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 5

The Ongoing Debate

Excerpts from pages 100-103

The most frequent criticism of Miranda, in the years after it was handed down, has been that the ruling makes law enforcement more difficult because the primary advantage of the “old world of criminal procedure” has been lost: Police can no longer interrogate a suspect quickly, before the suspect has a chance to concoct an alibi or reflect at length on the legal consequences of truthful confession. Some even go so far as to say this has had “a devastating effect on enforcement of criminal law, for it would effectively preclude police questioning - fair as well as unfair.” Perhaps the most radical and foolish attack in this vein came from former Attorney General Edwin Meese III, who, when asked whether “suspects” should have the right to have a lawyer present before police questioning, replied, “Suspects who are innocent of a crime should. But the thing is you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”

Such a patently ridiculous assertion of course deserves no serious answer; John Frank’s response, that Meese was “a dangerous buffoon in a high place,” serves best to dispense with this entire line of irrational overreaction, which has tainted the argument against Miranda. The far better argument, one deserving a reasoned response, is that Miranda has created the possibility that even confessions given freely, prior to any police questioning of any kind, might well be inadmissible in a courtroom, and thus dangerous criminals, relieved of their confessions, can and do walk away unprosecuted.

It simply cannot be denied that this has happened, just as it cannot be denied that the job of the arresting officer has been made more difficult, for he is now required to advise the suspect of his rights “without word games, lies, or qualifiers,” as Peter Baird wrote in a Wall Street Journal counterpoint editorial, published on the twenty-fifth anniversary of the Miranda ruling. Baird, who had written portions of the appellate briefs in Miranda’s retrials and appeals, further conceded that if the arresting officer failed to warn, and “if the only evidence is the unwarned suspect’s confession,” then the prosecutor’s case would be “stillborn.”

However, Baird then put this difficulty in perspective, reminding critics of the obvious: In the twenty-five years since becoming law, Miranda has had no effect on police methods of prearrest investigation and detection because the Court’s decision applied only to suspects in custody. There was no legal requirement to read Miranda warnings to suspects until they were actually placed under arrest. Also, six years after Miranda, in a case that raised the question of what to do with confessions made before the warning could be issued, the Supreme Court contended that if the police failed to warn a suspect of his constitutional rights and the suspect did confess, the unwarned confession could be “cured,” that is, presented at trial to contradict a subsequent denial.

In his anniversary editorial, Baird also made one of the most compelling arguments in answer to the charge that Miranda hampered law enforcement. First pointing out that the educated and the affluent, as well as the organized criminal, are almost always aware of their constitutional rights, he insisted that “More than anything else, Miranda v. Arizona means that information about our constitutional guarantees is no longer rationed on the basis of wealth, experience, or education.”

Some of Miranda’s earliest, most vocal, and most respected critics, including former Supreme Court Justice Tom Clark and Chief Justice Warren Burger, had by 1989 changed their views regarding Miranda’s effect on law enforcement, no doubt giving way to the statistical evidence, which showed that, as of 1988, less than 1 percent of all American criminal cases had been dismissed because of “unwarned” confessions. And only a fraction of that 1 percent was dismissed for noncompliance with Miranda. In fact, most law teachers, academic lawyers, professional prosecutors, and managerial level police officers see increased professionalism rather than decreased prosecutions as a consequence of the Miranda doctrine.


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