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.”

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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?”