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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 Miranda decision 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 Miranda doctrine 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 Miranda warning. 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 Miranda rights card to her.
Having already confessed, she waived her rights and confessed a second
time. The Court soundly denounced the intentional violation of
Miranda and 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
Miranda decisions 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.
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