This month, the Supreme Court changed how suspects might or might not communicate a wish to waive their Miranda rights. David Milch, co-creator of the seminal cop show NYPD Blue, says he tried to more realistically portray the use of Miranda. DePaul University law professor Susan Bandes says the show is indeed very real, and from the cop’s perspective.
BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
[MUSICAL NOTES FROM LAW & ORDER]
BOB GARFIELD: And I'm Bob Garfield.
[MUSICIAL TONES FROM LAW & ORDER] You have the right to remain silent. Anything you say can and will be used against you in a court of law.
BROOKE GLADSTONE: You have the right to speak to an attorney and to have an attorney present during any questioning.
BOB GARFIELD: If you cannot afford a lawyer, one will be provided for you at government expense. Do you understand?
[TONES FROM LAW AND ORDER]
BROOKE GLADSTONE: Earlier this month, the Supreme Court changed what suspects under interrogation should understand. Once suspects had to waive those rights for their words to be admissible as evidence, now they have to declare they are exercising their right not to incriminate themselves. We all know the Miranda warning. We've heard it recited on TV hundreds of times. It’s formality, a comforting confirmation that there is, in fact, law and order in the world. That’s what shows like Law and Order and Hill Street Blues gave us, but NYPD Blue did not. David Milch wrote for Hill Street, but helped to create NYPD Blue. He wanted to make something more realistic, so he hired the best cop he could find, Bill Clark.
DAVID MILCH: Bill said if you show a guy gettin’ his Miranda rights, I quit.
BROOKE GLADSTONE: You’re kidding!
DAVID MILCH: Now, that doesn't mean that that was what Billy ultimately wanted, but what he was trying to do was disabuse me of the idea that the giving of Miranda is the norm. NYPD Blue tried to portray more realistically the living paradox of the cop’s situation, which is we want you to deprive the suspect of as much of his constitutional rights as is necessary for society to function, and then we want you to lie to us.
BROOKE GLADSTONE: Did that come up in the program?
DAVID MILCH: Yes, it came up all the time. And it’s usually associated with the idea of physical force being applied to the suspect to secure a confession. There’s a scene in the first season where the more experienced detective is talking to a younger guy about when and if you beat a suspect, when and if you give him his Miranda rights, among others.
DAVID CARUSO AS JOHN KELLY: Let me put it to you like this: I never raise my hand to a guy if I think he’s guilty or I'm trying to find out if he’s guilty. But if I'm sure he’s guilty, and the case is going to walk unless I raise my hand, I do what I gotta do.
DAVID MILCH: You've been willing to break the social contract, pal, and so am I.
BROOKE GLADSTONE: How do you think Law and Order handled Miranda? They use it pretty regularly on that-
DAVID MILCH: Yeah, that’s none of my business.
BROOKE GLADSTONE: Ah-ha, okay. So you'd rather not comment on that program.
DAVID MILCH: Right.
BROOKE GLADSTONE: But you think that the impact of the constant invocation of the Miranda law that has enabled all of us who watch crime shows on TV to practically recite it word for word, like the Lord’s Prayer -
DAVID MILCH: Yeah, yeah, that is a dumbing down of the populace. And a cop who relies excessively and programmatically on the administration of Miranda, at a given point, always the same point in a process, is a lousy cop. Every case, every arrest, every questioning has to be taken as sui generis, as its own thing. And you have to know when to give someone his rights and when, at a minimum, to give him the illusion that he’s going to lose his rights unless he cooperates.
BROOKE GLADSTONE: So the formality of the giving of the Miranda warning is the biggest fiction in a fictional program.
DAVID MILCH: Thank you. Can you go to work? Can you help me later on?
BROOKE GLADSTONE: [LAUGHS] David, thank you very much.
DAVID MILCH: My pleasure.
BROOKE GLADSTONE: David Milch was co-creator, with Steven Bochco, of NYPD Blue. Susan Bandes is a professor of law at DePaul University. She’s watched all 261 episodes of the show to study its use of the Miranda warning. She says the show is very real, from the cop’s perspective.
SUSAN BANDES: Miranda is something they have to get around, something that’s keeping them from getting to the truth. And so, the cop’s job is to convince people that, in fact, it’s in their interest to confess.
DAVID CARUSO AS JOHN KELLY: You want an attorney in here, I'll get you an attorney in here. He’s going to tell you to shut up, and then things will become adversarial. The deal’s gone. Forget the deal. Is that what you want, us against you? Knowin’ what I know about you, you want me against you? I don't think so.
[SIREN SOUNDING IN BACKGROUND]
SUSAN BANDES: Cops tell the suspect that only they can be sure that if the suspect really acted in self-defense or really didn't know he was driving the getaway car or really felt remorseful, that only they can make sure that that story gets out. First of all, that simply isn't true. They'll have plenty of time to get their story out to their defense attorney, to a jury, to a judge. And, second of all, cops are probably, as Miranda itself goes out of its way to tell them, they're adversaries in the situation, not their friends.
BROOKE GLADSTONE: Can you recall a specific episode of NYPD Blue in which this issue came up?
SUSAN BANDES: One where it came up in a rather dramatic context was one where I believe it was a child molester, or a suspected child molester, and the cops were very intent on catching him. And the quote was:
DAVID CARUSO AS JOHN KELLY: Okay, you’re asking me if I believe in the Constitution. Yes, I believe in the Constitution, and I hang onto that as long as I can. But in the case of a murderer like this who’s going to walk, I leave my gun and my jewelry outside, along with the Constitution.
NICHOLAS TURTURRO AS JAMES MARTINEZ: And if you’re wrong about this guy?
DAVID CARUSO AS JOHN KELLY: Well, then God forgive me.
BROOKE GLADSTONE: You’re a law professor. Have you done any trial work in which Miranda came up?
SUSAN BANDES: I did criminal appeals. I worked as the state appellate defender here in Illinois, so I did a lot of appeals on cases where it was pretty clear that people were convicted primarily or, in some cases, entirely, based on their confessions, when there was no physical evidence against them, for example. And people just did not hear the warning of Miranda.
BROOKE GLADSTONE: Do you know that, in fact, they did actually hear a warning, that it was actually offered to them by the cops, in every case?
SUSAN BANDES: In most cases, the cops do give the Miranda warnings. But what happens – and NYPD Blue is really good at depicting what happens, which is that the cops subvert the meaning of Miranda, they subvert the spirit. They say the words but then they follow it with exactly what Sipowicz and Simone, I think, usually follow it with in NYPD Blue, which is, yeah, you know, you've heard these words, and this is this kind of technical mumbo-jumbo. But take it from us, if you really want to help yourself, you will talk to us. You won't go lawyering up. And so, I would say that that’s a very accurate portrayal of something that the cops do all the time.
BROOKE GLADSTONE: In real life, people will confess to things they haven't done. In real life, the cops can be wrong.
SUSAN BANDES: That's right. We now know that people who are coerced in certain ways and told that they can't leave until they say certain things and deprived of sleep and sustenance will, in surprising numbers, confess to crimes they didn't commit. And so you’re absolutely right, we never see that on NYPD Blue because on NYPD Blue we have the viewers’ privileged perspective. We know who committed the crime already, and we can see the cops moving closer to their appropriate suspect. We don't see the innocent person confessing, and we usually don't see the innocent person getting hauled into the interrogation room in the first place. And we're rooting, as the audience, for those niceties and technicalities, like Miranda, to be swept aside and to get the bad guy before he does more damage.
BROOKE GLADSTONE: So TV isn't good for democracy.
SUSAN BANDES: I wouldn't go that far.
[BROOKE LAUGHS] Um, and, in fact, some people say it’s the greatest education effort, ever. Everyone knows their Miranda rights because they've all seen it on TV. There’s a great story about some guy getting pulled over for a crime and saying, you can't interrogate me, I know my rights! And the cop says, well sir, this is Canada.
BROOKE GLADSTONE: Susan, thank you so much.
SUSAN BANDES: My pleasure.
BROOKE GLADSTONE: Susan Bandes is a professor of law at DePaul University.