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Tuesday, May 30, 2017

The Miranda App

On the theme of disrupting law, I thought I would end my month here on Prawfsblawg talking about an idea Richard Leo and I came up with about how to re-imagine the Miranda warnings and waiver process.

In a forthcoming article “The Miranda App: Metaphor and Machine” – part of Boston University Law Review's Symposium on Miranda's Fiftieth Anniversary – we came up with the idea of replacing the all-too-human Miranda warnings and waiver process with an automated interactive computer program.  As we summarize:

This Article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. Accessible on a smartphone, computer, tablet, iPad, or other system, the Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address fifty years’ worth of unsatisfactory Miranda process. Each of Miranda’s core warnings would be communicated via interactive digital graphics, animation, video, and text. Explanations would accompany each word and legal concept. Short comprehension tests would be built into the system to evaluate a suspect’s general understanding of language and law. Additional clarification would be available to address confusion about terminology, process, or rights. In addition, as designed, the Miranda App could generate a contemporaneous record of useful data about the suspect’s current capacity, literacy, understanding, and familiarity with constitutional rights. The App would be free, simple to use, easy to understand, and would provide the clarity and finality lacking in current Miranda practice. After custody, a police officer would simply hand over the Miranda App to the suspect and hand off the responsibility to explain or advise suspects to the machine.  The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. This Article includes not only the blueprints for Miranda’s future, but also a rendering of the structural weakness of past doctrine.

The impetus for this change is the recognition that “[a]s many scholars have argued, lamented, and documented over the years, Miranda has largely failed in the last five decades to achieve its core mission of reducing custodial pressure and compulsion while eliciting genuinely voluntary and knowing consent to police interrogation.”  The hope is to use the creation of a Miranda App to rethink – as both metaphor and machine – the existing practice.

Obviously, the pros and cons of such a change deserve serious consideration (and debate) and we spend almost 60 pages wrestling with the history, practice, and meaning of Miranda in the article.  Happy to hear anyone's thoughts about the design concept or the potential for creating a prototype. 

Finally, thank you everyone for engaging with me this month, and, special thanks to Howard and the Prawfsblawg family for the invitation to blog about my various interests and ideas.  Until next time…

Posted by Andrew Guthrie Ferguson on May 30, 2017 at 09:27 PM in Article Spotlight | Permalink

Comments

I think a very important part of the warnings that this app idea misses is that the warnings are binary, not unary. They are not just directed at the civilians receiving the warnings. They are also directed at the officer giving the warnings. I happen to think that was an important civilizing aspect behind the warnings: it forces the police to acknowledge the dignitary interests and political standings of the civilians with whom they are interacting by forcing the police to regard these civilians as people worthy of warnings. If you think Miranda is primarily about the rights of defendants to exclude the government, then you'll not agree. But I think William Ker Muir is really interesting about the morally civilizing and brutalizing aspects of policing, and I think the Miranda warnings are very much in Muir's spirit.

Posted by: Eric J. Miller | Jun 6, 2017 9:40:12 PM

That is a very interesting point, one I had never really considered. I think my cynicism of watching Miranda rights be given in a decidedly non-civilizing (although usually civilized manner) colored the approach. I take the point though.

Posted by: Andrew Ferguson | Jun 6, 2017 10:04:33 PM

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