Foreword By Janet Napolitano, Governor of Arizona
Table of Contents
  Miranda's Confession
  Right to Counsel
  Privilege Against Self-Incrimination
  Miranda and the Arizona Supreme Court
  Birth of the Miranda Warnings
  John Frank as Architect of the Miranda Doctrine
  John Flynn's Oral  Argument at the Supreme Court
  Gary Nelson's Oral Argument for Arizona
  Thurgood Marshall's Oral  Argument at the Supreme Court
  The Opinion
  The Miranda Warnings
  The Ongoing Debate
  The Dickerson Case
  Miranda's Global Reach

Miranda and the al Qaeda Terror

  Padilla and Hamdi
  False Confessions and the Tuscson Four
  Political Ideology and the Supreme Court
  Dickerson's Legacy
  Gideon's Legacy
  The Evolution of Miranda




from Chapter 3

Oral Argument in the United States Supreme Court

John J. Flynn for the Petitioner Ernesto Miranda

John Flynn, John Frank’s choice to deliver the oral argument for Miranda, was not widely known outside Arizona in 1966. He would become much admired within his profession, for though he argued with earnest passion in the courtroom, in a style of speaking that at times could be candidly assertive and was not easily deposed, he was a man of impeccable sincerity and humility. The combination of Frank’s written brief and Flynn’s oral advocacy produced a lucid yet wholly extemporaneous quality, as if he were merely speaking his mind and heart honestly, without forethought. In later years, whenever he was in trial, the courtroom would usually fill with journalists, trial buffs, and law students. His closing arguments drew standing audiences who were routinely swept away by the force and persuasiveness of his oratory. Indeed, his influence on the Supreme Court during the oral argument phase of the Miranda case was so great that in 1994, American Heritage’s Our Times magazine, in profiling the previous four decades, gave Flynn the credit for “winning” the case, naming him on its list of “ten people who changed the way you live but you have never heard of any of them.”

The records cannot show how well he presented himself at ten o’clock in the morning on February 28, 1966. There are no videotapes of the proceedings; however, anyone familiar with Flynn’s style can easily imagine him, uncomfortably restricted to a position behind the podium but nevertheless conveying to the court his passion for his argument. He had but two objectives, which he was determined to obtain. First, he wanted to frame the central argument in such a way that all nine justices could take the first step toward abstracting his central premise: Most American citizens were at a legal disadvantage as soon as they came under police scrutiny. Second, he wanted to make sure the issue from that day forward was not whether to warn but when to warn. For, as both he and Frank saw it, this was the sticking point. Despite Gideon, Escobedo, and subsequent changes requiring police to tell suspects of their right to counsel, those opposed to the whole notion of warning were continuing to argue against the requirement on practical grounds, contending that even if a law mandated a warning, the law simply could not be applied fairly and consistently. If the question of timing could be resolved, both Frank and Flynn believed the one last real obstacle to an American right to remain silent would be removed.

With these goals in mind, and knowing that his time was strictly limited, and that the justices would surely interrupt him at any moment with a question or observation that would sidetrack his formal presentation, Flynn went quickly through the obligatory phase of his argument - the traditional statement of the facts of the case. Without elaboration he explained that the issue before the Court concerned the admission in evidence of the defendant’s confession and then finished by simply emphasizing that the confession “had been given in the absence of counsel.”


Not until he reminded the Court that the police had not arrested or interrogated anyone else, and then asserted that Miranda was thus the “focus” of the investigation - that Ernesto Miranda and Detective Cooley had, in a sense, become opposing “advocates,” - did one of the justices finally interrupt.

“What do you think is the result of the adversary process coming into being when this focusing takes place?” Justice Potter Stewart asked. “What follows from that? Is there then, what, a right to a lawyer?”

It was not the question Flynn most wanted to answer, of course, for it led directly toward the issue he wanted to dispense with. But he was not surprised by it, nor would he be deterred by it. Yes, he thought a man could have a lawyer at this time, he told Justice Stewart, “If the man knew his rights.” Then, before Justice Stewart could respond, he added, “if he’s rich enough, and if he’s educated enough to assert his Fifth Amendment Right, and if he recognizes that he has a Fifth Amendment Right to request counsel.” And there it was: a bold assertion that the Fifth Amendment, not the Sixth, made Miranda different from its predecessors - Powell, Gideon, and Escobedo. Historically, the right to counsel was addressed, granted, or withheld under the umbrella of the Sixth Amendment, which was exactly what the written briefs in Miranda espoused. Flynn’s bold assertion to Justice Stewart may have been the spark that generated the firestorm. 




Miranda: The Story of America's Right to Remain Silent
Copyright © 2004, Gary L. Stuart. All rights reserved.
Available at Alibris,, Barnes and Noble, and your local bookseller
page last revised: 10/25/04