissenting).
n2 Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1, 20 (1986)
(noting "widely shared perception that Miranda's effect on law enforcement has been negligible").
n3 1 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 484 (1984 & Supp. 1991)
(citation omitted).
n4 See, e.g., Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police
Interrogation, 103 YALE L.J. 259, 299 n.200 (1993) ("Most later commentators have agreed with the
conclusions of these early studies, finding that Miranda has had little negative effect on criminal prosecutions.");
Lawrence Herman, The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation,
48 OHIO ST. L.J. 733, 737 n.31 (1987) ("Most of the studies tend to show that Miranda has not significantly
affected the rate of confession . . . ."); Yale Kamisar, Remembering the "Old World" of Criminal Procedure: A
Reply to Professor Grano, 23 U. MICH. J.L. REF. 537, 585 (1990) ("As twenty-five years of life with Miranda
has demonstrated, however, the Miranda dissenters' fears [of harm to law enforcement] did not prove
justified."); Irene M. Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial
Confessions, 68 N.C. L. REV. 69, 114 n.259 (1989) ("It seems reasonably clear that the great weight of
empirical evidence supports that conclusion that Miranda's impact on the police's ability to obtain confessions
has not been significant.") (internal quotation omitted); see also ABA SPECIAL COMM. ON CRIMINAL
JUSTICE IN A FREE SOC'Y, CRIMINAL JUSTICE IN CRISIS 27 (1988) ("Miranda does not have a
significant impact on law enforcement's ability to solve crime or to prosecute criminals successfully.").
n5 See, e.g., FRANK W. MILLER ET AL., CASES AND MATERIALS ON CRIMINAL JUSTICE

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90 Nw. U.L. Rev. 387, *440

ADMINISTRATION 519 (4th ed. 1991) ("The available evidence suggests that [Miranda's] impact was
relatively slight."); STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL
PROCEDURE: CASES AND COMMENTARY 523 (4th ed. 1992) ("In many jurisdictions, [Miranda] has had
very little measurable effect."); CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: REGULATION OF
POLICE INVESTIGATION -- LEGAL, HISTORICAL, EMPIRICAL AND COMPARATIVE MATERIALS
346 (1993) ("Miranda [has] changed interrogation . . . probably only a little.").
n6 See, e.g., NATIONAL INST. OF JUSTICE, U.S. DEP'T OF JUSTICE, CRIMINAL JUSTICE
RESEARCH REPORT -- THE EFFECTS OF THE EXCLUSIONARY RULE: A STUDY IN CALIFORNIA
(1982); Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the
Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 1983 AM. B. FOUND. RES. J. 611;
Peter F. Nardulli, The Societal Costs of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUND.
RES. J. 585.
n7 See Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A Comparison of the English
and American Approaches, 38 HASTINGS L.J. 1, 6-7 (1986) (concluding that debates on interrogation
questions "often reflect emotion or personal feeling rather than a reliance upon empirical evidence and logic").
n8 The editors of the Harvard Law Review concluded that such a question is "both unanswered and perhaps
unanswerable." Developments in the Law -- Confessions, 79 HARV. L. REV. 938, 945 (1966). The editors of the
Yale Law Journal called this assessment "characteristic[]" of the Harvard editors. Project, Interrogations in New
Haven: The Impact of Miranda, 76 YALE L.J. 1519, 1521 n.4 (1967) [hereinafter Yale Project].
n9 Davies, supra note 6, at 622 (discussing Fourth Amendment exclusionary rule).
n10 Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).
n11 See, e.g., Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of
the Burger Court: Rights and Wrongs in the Supreme Court, 1969-86, in THE BURGER YEARS 143, 150
(Herman Schwartz ed., 1987)(noting that striking a balance "is the way Miranda's defenders -- not its critics -have talked about the case for the past twenty years").
n12 Cf. Davies, supra note 6, at 626 (noting that "there is no empirical content to this 'balancing' approach
to considering costs and benefits" of the search and seizure exclusionary rule).
n13 OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY
GENERAL ON THE LAW OF PRE-TRIAL INTERROGATION 126 (1986) [hereinafter OLP PRE-TRIAL
INTERROGATION REPORT] (internal quotation omitted). The report is reprinted in 22 U. MICH. J.L. REF.
437 (1989).
n14 OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 127. Other miscarriages resulting
from suppression of confessions under Miranda are found in id. at 122-27; H. RICHARD UVILLER,
TEMPERED ZEAL: A COLUMBIA LAW PROFESSOR'S YEAR ON THE STREETS WITH THE NEW
YORK CITY POLICE 206-07 (1988).

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90 Nw. U.L. Rev. 387, *440

n15 Nardulli, supra note 6, at 601 (table 12).
n16 Peter F. Nardulli, The Societal Costs of the Exclusionary Rule Revisited, 1987 U. ILL. L. REV. 223,
233 (table 8).
n17 FLOYD FEENEY ET AL., ARRESTS WITHOUT CONVICTION: HOW OFTEN THEY OCCUR
AND WHY 144 (1983). Of 619 arrests for burglary and robbery, they found that "there was some kind of
exclusion problem involving a confession or admission" in only sixteen cases, a suppression motion filed in only
six cases, and a suppression motion granted in only three cases, none which caused a case to be lost. Id. There
were two other cases in which prosecutors rejected charges because of confession problems. Id. The figure
referred to in the text assumes that these two cases can be attributed to Miranda (one involved a confession that
was arguably the fruit of an illegal street detention).
n18 See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PROSECUTORS IN STATE
COURTS, 1992, at 6 (1993) (table 9) (finding 15% of prosecutor's offices experienced dismissals of cases
because of self-incrimination problems); COMPTROLLER GENERAL OF THE U.S., IMPACT OF THE
EXCLUSIONARY RULE ON FEDERAL CRIMINAL PROSECUTIONS 8 (1979) (4.4% of federal defendants
filed motion to suppress confession); FLOYD FEENEY & ADRIANNE WEIR, THE PREVENTION AND
CONTROL OF ROBBERY: A SUMMARY 56 (1974) (finding no problems with admissibility of confessions in
samples of robbery cases); PETER W. GREENWOOD ET AL., PROSECUTION OF ADULT FELONY
DEFENDANTS: A POLICY PERSPECTIVE 67 (table 44), 74 (table 49) (1976) (finding that no cases were
rejected by prosecutors for filing because of "unlawfully obtained statements" in felony cases for possession of
dangerous drugs; for all cases, 1% or less were dismissed at the preliminary hearing for "improper advisement of
rights"); see also MICHAEL ZANDER & PAUL HENDERSON, ROYAL COMM'N ON CRIMINAL
JUSTICE, CROWN COURT STUDY (1993) (British study finding that confessions are challenged in only
about 5% of all cases).
n19 See Thomas Y. Davies, Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a
California Court of Appeal, 1982 AM. B. FOUND. RES. J. 543, 616 (finding confession issues raised in 20.4%
of criminal appeals, but only 1.8% of claims were successful); Karen L. Guy & Robert G. Huckabee, Going
Free on a Technicality: Another Look at the Effect of the Miranda Decision on the Criminal Justice Process, 4
CRIM. J. RES. BULL. 1, 2 (1988) (finding Miranda issue raised in 9% of appeals, but only 5.6% of claims were
successful, for a reversal rate of .51% for all criminal appeals).
n20 Mathew Lippman, A Commentary on Inbau and Manak's "Miranda v. Arizona -- Is It Worth the Cost?"
(A Sample Survey, with Commentary, of the Expenditure of Court Time and Effort), PROSECUTOR, Spring
1989, at 37. Lippman inadvertently shrinks the costs even further by transposing the cost estimate from .071% to
.017%. See id.
n21 Paul Marcus, A Return to the "Bright Line Rule" of Miranda, 35 WM. & MARY L. REV. 93, 143
(1993) (cross-referencing study by Nardulli); see also Peter D. Baird, Critics Must Confess, Miranda Was the
Right Decision, WALL ST. J., June 13, 1991, at A17 (citing Nardulli numbers for the point that few confessions
founder at trial).
n22 Nardulli, supra note 6, at 606; see FEENEY & WEIR, supra note 18, at 56; CHARLES E.
SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 262-65 (1978); Guy & Huckabee, supra note

Page 24
90 Nw. U.L. Rev. 387, *440

19, at 2.
n23 JOSEPH D. GRANO, CONFESSIONS, TRUTH, AND THE LAW 202 (1993) (citing Stephen J.
Markman, The Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda," 54 U.
CHI. L. REV. 938, 945-47 (1987)).
n24 To add this figure as a cost of Miranda assumes that confession is suppressed as the result of a Miranda
violation, not as the result of a Fifth Amendment voluntariness violation. See generally infra notes 493-98 and
accompanying text (discussing distinction between Miranda violation and Fifth Amendment violation). This
assumption seems reasonable, since genuinely coerced confessions are quite rare. See infra notes 499-533 and
accompanying text; see also FEENEY ET AL., supra note 17, at 145 (table 15-4) (finding that of 619
confessions, 16 had admissibility problems, only 3 of which related to voluntariness); VERA INST. OF
JUSTICE, TAPING POLICE INTERROGATIONS IN THE 20TH PRECINCT, N.Y.P.D. (1967) (finding that
of statements obtained in 275 recorded interrogations, none could be said to be "involuntary").
n25 See infra notes 293-312 and accompanying text (concluding that cost of Miranda measured by lost
cases is 3.8%, which is more than 50 times larger than the .071% cost estimate made by Nardulli).
n26 See, e.g., CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL
PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 382 (3d ed. 1993).
n27 See Davies, supra note 6, at 634 ("The effect of the rule should be calculated by looking at the
percentage of all arrests (or of all arrests in particular crime categories) that are declined because of illegal
search problems.").
n28 See, e.g., Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court,
75 MICH. L. REV. 1319, 1383 (1977) (relying on discussions with police officers in assessing Miranda's effect
on law enforcement).
n29 This Article will generally use "confession" as encompassing not only outright admissions of guilt but
also incriminating statements. See George C. Thomas III, Is Miranda a Real-World Failure?: A Plea for More
(and Better) Empirical Evidence, 43 UCLA L. REV. (forthcoming 1996) (employing similar terminology). In
describing specific empirical studies, this Article will generally try to follow the terminology used by the study.
n30 Cf. Yale Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 CORNELL
L.Q. 436, 462-69 (1964) (discussing before-and-after assessments to measure effect of court decisions).
n31 See, e.g., infra note 412 (noting difference that arrest practices can make in confession rates).
n32 Richard H. Seeburger & R. Stanton Wettick, Jr., Miranda in Pittsburgh -- A Statistical Study, 29 U.
PITT. L. REV. 1, 6-7, 11, 13 (1967).
n33 Id. at 8.

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90 Nw. U.L. Rev. 387, *440

n34 The study defined "confessions" as "all admissions (oral or written) to police officers which were
self-incriminating and contained no self-serving declarations which would substantially lessen the offense and
all admissions which were helpful to the police's case even if they contained such self-serving declarations." Id.
at 10.
n35 This Article uses percentages in an unconventional way because of the need for a change in the
confession rate to calculate Miranda's costs. See supra notes 26-27 and accompanying text. As a result, it refers
to the difference between, say, a 30% confession rate and a 20% confession rate as a 10% "drop" or "reduction"
in the rate rather than as a 33% reduction in confessions. The net effect of this unusual terminology may be to
misleadingly understate Miranda's effects, as this example illustrates.
n36 Seeburger & Wettick, supra note 32, at 12 (table 2).
n37 Id. at 13 (table 3).
n38 The reasons for the even larger drop in 1967 are discussed infra notes 389-93 and accompanying text.
n39 See, e.g., YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS
AND QUESTIONS 599 n.c (8th ed. 1994); Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV.
435, 457(1987); White, supra note 2, at 18.
n40 See, e.g., KATHLEEN B. BROSI, A CROSS-CITY COMPARISON OF FELONY CASE
PROCESSING 52 (1979) (finding conviction rates varying from 21% to 62% in various jurisdictions); see also
Isaac Ehrlich & George D. Brower, On the Issue of Causality in the Economic Model of Crime and Law
Enforcement: Some Theoretical Considerations and Experimental Evidence, 77 AM. ECON. REV. 99, 104
(1987) (finding conviction rate data to be of poor quality).
n41 Cf. Markman, supra note 23, at 946 n.20 (noting problems with relying on conviction rate data to assess
Miranda's effects); Ian McKenzie & Barrie Irving, The Right to Silence, 4 POLICING 88, 102-03 (1988)
(finding similar defects in arguments about interrogation relationship to convictions in Britain).
n42 Professor Oaks has made an analogous point in the search and seizure area. See Dallin H. Oaks,
Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, 688-89 (1970) (concluding that
effect of exclusionary rule must be measured by considering not only what happens to filed cases but also cases
that are "no-papered" by prosecutors).
n43 See Seeburger & Wettick, supra note 32, at 24 (noting that a way to "reconcile" the declining
confession rate with stable conviction rates is to look at cases that "are being thrown out at the arraignment and
grand jury levels").
n44 Id. at 24.
n45 Id. The only other post-Miranda indictment figures I have been able to locate also show declining

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indictment rates. In Richmond, Virginia, indictments fell 10% after Escobedo and 20% after Miranda.
Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on Criminal Laws
and Procedures of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. 249 (1967) [hereinafter Controlling
Crime Hearings] (statement of James T. Wilkinson, Commonwealth's Attorney for Richmond, Va.).
n46 See infra notes 293-312 and accompanying text (estimating Miranda's cost in "lost cases" to be around
3.8%). The percentages are not exactly comparable because they use different denominators: persons
interrogated in the first instance and indictments sought in the second.
n47 See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the
Effects of Miranda, 43 UCLA L. REV. (forthcoming 1996) (documenting screening by prosecutors of
disproportionate number of nonconfession cases).
n48 See BROSI, supra note 40, at 12 (noting that prosecutors rejected cases for filing at rates ranging from
9% to 57% in five cities); FEENEY ET AL., supra note 17, at 21 (noting that California case attrition rate is
43% if measured from the point of police arrests, but only 26% if measured from prosecutorial filing and 14% if
measured from cases reaching upper court); BRIAN FORST ET AL., WHAT HAPPENS AFTER ARREST?: A
COURT PERSPECTIVE OF POLICE OPERATIONS IN THE DISTRICT OF COLUMBIA 67 (1977) (finding
21% prosecutorial rejection rate in District of Columbia).
n49 See FEENEY ET AL., supra note 17, at 21-22.
n50 The Pittsburgh study authors concluded: "While the figures covering Pittsburgh's clearance rate
between January 1, 1965 and July 31, 1967 do not require the conclusion that Miranda has had an impact on the
ability ofthe Pittsburgh police to solve crime, there has been a decline in the clearance rate from the first half of
1966. One of several possible explanations for this is the imposition of the Miranda requirements on the
Pittsburgh police." Seeburger & Wettick, supra note 32, at 24.
n51 See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFORM CRIME
REPORTING HANDBOOK 41-42 (1984) (defining "cleared" crime for purposes of the Uniform Crime
Reports).
n52 See Dunaway v. New York, 442 U.S. 200 (1979).
n53 Professor Kamisar later asked Professor Seeburger whether the study lent support to the "claim that
Miranda had damaged law enforcement." Yale Kamisar, Landmark Ruling's Had No Detrimental Effect,
BOSTON GLOBE, Feb. 1, 1987, at A27. Seeburger replied: "Absolutely not." Id. In reaching this conclusion,
Professor Seeburger was apparently misled by his conviction rate and clearance rate findings, which are
inaccurate measures of Miranda's harmful effects for the reasons explained here.
n54 A related point to be made about the Pittsburgh study is that it appears to have examined only files of
cases that had been cleared. See Seeburger & Wettick, supra note 32, at 6. Thus, it is not clear whether they
would have had the uncleared files to examine, including files for uncleared cases in which the failure to clear
was attributable to Miranda.

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n55 White, supra note 2, at 19.
n56 See AMERICAN LAW INST., A MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE: STUDY
DRAFT NO. 1 134 (1968) [hereinafter ALI REPORT] (attributing confession rate drop to "full compliance"
with Miranda).
n57 See, e.g., Schulhofer, supra note 39, at 456 & n.56 (1987) ("Many studies have shown that the degree
of compliance with Miranda's requirements . . . has been high.").
n58 The study's authors offered the qualitative conclusion that they had proved that "Miranda has not
impaired significantly the ability of the law enforcement agencies to apprehend and convict the criminal."
Seeburger & Wettick, supra note 32, at 26. While this opinion probably shows nothing more than their
"ideological affinities for the Miranda decision," Markman, supra note 23, at 947, it is in any event irrelevant to
our question of determining Miranda's quantitative effects.
n59 Controlling Crime Hearings, supra note 45, at 1120 (statement of District Attorney Frank S. Hogan).
n60 Id.
n61 Id. (1280 out of 2610 defendants).
n62 Id. (figure derived from raw data: 354 out of 2448 defendants). Professor Dripps has possibly
mistakenly described the study as involving "only the frequency of any statement by the suspect," not
necessarily statements "useful in establishing guilt." Donald A. Dripps, Foreword: Against Police Interrogation
-- And the Privilege Against Self-Incrimination, 78 J. CRIM. L. & CRIMINOLOGY 699, 722-23 n.91 (1988).
Hogan is clear in describing the study as involving "incriminating statements," a phrase he uses interchangeably
with "admissions or confessions." Controlling Crime Hearings, supra note 45, at 1120.
n63 Schulhofer also contends that the "data for pre-Miranda and post-Miranda periods were not compiled
by comparable methods . . . ." Schulhofer, supra note 39, at 457. He may have the New York County study
confused with another study, as the basis for his contention is unclear. See Controlling Crime Hearings, supra
note 45, at 1120 (noting that gathering of statistics for the study began six months before Miranda and continued
for six months after).
n64 Stephen J. Schulhofer, The Fifth Amendment at Justice: A Reply, 54 U. CHI. L. REV. 950, 955 (1987).
n65 But cf. VERA INST. OF JUSTICE, FELONY ARRESTS: THEIR PROSECUTION AND
DISPOSITION IN NEW YORK CITY'S COURTS 17 (1977) (referring to the "sometimes extended period" of
time in New York City between arraignment and grand jury action).
n66 Controlling Crime Hearings, supra note 45, at 1120.
n67 Markman, supra note 23, at 946 n.19. Schulhofer does not believe that New York prosecutors would

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have presented inadmissible testimony to grand juries because the New York rules provided that "the grand jury
can receive none but legal evidence." N.Y. CRIM. PROC. LAW § 249 (1958) (superseded by N.Y. CRIM.
PROC. LAW § 190.30(1) (McKinney 1993), effective Sept. 1, 1971), cited in Schulhofer, supra note 64, at 955
n.21. But it seems clear that New York prosecutors did exactly that in at least some cases following Miranda.
See F. David Anderson, Confessed Killer of Six Goes Free -- Judge in Brooklyn Conforms Reluctantly with High
Court Ruling, N.Y. TIMES, Feb. 21, 1967, at 41 (noting that the grand jury indicted Jose Suarez on November
4, 1966 and that the prosecutor dismissed charges one week later, conceding that, apart from the inadmissible
confession, "there is no other evidence").
n68 Controlling Crime Hearings, supra note 45, at 1120. This is also the way Hogan's report was
interpreted at the time. See Peter Kihss, Hogan Calls Ruling Curbing Confession a Shield for Crime, N.Y.
TIMES, July 13, 1967, at 1.
n69 Controlling Crime Hearings, supra note 45, at 1121 (providing a tabulation "of all suspects questioned
in homicide cases since Miranda" from June 13, 1966 to June 13, 1967).
n70 Id. at 1122 ("This represents a marked change from pre-Miranda times when . . . rarely did a suspect
refuse to make any kind of statement, even if it was only to protest his innocence.").
n71 See VERA INST. OF JUSTICE, MONITORED INTERROGATIONS PROJECT FINAL REPORT:
STATISTICAL ANALYSIS 2, 7 (1967); see also VERA INST. OF JUSTICE, supra note 24.
n72 VERA INST. OF JUSTICE, supra note 71, at 2, 39.
n73 The two studies appear to be based on roughly similar definitions of incriminating statements. Compare
id. at 8 (study collected information on "confession" or "admission") with Controlling Crime Hearings, supra
note 45, at 1120 (study collected information on "confession or admission of guilt").
n74 VERA INST. OF JUSTICE, supra note 71, at 11. The study showed that 68.3% of suspects refused to
make any statement. Id.
n75 Id. at 40. The study showed that 58.9% of suspects refused to make any statement. Id.
n76 Also, the Vera Institute figures may not be directly comparable to Hogan's figures because the former
involve the percentage of all cases in which police obtained a confession or admission, rather than the
percentage of cases presented to the grand jury that contained a confession or admission. Even assuming that
prosecutorial and grand jury screening disproportionately weeds out weaker cases without confessions, however,
it seems hard to imagine that anything close to Hogan's reported 49% pre-Miranda rate could have been
achieved with a confession rate to police as low as reported by the Vera Institute.
n77 Controlling Crime Hearings, supra note 45, at 200-01.
n78 Id. at 200.

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n79 378 U.S. 478 (1964).
n80 See generally KAMISAR ET AL., supra note 39, at 436 n.i (discussing interpretation of Escobedo by
law enforcement). Specter describes them only as "post-Escobedo warnings." Controlling Crime Hearings,
supra note 45, at 200. Initially these warnings included an offer of appointed counsel. When four out of five
suspects answered "yes" when asked "Do you want a lawyer?," the Philadelphia police quickly changed to a
more limited advice of rights. Id.
n81 Controlling Crime Hearings, supra note 45, at 200.
n82 United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3d Cir. 1965). The Third Circuit denied a
petition for rehearing on October 13, 1965. Id. The Philadelphia police apparently began complying with the
decision a few days later. See Controlling Crime Hearings, supra note 45, at 200.
n83 Controlling Crime Hearings, supra note 45, at 200 (1550 suspects refused out of 4891 individuals
arrested). The statement in the text is derived by subtracting refusals from individuals arrested to come up with
the number of individuals who gave statements.
n84 Id. at 201 (table) (3095 suspects refused to give statements after warnings out of a total of 5220 arrests).
It appears that the Philadelphia police complied with the Miranda requirements. See id. at 206.
n85 See Dripps, supra note 62, at 722-23 n.91.
n86 Controlling Crime Hearings, supra note 45, at 200.
n87 See Seeburger & Wettick, supra note 32, at 13 (table 3) (indicating that out of 99 suspects willing to
talk, 46 confessed).
n88 VERA INST. OF JUSTICE, supra note 71, at 40.
n89 See FEENEY ET AL., supra note 17, at 143 (table 15-2) (noting that in Jacksonville, of 148
interrogated suspects who talked, 81 (55%) confessed; in San Diego, of 136 interrogated suspects who talked, 51
(38%) confessed); Cassell & Hayman, supra note 47 (notingthat 73 of 152 suspects (48.0%) who gave
statements gave incriminating statements); Richard J. Medalie et al., Custodial Police Interrogation in Our
Nation's Capital: The Attempt to Implement Miranda, 66 MICH. L. REV. 1347, 1369 (1968) (indicating that out
of statements related to the charge that could be characterized, 37 of 78 (46% were "inculpatory"); James W.
Witt, Non-Coercive Interrogation and the Administration of Criminal Justice: The Impact of Miranda on Police
Effectuality, 64 J. CRIM. L. & CRIMINOLOGY 320, 325 (1973) (table 3) (noting that of 211 post-Miranda
interrogated suspects who talked, 105 (50%) confessed or admitted guilt and 60 (28%) gave incriminating
evidence); Yale Project, supra note 8, at 1566 (table 12) (noting that of 91 interrogated suspects, 50 (54.9%)
confessed or gave incriminating evidence).
n90 This assumption probably understates Miranda's effects, as it is quite likely that Miranda affected

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confessions more than other types of statements. See Thomas, supra note 29.
n91 This number corresponds roughly with the (apparently) pre-Escobedo confession rate for Philadelphia:
50% confessions in cases in which the defendant was convicted and sentenced to at least two years. Brief of
National District Atty's Ass'n, Amicus Curiae, app. at 3, Miranda v. Arizona, 384 U.S. 436 (1966) (No. 759)
[hereinafter Brief of the National District Atty's Ass'n].
n92 Harold E. Pepinsky, A Theory of Police Reaction to Miranda v. Arizona, 16 CRIME & DELINO., 379,
382 (1970). While Specter was certainly a critic of the Miranda opinion, he was objective enough to testify that
he opposed a constitutional amendment overruling the decision. Controlling Crime Hearings, supra note 45, at
202. Moreover, Specter later expressed his view that police had become accommodated to Miranda and that he
saw no need to reverse the decision. Kamisar, supra note 53, at A27.
n93 Pepinsky, supra note 92, at 382; see also Schulhofer, supra note 64, at 955 & n.23 (making same
argument).
n94 See Controlling Crime Hearings, supra note 45, at 201 (sample size involving more than 5000 arrests).
n95 Pepinsky, supra note 92, at 382-83; see also Schulhofer, supra note 64, at 955 (adopting this
argument).
n96 Pepinsky, supra note 92, at 383.
n97 While separate arrest data are not available on Philadelphia, national arrest rates for serious crimes as
collected by the FBI apparently fell during the period of the Philadelphia study. The national arrest rates
(national index arrests/national index crimes) were: 1965 = .298; 1966 = .268; 1967 = .261. See FEDERAL
BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES: UNIFORM CRIME REPORTS
1965-67 (1966-68) (arrest tables; crime index tables).
It should also be noted that Professor Pepinsky believed, after reviewing the Philadelphia, Los Angeles,
Pittsburgh, and D.C. studies that, while suspects were still often confessing, "the confession rate has probably
declined somewhat since Miranda, [and] this decline is probably attributable to the Miranda warnings."
Pepinsky, supra note 92, at 385.
n98 Witt, supra note 89, at 322.
n99 Id. at 323.
n100 Id. at 325. Witt looked at whether the officers were "successful" in their interrogation, which he
defined as obtaining a signed confession, an oral admission of guilt, a signed incriminating statement, or some
type of verbal incriminating evidence or other useful material for conviction through interrogation. Id. at 325
n.43.

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n101 Id. at 323.
n102 Id. at 325.
n103 Witt reports no separate figures for suspects requesting counsel or declining to execute waivers.
Unless such situations are covered by the generic categories "suspect refused to talk" or "interrogation
unproductive," see id. at 325 (table 3), it is possible that Seaside police simply violated Miranda's requirements
in these areas.
n104 See id. at 325 n.41 (discussing People v. Dorado, the California Supreme Court's predecessor to
Miranda); see also infra notes 170-71 and accompanying text (discussing Dorado).
n105 This fact undercuts George Thomas's reading of the Seaside City data as suggesting that Miranda
warnings had a "double-effect" of simultaneously encouraging suspects to talk to police while discouraging
admissions of guilt. The data showed that suspects were less likely to make an outright admission after Miranda
but more likely to make incriminating statements. Thomas believes that the Miranda warnings encourage
statements because, among other reasons, suspects "might think that their willingness to talk in the face of the
warnings demonstrates their innocence"; on the other hand, the warnings discourage admissions because "even
the most superficial understanding of the warnings communicates that statements will be used in court."
Thomas, supra note 29. However, because the Seaside City police apparently began giving warnings in January
1965 (when Dorado was decided), the Seaside City data do not support Thomas's hypothesis. See Witt, supra
note 89, at 325 (table 3) (noting that oral incriminating evidence fell sharply in 1965). Thomas's hypothesis also
conflicts with data from New York County, Philadelphia, Kansas City, and Brooklyn, which suggest that
statements of all kinds fell as Miranda warnings and procedures were introduced. See Cassell & Hayman, supra
note 47 (criticizing Thomas's position). But see George C. Thomas III, Plain Talk about the Miranda Empirical
Debate: A "Steady-State" Theory of Confessions, 43 UCLA L. REV. (forthcoming 1996) (responding to Cassell
and Hayman).
n106 Yale Project, supra note 8, at 1613.
n107 Id. at 1527.
n108 Id. at 1532.
n109 Id. at 1573.
n110 Id.
n111 Id. at 1644 (53/110) (derived from data in table A).
n112 Id. at 1574.
n113 Id.

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n114 Id.
n115 Id. In assessing whether Miranda has reduced the number of confessions, it is not clear why this factor
(and perhaps the factor that interrogations have become "less hostile," see supra text accompanying note 114)
should be ignored.
n116 Yale Project, supra note 8, at 1613.
n117 Id. at 1550 (25 suspects of 118 questioned received full Miranda warnings).
n118 See infra notes 612-30 and accompanying text (finding Miranda's costs mostly attributable to waiver
and questioning cutoff rules).
n119 Yale Project, supra note 8, at 1551.
n120 See id. at 1551 n.84 (providing text of "waiver of rights" card).
n121 See id. at 1552 (reporting that police often would read rights, "then immediately shift to a
conversational tone to ask, 'Now, would you like to tell me what happened?'").
n122 See id. at 1617-25 (Appendix A, containing form to be completed by student observer, contains 69
questions, but no question specifically regarding waiver of rights).
n123 See id. at 1527 (admitting that "since the project was conceived before the Miranda decision, trial
observations began two weeks prior to its announcement"); see also LIBERTY AND SECURITY: A
CONTEMPORARY PERSPECTIVE ON THE "CRIMINAL JUSTICE REVOLUTION" OF THE 1960s,
PROCEEDINGS OF THE THIRD ANNUAL SYMPOSIUM OF THE CONSTITUTIONAL LAW RESOURCE
CENTER 117 (Const. L. Resource Center, Drake U. L. Sch. ed., Apr. 4, 1992) (participant in study reports that
"the Ford Foundation had given [us] a grant to study the effects of the Escobedo case and while the design of
that study was being worked on, Miranda was decided").
n124 See Yale Project, supra note 8, at 1552 (reporting that when suspect showed interest in a lawyer,
police "usually managed to head him off simply by not helping him to locate one"); id. at 1555 (reporting that
"many of the suspects who tried . . . half-heartedly to end the questioning were coaxed into talking").
n125 See OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 63 n.91 (noting that the study
is of little value "in assessing the effects of Miranda's system").
n126 Yale Project, supra note 8, at 1533.
n127 Id. at 1571.

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n128 Id. One of the eight other suspects confessed to police after receiving advice from a lawyer. Id.
n129 Id. at 1578.
n130 See supra note 57 and accompanying text.
n131 (3 + 10)/81 = 16.0%. This understates the effect of the Miranda rules because there were probably
grounds for suppressing some of the other confessions under Miranda as well. Yale Project, supra note 8, at
1558 & n.97.
The study also reported the "paradoxical[]" effect that detectives were more successful with suspects who
received some warning of rights as compared to those who received no warnings. Id. at 1565. However, this
finding is probably meaningless because the detectives questioned "many" of the unwarned suspects "only in a
desultory manner"and may have been more interested in obtaining statements from the warned suspects. See id.
at 1565-66.
n132 A later "postscript" to the New Haven project does not contradict this conclusion. A faculty note in the
Yale Law Journal reported on the success of FBI agents in interrogating draft protestors at Yale who had
deposited their draft cards at the Justice Department as part of a Vietnam War protest. John Griffiths & Richard
E. Ayres, Faculty Note, A Postscript to the Miranda Project: Interrogation of Draft Protestors, 77 YALE L.J.
300, 301 (1967). The note reported that initially most of the protestors approached by the FBI agents gave
incriminating statements but later, following a campus-wide publicity effort regarding the right to remain silent,
most protestors did not. See id. at 312. The study says little about Miranda's general effects. The questioning by
the FBI agents was "non-custodial" and therefore not covered by Miranda's rules. See id. More important, it is
hard to generalize from data about a suspect "who committed his 'crime' openly and willfully, as an act of civil
disobedience," id. at 300, to the more typical world of criminals who seek to avoid detection. See ALI REPORT,
supra note 56, at 125 (concluding that the "special nature of the suspects and of the suspected criminal activity .
. . make it inappropriate to generalize from that situation").
n133 Richard J. Medalie et al., Custodial Police Interrogation in Our Nation's Capital: The Attempt to
Implement Miranda, 66 MICH. L. REV. 1347 (1968).
n134 Id. at 1351.
n135 Id. at 1354. The study does not appear to report the nature of the crimes charged against the
individuals. The study does, however, assert that the population was "representative of the District defendant
population in demographic characteristics." Id. at 1357.
n136 Id. at 1359.
n137 Id. at 1414 (table E-1) (comparing pre-Miranda defendants with total post-Miranda defendants). One
possible explanation for the drop in the confession rate is that the rate atwhich D.C. police interrogated suspects
dropped after Miranda as well. Id. at 1364-65 (interrogation rate 55% before Miranda, 48% after).

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n138 See supra notes 86-91 and accompanying text. The D.C. study itself found that, of statements related
to the charge that could be characterized as inculpatory or exculpatory, 37 of 78 (46%) were "inculpatory."
Medalie et al., supra note 133, at 1369 (table 6).
n139 See, e.g., White, supra note 2, at 19 n.99 (concluding that study shows that Miranda has no harmful
effects).
n140 Medalie et al., supra note 133, at 1364.
n141 ROYAL COMM'N ON CRIMINAL PROCEDURE, REPORT 98 (1981).
n142 Medalie et al., supra note 133, at 1351 (table 1), 1361 n.55.
n143 Id. at 1366 n.68 (stating that the police stopped interrogation in 13 of 26 cases and either ignored the
defendant's wishes, asked the defendant to reconsider, or threatened the defendant in the other 13 cases).
n144 Id. at 1365 (finding that more than half of the defendants "maintained that they had been interrogated
before the attorneys arrived at the police station. Indeed, even the police themselves admitted to the attorneys
that they had interrogated close to one quarter of the [defendants represented by the project's volunteer
attorneys] before the attorneys arrived").
n145 Richard Angelo Leo, Police Interrogation in America: A Study of Violence, Civility and Social
Change 321 n.17 (1994) (unpublished Ph.D. dissertation, Univ. of Calif. at Berkeley) (citing Medalie et al.,
supra note 133, at 1418 (table E-7)). Leo's informative dissertation will be published in part as Inside the
Interrogation Room: A Qualitative and Quantitative Analysis of Contemporary American Police Practices, 86 J.
CRIM. L. & CRIMINOLOGY (forthcoming Winter 1996); The Impact of Miranda Revisited, 86 J. CRIM. L. &
CRIMINOLOGY (forthcoming Spring 1996).
n146 Leo, supra note 145, at 321 n.17. This problem means that the noncompliance rate was artificially
inflated by approximately 100%. Assuming that the 52% of post-Miranda suspects not interrogated included all
of the suspects who did not receive warnings, then the 30% of all suspects who in fact received all four Miranda
warnings, see supra note 140 and accompanying text, would constitute 62.5% of the suspects who were
interrogated (derived by dividing 30%/48%). Similarly, while only 7 of 85 (8.2%) suspects were asked to waive
their rights, this constituted 17.1% of the interrogated suspects.
n147 For example, Leo notes that the study's findings on suspects' understanding of the Miranda right to
counsel categorized suspects' responses of "that means just what it says" as a "misunderstanding" of the Miranda
right. Leo, supra note 145, at 337 n.25 (citing Medalie et al., supra note 133, at 1374 n.102). It is hard to argue
with Leo's assessment that "again, one must question the integrity of" the analysis. Id.
n148 Medalie et al., supra note 133, at 1347, 1394-96.
n149 Id. at 1373 (table 9) (total post-Miranda defendants).

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n150 Id.
n151 Id. (table 9) (55% figure from total post-Miranda statements in "neither silence nor counsel" warning
category; 41% figure derived by combining "silence" and "counsel alone" categories, in which 23 of 56 suspects
gave statements).
n152 Other parts of the pre-Miranda and post-Miranda figures are inconsistent in some ways. For example,
the pre-Miranda figure for confessions by suspects who received no warnings was 39%, substantially lower than
the post-Miranda 55% figure. Id. (table 9) (pre-Miranda defendants in "neither silence nor counsel warning"
category).
n153 Id. at 1372 (table 8). These numbers may all be artificially low, since many of these suspects were
never interrogated, see supra notes 145-47 and accompanying text, and therefore may never have had an
opportunity to request counsel.
n154 One of the participants in the attorney-representation project reported after three months experience
that "'in the vast majority (over 95%) of these cases, the police have not continued the interrogation of the
accused after counsel has been contacted.'" Medalie et al., supra note 133, at 1390 (quoting J. Hennessey & L.
Bernard, Comments Addressed to Those Participating in the Miranda Project, in JUNIOR BAR SECTION,
SUPPLEMENT NO. 2 TO Miranda Kit, Sept. 30, 1966, at 2). Interviews with participating attorneys revealed
that interrogation in their presence occurred in only 12% of the cases and that defendants gave statements to the
police in 10% of the cases even after having been advised by their attorneys to remain silent. Id. at 1391. Even in
these cases, the suspects had frequently given statements to the police before the attorney arrived. Id. at 1391
n.162 (59% of suspects said they had given previous statements).
n155 Seeburger & Wettick, supra note 32, at 26 n.51. Some corroboration of this figure is provided by a
letter from New Orleans Superintendent Giarruso to the American Law Institute, which stated that between
September 7, 1966, when use of a waiver of rights form began, until August 31, 1967, 1173 of 5098 persons
taken into custody -- about 23% -- waived their rights. ALI REPORT, supra note 57, at 140; see also Wayne E.
Green, Police vs. "Miranda": Has the Supreme Court Really Hampered Law Enforcement?, WALL ST. J., Dec.
15, 1966, at 16 (according to Giarruso, 40% of suspects made statements after Miranda, although not all
statements were incriminating).
n156 Seeburger & Wettick, supra note 32, at 26 n.51.
n157 Based on a sampling of guilty pleas in felony cases, in New Orleans in 1961 an estimated 78% of 700
guilty pleas involved confessions, which would suggest an estimated total of 546 confessions. Brief of the
National District Atty's Ass'n, supra note 91, at 19a. An additional 22 confessions were found in cases that went
to trial. Id. Assuming the 50% ratio of confessions to all cases holds for cases going to trial, see supra notes
86-90 and accompanying text, then the total confession rate can be estimated as 76.3% ((546 + 22)/(700 + 44)).
This figure is based on a sample of cases that went all the way to a trial or guilty plea. The confession rate in
police arrests is presumably lower, because weaker cases (often those not involving confessions) will be
screened out along the way. See supra notes 40-49 and accompanying text. Nonetheless, the 76.3% confession
rate in completed cases suggests that the pre-Miranda estimate of a 40% confession rate in police arrests is
reasonable. See generally infra Table 3 (collecting available data on pre-Miranda confession rates, most of
which are higher than 40%).

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n158 Green, supra note 155, at 16. It is possible that Kelley was not referring to a 12% change in the
confession rate (e.g., from 60% to 48%) but rather a change in the number of confessions (e.g., from 60% to
52.8% -- 12% fewer confessions).
n159 My reading of the brief account of this study is that Kelley may have been referring to a 12% drop in
incriminating statements. In this paragraph concerning confession rates in general, the immediately preceding
sentence describes another study as involving statements, with the notation added that not all of these involved
confessions. See id. No such qualifier was added to Kelley's description.
n160 See supra notes 86-89 and accompanying text.
n161 Controlling Crime Hearings, supra note 45, at 223 (statement of District Attorney Aaron Koota).
n162 Id. at 223.
n163 See supra notes 86-89 and accompanying text.
n164 The 45% figure appears to be a reasonable estimate for other reasons. In 1961 in Kings County, 125 of
the 3107 "felony dispositions" were sampled. "Felony dispositions" was defined to include the 2695 guilty pleas
plus the 412 pleas of not guilty that resulted in a trial. Of the 125 cases sampled, confessions were obtained in 53
cases -- a rate of 42.4%. Brief of the National District Atty's Ass'n, supra note 91, at 29a. These data understate
the rate of confessions because the cases in which no information was available about confessions were simply
placed in the "no confession" category. Id. Similarly, in November 1965 Koota examined 1971 worksheets for
indictments. The "confession" stamp appeared on 1105, or about 56%. ALI REPORT, supra note 56, at 144.
n165 Donald Janson, Homicides Increase in Chicago, But Confessions Drop by 50%, N.Y. TIMES, July 24,
1967, at 24 (reporting remarks at national conference of defense lawyers at Northwestern University School of
Law).
n166 See Theodore Souris, Stop and Frisk or Arrest and Search -- The Use and Misuse of Euphemisms, 57
J. CRIM. L., CRIMINOLOGY & POLICE SCI. 251, 263 (1966) (data from Detroit).
n167 Governor Thompson's office reports that he has no further information on this study. Telephone
Message from secretary for Gov. James R. Thompson (Feb. 10, 1995).
n168 Controlling Crime Hearings, supra note 45, at 344.
n169 Id. at 344 (721/1437).
n170 398 P.2d 361 (Cal.) (en banc), cert. denied, 381 U.S. 937 (1965).
n171 Id. at 366-72.

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n172 Controlling Crime Hearings, supra note 45, at 349.
n173 Id. (figure rounded to 40% in original).
n174 This reading of the two studies has been given by Younger himself, id. at 343, and by academic
defenders of Miranda. See Yale Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New"
FifthAmendment and the Old "Voluntariness" Test, 65 MICH. L. REV. 59, 68 n.47 (1966); White, supra note 2,
at 19 n.99. Younger, however, did report that in 1% of the cases, the police request for a complaint had to be
rejected because a statement was inadmissible under Miranda requirements and other evidence was insufficient
to go forward. Controlling Crime Hearings, supra note 45, at 345.
n175 Evelle J. Younger, Miranda, 35 FORDHAM L. REV. 255, 256 n.7 (1966) ("Firm conclusions cannot
be reached on the basis of this survey. The sample . . . was comparatively small and many of the replies received
were incomplete or inconsistent."); Controlling Crime Hearings, supra note 45, at 349 ("There appeared to be
some misconception on the part of the deputies that filled in these forms as to what was desired. Many of the
forms were incomplete or inconsistent and Mr. Trott attempted to resolve these problems by seeking out the
deputy who filled in the form. However, this was not always possible because the name of the deputy who
completed the questionnaire was not required on these forms.").
n176 The problem of accuracy of the data referred to in supra note 175 was mentioned in a memorandum
dated January 4, 1966. See Controlling Crime Hearings, supra note 45, at 349 (memorandum from Earl
Osadchey to Asst. D.A. Lynn D. Compton regarding post-Dorado survey). It seems likely, therefore, that the
Office would have redesigned its form before distributing it to measure the effects of Miranda in June of 1966.
The attorneys involved in the post-Miranda survey were apparently the same as those involved in the
post-Dorado survey. See id. at 344 (memorandum of July 28, 1966 from Earl Osadchey to Asst. D.A. Lynn D.
Compton regarding post-Miranda survey). There is no similar mention of accuracy problems in the
post-Miranda data.
n177 Compare Controlling Crime Hearings, supra note 45, at 350 (post-Dorado worksheets) with id. at 347
(post-Miranda worksheets) (emphasis added).
n178 See supra notes 86-89 and accompanying text (approximately half of all statements are not
confessions).
n179 Controlling Crime Hearings, supra note 45, at 344; see also Younger, supra note 175, at 260 n.14
("Since this survey followed closely upon the heels of the Miranda decision, many of the defendants in the
preliminary stage . . . were arrested prior to Miranda, when only the Dorado admonition was being given.").
n180 Controlling Crime Hearings, supra note 45, at 345.
n181 Younger, supra note 175, at 259 ("The requirements set forth in Dorado nearly approached those laid
down by the United States Supreme Court, a year later, in Miranda. The adjustment required for prosecutors in
the State of California was, therefore, correspondingly small."). It is unclear whether Younger viewed Dorado's
waiver requirements as differing from Miranda's waiver requirements.

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n182 See Seeburger & Wettick, supra note 32, at 25 (observing that the "pre-Miranda cases are post-Dorado
cases").
n183 This summary does not include the Reiss and Black study of field interrogations (not custodial
interrogations) in the summer of 1966, finding that police obtained confessions at a low rate (14%) in such
interrogations. Albert J. Reiss, Jr. & Donald J. Black, Interrogation and the Criminal Process, 374 ANNALS
AM. ACAD. POL. & SOC. SCI. 47, 54 (1967). However, this reported 14% field interrogation success rate was
"substantially below the figure reported for instation interrogations where about 50 per cent of all interrogated
suspects are reported to make an admission." Id. (apparently citing Washington, D.C. study, discussed at supra
notes 133-54 and accompanying text). Also, this field interrogation confession figure is of little use in assessing
Miranda's effects because it was obtained outside of the Miranda regime. 2 DONALD J. BLACK & ALBERT
J. REISS, JR., PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND THE ADMIN. OF JUSTICE,
STUDIES IN CRIME AND LAW ENFORCEMENT IN MAJOR METROPOLITAN AREAS: FIELD
SURVEYS III 124 (1967) (finding that suspects were advised of at least one Miranda right in only 3% of police
encounters with suspects in dispatched encounters and in 2% of those in on-view situations).
n184 See, e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize
Miranda, 100 HARV. L. REV. 1826, 1827 (1987) ("Many of the studies concluded shortly after the decision
concluded that there was no substantial reduction in confessions."); White, supra note 2, at 18-19 ("Of all the
post-Miranda studies . . . the Pittsburgh study was the only one to find that Miranda effected a significant
decrease in the confession rate."). But see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417,
1464-67 (1985) (explaining that although the empirical Miranda studies "are often cited for the proposition that
Miranda has had little effect on police efficiency, this characterization is inaccurate").
A quantitative way of showing that the prevailing myth is wrong is that in three of the four cities where
sufficient reliable information is available to run a test of proportions, the post-Miranda decline in the
confession/statement rate was statistically significant at the .05 level (Pittsburgh, New York County,
Philadelphia, but not Seaside City).
n185 That is, studies without specifically identifiable "major problems." Specifically, I have excluded
estimates of the confession rate change from New Haven (1960-66), the District of Columbia, and Los Angeles
on grounds of unreliability, for reasons discussed previously. I have also excluded the Chicago homicide study
because it deals with only homicide and so little is known about its details. Although I have strong doubts about
the reliability of the "Seaside City" estimate of a 2% confession rate drop, I have included it to make my cost
estimate more conservative.
n186 See William T. Pizzi, Reflections on Confessions, Truth, and the Law (Jan. 23, 1995) (unpublished
manuscript, on file with the author) (calling for comparison of Miranda with approaches in other countries).
n187 Miranda v. Arizona, 384 U.S. 436, 486 (1966).
n188 Id. at 489.
n189 See OLP PRE-TRIAL INTERROGATION REPORT, supra note 13, at 87-95; see also Miranda, 384
U.S. at 521-22 (Harlan, J., dissenting); RONALD J. ALLEN ET AL., CONSTITUTIONAL CRIMINAL
PROCEDURE: AN EXAMINATION OF THE FOURTH, FIFTH, AND SIXTH AMENDMENTS AND

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RELATED AREAS 1222 (3d ed. 1995) ("Unfortunately, [the Court's description of the English practice]
appears to be either in error or misleading.").
n190 Cf. Craig M. Bradley, The Emerging International Consensus as to Criminal Procedure Rules, 14
MICH. J. INT'L L. 171, 175 (1993) (observing that other countries serve as "laboratories" where different
approaches can be tested).
n191 See generally Van Kessel, supra note 7, at 35-72; see also OLP PRE-TRIAL INTERROGATION
REPORT, supra note 13, at 88-89.
n192 See Barry Mitchell, Confessions and Police Interrogation of Suspects, 1983 CRIM. L. REV. 596, 598.
n193 See Michael Zander, The Investigation of Crime: A Study of Cases Tried at the Old Bailey, 1979
CRIM. L. REV. 203, 213 (figures derived from table 4).
n194 BARRIE IRVING, ROYAL COMM'N ON CRIM. PROC., POLICE INTERROGATION: A CASE
STUDY OF CURRENT PRACTICE 75, 149 (1980) (Research Study No. 2) (39 of 60 suspects).
n195 PAUL SOFTLEY, ROYAL COMM'N ON CRIM. PROC., POLICE INTERROGATION: AN
OBSERVATIONAL STUDY IN FOUR POLICE STATIONS 49, 85 (1980) (Research Study No. 4) (reporting
that 47% of suspects made confessions and 13.4% made admissions).
n196 Michael McConville & John Baldwin, The Role of Interrogation in Crime Discovery and Conviction,
22 BRIT. J. CRIMINOLOGY 165, 166 (1982) (figures derived from table 1(b)). The 71.2% figure is derived by
taking 100% minus those who gave "no statement of any kind" (6.5%) minus those who gave a
"non-incriminating statement" (22.3%). If one also subtracts those who gave "a written statement that is not a
confession" (2.7%), the 71.2% figure is reduced to 68.5%. See also JOHN BALDWIN & MICHAEL
McCONVILLE, ROYAL COMM'N ON CRIM. PROC., CONFESSIONS IN CROWN COURT TRIALS 13-14
(1980) (Research Study No. 5) (same information contained in table 3.1(b)). In this source, the 22.3% figure for
"non-incriminating statements" does not appear, but rather is subdivided into an 18.7% "accused makes verbal
denial only" figure and a 3.6% "other kind of statement made by accused" figure.
n197 A.E. BOTTOMS & J.D. McCLEAN, DEFENDANTS IN THE CRIMINAL PROCESS 115-17
(1976). Because this statistic comes from defendants who pled guilty, it is likely to be higher than other statistics
reported in this Article, which involve all defendants, including those contesting guilt.
n198 See ROYAL COMM'N ON CRIMINAL JUSTICE, REPORT 6 (1993) (remarking on "widely
publicised miscarriages of justice which have occurred in recent years").
n199 See infra note 531 (reporting high confession rates observed even where outside observers present or
videocameras running).
n200 See Van Kessell, supra note 7, at 128; see also BALDWIN & McCONVILLE, supra note 196, at 3

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(suggesting that more British suspects make admissions than American suspects).
n201 See infra notes 396-411 and accompanying text.
n202 See generally MICHAEL ZANDER, THE POLICE AND CRIMINAL EVIDENCE ACT 1984 (2d ed.
1990) (describing the Code of Practice on Tape Recording and the Code of Practice for the Detention, Treatment
and Questioning of Persons by Police Officers); Bradley, supra note 190, at 183-86 (describing PACE
interrogation rules and remedies for violations).
n203 GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND
TESTIMONY 324 (1992).
n204 Criminal Justice and Public Order Act, 1994, ch. 33 (Eng.). The new warning given to suspects is
"You do not have to say anything. But if you do not mention now something which you later use in your
defense, the court may decide that your failure to mention it now strengthens the cases against you. A record
will be made of anything you say and it may be given in evidence if you are brought to trial." William E.
Schmidt, Silence May Speak Against the Accused in Britain, N.Y. TIMES, Nov. 11, 1994, at 10. Related
changes have been made in the right of juries to draw inferences from a suspect's failure to provide information
during interrogation. Criminal Justice and Public Order Act, 1994, ch. 33, § 34 (Eng.).
n205 See generally Mark Schrager, Recent Developments in the Law Relating to Confessions: England,
Canada and Australia, 26 McGILL L.J. 435, 437, 442-43 (1981); A. Kenneth Pye, The Rights of Persons
Accused of Crime Under the Canadian Constitution: A Comparative Perspective, LAW & CONTEMP.
PROBS., Autumn, 1982, at 221, 234-36 (1982) (discussing practices of Canadian police).
n206 See Peter B. Michalyshyn, The Charter Right to Counsel: Beyond Miranda, 25 ALBERTA L. REV.
190, 190 (1987); David M. Paciocco, The Development of Miranda-Like Doctrines Under the Charter, 19
OTTAWA L. REV. 49 (1987). See generally DON STUART, CHARTER JUSTICE IN CANADIAN
CRIMINAL LAW 183-216 (1991) (describing Canadian interrogation rules).
n207 See ALAN GRANT, THE AUDIO-VISUAL TAPING OF POLICE INTERVIEWS WITH
SUSPECTS AND ACCUSED PERSONS BY HALTON REGIONAL POLICE FORCE, ONTARIO, CANADA
-- AN EVALUATION 28 (1987); JOYCE MILLER, LAW REFORM COMM'N OF CAN., THE
AUDIO-VISUAL TAPING OF POLICE INTERVIEWS WITH SUSPECTS AND ACCUSED PERSONS BY
HALTON REGIONAL POLICE FORCE: AN EVALUATION 11 (1988) (summarizing Evaluation Paper,
GRANT, supra).
n208 GRANT, supra note 207, at 28.
n209 See id. at 32 (figure derived from table 1).
n210 One difficulty in making firm conclusions from the Halton data is that they come from suburban areas,
which may have higher confession rates than the urban areas typically covered in the American studies. See
infra notes 350-58 and accompanying text (Miranda had larger effects in urban areas). Another difficulty is that

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the police may have been following many of Miranda's requirements. The study reports that suspects were told
they were being videotaped and "cautioned that there was no obligation to make a statement and advised of the
right to counsel at that time." GRANT, supra note 207, at 11. If the suspect declined to be taped, the taping
stopped. Id. However, it seems likely that, at least during the period of time studied (June 1985 to June 1987),
the interrogation rules in Halton were not as rigid as the Miranda requirements. See, e.g., Regina v. Anderson,
45 O.R.2d 225 (Ct. App. 1984) (Ont. C.A.) (right to counsel limited); Paciocco, supra note 206, at 51 (noting
"developing" nature of questioning cutoff rules in 1987).
n211 UVILLER, supra note 14, at 181.
n212 Compare FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS at xiv
(3d ed. 1986) ("Many criminal cases . . . are capable of solution only by means of an admission or confession
from the guilty individual or . . . from the questioning of other criminal suspects.") with James Fyfe, No, the
Ruling is Rarely an Issue in Criminal Cases, NEWS PRESS (Fort Myers, Fla.), Feb. 8, 1987, at A23
("Confessions rarely have anything to do with convictions because all the evidence needed to convict is usually
in long before anybody confesses.").
n213 See Van Kessel, supra note 7, at 112 ("Judging the importance of defendant statements in relation to
other prosecution evidence is, of course, a much more difficult task than determining their frequency.").
n214 See NATHAN R. SOBEL, THE NEW CONFESSION STANDARDS: MIRANDA V. ARIZONA 137
(1966) ("Most confessions are obtained precisely because the defendant is already 'hooked' by the 'other
evidence,' e.g., identification by the victim or possession of the 'fruits' of the crime.") (emphasis in original);
Cassell & Hayman, supra note 47 (finding that police were more successful in questioning as the evidence
strengthened); Gisli H. Gudjonsson & Hannes Petursson, Custodial Interrogation: Why Do Suspects Confess
and How Does it Relate to Their Crime, Attitude and Personality?, 12 PERSONALITY & INDIVIDUAL
DIFFERENCES 295, 303 (1991) (studying prisoners and finding that "the most common reasons for the
confession related to perceptions of proof and the offender consequently did not see much point in denying the
offence"); Stephen Moston et al., The Effect of Case Characteristics on Suspect Behaviour During Police
Questioning, 32 BRIT. J. CRIMINOLOGY 23, 34 (1992) (finding a "marked effect" of strength of the evidence
on admissions); Reiss & Black, supra note 183, at 55 ("People admit or confess when they are aware that 'the
evidence is against them.'"); Yale Project, supra note 8, at 1574 (concluding interrogation success correlated
with large amount of evidence available at the time of arrest).
n215 See, e.g., Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled
Testimony, 68 MICH. L. REV. 929, 1000 (1995) ("[A] principal purpose -- if not the primary purpose -- of
interrogation is to obtain information such as the location of physical evidence."); Witt, supra note 89, at 327-28
(discussing relation between confessions and recovery of stolen property).
n216 But cf. Cassell & Hayman, supra note 47 (finding police "rarely" obtained incriminating fruits through
questioning in Salt Lake County in 1994).
n217 Seeburger & Wettick, supra note 32, at 14.
n218 Id. The assumption of witness cooperation probably significantly understates the true necessity rate

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since, in the real world, lack of witness cooperation is one of the major problems facing prosecutors. See FORST
ET AL., supra note 48, at 24-25 (finding that 205 of the 1745 robbery arrests made by the Washington, D.C.
metropolitan police department in 1974 were rejected or dismissed by the prosecutor due to some sort of witness
problem).
n219 Seeburger & Wettick, supra note 32, at 15 (table 4) (total confessions necessary = 156/771 or 20.2%).
n220 Id. at 16 (table 5) (confession necessary for cases with confessions = 101/390 or 25.9%). The
importance of confessions rose after Miranda, from 24.7% necessary in cases before the decision to 32.8% after.
Id.
The necessity estimate is corroborated by the finding that, in robbery and burglary cases, those who
confessed were convicted 78.7% of the time, while those who had not confessed were convicted 54.5% of the
time. Id. at 20. The difference (24.2%) might be regarded as a necessity figure.
n221 Controlling Crime Hearings, supra note 45, at 1121. This number understates the importance of
confessions because it fails to capture cases in which a confession was "necessary" to solve the case but later led
to other corroborating evidence of the homicide. Hogan also quoted former Police Commissioner Murphy as
having said that confessions were essential in 50% of the homicide arrests made in New York in 1963 and 1964.
Steven V. Roberts, Confessions Held Crucial by Hogan, N.Y. TIMES, Dec. 2, 1965, at 1.
n222 See Dorsey D. Ellis, Jr., Vox Populi v. Suprema Lex: A Comment on the Testimonial Privilege of the
Fifth Amendment, 55 IOWA L. REV. 829, 855 (1970).
n223 Cf. Yale Kamisar, Has the Court Left the Attorney General Behind? -- The Bazelon-Katzenbach
Letters on Poverty, Equality and the Administration of Criminal Justice, 54 KY. L.J. 464, 479 n.37 (1966)
(recounting telephone interview with Detroit Chief of Detectives Piersante that interrogations were not
important for homicide investigations because of thorough and effective pre-arrest investigative procedures).
n224 Controlling Crime Hearings, supra note 45, at 349, 350 (table).
n225 Most of these data involve interrogations conducted before Miranda. See supra note 179.
n226 Controlling Crime Hearings, supra note 45, at 346. Such incriminating evidence was much more
important at trial, where the deputies estimated that in 40% of the cases the statement or admission was
necessary for conviction. Id.
n227 See Yale Project, supra note 8, at 1643.
n228 Of course, it is possible that some of these acquittals were because of the defendant's innocence rather
than the prosecution's failure to prove its case. Cf. infra notes 534-62 and accompanying text (discussing
Miranda's role in protecting the innocent).

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n229 Yale Project, supra note 8, at 1642-43. These necessity figures have also been criticized on the ground
that the district attorney's office did "not indicate the criteria relied on in making this evaluation." Id. at 1642.
n230 Id. at 1582-83.
n231 The matrix was as follows:
Amount of Evidence
None
Investigative

None

Alternatives

Available but
probably inadequate

Some

Trial

Conviction

Essential
Important

Available and
probably adequate

Not Important

Further investigation
unnecessary

Unnecessary

Id. at 1583 (table 19).
n232 Id. at 1585 (table 20) (essential = 3/90; important = 9/90).
n233 Id.
n234 Id. at 1590 (table 21).
n235 See id. at 1583 (table 19) (intersection of column for evidence sufficient to go to "trial" and rows for
investigative alternatives "none" and "inadequate"); supra note 231. On the other hand, the editors may have
erroneously categorized some cases in the "interrogation necessary" category when in fact no interrogation was
needed. They report that in four cases suspects were convicted of some charge after an unsuccessful
interrogation failed to produce a confession deemed "necessary." Yale Project, supra note 8, at 1587. The editors
did not note whether the four convictions were to the charged offense or a lesser charge. This problem is not
conclusive proof of upward bias of the necessity figure, however, because the editors did not report in how many
of the interrogation "not important" cases the defendant escaped conviction.
n236 Witt, supra note 89, at 324 (table 2) (75+38/478).
n237 Id. at 324 n.39.
n238 See Souris, supra note 166, at 263-64 (reprinting Criminal Investigation Div., Detroit Police Dept.,
Confessions in Felony Prosecutions for the Year of 1961 as Compared to January 20, 1965 through October 31,
1965 (Dec. 13, 1965)).

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n239 Id. at 255, 264 (grand total table).
n240 See Yale Project, supra note 8, at 1640-41 (citing Piersante, Confessions in Felony Prosecutions for
the Year of 1961 as Compared to January 20, 1965 through December 31, 1965 (July 27, 1966) (unpublished
report)).
n241 Vincent W. Piersante, Panel Evaluation, in A NEW LOOK AT CONFESSIONS: ESCOBEDO -THE SECOND ROUND 145, 161 (B. James George, Jr. ed., 1967); accord Miranda Decision Said to End the
Effective Use of Confessions, N.Y. TIMES, Aug. 21, 1966, at 52 (same figures recounted by Piersante in
Boulder, Colorado speech).
n242 See Yale Project, supra note 8, at 1643 n.16; see also ALI REPORT, supra note 56, at 142.
n243 Yale Project, supra note 8, at 1642.
n244 Controlling Crime Hearings, supra note 45, at 223.
n245 Id.
n246 Id. at 223 ("I estimate that in these instances of refusal . . . .") (emphasis added).
n247 Koota, however, referred to the 100 suspects who refused to make a statement as "walking the streets,"
id. at 223, which suggests that other avenues of investigation were not successful.
n248 SOBEL, supra note 214, at 146.
n249 Id.; see also Roberts, supra note 221, at 1 (calling Sobel data a "small sampling").
n250 SOBEL, supra note 214, at 146.
Judge Sobel also surveyed 2000 cases presented to the grand jury from September 1965 through February
1966 (after Escobedo but before Miranda). Id. at 141. He found that confessions were introduced in only 275 of
the cases (13.7%), apparently because New York police officers infrequently interrogated. Id. at 142 (table 1),
143. Unfortunately, these data are of little use on the necessity-for-confessions question because Sobel made no
attempt to determine in what percentage a confession was needed ultimately to convict at trial. See Yale Project,
supra note 8, at 1642. Moreover, as Professors LaFave and Israel have observed, the survey "'hardly
demonstrates that confessions are not an important tool in modern law enforcement,' for it does not show how
many of the considerable number of cases disposed of by guilty plea were not contested precisely because the
defendant had given a confession." LaFAVE & ISRAEL, supra note 3, § 6.1(a), at 435 (quoting Developments
in the Law -- Confessions, 79 HARV. L. REV. 938, 943 (1966)). Finally, it appears that Sobel's figures for the
number of confessions, which were based on prosecutors' notices of intent to use confessions, substantially
undercounted the actual number of confessions. See Controlling Crime Hearings, supra note 45, at 687-88
(letter from N.Y. Supreme Court Justice Miles F. McDonald); see also ALI REPORT, supra note 56, at 143-44.

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n251 FEENEY ET AL., supra note 17.
n252 Id. at 142 (table 15-1).
n253 See id. at 88 (table 10-2) (listing reasons for disposition of various charges).
n254 For example, assume that the courts are more likely to allow a defendant to enter a pretrial diversion
program (which does not result in a conviction) when he has exhibited contrition by confessing to his crime. If
so, the conviction rate for confession cases will be lower, and in turn the necessity rate will be artificially lower
for this extraneous reason.
n255 5 FLOYD FEENEY & ADRIANNE WEIR, THE PREVENTION AND CONTROL OF ROBBERY 7
(1973).
n256 For adults, the authors report that, of 83 cases, 35 involved confessions or admissions, and in only 6 of
these were the confessions or admissions "essential," for an "essentiality" figure of 7.2% (6/83). 2 id. at 39, 43
(tables 17 & 19). But they never analyzed the 48 cases that did not involve confessions or admissions to
establish how often a confession or admission was "essential" in these cases. This oversight becomes important
when one discovers that 13 of these cases involved suspects who were released without even being charged, 2
id. at 39 (table 17), while others involved suspects who were ultimately acquitted, 2 id. at 80. Because a
confession or admission might often be "essential" to a case where a suspect was released for lack of evidence or
acquitted, the authors' estimate of a 5-10% necessity rate for confessions in all cases is badly flawed.
n257 5 id. at 43 (table 19).
n258 2 id. at 38.
n259 2 id. at 42.
n260 See 2 id. at 42 (referring to substituting a "single, uniform standard" for assessments of "the decision
for charging the suspect").
N261 See 2 id. at 43 (table 19) (10 suspects who admitted being at the scene were released before charging;
confession or admission not considered "essential to the case").
n262 The authors did report that some police believed that since Miranda, robbery suspects have "clammed
up" and the right to counsel during questioning was often the problem. 4 id. at 112.
n263 Nardulli, supra note 6, at 601 (table 12).
n264 Peter F. Nardulli, The Societal Costs of the Exclusionary Rule Revisited, 1987 U. ILL. L. REV. 223,
233 (table 8).

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n265 Leo, supra note 145.
n266 Id. at 294 (table 16) (statistically significant at the .001 level).
n267 Based on similar reasoning, Leo implies that all of the harmful effects of Miranda, if any, can be
measured by looking at the difference between the conviction rates of suspects who in fact invoke their Miranda
rights compared to conviction rates of those who do not. Id. at 394-95 & n.4. In addition to suffering from the
deficiencies of relying on conviction rates, see supra notes 40-48 and accompanying text, that approach
necessarily assumes that the only impact Miranda could have on the confession rate stems from suspects
actually invoking their rights. The potential invocation of rights, however, may operate to reduce the confession
rate even in cases where suspects never actually invoke. See, e.g., Richard A. Leo, Police Interrogation and
Social Control, 3 SOC. & LEGAL STUD. 93, 99 (1994) ("police officers are keenly aware that a suspect may
terminate questioning at any time during the interrogation"). Thus, Miranda's effects are more properly assessed
by the methodology employed in this Article.
In any event, it is interesting that the only data on this point collected by Leo suggest that suspects who
invoke their Miranda rights are less likely to be convicted (53.1% vs. 62.8%). Leo, supra note 145, at 279 (table
11). While the relationship was not statistically significant, id., this was likely due to the difficulty of working
with the small sample of suspects who invoked their rights (32 in all, divided into two categories). Moreover,
Leo's data might have artificially undercounted the number of cases in which a suspect invoked Miranda rights
and was not ultimately convicted. At the time Leo concluded collecting his data, it appears that perhaps 10% of
the cases had not yet reached a disposition. See id. at 279 (table 11) (total of 162 cases with a disposition out of a
sample of 182). It is likely that the cases which took the longest to resolve (and thus were disproportionately not
captured in the sample) were those with the greatest possibility of an acquittal: those in which the defendant did
not confess, demanded a trial, and spent considerable time preparing a defense.
n268 See supra notes 253-54 and accompanying text.
n269 See Cassell & Hayman, supra note 47.
n270 Id.
n271 Id. One must be cautious about using the necessity figure, for the reasons given in supra notes 253-54
and accompanying text.
n272 I have also excluded an estimate from the New Orleans police department that 75% of their
pre-Miranda confessions were necessary to obtain a conviction, see Seeburger & Wettick, supra note 32, at 26
n.51, on the grounds that it seems out of line with other studies.
n273 I exclude my own data for these purposes because their inclusion might raise the charge of "home
cooking" affecting my quantification and because my data are not yet published.
n274 That is, estimates without specifically identifiable "major problems." Specifically, I exclude the
studies done in Los Angeles (post-Miranda), New York (Sobel), Detroit, Kings County (Koota), Jacksonville,
San Diego, Oakland, Bay area, middle America, and Chicago for the reasons discussed earlier.

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n275 These estimates may also tend to understate the need for confessions because they were mostly made
by academic researchers, rather than professionals in the criminal justice system familiar with the "real world"
problems of obtaining a conviction. See, e.g., 2 FEENEY & WEIR, supra note 255, at 42 (police sergeants
thought confessions were essential more often than researchers); Yale Project, supra note 8, at 1591-92
(detectives thought confessions were necessary more often than Yale editors); cf. Cassell & Hayman, supra note
47 (finding confessions more often necessary than other studies when estimates of importance obtained from
prosecutors).
n276 See BALDWIN & McCONVILLE, supra note 196, at 8.
n277 Id. at 31 (figure 4.1).
n278 Id. (figure 4.1).
n279 It is possible to argue that the data support an even higher figure for necessity rates. Because English
juries must agree on a guilty verdict by a close-to-unanimous vote, see Juries Act, 1974, § 17(3) (Eng.), one
might argue that disagreement among the assessors corresponds to a not-guilty verdict. Baldwin and McConville
report that for cases without a confession the two assessors agreed that 13.3% would fail to reach a prima facie
standard and that 4.4% would produce an acquittal. In an additional 19.3% of the cases, one of the two assessors
thought that an acquittal would result. BALDWIN & McCONVILLE, supra note 196, at 32 (figure 4.2).
Summing these figures produces a higher necessity rate of 37.0%.
n280 BALDWIN & McCONVILLE, supra note 196, at 28 (table 4:1(a)).
n281 Id. (table 4:1(b)).
n282 JULIE VENNARD, ROYAL COMM'N ON CRIMINAL PROCEDURE, CONTESTED TRIALS IN
MAGISTRATES' COURTS: THE CASE FOR THE PROSECUTION 3 (1980).
n283 See id. at 13 (table 3:1).
n284 Id. (table 3:1).
n285 FORST ET AL., supra note 48, at 67. An additional 25% were rejected because of witness problems,
id., which might also be regarded as based on evidentiary weakness in the case.
n286 Brosi, supra note 40, at 16; see also BRIAN FORST ET AL., NATIONAL INST. OF JUSTICE, U.S.
DEP'T OF JUSTICE, ARREST CONVICTABILITY AS A MEASURE OF POLICE PERFORMANCE 6
(1982) (replicating these findings).
n287 Brian Forst, Prosecution and Sentencing, in CRIME AND PUBLIC POLICY 165, 166 (James Q.
Wilson ed., 1983) (derived from figure 1 by excluding juvenile cases); see also SILBERMAN, supra note 22, at
259 (charges dropped against 27% of all adult arrestees).

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n288 Forst, supra note 287, at 168.
n289 Id.
n290 Cf. Davies, supra note 6, at 679 (arguing that cases suppressed under the Fourth Amendment
exclusionary rule are minor in view of "much larger effects of a variety of other causes of lost arrests").
n291 Cf. id. at 654 (making same argument in favor of rough estimate of search and seizure exclusionary
rule costs).
n292 This Article makes no attempt to assess costs apart from lost cases that may stem from Miranda. For
discussion of other possible costs (such as consumption of police and judicial resources and undermining public
confidence in the criminal justice system), see Van Kessell, supra note 7, at 129.
n293 This multiplication assumes that the two variables are independent. This assumption may well
underestimate the effect of Miranda, because it seems likely that those who do not confess are probably those
against whom the prosecution has the weakest cases. See supra note 214 and accompanying text (collecting
evidence that suspects are more likely to confess when evidence against them is strong). Put another way, the
suspects deterred from confessing may disproportionately constitute those against whom confessions are needed.
n294 See supra notes 183-85, 272-74 and accompanying text. I use the necessity figure for confession cases
(23.8%) rather than all cases (26.1%) because it produces a lower estimate of Miranda's costs.
n295 Cf. Davies, supra note 6, at 621 (noting that lost cases under search and seizure exclusionary rule may
not have involved arrests intended to "stick").
n296 See supra notes 285-90 and accompanying text.
n297 See infra notes 317-18 and accompanying text.
n298 See infra notes 321-36 and accompanying text.
n299 See FED. BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFORM CRIME
REPORTS, CRIME IN THE UNITED STATES 1993, at 217 (1994) (table 29).
n300 Cf. FEENEY ET AL., supra note 17, at 21 (arguing that arrest is the "clear choice" of alternative
measures for assessing case attrition in the criminal justice system).
n301 "Arrest" has apparently been defined as: (1) contacting a suspect on the street; (2) transporting a
suspect to a police station; (3) detaining a suspect at a police station; (4) booking a suspect at a police station;
and (5) filing charges against a suspect with a prosecutor. Lawrence W. Sherman, Defining Arrest: Practical
Consequences of Agency Differences (Part I), 16 CRIM. L. BULL. 376, 376 (1980).

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n302 See Malcolm W. Klein et al., The Ambiguous Juvenile Arrest, 13 CRIMINOLOGY 78, 85 (1975)
(finding that, of 45 police departments surveyed, 36 used "brought to the station" as their operational criterion
for reporting a juvenile arrest; 6 more used "booking"; only 1 included "field contacts"). This survey covered
juvenile offenses, where arrest reporting might be more ambiguous than for adult offenses. See FEENEY ET
AL., supra note 17, at 39.
n303 FEENEY ET AL., supra note 17, at 40-41 ("The most common point indicated in the literature and
observed in this study as the event from which adult arrests are counted is the booking.").
n304 However, police do not always avail themselves of the opportunities for questioning. See Cassell &
Hayman, supra note 47 (discussing cases in which police never question suspects).
n305 FEENEY ET AL., supra note 17, at 40.
n306 See Edward L. Barrett, Jr., Police Practices and the Law -- From Arrest to Release or Charge, 50
CAL. L. REV. 11, 32 (1962); Sherman, supra note 301, at 471.
n307 Seeburger & Wettick, supra note 32, at 6.
n308 Controlling Crime Hearings, supra note 45, at 1120.
n309 Id. at 200-01.
n310 Witt, supra note 89, at 323.
n311 See FED. BUREAU OF INVESTIGATION, supra note 299, at 217. The crime index is composed of
the violent crimes of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault and
the property crimes of burglary, larceny-theft, motor vehicle theft, and arson. Id. at 5.
n312 See id. at 217 (table 29).