Miranda – The story of America’s Right to Remain Silent by Gary L.  Stuart is published by University of Arizona Press. ISBN 0-8165-2313-4. It is available at local booksellers and online.  Here we present excerpts from the book.

Preface from the book

Whether innate or acquired early in life, the desire to confess – to take responsibility for a perceived misdeed – is no doubt a deep-seated impulse in us all; perhaps we want, as Sartre suggests, to return the world to a “harmony of minds,” an agreement on the principles that bind us to the society in which we live. Why we wish to do this seems visceral, as immutable as physical law, and as basic to our sense of justice as the concept of right and wrong. The act of confession, it would seem, restores the world (and our psyches) to a state of balance: For every action there must be an equal reaction – an eye for an eye, and a tooth for a tooth.

There is, however, a curious aspect to our impulse to confess. We feel that in the act of contrition resides an implicit covenant: If I confess, I will be forgiven by the authority with which I have formed this covenant, for in the confession itself I make restitution.

Confess, and all will be forgiven – this is what the police interrogator conveys to the suspect. Not in so many words, but the message is there – in the tone of voice, in the proffered kindness of a cigarette or cup of coffee – and in truth the suspect will be forgiven by the cop, whose only real requirement for achieving harmony is the confession. For the higher authority, however, the admission of wrongdoing is not the end. The ancient god of retribution must be served; the wrongdoer must pay for what he did, with his wealth, his liberty, or his life.

But does he understand this? As he sits in the interrogation room and the hours pass, and the cop repeats the same unspoken message over and over – does he understand that this whole problem can end if he simply admits to the crime? Does the suspect always know, always remember, and always understand that what he says can be used against him in a court of law? Does the suspect know that he has the legal right to remain silent and to refuse to answer the interrogator’s questions? Do we as a society have the obligation to make sure he knows, understands, and does not forget?

The answers to these questions may seem self-evident today, but before the United States Supreme Court handed down Miranda v. Arizona, our system of justice operated under a different set of assumptions. Prior to Miranda, a well-informed citizen might be aware of the constitutional protection against self-incrimination, but few understood that this protection extended beyond the courtroom. In a very real sense, most Americans – certainly most white, middle-class Americans – assumed that a suspect, once in custody, was most likely guilty, and that police interrogation could and should continue, in private, isolated from counsel, until the suspect confessed. In general, police held this conviction as well and saw no wrong in concealing the fact that the suspect’s confession would be used to incriminate him, nor did they see any wrong in pandering to the suspect’s desire to confess. Scarcely anyone outside the realm of psychology believed a man would confess to something he had not done. And even those who knew better could find comfort in the belief that such false confessions would easily be discovered and never used unscrupulously to convict an innocent man.

In the middle of the last century, however, American society began to change and, with that change, to question some deep-rooted assumptions about race, about gender, and about law. The war, to some extent, had desegregated the army, and returning black GIs, having fought for their country, could not help but resent their lack of freedom at home. Then, too, the war effort had brought women into sectors of the workforce long reserved for men. Suddenly they were being asked to surrender their independence and pretend they could not handle a man’s job. Finally, in movies like The Last Angry Man, audiences were shown what can happen when juries make the lazy assumption that the accused must be guilty as charged.

As the forces of change manifested in the struggle for civil rights and greater social and economic equity, there began a growing demand for higher education. Across the country, the university system expanded to include the children of lower- and middle-class parents, and to provide them the opportunity to enter professions that had been traditionally the province of the upper class – especially the professions of law and academe. As a new crop of lawyers and professors came of age, they pushed for egalitarian reforms, and for the first time, the state took on the responsibility of providing legal counsel for citizens who could not afford it. Soon thereafter, that right was extended to include pretrial procedures. But even so, the suspect had to invoke this right to have a lawyer present, and if he did not know he had the right, well, that was his fault.

Then one afternoon in March of 1963, a Phoenix police detective arrested a young, poor, and uneducated Hispanic man in connection with a series of sexual assaults. Within a few hours the man had willingly confessed to the crimes. His subsequent trials and convictions on two of the charges were swift and certain, and it seemed that, like so many others before it, the case would end there.

But there is, of course, more to this story. What happened that afternoon in the Phoenix police station began a chain of events that came to bear on a central precept of our system of justice, and upon a core belief of the American way of life. Ernesto Miranda was convicted of a crime not on the strength of eyewitness testimony or physical evidence, but almost entirely because he had incriminated himself without knowing it, and without knowing that he didn’t have to.

I undertook the writing of this book not simply because Miranda v. Arizona stands as one of the most important events in the annals of American legal history; I was also drawn to the story because I’ve spent my career practicing, teaching, and writing about the law in the state where the story began, unfolded, and ultimately concluded. In 1966, when Miranda came down, I was a third-year law student at the University of Arizona. Although the case at first received virtually no attention from the media or the legal community, Miranda’s lawyers, John P. Frank and John J. Flynn, were among the most prominent in the Arizona bar, and their work soon focused the entire country on the issue of Miranda’s rights. A great many Arizona lawyers followed the story closely, ingesting the daily reading and discussing – arguing vehemently sometimes – the points of the case. Arizona was at that time a politically conservative, law-and-order state – the state of Barry Goldwater and John Rhodes. Sentiments against the lawyers representing Miranda ran high.

Just as high, however, ran the groundswell pushing for a true and universal recognition of civil liberties and a reinterpretation of that essential tenet of American justice, the right of all citizens to be treated equally under that law. Ernest Miranda figures centrally in this story partly because he was an uneducated, ethnically disenfranchised citizen with virtually no voice to defend himself. But also, and even more important, he is central precisely because he was so obviously the perpetrator of the crimes for which he was arrested. For it is in cases when evidence and common sense so strongly dictate guilt – when all involved seem willing to waive rights set forth in our constitution – that the law must step forward to protect the presumed innocence of the accused and provide him the legal protection to which all innocent American citizens can lay claim.

This basic tenet had been invoked many times before Miranda, but never before had anyone drawn such a clear rationale from the various precedents, and never before had the argument been carried so eloquently before the Supreme Court. It is fair to say that the social and political climate of the day offered proponents of the Miranda Doctrine an environment receptive to their reasoning. Nevertheless, without the dedication of those responsible, and if not for the unique combination of skills they possessed, the chance might have passed, and the course of American justice might have remained unaltered for an unknowable time.

Miranda represented a 1966 sea change in that the “totality of the circumstances” test for the admissibility of a confession was eschewed and a new bright-line was established by the now-famous Miranda warnings. The necessity for such a change came about because police interrogation techniques were developed forty years ago that were specifically designed to induce suspects into unknowingly giving up their Fifth and Sixth Amendment rights.

The Dickerson decision in 2000 cemented that change by declaring that the Miranda warnings were not simply judicially created rules that protected constitutional rights but were themselves mandated by the Constitution.

The sad truth is that forced or coerced confessions were commonplace in rural America before the Mirandadecision and were usually the product of unprofessional police conduct, which by definition was often difficult to prove. Even when it could be proved, it took a lawyer to prove it. As the late John P. Frank said, “[T]he right to counsel and the freedom not to be a witness against oneself are a shield by which our Constitution protects persons in our society from suffering the broken bodies, not merely of distant centuries but of today, broken bodies of persons whom some government seeks to compel to testify against themselves. The minimal safeguard against such abuses, a safeguard that has been demonstrably necessary in our own country, is to declare that no confession may be used unless it is clear that it was made by a person who knew his constitutional rights and chose to waive them.”

History was made again in 2004 when the Supreme Court handed down several decisions expanding the Mirandadoctrine in domestic criminal cases and expanding the right to access to counsel to suspects apprehended in the ongoing war against terrorism. The domestic cases dealt with new police interrogation techniques that were designed to produce confessions by avoiding the strictures set down in Miranda. The terrorist cases dealt with the right of access to American courts for both citizens and non-citizens alike.

Yarborough v. Alvarado supported Miranda’s basic promise of protection of Fifth Amendment rights but carefully distinguished pre-custody situations in juvenile cases. While affirming a criminal conviction obtained through an unwarned confession, the court enunciated for the first time that the Constitution does not require that special consideration be given to age when deciding whether to grant or withhold Miranda warnings.

Fellers v. United States produced a rare unanimous Supreme Court decision that suppressed a suspect’s in-custody confession after he had been read and had waived his Miranda rights. His “warned” confession in the police station was suppressed because it came from an earlier confession taken by the same officers at the defendant’s home. The police had gone to the suspect’s home for the express purpose of arresting him pursuant to an indictment in a drug case. While at his home, without reading him his rights and knowing that he was already represented by counsel on the drug charge, the officers engaged him in a conversation in which he incriminated himself. The Court held that the second confession must be suppressed because it was the “fruit” of the first confession and thus a violation of both Fifth and Sixth Amendment rights.

United States v. Patane tested the admissibility of physical evidence obtained by the police as a result of an unwarned confession. In this instance, the police had “accidentally” violated Patane’s Miranda rights. The suspect had been arrested and interrogated at home and had admitted possessing a gun in violation of his parole status. The Court ruled that prosecutors may use physical evidence against a suspect even if it was obtained by officers who had not given the suspect a Mirandawarning. A narrow plurality of the Court stated that the Miranda rule could not be violated unless the statements were introduced in court. In this case, only the gun was admitted, not the suspect’s actual statements.

 Missouri v. Seibert involved an “intentional” withholding of Miranda rights by police. The officers who arrested Patrice Seibert consciously elected not to inform her of her constitutional rights as part of a strategy to get the suspect to incriminate herself. Only after securing her first unwarned confession did they read the Mirandarights card to her. Having already confessed, she waived her rights and confessed a second time. The Court soundly denounced the intentional violation of Mirandaand ordered both confessions stricken. The 5–4 vote against the strategy, in an opinion by Justice David H. Souter, was a “plurality” decision since the five justices in the majority did not fully agree on a single rationale for holding both confessions inadmissible. Justice Souter said, “Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress cannot do by statute.”

Thus in these domestic criminal cases the Court firmly continued to support the uniquely American right to remain silent, the more general right to be informed, and the somewhat global right to be represented by counsel. The entry of foreign and domestic suspects in the war against terrorism brings an unpredictable consequence of Miranda’s legacy. In the past few years, the notion that an individual should have a right to remain silent has spread from police stations in America to custodial interrogations of foreign nationals in foreign countries. The fact that no other country in the world requires its police to issue Miranda warnings therefore creates a conundrum for the FBI and other American law enforcement agencies, for if a foreign suspect is Mirandized on foreign soil in a nation that does not recognize the right to remain silent or to receive counsel in pretrial settings, then Miranda warnings are inherently misleading.

The larger question of the extent to which domestic Miranda rights should be respected on foreign soil or on American sovereign territory is the subject of three recent decisions handed down along with the domestic Mirandadecisions in the last two days of the Court’s October 2003 term. In Rasul v. Bush, the Court held that non-citizen detainees held at the U.S. naval base at Guantanamo Bay, Cuba, have a right to file habeas corpus petitions in federal courts to challenge the legality of their detention. In Hamdi v. Rumsfeld, the Court clarified American citizen Yaser Hamdi’s rights. Hamdi had been detained as an “enemy combatant” for two years without access either to the courts or his lawyer. The court held that his detention was proper and could be continued but that he had a right to challenge the justification for his detention (i.e., his status as an enemy combatant) before a neutral decision maker. In Rumsfeld v. Padilla, the Court held that Padilla – another American citizen being held as an enemy combatant – had filed his habeas petition in the wrong court. Presumably, when Padilla re-files his petition in the right court, he will be given the same rights as Mr. Hamdi.

The three cases involving the war on terrorism thus invite the comparison between the well-known Miranda rights and what may become known as Hamdi rights.

The devastation inflicted upon New York City and, psychologically, on the rest of the nation on September 11, 2001, understandably created a need for changes in the ways we prosecute foreign criminals such as the al Qaeda terrorists. What we see as constitutional rights for ourselves may have to be withheld from those who would take all rights away by terror and violence rather than by the due process of the democratic system. We would do well to remember, however, that if, in the effort to solve the problems Miranda has posed to law enforcement, we return to the days when law enforcement was silent on the rights of suspects – be they homegrown thieves or foreign-trained terrorists – then those people seeking to destroy democracy itself and replace it with a radically fundamental theocracy will have obtained one of their objectives.

Justice O’Connor is as close to these large questions as anyone could possibly be. She is at the center of the Court and the center of American thought when she says, as she did in the Hamdi case, “Striking the proper constitutional balance . . . is of great importance to the nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds so dear or to the privilege that is American citizenship.”

The last day of the Supreme Court’s October 2003 term was, as Anthony Lewis said in the New York Times, “As profound a day in the court as any in a long time.” Miranda rights were, once again, constitutionally confirmed, and Hamdi rights were, for the first time, constitutionally created.

I wanted to write this book because I know many of the principal figures personally. I took advanced constitutional law from John P. Frank in 1966, practiced law with Rex E. Lee, and tried cases before all of the judges involved in Miranda’s many trials. Over the years, I tried cases with other lawyers involved in the case and came to know some of the police officers and other Miranda “insiders.” I knew starting out that I would be accorded a level of access and trust that few others could enjoy.

 The book is arranged to accommodate two different but not mutually exclusive audiences: the general reader, for whom the story of Ernest Miranda might well be the most interesting, and the student of the law, who will find interest in the way our justice system worked before, during, and after the Miranda decision. Consequently, the first part recounts the events of Ernest Miranda’s capture, conviction, and first appeal, as well as the entry of Bob Corcoran, John P. Frank, and John Flynn into the story and their parts in creating the argument brought before the Supreme Court. Part Two is a more categorical discussion of the aftermath. It includes not only chapters about subsequent test cases and the ongoing debate but also an account of what finally happened to Ernest Miranda. In a final chapter I offer my summation, contemplating the legacy as well as the fate of Miranda in the twenty-first century, now that we face new challenges to our criminal code beyond our national borders.

Foreword

by Janet Napolitano,
Governor of Arizona

The Age of Frank came to the legal world when John P. Frank insisted that the full potential of the U.S. Constitution be realized and extended to every American.

It did not extend to Ernesto Miranda in 1963, nor to millions of Americans like him.  John found this abhorrent and went to work applying the virtues of the Age of Frank to American constitutional law.  Three years later he triumphed, as the U.S. Supreme Court agreed with him by establishing Miranda Rights.

There was potential in the U.S. Constitution that the American justice system had left untapped, and John was there to fix that deficiency.  In doing so, he welcomed millions of Americans into the Age of Frank.

In the Age of Frank, strawberries were not just for eating—they were to be dipped in champagne, rolled in powdered sugar, and devoured. Secretary’s Day meant more than flowers on a desk. It meant taking everyone out for a long, leisurely lobster lunch. And opera began and ended with Wagner.

That was how the Age of Frank came to the people who knew John personally.  John Frank is gone, but his era lives in the legacy of Miranda v. Arizona.  Long live the Age of Frank.

from the book

Table of Contents

Part One

Chapter One:  Crimes, Confessions, and Convictions

  • Ernest Miranda Confesses to Carroll Cooley
  • Miranda’s Robbery Trial
  • Miranda’s Rape Trial
  • The Case File of Coerced Confessions
  • Sylvester Cassidy and Stanley Johnson
  • Michael Vignera
  • Roy Allen Stewart
  • Carl Calvin Westover

Chapter Two: The Law

  • Law and Order in ’64
  • The American Right to Counsel
  • The American Privilege against Self-Incrimination
  • Escobedo
  • Miranda and the Arizona Supreme Court
  • Robert J. Corcoran – Birth of the Miranda Warnings
  • John P. Frank and the Miranda Briefs

Chapter Three: The Oral Arguments

  • Oral Argument in Miranda v. Arizona
  • John J. Flynn
  • Gary K. Nelson
  • Duane R. Nedrud
  • Oral Argument in Vignera v. New York
  • Victor M. Earle III
  • William I. Siegel
  • Oral Argument in Westover v. United States
  • F. Conger Fawcett
  • Solicitor General Thurgood Marshall
  • Oral Argument in California v. Stewart
  • Gordon Ringer
  • William A. Norris
  • Oral Argument, Johnson and Cassidy v. New Jersey
  • Stanford Shmukler
  • Norman Heine
  • M. Gene Haeberle

Chapter Four: The Aftermath

  •  The Miranda Opinion
  •   The Miranda Warnings
  • The Right to Remain Silent
  • The Second Warning
  • The Right to the “Presence” of an Attorney
  • The Right to Counsel, Free of Charge
  • Waiving Miranda Rights
  • Miranda’s Retrials
  • Miranda’s Death

Part Two

Chapter Five: The Ongoing Debate

  • Miranda in the Twenty-First Century

Chapter Six: The Dickerson Case

  • Miranda Revisited
  • The National Debate about Dickerson’s Chances in the United    States Supreme Court
  • The Dickerson Oral Arguments
  • The Dickerson Opinion
  • Continuing Legal Challenges to the MirandaDoctrine in the Wake of Dickerson
  • Fellers v. United States, U.S. Supreme Court Docket No. 02-6320, October Term, 2003–2004
  • United States v. Patane, U.S. Supreme Court Docket No. 02-1183, October Term, 2003–2004
  • Missouri v. Seibert, U.S. Supreme Court Docket No. 02-1371, October Term, 2003–2004

Chapter Seven: The Global Reach

  • Miranda in the Wake of September 11 
  • Miranda and the al Qaeda Terror
  • The Other American Taliban – Jose Padilla and Esam Hamdi

Chapter Eight: A Broader Perspective

  • Looking Back on Miranda
  • John P. Frank, Esq.
  • Peter D. Baird, Esq.
  • Dean Paul Bender
  • Judge J. Thomas Brooks
  • Captain Carroll Cooley
  • Justice Robert J. Corcoran
  • John Dowd, Esq.
  • Judge Joseph Howe
  • Robert Jensen, Esq.
  • Chris Johns, Esq.
  • Barry Kroll, Esq.
  • Senator Jon Kyl, R-Arizona
  • Rex E. Lee, Esq.
  • Professor Tom Mauet
  • Craig Mehrens, Esq.
  • Attorney General Gary K. Nelson
  • Detective Ron Quaife
  • Charles Roush, Esq.
  • Chief Judge Mary Schroeder
  • Mara Siegel, Esq.
  • Judge Barry Silverman
  • Robert Storrs, Esq.
  • Paul Ulrich, Esq.
  • Judge Warren Wolfson
  • Did Miranda Retard Law Enforcement?
  • False Confessions, the Temple Murder Case, and the Tucson Four
  • If Miranda Was a Liberal Decision, Why Was Dickerson a Conservative Decision?
  • Why Did the Court Switch from the Sixth Amendment in Escobedo to the Fifth Amendment in Miranda?
  • Was It Police Methodology or Political Ideology?
  • When Did Miranda Become a “Constitutional” Decision?

Chapter Nine: The Future

  • Gideon’s Legacy
  • Dickerson’s Legacy
  • The Evolution of Miranda
  • Acknowledgments
  • Notes

Bibliography

Primary Sources

  • Affidavits, Reports, Witness Statements, Photographs and Transcripts
  • Personal Records, Correspondence, and Notes
  • Court Filings and Records
  • Author Interview Notes and Correspondence File
  • Audio, Video, and Multimedia Materials

Secondary Sources

  • Books
  • Principal Supreme Court Cases and Federal Statutes
  • Law Review Articles
  • Selected Print Media

Bibliography

Primary Sources:  Affidavits, Reports, Witness Statements,Photographs, … and Transcripts

Asbury, Anne. Affidavit filed in United States v. John Philip Walker Lindh, U.S. Dist. Ct., Eastern Dist. of Virginia, Criminal No. 02-347A. Styled, “In Support of Criminal Complaint and Arrest Warrant.” Verification of facts regarding suspect’s admissions and waiver of Mirandarights.

Ashcroft, John. Transcript of press conference given by United States Attorney General John Ashcroft on January 15, 2002, regarding criminal charges against John Walker Lindh based on voluntary statements made to FBI.

Congressional Record. 90th Cong., 1st sess., 1967. Vol. 1120. Controlling Crime through More Effective Law Enforcement: Hearings before the Subcommittee on Criminal Laws and Procedure of the Senate Committee on the Judiciary.

Cooley, Carroll F., with Joseph R. Farmer. The Inside Story of Miranda – Arizona Peace Officer Standards and Training Board. 1980.

Frank, John P. Review of The New Legality – 1932–1968 (U.S. Supreme Court Decisions). 58 American Bar Association Journal 394 (1972).

 –  –  – . “Miranda Today, Appleton, Wisconsin.” Lawrence University convocation address, November 5, 1985.

Phoenix Police Departmental Reports 62-40126, November 1962; 63-07180, February 1963; 63-08380, March 1963; 74-07204, July 1974; and 76-011123, January 1976.

Smith, Darrell F. “Seminar On Miranda.” Seminar materials prepared by Smith, attorney general of Arizona, Phoenix, AZ, August 12, 1996.

Subcommittee on Criminal Justice Oversight of the Committee on the Judiciary of the United States Senate. Statement of Professor Paul G. Cassell. 86-page statement concerning the enforcement of 18 U.S.C. 3501 as of May 13, 1999.

U.S. Senate Judiciary Committee. The Clinton Justice Department’s Refusal to Enforce the Law on Voluntary Confessions under 18 U.S.C. 3501. 106th Cong., 1st sess., Senate Hearing 106237, May 13, 1999.

Personal Records, Correspondence, and Notes

Miranda, Ernest A. Materials referenced: signed “Miranda Rights Card” dated 6-13-66; Phoenix booking photos, 1960 and 1963; prison records; FBI Record No. 879313C regarding arrests and convictions between October 29, 1957, and July 16, 1974; handwritten confession signed by Ernest Miranda on March 13, 1963.

Personal Correspondence and Notes provided by: Justice Robert Corcoran, John P. Frank, Carroll F. Cooley, Peter D. Baird, Judge Barry Silverman, and Gary Nelson.

Court Filings and Records

Brennan, William, Justice. Signed memorandum to the chief justice regarding the Miranda opinion, May 11, 1966.

Judgment of Guilt and Sentence, Nos. 41497 and 41498, signed by the Hon. Yale McFate.

Maricopa County Superior Criminal Information, Nos. 41947 and 41948, filed April 16, 1963.

Northeast Phoenix Justice Court, No. 7345, criminal complaint, filed March 14, 1963.

Notice of Intent to Prove Insanity or Mental Defectiveness, filed by Alvin Moore, May 11, 1963.

Pleadings and transcripts filed in Maricopa County Superior Court, Docket No. 41498, February 15–17, 20–23, 1967, before the Hon. Laurence T. Wren.

Pleadings and transcripts filed in Maricopa County Superior Court, Docket No. 41497, 1969, before the Hon. William H. Gooding and the Hon. Philip W. Marquardt.

Pleadings and transcripts filed in the United States District Court for the District of Arizona, No. Civ 69-10, before the Hon. C. A. Muecke.

Pleadings, briefs, and opinions filed in the Arizona Supreme Court, Docket Nos. 1394, 1397, 1397-1, 1397-2, 1802.

Pleadings, briefs, and opinions filed in the United States Supreme Court, Docket No. 759, October Term, 1965, Ernesto A. Miranda, Petitioner; and Docket No. 2176, October Term, 1968, Ernesto A. Miranda, Petitioner.

Pleadings, briefs, and opinions filed in the United States Supreme Court, Docket No. 99, October Term, 2000, Dickerson v. United States of America.

Pleadings, briefs, and opinions filed in the United States Court of Appeals for the Fourth Circuit, No. 99-5525.

Psychiatric Report of James M. Kilgore Jr., M.D., May 28, 1963.

Psychiatric Report of Leo Rubinow, M.D., June 4, 1963.

Reporter’s transcript of trial in Maricopa County Superior Court Docket Nos. 41497 and 41498, June 19 and 20, 1963, before the Hon. Yale McFate.

State’s Exhibit 1 in Docket No. 41498 (typed, signed confession by Ernest Miranda, witnessed by Carroll Cooley and Wilfred M. Young).

Warren, Earl, Chief Justice. Handwritten notes prepared in advance of releasing the Miranda opinion in May 1966.

Author Interview Notes and Correspondence Files

Alcorn, Marianne, Esq., Librarian, Arizona State University College of Law.

Ares, Charles, Dean, University of Arizona College of Law.

Baird, Peter, Esq., Phoenix, Arizona.

Bender, Paul, Dean, Arizona State University College of Law.

Blakey, Craig, Judge, Maricopa County Superior Court.

Brooks, Thomas, Judge, Coconino County Superior Court.

Cooley, Carroll, Captain, Phoenix Police Department.

Corcoran, Robert, Justice, Arizona Supreme Court.

Dowd, John, Esq., Washington, D.C.

Fish, Paul, Esq., Albuquerque, New Mexico.

Frank, John P., Esq., Phoenix, Arizona.

Futterman, Craig, Esq., Chicago, Illinois.

Howe, Joseph, Judge, Maricopa County Superior Court.

Jensen, Robert, Esq., Phoenix, Arizona.

Johns, Christopher, Esq., Phoenix, Arizona.

Kimerer, Michael, Esq., Phoenix, Arizona.

Kroll, Barry, Esq., Chicago, Illinois.

Kyl, Jon. U.S. Senator, R-Arizona.

Lee, Rex, Esq. Former solicitor general of the United States, president of Brigham Young University, deceased.

Martone, Fred. Judge, U.S. District Court for the District of Arizona and former justice of the Arizona Supreme Court.

Mauet, Tom. Professor, University of Arizona College of Law.

Mehrens, Craig, Esq., Phoenix, Arizona.

Moeller, John. Justice, Arizona Supreme Court.

Napolitano, Janet, Esq. Governor, State of Arizona, former Arizona attorney general.

Nelson, Gary. Arizona attorney general and judge of the Arizona Court of Appeals.

Quaife, Ron. Detective, Phoenix Police Department.

Roush, Charles, Esq. Former judge of the Maricopa County Superior Court.

Schroeder, Mary. Chief Judge, U.S. Court of Appeals, Ninth Circuit.

Siegel, Mara, Esq. Phoenix, Arizona.

Silverman, Barry, Judge, U.S. Court of Appeals, Ninth Circuit.

Storrs, Robert, Esq., Phoenix, Arizona.

Thinnes, Thomas, Esq., Phoenix, Arizona.

Turngate, Susan, Esq., Santa Fe, New Mexico.

Turoff, Larry, Esq., Phoenix, Arizona.

Ulrich, Paul, Esq., Phoenix, Arizona.

Wolfson, Warren, Judge. Illinois Court of Appeals.

Audio, Video, and Multimedia Materials

Cassell, Paul. Overhaul Miranda?http://www.law.utah.edu/Cassell.

Focus on the Fifth: Miranda v. Arizona. FindLaw Constitutional Law Center, http://supreme.lp.findlaw.com.

Gideon v. Wainwright and Miranda vs. Arizona. Narrated by Ramsey Clark, Guidance Associates, Mt. Kisco, NY, 1986.

Grant, Michael, Moderator. Miranda v. Arizona. Panelists: Dean Paul Bender, Attorney General Gary Nelson, Assistant Attorney General Steve Twist, and Judge Rudolph Gerber, KAET, Channel 8, Arizona State University, 1987.

Gribben, Mark. All about Miranda v. Arizona – The Crime That Changed American Justice.http://www/crimelibrary.com.

Guidelines for Interrogations: Waiver of Rights under Miranda, Obtaining and Proving Waiver of Rights as an Element of Durable Convictions. Narrated by Daliel J. Penofsky, Aqueduct Books, Rochester, NY, 1967.

Irons, Peter, and Stephanie Guitton, Eds. May It Please the Court – Historic Recordings of 23 Leading Supreme Court Cases. Published in conjunction with the Earl Warren Bill of Rights Project of the University of California, San Diego and the Northwest Public Affairs Network, 1993.

Warren, Earl, Chief Justice, and Justice William Brennan. Miranda Rights. http://lcweb.locl.gov/exhibits.

Secondary Sources—Books

Baker, Liva. Miranda: Crime, Law and Politics. NY: Antheneum Press, 1983.

Brandt, Charles. The Right to Remain Silent. NY: St. Martin’s Press, 1988.

Cohen, Stanley. Law Enforcement Guide to United States Supreme Court Decisions. Springfield, IL: Charles C. Thomas Publishing, 1971.

Cray, Ed. The Big Blue Line: Police Power vs. Human Rights. NY: Coward-McCann Inc., 1967.

Dash, Samuel. Foreword to From Escobedo to Miranda: The Anatomy of a Supreme Court Decision, by Richard J. Medalie. Washington, D.C.: Lerner Law Book Company, 1996.

Dowling, Noel T., and Gerald Gunther. Constitutional Law.7th Ed. NY: The Foundation Press, Inc., 1965.

Frank, John P. Mr. Justice Black: The Man and His Opinions. NY: Alfred A. Knopf, 1949.

 –  –  – . Cases on Constitutional Law. Chicago: Callaghan & Co., 1950.

 –  –  – . Cases on Constitutional Law. 2nd ed. Chicago: Callaghan & Co., 1950.

 –  –  – . Cases on the Constitution. NY: McGraw-Hill Book Co., Inc, 1951.

 –  –  – . The Marble Palace: The Supreme Court in American Life. NY: Alfred A. Knopf, 1958.

 –  –  – . American Law: The Case of Radical Reform – Lectures upon the Dedication of the Earl Warren Legal Center. NY: MacMillan Co., 1964.

 –  –  – . Justice Daniel, Dissenting. Cambridge: Harvard University Press, 1964.

 –  –  – . The Warren Court: A Personality and Photographic Portrait of the Justices on Today’s United States Supreme Court. NY: MacMillan Co., 1964.

 –  –  – . Clement Haynsworth: The Senate and the Supreme Court. Charlottesville: University of Virginia Press, 1991.

George, James B., Jr., Stephen Glasser, and Yale Kamisar. A New Look at Confessions: Escobedo – The Second Round. Ann Arbor: Institute of Continuing Legal Education, Hutchins Hall, 1967.

Grano, Joseph D. Confessions, Truth, and the Law. Ann Arbor: The University of Michigan Press, 1993.

Huff, Ronald C., Rattner Arye, and Edward Sagarin. Convicted but Innocent: Wrongful Conviction and Public Policy. Beverly Hills: Sage Publications, 1996.

Kamisar, Yale. Police Interrogation and Confessions. Ann Arbor: University of Michigan Press, 1980.

Leo, Richard A., and George C. Thomas III., Eds. The Miranda Debate: Law, Justice, and Policing. Boston: Northeastern University Press, 1998.

Levy, Leonard. Origins of the Fifth Amendment: The Right against Self-Incrimination. NY: MacMillan Co., 1986.

Lewis, Anthony. Gideon’s Trumpet. NY: Random House, 1964.

Medalie, Richard J. From Escobedo to Miranda: The Anatomy of a Supreme Court Decision. Washington, D.C.: Lerner Law Book Company, 1966.

Mersky, Roy, and Jenni Parrish. The Supreme Court in Current Literature Overview 1964—74. Supreme Court Historical Society, Yearbook 1977.

Milner, Neal A. The Court and Local Law Enforcement: The Impact of Miranda. Beverly Hills: Sage Publications, 1971.

 –  –  – . Some Common Themes in Police Responses to Legal Change in Police in Urban Society. Harlan Hahn, ed. Beverly Hills: Sage Publications, 1971.

Schafer, William J., III. Confessions and Statements.Springfield, IL. Charles C. Thomas Publishing, 1968.

Scheck, Barry, Peter Neufeld, and Jim Dwyer. Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted. NY: Doubleday, 2000.

Simon, James F. The Center Holds: The Power Struggle inside the Rehnquist Court. NY: Simon & Schuster, 1995.

Sobel, Nathan R. The New Confession Standards, Miranda v. Arizona: A Legal Perspective, a Practical Perspective.NY: Criminal Law Bulletin, Inc., Gould Publications, 1996.

Sokol, Ronald. Law Abiding Policeman: A Guide to Recent Supreme Court Decisions. Charlottesville, NC: Michie, 1966.

Stephens, Otis H., Jr. The Supreme Court and Confessions of Guilt. Knoxville: The University of Tennessee Press, 1973.

Swindler, William F. The New Legality, 1932–1968. NY: Bobbs & Merrill, 1970.

White, Welsh S. Miranda’s Waning Protections: Police Interrogation Practices after Dickerson. Ann Arbor: University of Michigan Press, 2001.

Wigmore, John H. Evidence in Trials at Common Law.Boston: John T. Mcnaughton Inc., 1961.

Principal Supreme Court Cases and Federal Statutes

Admissibility of Confessions       18 USC 3501 (1968)

Betts v. Brady        316 U.S. 455 (1942)

Brown v. Mississippi         297 U.S. 278 (1936)

Crooker v. California        357 U.S. 433 (1958)

Dickerson v. United States         530 U.S. 428 (2000)

Edwards v. Arizona          451 U.S. 477 (1981)

Escobedo v. Illinois 378 U.S. 478 (1964)

Fulminante v. Arizona      499 U.S. 279 (1991)

Gideon v. Wainwright       372 U.S. 355 (1962)

Harris v. New York 401 U.S. 222 (1978)

Jackson v. Denno  378 U.S. 368 (1964)

Mallory v. United States   354 U.S. 449 (1957)

Malloy v. Hogan     378 U.S. 1 (1964)

Mapp v. Ohio         367 U.S. 643 (1961)

Massiah v. United States  377 U.S. 201 (1964)

McNabb v. United States  318 U.S. 332 (1943)

Miranda v. Arizona           384 U.S. 436 (1966)

People v. Dorado   398 P.2nd 361 (1964)

Powell v. Alabama  287 U.S. 45 (1932)

Spano v. New York          360 U.S. 315 (1959)

United States v. Dickerson         166 F.2nd 667 (2000)

USA PATRIOT Act of 2001         Act. P.L. 107–56 (2001)

Law Review Articles

Alschuler, Albert W. “A Peculiar Privilege in Historical Perspective: The Right to Remain Silent.” 94 Michigan Law Review 2625, 1996.

Altman, David B. “Fifth Amendment – Coercion and Clarity: The Supreme Court Approves Altered Miranda Warnings.” 80 Criminal Law and Criminology 1086, 1990.

Bateman, Connor G. “Dickerson v. United States: Miranda Is Deemed a Constitutional Rule, but Does It Really Matter?” 55 Arkansas Law Review 1277, 2002.

Benner, Laurence A. “Requiem for Miranda – The Rehnquist Court’s Voluntariness Doctrine in Historical Perspective.” 67 Washington University Law Quarterly 59, 1998.

Blaine, Jonathan L. H. “Miranda under Fire.” 10 Seton Hall Constitutional Law Journal 1007, summer 2000.

Brennan, Timothy. “Silencing Miranda: Exploring Potential Reform to the Law of Confessions in the Wake of Dickerson v. United States.” 27 New England Journal on Criminal and Civil Confinement 253, 2001.

Caplan, Gerald M. Review of Miranda: Crime, Law and Politics, by Liva Baker. 93 Yale Law Journal 1375, 1984.

Cassell, Paul G. “Miranda’s Social Costs: An Empirical Reassessment” 90 Northwestern University Law Review387, 1996.

 –  –  – . “The Statute That Time Forgot: 18 U.S.C. 3501 and the Overhauling of Miranda” 85 Iowa Law Review 175, 1999.

Cassell, Paul G., and Bret S. Hayman. “Police Interrogation in the 1990’s: An Empirical Study of the Effects of Miranda” 43 UCLA Law Review 839, 1996.

Cassell, Paul G., and Richard Fowles. “Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement” 50 [4] Stanford Law Review1055, 1998.

Crawford, K. A. “Intentional Violations of Miranda: A Strategy for Liability” 66[8] FBI Law Enforcement Bulletin27, 1997.

Donohue, John J., III. “Did Miranda Diminish Police Effectiveness?” 50[4] Stanford Law Review 1147, 1998.

Dripps, Donald A. “Is Miranda Caselaw Really Inconsistent? A Proposed Fifth Amendment Synthesis” 17 Constitutional Commentary 19, spring 2000.

 –  –  – . “Constitutional Theory for Criminal Procedure – Dickerson, Miranda and the Continuing Quest for Broad-But-Shallow” 43 William & Mary Law Review 1, 2001.

Garrison, Arthur H. “Rehnquist v. Scalia – The Dickerson and Miranda Cases: A Debate on What Makes a Decision Constitutional” 91 American Journal of Trial Advocacy2001.

Gerhardt, Michael. “The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of Rights” 10 William & Mary Bill of Rights Journal 585, 2002.

Grano, Joseph, William H. Erickson, and Philip Johnson. “Miranda Symposium: Four Essays Critical of Miranda v Arizona” 24[2] American Criminal Law Review 193, 1987.

Hancock, Catherine. “Due Process before Miranda” 70 Tulane Law Review 2195, 1996.

Harris, Allen. “Miranda v. Arizona: Is It Being Applied?” 3[3] Criminal Law Bulletin 135, 1967.

Huh, Richard H. “Interrogation of Criminal Defendants: Some Views on Miranda v. Arizona” 35 Fordham Law Review 233, 1968.

Huitema, David. “Miranda: Legitimate Response to Contingent Requirements of the Fifth Amendment” 8 Yale Law & Policy Review 261, 2000.

Inbau, Fred E. “Police Interrogation – A Practical Necessity” 52 Journal of Criminal Law – Criminology and Police Science 16, 1961.

Ingram, Roderick R. “A Clash of Fundamental Rights: Conflicts between the Fifth and Sixth Amendments in Criminal Trials” 5 William & Mary Bill of Rights Journal299, 1996.

Kamisar, Yale. 1984 Survey of Books Relating to the Law: Crime and Punishment: Miranda the Case, the Man and the Players, by Liva Baker, 82 Michigan Law Review 1974.

 –  –  – . “Can (Did) Congress Overrule Miranda?” 4 Cornell Law Review 883, 2000.

 –  –  – . “Miranda Thirty-Five Years Later: A Close Look at the Majority and Dissenting Opinions in Dickerson” 33 Arizona State Law Journal 387, 2001.

 –  –  – . Foreword to “From Miranda to 3501 to Dickerson.” 99 Michigan Law Review 879, 2001.

Kauper, Paul G. “Judicial Examination of the Accused – A Remedy for the Third Degree” 30 Michigan Law Review1224, 1932.

Langbein, John H. “The Historical Origins of the Privilege against Self-Incrimination at Common Law” 92 Michigan Law Review 1047, 1994.

Leiken, Lawrence S. “Police Interrogation in Colorado: The Implementation of Miranda” 47[1] Denver Law Journal 1, 1970.

Luban, David. “The Warren Court and the Concept of a Right” 34 Harvard Civil Rights–Civil Liberties Law Review7, 1999.

Macnair, Michael R. T. “The Early Development of the Privilege against Self-Incrimination” 10 Oxford Journal of Legal Studies 66, 1990.

Markman, Stephen J. “The Fifth Amendment and Custodial Questioning: A Response to ‘Reconsidering Miranda’” 54 University of Chicago Law Review 938, 1987.

 –  –  – . “Truth in Criminal Justice: The Law of Pre-trial Interrogation” 21[1] Prosecutor 23, 1987.

Mason, Christopher. “Dickerson v. United States – The Supreme Court’s Holding in Miranda v Arizona Was a Constitutional Decision That Cannot Be Overruled by an Act of Congress” 31 University of Baltimore Law Forum57, 2000.

Medalie, Richard J., et al. “Custodial Police Interrogation in Our Nation’s Capital: The Attempt to Implement Miranda” 66 Michigan Law Review 1347, 1968.

Morgan, Edmund M. “The Privilege against Self-Incrimination” 34 Minnesota Law Review 1, 1949.

Muller, Andrew W. “Congress’ Right to Remain Silent in Dickerson v. United States – Or, How I Learned to Stop Worrying and Love Miranda v. Arizona” 34 Creighton Law Review 801, 2001.

Payne, Brian K., and Victoria M. Time. “Support for Miranda among Police Chiefs: A Qualitative Examination” 1 American Journal of Criminal Justice 65, 2000.

Pearce, Gene A. “Constitutional Law – Criminal Law: The United States Supreme Court Affirms the Use of “Miranda” Rights by Police to Determine the Admissibility of Statements Made during Custodial Interrogation inDickerson v Untied States” 77 North Dakota Law Review153, 2001.

Pepinsky, Harold E. “A Theory of Police Reaction to Miranda v Arizona: Crime and Delinquency” 16[4] Crime and Delinquency 379, 1970.

Prebble, Amanda L. “Manipulated by Miranda: A Critical Analysis of Bright Lines and Voluntary Confessions under United States v. Dickerson” 68 University of Cincinnati Law Review 555, 2000.

Robinson, Cyril D. “Police and Prosecutor Practices and Attitudes Relating to Interrogation as Revealed by Pre- and Post-Miranda Questionnaires: A Construct of Police Capacity to Comply” 3 Duke Law Journal 425, 1968.

Schulhofer, Stephen J. “Reconsidering Miranda” 54 University of Chicago Law Review 435, 1987.

 –  –  – . “Miranda, Dickerson and the Puzzling Persistence of Fifth Amendment Exceptionalism” 99 Michigan Law Review 941, 2001.

Seeburger, Richard H., and R. Stanton Wettick. “Miranda in Pittsburgh: A Statistical Study” 29 University of Pittsburgh Law Review 1, 1967.

Seidman, Louis Michael. “Brown and Miranda” 80 California Law Review 673, 992.

Stephens, Otis H. “Police Interrogation and the Supreme Court: An Inquiry into the Limits of Judicial Policy-making” 17[2] Journal of Public Law 241, 1968.

Stephens, Otis H., Robert L. Flanders, and J. Lewis Cannon. “Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements” 39[3] Tennessee Law Review 407, 1972.

Ulrich, Jackie. “Criminal Procedure: The Court Distinguishes between the Sixth Amendment Right to Counsel and the Fifth Amendment Miranda Right against Self-Incrimination” 31 Washburn Law Journal 629, 2000.

White, Welsh S. “Defending Miranda: A Reply to Professor Caplan” 39 Vanderbilt Law Review 1, 1986.

Witt, James W. “Non-Coercive Interrogation and the Administration of Criminal Justice – The Impact of Miranda on Police Effectuality” 64 Journal of Criminal Law & Criminology 320, 1973.

Zeitlin, Jonathan B. “Voluntariness with a Vengeance: Miranda and a Modern Alternative” 14 St. Thomas Law Review 109, 2001.

Zeitz, Leonard, Richard J. Medalie, and Paul Alexander. “Anomie, Powerless and Police Interrogation” 60[3] Journal of Criminal Law – Criminology and Police Science314, 1967.

Selected Print Media

1965: “High Court Will Review Rapist’s Case.” The Arizona Republic, November 23.

1966: “Danny Escobedo – Moving the Constitution into the Police Station.” Time Magazine, Vol. 87, No. 17, April 29, cover story.

1966: Miranda v. Arizona, ACLU news release, No. 207, June.

1966: “Some Moderation (Miranda Not Retroactive).” The Arizona Republic, June 23.

1967: “Homicides Increase in Chicago but Confessions Drop by 50%.” The New York Times, by Donald Janson, July 24, p. 24.

1968: “Right of Confession.” The Phoenix Gazette,January 29.

1968: “Criminal Justice: Doubts about Miranda.” Time Magazine, November 1.

1976: “Police Search for Suspect in Miranda Death.” The Arizona Republic, January 25, 1976.

1976: “Ernesto Miranda Is Killed; Subject of Landmark Case.” The Arizona Republic, February 1.

1976: “Miranda Dies of Stabbing.” Mesa Tribune, February 2.

1976: “Parole Officer Says Miranda Was Adjusting.” The Arizona Republic, February 3.

1982: “Miranda – To the High Court and Back.” The Harvard Law Record, Vol. 75, No. 6, by John Morris, October 29.

1982: “Court’s Decision Leaves Miranda in Jail.” (Part Two) The Harvard Law Record, by John Morris, November 5.

1990: “Miranda Memories.” ABA Litigation Magazine, Vol. 16, No. 2 (winter), by Peter D. Baird, p. 43.

1991: “The John J. Flynn Award.” The Defender – Arizona Attorneys Criminal Justice, by Michael Kimerer, April.

1991: “Critics Must Confess, Miranda Was the Right Decision.” The Wall Street Journal, Counterpoint, by Peter D. Baird, June 13.

1991: “The Confessions of Arturo Ernesto Miranda.” The Arizona Attorney, by Peter D. Baird, October, p. 20.

1994: “Ten People Who Changed the Way You Live – John Flynn.” American Heritage Magazine, December.

1996: “A Member of the Legal Team Recalls the Landmark Miranda Case.” Phoenix Magazine, by Peter D. Baird, June, p. 38.

1996: “Police vs. Miranda: Has the Supreme Court Really Hampered Law Enforcement?” The Wall Street Journal, by Wayne E. Green, December 15, p. 16.

1999: “High Court Should Leave Miranda Rule.” The Arizona Republic, Editorial, January 15.

1999: “Miranda Law Benefits Most Vulnerable, Needs to Stay.” The Arizona Republic, by Steve Wilson, February 2.

1999: “Miranda Rights Up for Review – Should Police Have Some Leeway?” The Arizona Republic, by Jon Kamman, December 7.

2000: “The Miranda Rule: It Works Well So Let’s Keep It.” The Arizona Daily Star, by John P. Frank, May 7.

2001: “Judges and the GOP: The Rehnquist Court, Miranda v. Arizona and Dickerson v. United States.” The Wall Street Journal, by Kenneth W. Starr, May 3.

2002: “Will [John Lindh] Walker’s Statements Be Admitted against Him?” Jurist, The Legal Education Newspaper, by Prof. Marjorie Cohn, January 18.

Excerpts

Miranda's Confession

from Chapter 1

Crimes, Confessions and Convictions

Except from pages 6 and 7

When they arrived at the station, Cooley escorted his suspect into Interrogation Room Number Two. Aptly named the “sweat room,” Number Two was a twelve-foot-square cubicle with pale green walls, fluorescent tubes set into acoustic tile overhead, and a two-way mirror in the door for viewing lineups. Miranda’s interview began at approximately 10:30 a.m. Without hesitating, Cooley and Young confronted Miranda with selective facts of Patricia Doe’s rape. Miranda denied any involvement and said he was at work the night Patricia was abducted. When they asked him about Barbara Doe’s robbery, he denied any knowledge or participation. Cooley then asked Miranda to stand in a lineup for the victims of both crimes, telling him they would take him home as soon as the victims cleared him. Cooley later freely admitted to misleading Miranda about his knowledge of the crimes under investigation but noted that the cordial, sympathetic approach he used in talking to Miranda helped establish a rapport with the suspect. Besides, it was common for officers to engage in a certain amount of deception. Good detectives, for instance, usually implied that they knew more about a case than they actually did.

Unfortunately, although Patricia and Barbara both thought number one (Miranda) looked like the man, they couldn’t be positive. “I was somewhat dejected and frustrated,” Cooley recalled in his later account, and, unsure what approach to use next, he returned to the interview room where Miranda waited alone. Noting the gravity of the officer’s demeanor, Miranda shifted uneasily in his chair and asked, “How did I do?”

“Not too good, Ernie,” replied Cooley, noticing Miranda’s concern.

“They identified me then?” Miranda asked.

“Yes, Ernie, they did,” Cooley replied gravely.

“Well,” said Miranda resignedly, “I guess I’d better tell you about it then.”

Somewhat surprised, Cooley gave Miranda a copy of the standard statement form, having already filled in the top four lines:

SUBJECT: Rape DR 63-08380
STATEMENT OF: Ernest Arthur Miranda
TAKEN BY: C. Cooley #413-W. Young #182
DATE: 3-13-63; TIME: 1:30 p.m.
PLACE TAKEN: Interr Rm #2.

At the top of this standard form was a paragraph that read:
I, _______________, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement can be used against me. I, _____________, am _____ years of age and have completed the ________ grade in school.

Miranda wrote his name, recorded his age as twenty-three, and the grade completed as eighth. Then, in the provided space below, he wrote:

Seen a girl walking up street stopped a little ahead of her got out of car walked towards her grabbed her by the arm and asked to get in car. Got in car without force tied hands and ankles. Drove away for a few mile. Stopped asked to take clothes off. Did not, asked me to take her back home. I started to take clothes off her without any force and with cooperation. Asked her to lay down and she did. Could not get penis into vagina got about 1/2 (half) inch in. Told her to get clothes back on. Drove her home. I couldn’t say I was sorry for what I had done but asked her to pray for me.

When he’d finished, Miranda signed the form again at the bottom, beneath the statement: “I have read and understand the foregoing statement and hereby swear to its truthfulness.” Detectives Cooley and Young signed the document as witnesses.

Miranda also confessed, although not in writing, to robbing Barbara Doe in November 1962 and admitted attempting to rob Sylvia Doe in February 1963. Cooley, not wanting to risk jeopardizing Miranda’s successful prosecution in the rape case by opening his written confession to attack because of the mention of other, unrelated crimes,” did not ask Miranda for a written confession in these other two cases. After Miranda signed his handwritten confession, Cooley brought Patricia Doe into Interrogation Room Number Two, and Cooley asked Miranda to state his name. Miranda did so and, in Patricia’s presence, told Cooley and Young that he recognized her. “She’s the one I was talking about,” he said. Patricia later remembered that he said, “She’s the one.” Barbara Doe was then led into the interrogation room, and in her presence Miranda told Cooley and Young that he recognized her as well. Both young women later testified that based on this interaction they were “sure” he was the man who had accosted them.

Right to Counsel

from Chapter 2

The American Right To Counsel

Thomas Jefferson believed that the Bill of Rights in total puts into the hands of the judiciary a check against any tyranny committed by the legislative or executive branches of the government.

Excerpt from page 29

The combination of federalism within the court system, the right to counsel, and the culture of the Deep South made the 1932 case of Powell v. Alabama pivotal in the story of America’s right to remain silent. This case involved two African-American men charged – in a state court – with raping two white women. The ethnicity of both the accused and the victims is relevant because men and women of color were treated differently in the criminal justice system in some states during the thirties.

The men were accused of attacking the two women on a train passing through Alabama. When the train arrived in Scottsboro, Alabama, the women identified the two men. The men were arrested, charged, tried by the State of Alabama, and found guilty within a matter of days. The proceedings “from beginning to end, took place in an atmosphere of tense, hostile, and excited public sentiment.” Also the defendants were acknowledged both “ignorant and illiterate.” Both men appealed and, eventually, the case reached the United States Supreme Court, where the issue of federalism was central to the Court’s decision.

The 1932 reversal of the convictions in Powell comes as close to a short-tempered opinion as has ever been handed down:

To be kind, the record also suggested that the right to counsel for a black man accused of raping a white woman was a matter of humor, not law, in Scottsboro, Alabama, in the thirties. . .   It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard.

In reaching its historic decision, the Court said, “Under the circumstances disclosed, we hold that the defendants were not accorded the right of counsel in any substantial sense. . . . The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.”

Privilege Against Self-Incrimination

from Chapter 2

The American Privilege Against Self-Incrimination

Excerpt from page 33

To incriminate means, literally, to charge with crime. Figuratively, it means to involve oneself in a criminal prosecution. The modern origin of the law regarding self-incrimination lies in Brown v. Mississippi. This 1935 case involved the murder trial of three black defendants. Their convictions were based entirely on their confessions, which were admittedly obtained under torture inflicted by white deputy sheriffs. In an opinion authored by Chief Justice Charles Evans Hughes, the Court unanimously reversed Brown, noting that while “the State was free to regulate the procedure of its courts with its own perceptions of policy,” its policies are “limited by the requirement of due process of law. Because a State may dispense with a jury trial does not mean that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand.”

After Brown v. Mississippi, scores of cases involving convictions based on coerced confessions (most having occurred in Southern states) came to the U.S. Supreme Court. The Court repeatedly recognized that coercion could exist even in the absence of physical compulsion,19 observing, “There is torture of the mind as well as the body.”20 In one famous case, the Court categorically stated, “A confession by which life becomes forfeit must be the expression of free choice.”21

Legally, this idea of free choice, or voluntariness, is a notion separate from coercion. If force, or mere coercion, is applied to extract a confession, then the confessor’s voluntariness is immaterial. The question can’t be dismissed because the context in which these terms are used is evidentiary, not linguistic. In other words, the law focuses on whether the confession is admissible in evidence, not whether it was given freely. Justice Felix Frankfurter, one of the giants in judicial rhetoric, put the distinction in a psychologically elegant way:

But whether a confession of a lad of fifteen is “voluntary” and as such admissible, or “coerced” and thus wanting for due process, is not a matter of mathematical determination. Essentially it invites psychological judgment – a psychological judgment that reflects deep, even if inarticulate, feelings in our society.22

Miranda and the Arizona Supreme Court

from Chapter 2

Miranda and the Arizona Supreme Court

Except from pages 40-42

Moore also appealed Miranda’s conviction on the rape and robbery of Patricia Doe. The Arizona Supreme Court took twenty-one pages to reject all of the claims of error. The only constitutional issue preserved by Moore for appeal was the core issue in the case: Miranda’s confession. Justice Ernest McFarland wrote the opinion summarily rejecting Miranda’s claim that his confession was improperly received in evidence. Detectives Young and Cooley had testified that “they had informed him of his legal rights and that any statement he made might be used against him,” McFarland argued.

Justice McFarland noted that Moore’s only objection to the admission of the written confession had been, “We are objecting because the Supreme Court of the United States says the man is entitled to an attorney at the time of his arrest.” There was no objection on the proper ground, which was that Miranda’s statement was not made voluntarily, and Moore had not requested that the trial judge determine the voluntariness of the statement. Since the voluntariness and the truth of the confession were not in question, the Arizona Supreme Court saw the sole question before it as “Whether there was a violation of the Sixth and Fourteenth Amendments to the Constitution by the admission of the voluntary statement made without an attorney.”

In passing on constitutional provisions, the Arizona Supreme Court is bound to follow the interpretations of the United States Supreme Court. Accordingly, it duly examined the recent decisions in Massiah v. United Statesand Escobedo v. Illinois. The court noted that Massiah,which involved a wiretap between two codefendants, was not on point. It had more trouble dismissing Escobedo but ultimately found it inapplicable as well, because, unlike Danny Escobedo, Ernesto Miranda had been advised of his rights. “He had not requested counsel,” the court noted, “and had not been denied assistance of counsel. We further call attention to the fact that, as pointed out in the companion case here on appeal, State v. Miranda, No. 1397 [the robbery case] defendant Miranda had a record, which indicated he was not without courtroom experience.”

In working its way to its holding in Miranda’s appeal, the Arizona Supreme Court also queried rhetorically, “What is the purpose of the right to counsel? What is the purpose of the Sixth and Fourteenth Amendments?” Observing that California had just extended Escobedo to cases in which the defendant had not asked for a lawyer, the court asserted that state courts are not bound to follow one another, and the Arizona court “did not choose to follow” California’s lead.

The Arizona Supreme Court’s holding was a masterpiece of directness: “We hold that a confession may be admissible when made without an attorney if it is voluntary and does not violate the constitutional rights of defendant.” This direct holding was to prove helpful to Miranda at the next level of appeal.

 

Birth of the Miranda Warnings

from Chapter 2

Miranda and the Arizona Supreme Court

Except from pages 40-42

Moore also appealed Miranda’s conviction on the rape and robbery of Patricia Doe. The Arizona Supreme Court took twenty-one pages to reject all of the claims of error. The only constitutional issue preserved by Moore for appeal was the core issue in the case: Miranda’s confession. Justice Ernest McFarland wrote the opinion summarily rejecting Miranda’s claim that his confession was improperly received in evidence. Detectives Young and Cooley had testified that “they had informed him of his legal rights and that any statement he made might be used against him,” McFarland argued.

Justice McFarland noted that Moore’s only objection to the admission of the written confession had been, “We are objecting because the Supreme Court of the United States says the man is entitled to an attorney at the time of his arrest.” There was no objection on the proper ground, which was that Miranda’s statement was not made voluntarily, and Moore had not requested that the trial judge determine the voluntariness of the statement. Since the voluntariness and the truth of the confession were not in question, the Arizona Supreme Court saw the sole question before it as “Whether there was a violation of the Sixth and Fourteenth Amendments to the Constitution by the admission of the voluntary statement made without an attorney.”

In passing on constitutional provisions, the Arizona Supreme Court is bound to follow the interpretations of the United States Supreme Court. Accordingly, it duly examined the recent decisions in Massiah v. United Statesand Escobedo v. Illinois. The court noted that Massiah,which involved a wiretap between two codefendants, was not on point. It had more trouble dismissing Escobedo but ultimately found it inapplicable as well, because, unlike Danny Escobedo, Ernesto Miranda had been advised of his rights. “He had not requested counsel,” the court noted, “and had not been denied assistance of counsel. We further call attention to the fact that, as pointed out in the companion case here on appeal, State v. Miranda, No. 1397 [the robbery case] defendant Miranda had a record, which indicated he was not without courtroom experience.”

In working its way to its holding in Miranda’s appeal, the Arizona Supreme Court also queried rhetorically, “What is the purpose of the right to counsel? What is the purpose of the Sixth and Fourteenth Amendments?” Observing that California had just extended Escobedo to cases in which the defendant had not asked for a lawyer, the court asserted that state courts are not bound to follow one another, and the Arizona court “did not choose to follow” California’s lead.

The Arizona Supreme Court’s holding was a masterpiece of directness: “We hold that a confession may be admissible when made without an attorney if it is voluntary and does not violate the constitutional rights of defendant.” This direct holding was to prove helpful to Miranda at the next level of appeal.

John Frank as Architect of the Miranda Doctrine

from Chapter 2

John P. Frank—The Architect of the Miranda Doctrine

Excerpts from pages 45-47

In American legal practice, a brief is a printed document that serves as the basis for an argument in an appellate court. Filed for the information of the court, it embodies the points of law that counsel desires to establish, together with the arguments and authorities upon which he rests his contentions. The task of writing a brief is never simple, and the composing of such an important document as the Miranda brief demanded special skill. It would require not only someone well versed in the pertinent laws and previous case files, but also someone with the stature to carry such an argument before the highest court in the land. Fortunately – although neither Robert Corcoran nor Ernesto Miranda knew it at the time that Miranda retained the law firm of Lewis and Roca – John P. Frank had already begun the historic trek to make Miranda a household name.

For several reasons, Frank was perhaps the perfect man for the job and, ultimately, more than any other individual, responsible for the line of reasoning that was to become known as the Miranda doctrine. A specialist in constitutional law by the time he joined the Yale law faculty in 1949, Frank had published work in the prestigious University of Chicago Law Review and had just completed the leading biographical sketch of Justice Hugo Black, for whom he had clerked during the October 1942 Supreme Court term. At the time of the Miranda appeals, he was working to finish his definitive study of the Warren Court. His extensive scholarship, his impressive faculty appointments, his relationship with sitting justices, and his annual reports on the Supreme Court’s published opinions put the Court well within his personal horizon. As Professor John Q. Barrett of St. John’s University School of Law had said of Frank, “It was a realm in which he, as citizen, lawyer, thinker, and scholar, comfortably traveled and operated.”

….

Thus, although in the petitioner’s brief (a document that begins with a succinct statement of the issue in the case) Frank wrote that the issue involved both the Sixth and Fourteenth Amendments, his opening brief cites only the Sixth, and consequently, his argument for Miranda’s reversal was entirely predicated on what he called the “full meaning of the Sixth Amendment.” As a matter of constitutional theory, he contended, a defendant cannot “unwittingly” waive his right to a lawyer during his trial; ergo, even as a suspect, he cannot “unwittingly” waive it in the police station. Furthermore, he reasoned that, as a matter of practicality, one cannot know the precise effect of providing counsel at the beginning of a case. The precise effect will depend on the case, the lawyer, the client, and the situation. What one can know is that it makes little sense to establish an elaborate and costly system of appointed counsel, only to see that nothing happens until it is too late to be effective.

With these basic assumptions firmly in mind, Frank built the brief’s line of reasoning on the central question of “Whether the confession of a poorly educated, mentally abnormal, indigent defendant, not told of his right to counsel, taken while he is in police custody and without the assistance of counsel, which was not requested, can be admitted into evidence over specific objection based on the absence of counsel?”

John Flynn's Oral Argument at the Supreme Court

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 theMiranda 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 whento 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 Mirandadifferent 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.

Gary Nelson's Oral Argument for Arizona

from Chapter 3

The Miranda Oral Arguments in the Supreme Court

Gary K. Nelson on behalf of the State of Arizona

Gary Nelson, the assistant attorney general of the State of Arizona, took the podium next in order to explain the state’s views. . .  He had scarcely begun his recitation of the constitutional rights “in place” at the time of Miranda’s confession, when he was interrupted by Justice Abe Fortas, apparently quite interested in bringing the argument to bear once more on Flynn’s main contention. “Let us assume that he was advised of these rights,” Justice Fortas began. “In your opinion, does it make any difference when he was advised? That is, whether he was advised at the commencement of the interrogation or at an early stage of the interrogation, or whether he was advised only when he was ready to sign the written confession?”

Nelson certainly understood the danger of accepting Justice Fortas’s assumption, but he also knew, just as Flynn had known, that to quibble about hypotheticals would eat up valuable time. Therefore, he responded straightforwardly. Yes, he told the Court, if one were to assume, as Fortas had suggested, that some warning was required, or should have been given, then to be of any effect the warning must be given before the suspect made any statement.

***

At this point, Nelson fervently wanted to retain the “totality of the circumstances” doctrine, which held that the specific circumstances of every case dictated whether a denial of fundamental fairness had occurred, and thus, that a confession was admissible in evidence if all of the specific circumstances indicated that it was freely and voluntarily given. So Nelson responded that his position assumed that each case would present a factual situation in which the court or a judge, or prosecutor at some level, would have to make a determination as to whether or not a defendant had been denied a specific right, “whether it be right of counsel, the right not to be compelled to testify against himself—and that the warning, or age or literacy, the circumstances, the length of the questioning, all these factors would be important,” he concluded.

It was, essentially the crux of state’s argument—this belief that individual courts should decide—and Justice Fortas probably had expected to hear it. “I suppose it’s quite arguable that Miranda, the petitioner here, was entitled to a warning,” he said. “Would you agree to that?”

Nelson admitted that it was arguable, but then added, “I have extensively argued the facts that he wasn’t of such a nature as an individual—because of his mental condition or his educational background—as to require any more than he got. . . . I’m saying he got every warning except . . . the specific warning of the right to counsel. He didn’t have counsel. Counsel wasn’t specifically denied to him, because of a request to retain counsel. The only possible thing that happened to Mr. Miranda that, in my light—assuming that he had the capability of understanding at all—is the fact that he did not get the specific warning of his right to counsel.”

While these remarks might have seemed useful to the prosecution at the time, in retrospect, they were quite damaging. As a representative of Arizona, Nelson had just officially accepted the possibility that Miranda might have given an unwarned confession without being told he had a right to counsel and at a point in time when he might not have been capable of understanding his rights.

Thurgood Marshall's Oral Argument at the Supreme Court

from Chapter 3

Oral Argument in the Supreme Court

Solicitor General Thurgood Marshall

Excerpts from pages 70-71

The Honorable Thurgood Marshall, there to argue for the United States, was the United States solicitor general and was undoubtedly the best known of the fifty-eight lawyers from fourteen states whose names were on the appellate briefs in the Miranda cases. The country knew him as the man who had argued and won the most important civil rights case in history – Brown v. Board of Education. He would, in time, take his own seat on the United States Supreme Court. Until then, his admirers on the high bench knew him as a consummate advocate for individual rights. This, plus the fact that Westover was a federal case involving the FBI (ostensibly a police force that took pride in its professionalism), promised a confrontation over one of the key issues of the whole proceeding: the practicality of warning a suspect and the equality of the present system.

….

Justice Black spoke up now. “As I understand you to say, of course, any person that has a lawyer or has the money to get a lawyer could get one immediately. This man has no lawyer and has no money to get one. The only reason he doesn’t have a lawyer is for that reason. Does that raise any principles as to what an indigent is entitled to? He is certainly not going to get treated like a man that has the money to get a lawyer.”

Marshall, however, disagreed with Justice Black’s premise. “He is not being denied anything,” Marshall insisted. “The state is not affirmatively denying him anything. The state is just not furnishing him anything.”

Whereupon, Justice Black, doubtless recognizing a distinction without a difference, did what he was well known for: He called on the Constitution, noting that it granted the government power to detain a man and question him. Justice Black’s point, that the power to detain and the power to question have to be balanced by the obligation of fairness to the person being detained and questioned, was not lost on Marshall. Justice Black was probing for the specific place in the Constitution where the power to detain and question is explicit. Marshall candidly admitted, “I have been unable to find one that grants it as such.” Then he provided a weak defense, saying, “It is inherent in the investigatory process. . . . I don’t think it has ever been questioned.”

“It has with me,” Justice Black countered.

Perhaps to lighten the mood for his good friend, Chief Justice Warren now stepped in to ask facetiously if Marshall meant to suggest the Court overrule Escobedo.

“No, sir,” Marshall answered promptly. “I think Escobedocan fit into this case under the Fifth Amendment. I don’t want to give support to the theory that . . . Escobedorequires a lawyer be appointed for an indigent at the police precinct or on arrest.”

This suggestion – made, it should be remembered, by the government’s chief oral advocate – that the Fifth Amendment, rather than the Sixth Amendment, applied in this case, might not have been then appreciated by the audience, for it was an audience focused on the Sixth Amendment’s right to counsel at the accusatory stage, not the yet-to-emerge right to remain silent in the police station.

The Opinion

from Chapter 4

The Miranda Opinion

Excerpts from pages 80-81

An “opinion” from an appellate court such as the U.S. Supreme Court is unlike any other document produced by any other branch of government. Even split-vote opinions are the result of equal, binding, independent, and single-minded debate. They are remarkably collegial, given that they are handed down by a group that has no peers, no superiors, and a chief whose administrative responsibility is greater than the rest but who nevertheless has only one vote.

While individual justices often differ in their social values and philosophy, they share a common discipline of the law and fidelity to the Court. They have no constituency, no party, and no “higher court.” Most important, they respect each other’s opinions in a way that diminishes pride of authorship and honors deeply held convictions.

The Miranda opinion contains inordinately long sentences professing arcane Latin maxims upon which so much of our Anglo-Saxon law is based. It is imbedded in principle, clothed in scholarly material, and limited to a specific brand of custodial interrogation. It is both eloquent and prophetic. It is nevertheless quite specific:

The Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession and affirmed the conviction [citation omitted]. In reaching its decision, the court emphasized heavily the fact that Miranda did not specifically request counsel. We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way appraised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings, the statements were inadmissible. The mere fact that he signed a statement, which contained a typed-in clause stating that he had “full knowledge” of his “legal rights,” does not approach the knowing and intelligent waiver required to relinquish constitutional rights. [Citations omitted]

Thus was the procedural gateway for the Fifth Amendment’s privilege against self-incrimination set forth in nonconstitutional terms for the first time. In supporting this opinion, Chief Justice Warren was joined by Justices Black, Douglas, Fortas, and Brennan. Justice Harlan, with whom Justices Stewart and White joined, dissented. Justice White wrote a separate dissenting opinion, as did Justice Clark. Whereas most Supreme Court opinions are simply filed with the clerk of the court and mailed to the parties, in this case, Chief Justice Warren read the full sixty-plus-page opinion aloud in the Supreme Courtroom on Monday, June 13, 1966. In a voice laden with emotion, Chief Justice Warren made clear the connection between the Fifth Amendment privilege and the new right – the right of silence – by saying, “At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent.”

The Miranda Warnings

from Chapter 4

The Miranda Warnings

Excerpts from pages 83-85

The Miranda doctrine came down in installments. The first, the June 13, 1966, sixty-plus page opinion, contained the police procedures that are now known as the Miranda warnings.  The second installment, handed down a week later in the Johnson case, created arbitrary deadlines for the application of the Miranda doctrine.

The Miranda warning itself, as stipulated in the first installment, must include all of four separate warnings: (1) The suspect must be warned prior to questioning that he has the right to remain silent; (2) He must be warned that anything he says can be used against him in a court of law; (3) He has the right to the presence of an attorney; and (4) If he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

In judicial circles, warnings are euphemistically called admonitions. What, then, was the Warren Court’s intention in crafting these four particular admonitions? Were all four considered of equal importance? Is the order of their presentation meaningful?

And then there is the question of whether or not this set of four explicit warnings is constitutional. Many constitutional scholars worried about the exact constitutional predicate for holding that the police must give these four explicit warnings to suspects. Justice Black, the senior member of the Miranda majority, was famous for carrying around a frayed vest-pocket-sized copy of the Constitution, produced by the U.S. Printing Office. At the slightest provocation during an oral argument, he would reach for his little dog-eared book, wave it toward the advocate’s podium, and ask, “Where exactly in the Constitution does it say that?

For constitutional scholars, at least, the answer begins with marking the boundaries of due process. Even the due process clause of the Fourteenth Amendment contains no description of limits, and over the last two hundred years, the Supreme Court has repeatedly attempted to articulate the general procedural guidelines to which those governing as well as those governed should adhere. In a “settled usages and modes of proceeding” case in 1921, for example, the Court said, “[a] process of law is due process within the meaning of constitutional limitations if it can show the sanction of settled usage both in this country and in England.” Judge Cardozo said, “Not lightly to be vacated is the verdict of quiescent years.” After his transition from the New York Court of Appeals to the United States Supreme Court, Justice Cardozo expanded his subtle view of the matter by saying, “We do not find it profitable to mark the precise limits of [due process].”

The Ongoing Debate

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 Journalcounterpoint 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 Mirandadoctrine.

The Dickerson Case

from Chapter 6

The Dickerson Case

Excerpts from pages 108-12

The FBI [having information that Charles Dickerson may have been involved in a bank robbery] went to Dickerson’s apartment on January 27, 1999.  They entered the apartment without a warrant and without Dickerson’s consent. The agents asked Dickerson to accompany them to the FBI field office in Washington, D.C. Upon reaching the office, the agents interviewed Dickerson but did not him of his Miranda rights prior to the interrogation. Dickerson admitted to driving his Oldsmobile Ciera in the general vicinity of the bank robbery on the morning of January 24 but denied any knowledge of a bank robbery.

When told that his apartment was being searched. Dickerson decided to make a supplemental statement.  After receiving his written statement, the FBI advised Dickerson of his Miranda rights. Dickerson signed a standard FBI rights waiver form and he was then placed under formal arrest.  After Dickerson was charged with one count of conspiracy to rob a bank and three counts of using a gun during a bank robbery, Dickerson’s lawyers filed a motion to suppress the confession he had made shortly after his arrest. On July 1, 1997, the district court issued an Order and Memorandum Opinion suppressing Dickerson’s statements because he had not been advised of his Miranda rights until after he had completed his statement.

Federal prosecutors did not argue that Dickerson’s statement was admissible under 18 USCA 3501. The federal statute (for ease of reference called “Section 3501”) was a political response to the 1966 Mirandadecision. It had been passed by the U.S. Congress “with the clear intent of restoring voluntariness as a test for admitting confessions in federal court. Although duly enacted by the United States Congress and signed into law by the President of the United States, the United States Department of Justice has steadfastly refused to enforce the provision.” Dickerson’s defense lawyers at the trial court level did not brief or argue 18 USCA 3501 either.

The pivotal section of Section 3501 says, “A confession . . . shall be admissible in evidence if it is voluntarily given.” No one disputes that Congress enacted Section 3501 as part of the Omnibus Crime Control Act of 1968, with the express purpose of legislatively overruling Miranda and restoring voluntariness as the test for admitting confessions in federal courts.  [Section 3501] was on the books for thirty-two years and six executive branch administrations, during which time the Supreme Court never once considered whether Section 3501 overruled Miranda. No one ever pressed the question of whether Miranda or Section 3501 governed the admissibility of confessions in federal court. In fact, Justice Antonin Scalia, in 1994, noted that Section 3501 “has been studiously avoided by every Administration . . . since its inception 25 years ago.”

Every prosecutor and every court simply ignored Congress’s political attempt to overrule a constitutional decision of the United States Supreme Court until Attorney General Janet Reno wrote a letter to Congress in 1997, asserting that Section 3501 was “unconstitutional.” Justice Scalia, on the other hand, expressed his concern with the Department of Justice’s failure to enforce Section 3501. “In addition to causing the federal judiciary to confront a host of ‘Miranda’ issues that might be entirely irrelevant under federal law,” he wrote, “the Department of Justice’s failure to invoke the provision may have produced – during an era of intense national concern about the problem of run-away crime – the acquittal and the non-prosecution of many dangerous felons.”

The constitutional question of whether Section 3501 orMiranda controlled the admissibility of confessions in federal courts was raised sua sponte (“on the court’s own volition”) by the Fourth Circuit. The mere fact that this question was raised sua sponte is salient. Neither side had raised any constitutional issue at all, not to mention the question of why a federal statute was never used by state or federal prosecutors.

Dickerson’s case resulted in a full review of Miranda. Nearly all of the arguments made by the Dickerson opposing Miranda were based on the premise that it was not constitutionally required. First and foremost of the factors on the side contending that Miranda was a constitutional decision was the observation that both Miranda and two of its companion cases had applied the rule in state courts, and since 1966, the Court had consistently applied Miranda’s rule to prosecutions arising in state courts. The Rehnquist Court acknowledged that there was language in some of its opinions that could support the opposing argument. However, the Court obviously wished to disabuse all who might continue to foster that notion.

Accordingly, the United States Supreme Court resolved the thirty-four-year debate over Miranda’s fate, specifying in its core holding that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted into evidence. The opinion also dealt with the congressional response to Miranda in 18 USC 3501. Chief Justice Rehnquist, joined in the opinion by six other justices, with Justices Scalia and Thomas dissenting, delivered the opinion on June 25, 2000, the crucial holding of which is as follows:

We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.

The Dickerson opinion is a history lesson (citing cases from the King’s Bench in England in the sixteenth century, a primer on constitutional law (citing constitutional law precedents from 1884 through 1936, and a shining example of judicial rhetoric (“custodial interrogation takes a heavy toll on individual liberty and trades on the weakness of individuals”).

With respect to proceedings in state courts, the Supreme Court’s authority is limited to enforcing the commands of the United States Constitution. The Miranda opinion itself had begun by stating that the Court granted certiorari to explore some facets of the problems of applying the privilege of self-incrimination to in-custody interrogation and to give concrete constitutional guidelines for law enforcement agencies and courts to follow. Indeed, the Court’s conclusion in Dickerson was that the unwarned confessions obtained in the four cases before the Court in Miranda “were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege.”

The most compelling aspect of the Dickerson decision, irrespective of judicial ideology or the political persuasion of the moment, is that it relies on the same underlying values as Miranda, values that so bitterly separated the civil libertarians from the law enforcement community for three decades. “We need not go farther than Miranda to decide this case,” the Dickerson opinion states. And furthermore:

In Miranda, the Court noted that reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking an involuntary custodial confession. [That is] a risk that the Court found unacceptably great when the confession is offered in the case in chief to prove guilt. The Court therefore concluded that something more than the totality test was necessary. Section 3501 reinstates the totality test as sufficient. Section 3501 therefore cannot be sustained if Miranda is to remain law.

“In sum,” closed the Dickerson opinion, “we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.”

Miranda's Global Reach

from Chapter 7

Miranda and Osama bin Laden – The Global Reach

Excerpts from pages 131-132

One of the many unpredictable consequences of Miranda’s development is the globalization of America’s right to remain silent. It has spread from police stations in America to custodial interrogations of foreign nationals in foreign countries. In 1998, for instance, two non-U.S. citizens were arrested in Kenya and South Africa for their alleged involvement in bombing the U.S. embassies in Kenya and Tanzania. Eventually identified as Saudi Arabian nationals, the suspects were interrogated by FBI agents after they were given printed forms indicating the “possibility” that they lacked the right to counsel during the interrogation. The forms did not contain all of the now customary Mirandarights. Both suspects gave oral and written statements incriminating themselves in the embassy bombings, and their statements were evaluated, along with other evidence.

When the investigation was complete, the Saudi suspects were indicted by a federal grand jury and charged with terrorism and related capital crimes in the U.S. District Court in New York. American lawyers were retained to represent the men. As one of their first legal efforts, they filed motions to suppress the incriminating statements made to the FBI while in custody overseas. U.S. District Judge Leonard B. Sand duly suppressed the statement given by the defendant arrested in Kenya because he had confessed to being involved in the bombings before he was advised of his Miranda rights. The motion to suppress filed by the suspect interrogated in South Africa, however, was denied because he had been apprised of his Miranda rights.

Neither defendant was considered the primary instigator of the destructive bombings. That distinction falls to Osama bin Laden, the primary target of the federal grand jury in 1998. As noted in at least one of the critiques of the bin Laden case, the FBI, with understandably increasing frequency, travels to other nations to investigate violations of American criminal law by non-American citizens who are “suspects” and often in the custody of a foreign law-enforcement agency. Does the Fifth Amendment’s privilege against self-incrimination apply to non-American citizens who confess to American authorities abroad and who are later tried in this country? And if the Fifth Amendment does apply, does an FBI inquisitor have to provide Mirandawarnings to non-American suspects in a foreign country?

No other country in the world requires its police to issue Miranda warnings. That fact alone creates a conundrum for the FBI and other American law enforcement agencies, for if a foreign suspect is Mirandized on foreign soil, in a nation that does not recognize the right to remain silent nor provide counsel in pretrial settings, then Miranda warnings are inherently misleading.

Largely because of this globalization of Miranda in the bin Laden case, the United States District Court divided its review into two parts: the right to remain silent and the right to counsel. The court held that a non-American suspect must be told he has the right to remain silent; however, a non-American suspect must be advised that he would have a right to counsel only if he were in the United States, and the interrogator must be “clear and candid as to both the existence of the right to counsel in the foreign country and the possible impediments as to its exercise.”

Miranda and the al Qaeda Terror

from Chapter 7

Miranda and the al Qaeda Terror

Excerpts from pages 132-136

America’s sense of security was seriously shaken on September 11, 2001, when terrorists, using three hijacked commercial airliners as flying bombs, attacked New York City’s World Trade Center and the Pentagon in Washington, D.C. The reality of the attack became even more numbing when CNN told the world, in early December, that a young American had been captured among Taliban and al Qaeda fighters in the ensuing armed conflict in Afghanistan.

When John Philip Walker Lindh’s bedraggled figure began to appear on television monitors all over the country, it was to the horror of a people who had just come to sense that, despite all their divisiveness, they were truly a society united by common ideals and facing a common foe. And Lindh, in the minds of most Americans, was betraying his country at the very time when patriotism was most needed. It did not seem unjustified when the Washington Post headline blared “Walker Charged with Treason,” and, in slightly smaller print, noted “He Could Be Sentenced to Life for Fighting Alongside Taliban.”

It was also inevitable that Lindh quickly became nearly as hated in the United States as Osama bin Laden, and many were happy to oblige his apparent renunciation of American citizenship. Legally, however, the idea that he was anything other than an American and thus potentially not subject to American justice, on American soil, was equally distasteful. Thus, while other Taliban fighters who may have participated in the reign of terror against America would face military tribunals outside the United States, Lindh, the so-called “American Taliban,” would have a chance to exercise his privilege as an American citizen: his right to be tried in an American court, with the aid of counsel and the right to remain silent.

The case at first seemed simple enough. Lindh was charged with conspiracy to kill nationals of the United States overseas, providing material support and resources to designated foreign terrorist organizations, including al Qaeda, and engaging in prohibited transactions with the Taliban. As evidence the prosecution would have Lindh’s own confession, given freely to the FBI after he had been informed of his Miranda rights, including his right to speak to counsel. Furthermore, he had acknowledged that he understood each of his rights and he had chosen to waive them, both verbally and in a signed document. As Attorney General John Ashcroft told the nation on January 15, 2002, “The charges filed against Walker are based on voluntary statements made by Walker himself.”

….

On July 15, 2002, USA Today reported, “The biggest battle in United States of America vs. John Walker Lindhbegins today as defense attorneys and prosecutors face off over using the American Taliban fighter’s incriminating statements to the military, media, and FBI against him.”

The trial – the arguments on both sides to determine just how Miranda should apply in this extraordinary situation – would have been interesting, to say the least. On July 15, 2002, however, Lindh himself rendered moot his pending motion to suppress his confessions and in so doing rendered his Miranda challenge unnecessary as well: He pled guilty to reduced charges in exchange for a stipulated prison term, and Judge Ellis accepted the plea and signed an appropriate order to that effect.

Padilla and Hamdi

from Chapter 7

The Other American Taliban – Jose Padilla and Esam Hamdi

Excerpts from the Preface and pages 136-138

As it turned out, Lindh was not the only American Taliban. Several other young Americans have also adopted militancy and violence in the name of Islam, and at least two have emerged from the shadowy world of al Qaeda to be confronted with their own legal battles. Yaser Esam Hamdi and Jose Padilla were “out of school, unemployed, loose molecules in an unstable social fluid that threatened to ignite,” according to Robert D. Kaplan. Another analyst, Dr. Don Beck, expanded on the growing instability of this disenfranchised segment of the population Kaplan was referring to:

Here is a simplistic, seventh-century, puritanical, and closed value structure that is locked in a pre-modern mind-set. Unhappily, it’s the next step for millions of youth who have been shut out, frustrated, and left behind as they see their counterparts, both next door, and in other societies, thriving and prospering. And it transcends racial or ethnic categories, which is why it is such a threat.

Yaser Esam Hamdi was born in Louisiana, raised in Saudi Arabia, and detained in the United States while his suspected ties to al Qaeda were investigated. It seems that Hamdi, armed with a Kalashnikov rifle, had been captured in Afghanistan in December 2001 when his Taliban fighter group surrendered. At that time, he told military investigators that he had come to Afghanistan several months before to train and fight with the Taliban. Initially airlifted to the U.S. Marine base at Guantanamo Bay, Hamdi was transferred to a military jail in the United States after his claim of birth in Louisiana was confirmed. Secretary of Defense Donald Rumsfeld quickly determined that Hamdi had been both armed and fighting with enemy forces on foreign soil, and President Bush classified Hamdi as an “enemy combatant” and confined him indefinitely to the American military prison camp.

Hamdi’s lawyers, who had not actually talked to him, argued that his Fifth Amendment rights were violated. The Fourth Circuit Court of Appeals disagreed, twice. The law is clear that trial judges are obliged to accord “great deference” to the executive branch’s classification of men like Hamdi as enemy combatants. Is Hamdi entitled to remain silent and to the presence of an attorney? Those questions were submitted to the United States Supreme Court in Hamdi v. Rumsfeld.  In June of 2004, the Court handed down a partial answer to these questions.  The Court held that Hamdi’s detention for two years as “enemy combatant” held that his detention was proper and could be continued but that he had a right to challenge the justification for his detention (i.e., his status as an enemy combatant) before a neutral decisionmaker.

Jose Padilla, born in Puerto Rico but raised in Chicago, was also detained in the United States while his alleged attempt to detonate a “dirty bomb” was investigated. Padilla had changed his name twice – first to Ibrahim and then to Abdullah al Muhajir, which means “the emigrant” – to reflect his affiliation with Islam. By the time he became infamous in American society, he was a Chicago street-gang member, an ex-convict, and a convert to Islam. Georgie Anne Geyer of the Tulsa World described him as “an immigrant between ideologies, between ways of life and surely between loyalties.”

Padilla had served time in jail in both Chicago and south Florida before moving to Egypt, then to Pakistan, and finally to Afghanistan as part of the al Qaeda network. On May 8, 2002, he was arrested as he stepped off a plane in Chicago after flying in from Zurich and was held for an indeterminate period in military custody as a suspected terrorist. In alleging that Padilla belonged to an al Qaeda cell that had plotted to detonate a radioactive explosive device in the United States, government officials reported that Padilla had discussed the bomb plot with al Qaeda leaders in Pakistan and Afghanistan.

Defense Secretary Donald Rumsfeld said the government wanted to question, rather than prosecute, Padilla. It is, of course, the government’s duty to protect its citizens and prevent al Qaeda terrorists from delivering the nuclear devastation that they have threatened. Consequently, following Padilla’s initial detention at O’Hare, federal agents subpoenaed him to testify before a grand jury. When he refused, President Bush declared him an “enemy combatant” under the War Powers Act. This subjected Padilla to arrest, not as a suspect but as a material witness. Under the War Powers Act, a material witness can be held indefinitely.  In Rumsfeld v. Padilla, the Court held that Padilla had filed his habeas petition in the wrong court. Presumably, when Padilla re-files his petition in the right court, he will be given the same rights as Mr. Hamdi.

The larger question of the extent to which domestic Miranda rights should be respected on foreign soil or on American sovereign territory is the subject of an important Supreme Court opinion handed down at the end of the Court’s term in June of 2004.  In Rasul v. Bush, the Court held that non-citizen detainees held at the U.S. naval base at Guantanamo Bay, Cuba, have a right to file habeas corpus petitions in federal courts to challenge the legality of their detention.

Justice Sandra Day O’Connor is as close to these large questions as anyone could possibly be. She is at the center of the Court and the center of American thought when she says, as she did in the Hamdi case, “Striking the proper constitutional balance . . . is of great importance to the nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds so dear or to the privilege that is American citizenship.”

False Confessions and the Tuscson Four

from Chapter 8

False Confessions, the Temple Murder Case, and the Tucson Four

Excerpts from pages 155-158

Psychologists and sociologists recognize three distinct types of false confession. A voluntary false confession occurs when a suspect falsely confesses to a crime without influence from others. The most common situation that explains voluntary false confessions is mental abnormality. Mentally defective individuals tend to offer confessions in countless high-profile crimes.

Another type of false confession, called “coerced-compliant,” usually occurs when the suspect feels he must avoid duress or seeks to benefit from the confession. Long interrogations conducted late at night or on the promise of a favorable plea bargain account for many coerced-compliant false confessions.

The third type of voluntary false confession, the “coerced-internalized false confession,” invariably involves police coercion. Instead of confessing to get out of an undesirable situation or to tie down a lenient plea bargain, the suspect unconsciously incorporates into his own memory the information given to him during police interrogation. Consequently, the suspect comes to believe he is truly responsible for the crime, notwithstanding the fact that no initial memory of the crime ever existed. The psychology literature suggests that these coerced-internalized memories can last for days or weeks, depending on the length of police interrogation.

False confessions derive from several psychological conditions. A suspect may feel guilty about something he has done or failed to do, something completely unrelated to the crime in question. A suspect’s ability to reason may be impaired by drug addiction, or he may be unduly frightened of the police or possess a disordered or inadequate personality. Some suspects simply can’t resist the notoriety they know will result from confessing to a high-profile crime.

The frequency of false confessions is a vigorously debated question in the legal world. An even more complicated question arises in trying to determine how many wrongful convictions are based on false confessions. Estimates range from a low of 35 to a high of 840 annually.

In August of 1991 nine bodies were discovered inside the Wat Promkunaram Buddhist Temple in the desert near Phoenix. The victims, including six Buddhist monks, lay face down in a circle, each shot in the head. Based on forensic science, the Maricopa County sheriff’s department quickly identified the murder weapon as a Marlin Model 60, .22-caliber rifle. The rifle was not found but the make, model, and caliber were clear from crime-scene evidence.

A few weeks later, in September 1991, an anonymous tip implicated four young Tucson men. The Maricopa County sheriff’s office immediately arrested them and subjected each one to lengthy questioning. All four confessed, in writing, to the Temple murders. Then they talked to their parents and their lawyers. The next day they recanted their confessions and professed their innocence.

In October 1991, while the men, now dubbed the “Tucson Four” were still in jail, Maricopa County sheriff’s deputies located the murder weapon in Phoenix. Its owner identified it as such, but denied involvement in the crime, and told the deputies that two young Phoenix men had borrowed his rifle shortly before the murders.

One of the young men, a seventeen-year-old juvenile, was advised of his Miranda rights but told the deputies he wanted to talk to them without an attorney and without his parents present. His interrogation began at 9:25 in the evening. Two and one-half hours later, he made “inculpatory statements, and after approximately four more hours of questioning, admitted to being at the temple on the night of the murders.” His interrogation lasted for almost thirteen consecutive hours without significant breaks. He implicated four other Phoenix juveniles, but not the Tucson Four already in custody.

It was ultimately revealed that the sheriff’s focus on the Tucson Four had begun when one of them, a mental patient, called the police and falsely confessed. The other three young men, actually innocent, had broken down under interrogation and confessed to the killings. The prosecutor described the investigation of the Tucson Four as “bungled” by the sheriff’s office.

The Tucson Four, having recanted their confessions and professed their innocence, were released after three months of incarceration. They promptly filed wrongful-arrest civil suits against the sheriff’s office. In September 1994, the Tucson Four accepted a $2.8 million dollar out-of-court settlement offered by Maricopa County.

One of the Phoenix juveniles accepted a plea bargain that saved him from the death penalty, conditioned on his agreement to testify against the man who had implicated him in the first confession.

Following a media-intensive trial, the 17-year old defendant who confessed after waiving his rights was convicted of felony murder, but the jury rejected the charge of premediated murder. He appealed his conviction on multiple grounds, including that his confession was coerced and that, like those given by the Tucson Four, was false. He also argued that his confession was false because it had been extracted by the same interrogators, who had used on him the same technique that they had used to extract false confessions from the Tucson Four.  His conviction and sentence of 281 years in the Arizona State Penitentiary were affirmed by the Arizona Court of Appeals. Arizona’s Supreme Court denied review and the United States Supreme Court rejected his petition for a writ of certiorari on June 16, 1997.

In the Temple Murder case, the interrogators secured six confessions from juveniles after securing waivers of their Miranda rights. All six recanted their confessions. Four of those confessions were indisputably false.  Of course, not all false confessions are the product of police misconduct. However, when police misconduct cases are evaluated on a national scale, it appears that 42 percent of the cases involve allegations of undue suggestiveness in pretrial identification procedures and coerced confessions arising out of custodial interrogation.

Political Ideology and the Supreme Court

from Chapter 8

Political Ideology and the Justices of the Warren Court

Excerpts from pages 163-165

It is not at all clear that Miranda was a product of the Court’s political ideology, that “ideology” being extremely difficult to peg. Courts are cohorts of individual concepts, but Courts also change with new elections or appointments. The Warren Court was characterized by most as “liberal” because its most controversial opinions seemed more acceptable to liberals than conservatives – yet the justices serving under Chief Justice Warren’s administrative leadership could never be pinned down as either liberal or conservative. Each was an outspoken, independent thinker who did not seem to cling to any defined political ideology. Each made the effort to decide each case on its specifics and merits.

Furthermore, the ancestries of Chief Justice Warren and Justices Brennan, Black, Clark, Douglas, Fortas, Harlan, Stewart, and White made their court emblematic of America as a melting pot of political and social mores. They were Catholic, Protestant, and Jewish and from every region in America. Their early lives were spent in the cities of the Northeast, the rural South, the emerging Southwest, the homespun Midwest, and the West Coast paradise. They were Republicans and Democrats who owed their high-bench seats to the presidential politics and merit selection tendencies of both parties. The youngest was forty-nine, the oldest eighty. Justice Black’s tenure on the Court had spanned five presidents whereas Justice White was of a new generation and had joined the bench during the presidency of John F. Kennedy.

It is worth noting that Miranda was decided by a five-to-four majority of the Court. That split demands a look at the five who voted to reverse the convictions. Did Chief Justice Warren and Justices Brennan, Black, Douglas, and Fortas share a common set of concepts about human life or culture? Alternatively, did they have integrated assertions, theories, or aims that might constitute a sociopolitical program?

Liva Baker, author of one of the most comprehensive books written on the Miranda case, believes that the essential commonality among the majority of five was their socioeconomic status while growing up. “Once again,” she writes of the Miranda vote, “the Court had divided along class lines, the justices born to families in humbler circumstances looking at the interrogation room through the eyes of the defendant, those born to families accustomed to privilege and influence looking at it through the eyes of the policeman.”

“Class lines,” alone, however, do not seem to provide a full explanation. Families of modest means constitute over 80 percent of the American population. Liva Baker’s alternative thesis was that the five were connected by way of their “humble origin.” Were they in fact all of an origin that can be defined as humble?

Chief Justice Earl Warren was born in Los Angeles in 1891. Educated at the University of California, he was admitted to the bar in 1914 and served one term as attorney general of California and three terms as governor of California before becoming the Republican candidate for vice president in Thomas E. Dewey’s 1948 campaign. President Eisenhower appointed Warren as the fourteenth chief justice in 1953, and he served on the Court until his retirement in 1969. No one ever described him as humble or as a man of modest means.

Justice Hugo Lafayette Black was born in Harlan, Alabama, in 1886. He was educated at the University of Alabama and served in the United States Senate. President Roosevelt appointed him to the Supreme Court in 1937. He certainly favored individual freedom and was best known for his literal interpretation of the First Amendment. He authored the Gideon opinion, dissented in Griswold v. Connecticut, and served on the Court until 1971. He can fairly be described as a man of the people and perhaps even as self-effacing.

Justice William Brennan served on the Court for thirty-four years under eight presidents. Born in Newark, New Jersey, and educated at the University of Pennsylvania and Harvard Law School, he rose to the rank of colonel in the U.S. Army. President Eisenhower appointed him to the Court in 1956. He was an intellectual and a fierce advocate against capital punishment.

Justice William O. Douglas hailed from Maine, Minnesota, and was educated at Whitman College and Columbia University. He taught law at Columbia and Yale before being appointed to the Court by President Roosevelt. He served on the Court for thirty-six years, longer than any other justice did. He was said to be liberal on social issues, balanced on economic issues, and conservative on international issues. His clerks thought him proud, not humble.

Justice Abe Fortas was born in Tennessee and educated at Yale. First in his class, he was appointed to the faculty at Yale upon his graduation. He served the government in various capacities from 1937 to 1946 and was a regular adviser to many national leaders, including President Johnson, who appointed him to the Supreme Court in 1965. Fortas may have had the shortest tenure on the Court with his resignation in 1969. His role in academics, government, and high-end law practice hardly qualified him as a man of the people.

Two of the five majority justices were Republicans, three were from large cities, and three attended prestigious private law schools. All did well financially and all were experienced in the ways of politics and business at the time they formed the majority in the Miranda decision. They were not consistently on the same side of controversial issues and often dissented in cases where one or the other wrote the majority decision.

At least from this limited look at their lives, one can not easily conclude that a common ideology drove their decisions.

Dickerson's Legacy

from Chapter 9

Dickerson’s Legacy

Excerpts from pages 169-170

Dickerson reaffirmed one of the most famous decisions in American jurisprudence. It also struck down a congressional act that was a thinly disguised political attempt to overrule Miranda. Section 3501 did not guarantee the same rights that Miranda did. Although its passage in 1968 was, at best, merely nettlesome – which explains why it was largely ignored – its application by a federal circuit court in 1999 made it a challenge to both the separation of powers doctrine and stare decisis within the judicial branch. The Fourth Circuit’s sua spontetransfusion of life into a dead statute gave the United States Supreme Court little choice but to strike it down. In doing so, the Court effectively told the Fourth Circuit that Miranda was, for the last time, a “constitutional” decision, and the message radiated out from Richmond to the congressional salons across the Potomac.

However, Dickerson was not a loss for Congress any more than it was a win for the Supreme Court. In its ruling, the Supreme Court had revealed that the “constitutional” Miranda was quite different from the old prophylactic-rule Miranda, but their opinion was obiter, or “by the way,” and dictum, that is, tangential to the Court’s holding.

A final irony produced by Dickerson also merits noting: The cases that justified Miranda – thirty-four years’ worth – had relied almost entirely on the thesis that it was merely a prophylactic rule and not a constitutional requirement. In striking down Section 3501, the Court made the Miranda warnings constitutional. That, of necessity, upgrades Miranda’s progeny to constitutional status as well.

Gideon's Legacy

from Chapter 9

Gideon’s Legacy

Excerpts from page 169

While many Americans feared the consequences of the Gideon decision and shuddered at Miranda, both cases have stood the test of time as compelling contributions to legal and cultural history. And for good reason. Until Gideon, a suspect did not have a clearly defined constitutional right to counsel in state courts. Until Miranda, a suspect did not have a clearly announced constitutional right to counsel prior to questioning by state police. As Attorney General Robert F. Kennedy said of Gideon, “The whole course of American legal history has changed.” Criminal defense lawyers, like Craig Mehrens, were also profoundly impacted by Gideon. “I cannot imagine an accused facing the judicial system without an attorney,” said Mehrens. “Even with counsel, the fight is always uphill: a Sisyphusian affair. In addition, although notoriety is usually spotlighted on retained counsel, I know that it is the public defenders of this country that do the heavy lifting – who protect every day the constitutional rights of so many people, for so little pay, for little thanks, and in such adverse conditions. Gideon’s trumpet still plays for them. And what a clarion call it is.”

The Evolution of Miranda

from Chapter 9

The Evolution of Miranda

Excerpts from pages 170-173

Suspects will continue to come to the attention of the police and show up, willingly or not, in America’s interrogation rooms. Once there, knowing no better regardless of any warnings, many will incriminate themselves directly into jail, and the privilege against self-incrimination will be trumped by the certainty of self-incarceration. Although most police interrogators are more interested in doing the job than clearing the docket, some will want the confession badly enough to ignore the Supreme Court’s rules about warning suspects. In time, those who make the rules and fund police protection will prevail, and the entire American police force will be comprised of professionals; everyone in the interrogation rooms will be college educated, highly trained, and respectful of America’s right to remain silent.

To what extent that right should be respected when applied to non-Americans, however, is an entirely different question. The devastation wreaked upon New York City and, psychologically, on the rest of the nation on September 11, 2001, understandably created a need for changes in the ways we prosecute foreign criminals such as the al Qaeda terrorists. What we see as a constitutional right for ourselves may have to be withheld from those who would take all rights away by terror and violence rather than by the due process of the democratic system. We would do well to remember, however, that, if in the effort to solve the problems Miranda has posed to law enforcement, we return to the days when law enforcement was silent on the rights of suspects, be they homegrown simple thieves or foreign-trained terrorists, then the hate-America campaign will have obtained one of its objectives. These people seek to destroy democracy itself and replace it with a radically fundamental theocracy run by their God, not their government.

The good news: Technology will provide some solutions. In time, the same kinds of monitoring devices that have modernized courtrooms may become standard equipment in interrogation rooms. Video cameras have already revolutionized many aspects of police surveillance and arrest procedures, providing evidence that can often be more convincing than eyewitness accounts (isolated occurrences such as the Rodney King affair notwithstanding). Some day, video cameras in the interrogation room will provide evidence of similar verisimilitude and serve to monitor the conduct of suspect and interrogator.

Regardless of whether or not improved methods for gathering evidence will serve to condemn or exonerate, people will, through some natural compulsion perhaps, continue to unburden their souls in the misguided belief that confessing to their crimes will set them free of the law just as surely as confessing their sins can clear their consciences. Such confessions, if they comply with the Fifth and Sixth Amendments, will be admissible and will remain a valuable tool for finding the truth, but they will not be the only evidence offered at trial. And unwarned confessions will more easily remain in the prosecutor’s briefcase – unless and until the defendant tries, once again, to talk himself into jail by taking the witness stand.

The right to remain silent should never be rescinded in the interests of national security or on the strength of any other reason. It is a fundamental value in American society, one that distinguishes us, for no other government recognizes the right of its citizens to tell government officials “no” and make them abide by it. Whether we choose silence or choose to confess is not really the point. Knowing that we can choose one or the other is the point. In upholding this right, we license our government to protect all of us, innocent and guilty alike. In knowing that we have the right to say “no,” we will, as a nation, stand the test of time.