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.

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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.