In the Matter of:
ERNEST
A. MIRANDA, Petitioner,
—vs.—
THE STATE OF ARIZONA, Respondent.
Docket No. 759
Washington,
D. C.
Monday, February 28, 1966.
The above entitled matter came on for
oral argument, pursuant to notice:
EARL
WARREN, Chief Justice of the United
States
HUGO
L. BLACK, Associate Justice
TOM
C. CLARK, Associate Justice
JOHN
M. HARLAN, Associate Justice
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER
STEWART, Associate Justice
BYRON
R. WHITE, Associate Justice
ABE
FORTAS, Associate Justice
APPEARANCES:
JOHN J. FLYNN, ESQ., 900
Title & Trust Building, Phoenix Arizona 85003, for Petitioner.
GARY K. NELSON, ESQ., Assistant
Attorney General, Room 159, State Capitol Building, Phoenix, Arizona 85007, for
Respondent.
TELFORD TAYLOR, ESQ., Special
Counsel for the State of New York, on behalf of the State of New York.
PROCEEDINGS
MR. CHIEF JUSTICE WARREN: No. 759, Ernesto A. Miranda, petitioner,
versus Arizona. We’ll wait just a few
moments until you get seated.
Mr. Flynn, you may proceed.
ORAL
ARGUMENT OF JOHN J. FLYNN, ESQ.,
ON
BEHALF OF THE PETITIONER
MR. FLYNN: Mr. Chief Justice, may it
please the Court:
This case concerns itself with the
conviction of a defendant of two crimes of rape and kidnapping, the sentences
on each count of 20 to 30 years to run concurrently.
I should point out to the Court, in an
effort to avoid possible confusion, that the defendant was convicted in a
companion case of the crime of robbery in a completely separate and independent
act; however, the Supreme Court of the State of Arizona treated that conviction
as a companion case in a companion decision, and portions of that record have
been appended to the record in this case, as it bears on the issue before the
Court.
Now the issue before the Court is the
admission into evidence of the defendant’s confession, under the facts and
circumstances of this case, over the specific objections of his trial counsel
that it had been given in the absence of counsel.
The Trial Court in June of 1963, prior
to this Court’s decision in Escobedo, allowed
the confession into evidence. The Supreme Court of the State of Arizona in
April of 1965, after this Court’s
decision in Escobedo, affirmed the
conviction and the admission of the confession into evidence. This Court has
granted us review.
The facts in the case indicate that the
defendant was 23 years old, of Spanish-American extraction; that on the morning
of March 13, 1963, he was arrested at his home, taken down to the police
station by two officers named Young and Cooley; that at the police station he
was immediately placed in a line-up. He was here identified by the prosecutrix
in this case and later identified by the prosecutrix in the robbery case.
Immediately after the interrogations’ he was taken into the police confessional
at approximately 11:30 a.m. and by 1:30 they had obtained from him an oral
confession.
MR. JUSTICE BRENNAN: What is the
“police confessional?”
MR. FLYNN: The interrogation room,
described in the transcript as Interrogation Room No. 2, if Your Honor please.
He denied his guilt, according to the
officers, at the commencement of the interrogation, and by 1:30 he had
confessed. I believe the record indicates that at no time during the
interrogation and prior to his oral confession was he advised either of his
rights to remain silent, his right to counsel, or of his right to consult with
counsel; nor, indeed, was such the practice in Arizona at that time, as
admitted by the officers in their testimony.
The defendant was then asked to sign a
confession, to which he agreed. The form handed him to write on contained a
typed statement as follows, which precedes his hand-written confession:
“I, Ernesto A. Miranda, 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 I make may be used against me.”
This statement was read to him by the
officers, and he confessed in his own handwriting. Throughout the interrogation
the defendant did not request counsel at any time. In due course the Trial
Court appointed counsel to defend him in both cases, and defense counsel
requested a psychiatric examination, which has been made—and the medical
report—has been made a portion of the transcript of the record in this case, as
it enlightens us to a portion or some of the factual information surrounding
the defendant.
MR.
JUSTICE FORTAS: Mr. Flynn, I am sorry to interrupt you, but you said that
Miranda was not told that he might remain silent? Did you say that?
MR.
FLYNN: That is correct, Your Honor.
MR.
JUSTICE FORTAS: Is there a dispute as to that?
MR.
FLYNN: Yes, there is, Your Honor, and I believe it arises as a result of the
appendix to the robbery conviction. In this respect, I would answer Your
Honor’s question by referring to page 52 of the petitioner’s brief, to the
appendix at the top, at which the question was asked by Mr. Moore, the trial
counsel:
Question: “Did you state to the defendant at any time
before he made the statement you are about to answer to, that anything he said
would be held against him?
Answer: ‘‘No, sir.”
Question: “You didn’t
warn him of that?”
Answer: ‘‘No, sir.’’
Question: “Did you warn him of his rights to an attorney?”
Answer: ‘‘No, sir.”
“Mr. Moore: We object, not voluntarily given.
“Mr. Turoff: I don’t believe that is necessary.
“The Court: Overruled.”
On page 53, the
succeeding page, a portion of the same record indicates further examination
concerning this conversation, and starting approximately one-third down the
page.
Question: “Had you offered the defendant any immunity?”
Answer: “No, sir.”
Question: “In your presence, had Officer Cooley done any
of these acts?”
Answer: “No, sir.”
Question: “About what time did this conversation take
place, Officer?”
Answer: “Approximately 1:30.”
Question: “Shortly after Miss McDaniels made her first
statement, is that correct?”
Answer: “Yes, sir.”
Question: “Can you tell us now, Officer, regarding the
charge of robbery, what was said to the defendant and what the defendant answered
in your presence?”
Answer: “I asked Mr. Miranda if he recognized—” and there
the questioning terminates.
MR.
JUSTICE FORTAS: I was referring to page 4 of your brief in which you say that
Officer Young believes that Miranda was told that he need not answer their
questions.
MR.
FLYNN: I was about to continue, if Your Honor please, to page 54, in which we find the question:
“You never warned him he was entitled
to an attorney or anything he said would be held against him, did you?
“Answer: We told him anything he said
would be used against him; he wasn’t required by law to tell us anything.”
Consequently, this would answer Your
Honor’s question, except bearing in mind that the record clearly reveals that
from the line-up and the identification to the interrogation room, the officers
established the time as 11:30, and that the confession was completed and signed
at 1:30.
Reading the testimony of the robbery
conviction, it is apparent to me that the officers, when they recite or
answered on page 54 of the transcript
that he had been advised of his rights, were again relating to this formal
typed heading, which would be at 1:30, at the time he signed a confession;
that, hence, there really is no conflict in the record as to when he was
advised of his rights.
The further history relating to this defendant found in
the psychiatric examination would indicate that he had an eighth-grade
education, and it was found by the Supreme Court that he had a prior criminal
record and that he was mentally abnormal. He was found, however, to be
competent to stand trial and legally sane at the time of the commission of the
alleged acts.
Now, the critical aspect of the defendant’s confession, I
think, is eminently demonstrated when, during the trial, the prosecutrix was
asked the question concerning penetration, in which she first responded that
she thought it was by finger, under questioning by the prosecuting attorney.
Immediately thereafter, she expressed uncertainty as to the manner or method of
penetration and, after some prompting, responded to the prosecuting attorney
that it had been, in fact, by the male organ. On cross-examination, she again
expressed the uncertainty in relation to this penetration which, of course, is
the essential element of the crime of first-degree rape in the State of
Arizona, when she responded to his question that she simply was unsure whether
it had been by finger or by penis.
Now of course the defendant’s confession neatly corrects
this “reasonable doubt” that otherwise would have been engendered, when in
precise terminology he wrote, “Asked her to lie down, and she did. Could not
get penis into vagina. Got about one-half(half) inch in.”
The only thing missing, or the only thing that the
officers failed to supply in words to this defendant at the time he wrote this
confession, was in violation of Section 13-611, Arizona Revised Statutes. Then,
of course, they would have had the classic confession of conviction, because
they could have argued that the man even knew the statutory provisions relating
to rape.
The State, as I read their response, takes no issue with
the statement of facts as I have outlined them to this Court, except to say
that we overstate his mental condition and minimize his educational background;
and also the concern that is expressed by Mr. Justice Fortas concerning at what
stage of the proceeding he may have been advised of his right to remain silent.
Now the Petitioner’s position on the issue is simply this:
The Arizona Supreme Court, we feel, has imprisoned this Court’s decision in Escobedo on its facts, and by its
decision is refusing to apply the principles of that case, and for all
practical purposes has emasculated it. Certainly every court desiring to admit
a confession can find distinguishing factors in Escobedo from the fact situation before it.
I would like to very briefly quote from the transcript of
the record which contains the Arizona decision at page 87:
“It will be noted that the Court in the Escobedo case set forth the
circumstances under which a statement would be held admissible, namely: One,
the general inquiry into an unsolved crime must have begun to focus on a
particular suspect; two, a suspect must have been taken into the police
custody; three, the police in its interrogation must have elicited an
incriminating statement; four, the suspect must have requested and been denied
an opportunity to consult with his lawyer; five, the police must not have
effectively warned the suspect of his constitutional rights to remain silent.
When all of these five factors occur, then the Escobedo case is a controlling precedent.”
The Arizona Supreme Court, having indicated its clear
intention to imprison the Escobedo decision,
set about to do precisely that. First, as to the focusing question, it
indicated that this crime had occurred at night. Consequently, despite the
positive identification of the defendant by two witnesses, which the State
urged were entirely fair line-ups, the Supreme Court of Arizona indicated that
even then perhaps under these facts, attention had not focused upon this
defendant.
I think this is sheer sophistry and would indicate the
obvious intent of the Arizona Supreme Court to confine Escobedo and to distinguish it whenever possible.
Next, the Court found that the defendant was advised of
his rights in the reading of the typed portion immediately preceding its
transcript. They permitted that document to lift itself by its own bootstraps,
so to speak, and to indicate that here was a man who was knowledgeable
concerning his legal rights, despite the facts and circumstances of his
background and education. They further found that he was knowledgeable because
he had a prior criminal record, though in the decision he indicated this would
be knowledge of his rights in court and certainly not his rights at the time of
the interrogation.
I think the numerous briefs filed in this case indicating
the substantial split in the decisions throughout the various states, the
circuits and the Federal district courts, indicate the interpretation that has
been placed upon Escobedo. On the one
hand, we have the California decision in Dorado.
We have the Third Circuit decision in Russo,
which would indicate that principle and logic are being applied to the
decision, and in the words of Mr. Justice Goldberg, that when the process shifts
from the investigation to one of accusation, and when the purpose is to elicit
a confession from the defendant, then the adversary process comes into being.
On the other hand, the other cases that
would distinguish this have found and give rise to what I submit is not really
confusion by merely straining against the principles and logic in that
decision.
MR.
JUSTICE STEWART: What do you think is the result of the adversary process
coming into being when this focusing takes place? What follows from that? Is
there, then, a right to a lawyer?
MR.
FLYNN: I think that the man at that time has the right to exercise, if he
knows, and under the present state of the law in Arizona, if he is 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. But I simply
say that at that stage of the proceeding, under the facts and circumstances in Miranda of a man of limited education,
of a man who certainly is mentally abnormal who is certainly an indigent, that
when that adversary process came into being that the police, at the very least,
had an obligation to extend to this man not only his clear Fifth Amendment
right, but to accord to him the right of counsel.
MR.
JUSTICE STEWART: I suppose, if you really mean what you say or what you gather
from what the Escobedo decision says,
the adversary process starts at that point, and every single protection of the
Constitution then comes into being, does it not? You have to bring a jury in
there, I suppose?
MR.
FLYNN: No, Your Honor, I wouldn’t bring a jury in. I simply would extend to the
man those constitutional rights which the police, at that time, took away from
him.
MR.
JUSTICE STEWART: That’s begging the question. My question is, what are those
rights when the focusing begins? Are these all the panoply of rights guaranteed
to the defendant in a criminal trial?
MR.
FLYNN: I think the first right is the Fifth Amendment right: the right not to
incriminate oneself; the right to know you have that right; and the right to
consult with counsel, at the very least, in order that you can exercise the
right, Your Honor.
MR.
JUSTICE STEWART: Well, I don’t fully understand your answer, because if the
adversary process then begins, then what you have is the equivalent of a trial,
do you not? And then I suppose you have a right to a judge, and a jury, and
everything else that goes with a trial right, then and there. If you have
something less than that, then this is not an adversary proceeding and then you
don’t mean what you’re saying.
MR.
FLYNN: I think what I say - what I am interpreting “adversary proceeding” to
mean is that at that time, a person who is poorly educated, who in essence is
mentally abnormal, who is an indigent, that at an adversary proceeding, at the
very least, he is entitled at that stage of the proceeding to be represented by
counsel and to be advised by counsel of his rights under the Fifth Amendment of
the Constitution; or, he has no such right.
MR.
JUSTICE STEWART: Well, again I don’t mean to quibble, and I apologize, but I
think it’s first important to define what those rights are—what his rights
under the constitution are at that point. He can’t be advised of his rights
unless somebody knows what those rights are.
MR.
FLYNN: Precisely my point. And the only person that can adequately advise a
person like Ernesto Miranda is a lawyer.
MR.
JUSTICE STEWART: And what would a lawyer advise him that his rights were?
MR.
FLYNN: That he had a right not to incriminate himself; that he had the right
not to make any statement; that he had a right to be free from further
questioning by the police department; that he had the right, at the ultimate
time, to be represented adequately by counsel in court; and that if he was too
indigent or too poor to employ counsel, the state would furnish him counsel.
MR.
JUSTICE STEWART: What is it that confers the right to a lawyer’s advice at that
point and not an earlier point? The Sixth Amendment?
MR. FLYNN: No. The attempt to erode, or
to take away from him, the Fifth Amendment right that already existed—and that
was the right not to convict himself, and be convicted out of his own mouth.
MR. JUSTICE STEWART: Didn’t he have
that right earlier?
MR. FLYNN: If he knew about it.
MR. JUSTICE STEWART: Before this became
a so-called “adversary proceeding”?
MR. FLYNN: Yes, Your Honor, if he knew
about it and if he was aware—if he was knowledgeable.
MR. JUSTICE STEWART: Then did he have
the right to a lawyer’s advise earlier?
MR. FLYNN: If he could afford it, yes;
and if he was intelligent enough and strong enough to stand up against police
interrogation and request it, yes.
MR. JUSTICE STEWART: What I’m getting
at is, I don’t understand the magic
in this phrase of “focusing,” and then all of a sudden it becomes an adversary
proceeding. And then I suppose if you literally mean that it becomes an
adversary proceeding, then you’re entitled to all the rights that a defendant
is given under the Constitution that would be given in a criminal trial. If you
mean less than that, then you don’t really mean it has now become the
equivalent of a trial.
MR. FLYNN: Well, I simply mean that
when it becomes an adversary proceeding, at the very least, a person in Ernest
Miranda’s position needs the benefit of counsel, and unless he is afforded that
right of counsel he simply has, in essence, no Fifth or Sixth Amendment right,
and there is no due process of law being afforded to a man in Ernest Miranda’s
position.
MR. JUSTICE FORTAS: Is it possible that prior to this
so-called “focusing,” or let’s say prior to arrest—if those don’t mean the same
thing—that a citizen has an obligation to cooperate with the state, give the
state information that he may have relevant to the crime; and that upon arrest,
or upon this “focusing,” that the state and the individual then assume the
position of adversaries, and there is, at the very least, a change in that
relationship between the individual and the state; and, therefore, in their
mutual rights and responsibilities? I don’t know whether that’s what my Brother
Stewart is getting at, and perhaps it is unfair to discuss this through you—
[Laughter.]
MR.
JUSTICE FORTAS: —but if you have a comment on it, I’d like to hear it.
MR.
FLYNN: I think the only comment that I could make is that, without getting
ourselves into the area of precisely when focusing begins, that I must in this
instance limit it to the fact situation and the circumstances of Ernest
Miranda, because for every practical purpose, after the two-hour interrogation,
the mere formality of supplying counsel to Ernest Miranda at the time of trial,
is what I would submit would really be nothing more than a mockery of his Sixth
Amendment right to be represented in court, to go through the formality, and a
conviction takes place.
Well, this simply is not a matter of
the record. It is in the robbery trial, and I think it so illustrates the
position of what occurs in the case of persons who have confessed, as Ernest
Miranda. The question was asked in the robbery trial—which preceded the rape
trial by one day—of Mr. Moore:
“THE COURT: Are you ready to go to
trial?
“MR. MOORE: I have been ready. I haven’t anything to do
but—and sit down and listen.”
MR. JUSTICE BLACK: May I ask you one
question, Mr. Flynn, about the Fifth Amendment? Let’s forget about the Sixth.
The Amendment provides that no person shall be compelled to be a witness
against himself. It’s disassociated entirely from the right to counsel.
You have said several times it seems, during the case,
that in determining whether or not a person shall be compelled to be a witness
against himself, that it might depend to some extent on his literacy or his
illiteracy, his wealth or his lack of wealth, his standing or his lack of
standing—why does that have anything to do with it? Why does the Amendment not
protect the rich, as well as the poor; the literate, as well as the illiterate?
MR. FLYNN: I would say that it
certainly, and most assuredly, does protect; that in the state of the law today
as pronounced by the Arizona Supreme Court, under those guiding principals, it
certainly does protect the rich, the educated, and the strong— those rich
enough to hire counsel, those who are educated enough to know what their rights
are, and those who are strong enough to withstand police interrogation and
assert those rights.
MR. JUSTICE BLACK: I am asking you only
about the Fifth Amendment’s provision that no person shall be compelled to be a
witness against himself. Does that protect every person, or just some persons?
I am not talking about in practical effect; I am talking about what the
Amendment is supposed to do.
MR. FLYNN: It protects all persons.
MR. JUSTICE BLACK: Would literacy or
illiteracy have anything to do with it if they compelled him to testify,
whatever comes within the scope of that?
MR. FLYNN: At the interrogation stage,
if he is too ignorant to know that he has the Fifth Amendment right, then
certainly literacy has something to do with it, Your Honor. If the man at the
time of the interrogation has never heard of the Fifth Amendment, knows nothing
about its concept or its scope, knows nothing of his rights, then certainly his
literacy—
MR. JUSTICE BLACK: —he’d have more
rights, because of that? I don’t understand. The Fifth Amendment right, alone,
not to be compelled to be a witness against himself? What does that cover?
MR. FLYNN: Perhaps I have simply not
expressed myself clearly.
MR. JUSTICE BLACK: Does that cover
everybody?
MR. FLYNN: It covers everybody, Your
Honor. Clearly in practical application, in view of the interrogation and the
facts and circumstances of Miranda, it simply had no application because of the
facts and circumstances in that particular case, and that’s what I am
attempting to express to the Court.
Now the Arizona Supreme Court went on,
in essence we submit, to turn its decision primarily on the failure of the
defendant in this case to request counsel, which is the only really
distinguishing factor that they could find.
MR. JUSTICE STEWART: Is there any claim
in this case that this confession was compelled was involuntary?
MR. FLYNN: No, Your Honor.
MR. JUSTICE STEWART: None at all?
MR. FLYNN: None at all.
MR. JUSTICE WHITE: Do you mean that
there is no question that he was not compelled to give evidence against
himself?
MR. FLYNN: We have raised no question
that he was compelled to give this statement, in the sense that anyone forced
him to do it by coercion, by threats, by promises, or compulsion of that kind.
MR. JUSTICE WHITE: “Of that kind”? Was
it voluntary, or wasn’t it?
MR. FLYNN: Voluntary in the sense that
the man, at a time without knowledge of his rights—
MR. JUSTICE WHITE: Do you claim that
his Fifth Amendment rights were violated?
MR. FLYNN: I would say his Fifth
Amendment right was violated, to the extent—
MR. JUSTICE WHITE: Because he was compelled to do it?
MR. FLYNN: Because he was compelled to do it?
MR. JUSTICE WHITE: That’s what the Amendment says.
MR. FLYNN: Yes, to the extent that he was, number one,
too, poor to exercise it, and number two, mentally abnormal.
MR. JUSTICE WHITE: Whatever the Fifth is, you say he was
compelled to do it?
MR. FLYNN: I say it was taken from him
at a point in time when he absolutely should have been afforded the Sixth
Amendment -
MR. JUSTICE WHITE: I’m talking about violating the
Amendment, namely the provision that he was—to violate the Fifth Amendment
right, he has to be compelled to do it, doesn’t he?
MR. FLYNN: In the sense that Your Honor is presenting to
me the word “compelled,” you’re correct.
MR. JUSTICE WHITE: I was talking about what the
Constitution says.
MR. JUSTICE BLACK: He doesn’t have to have a gun pointed
at his head, does he?
MR. JUSTICE WHITE: Of course he doesn’t. So he was
compelled to do it, wasn’t he, according to your theory?
MR. FLYNN: Not by gunpoint, as Mr. Justice Black has
indicated. He was called upon to surrender a right that he didn’t fully realize
and appreciate that he had. It was taken from him.
MR. JUSTICE WHITE: But in all the circumstances—I’m just
trying to find out if you claim that his Fifth Amendment rights were being
violated. If they were, it must be because he was compelled to do it, under all
circumstances.
MR. FLYNN: I would say that as a result of a lack of
knowledge, or for lack of a better term “failure to advise,” the denial of the
right to counsel at the stage in the proceeding when he most certainly needed
it, that this could, in and of itself—and certainly in most police
interrogations—constitute compulsion.
MR. JUSTICE BLACK: Why wouldn’t you add to that the fact
that the State had him in its control and custody? Why would that not tend to
show some kind of coercion or compulsion?
MR. FLYNN: The whole process of a person, I would assume,
having been raised to tell the truth and respect authority.
MR. JUSTICE BLACK: Was he allowed to get away from there,
at will?
MR. FLYNN: No, Your Honor. He was in
confinement and under arrest.
MR. JUSTICE BLACK: The State had moved against him
by taking him in to question him, did it not?
MR. FLYNN: That is correct.
Flynn, you would say that if the police
had said to this young man, “Now you are a nice young man, and we don’t want to
hurt you, and so forth; we’re your friends and if you’ll just tell us how you
committed this crime, we’ll let you go home and we won’t prosecute you,” that
that would be a violation of the Fifth Amendment, and that, technically
speaking, would not be “compelling” him to do it. It would be an inducement,
would it not?
MR. FLYNN: That is correct.
MR. CHIEF JUSTICE WARREN: I suppose you would argue that
that is still within the Fifth Amendment, wouldn’t you?
MR. FLYNN: It is an abdication of the Fifth Amendment
right.
MR. CHIEF JUSTICE WARREN: That’s what I mean.
MR. FLYNN: Because of the total circumstances existing at
the time—the arrest, the custody, the lack of knowledge, the—
MR. CHIEF JUSTICE WARREN: In fact, we have had cases of
that kind, that confessions were had, haven’t we, where they said it would be
better for you if you do; we’ll let you go; and so forth?
MR. FLYNN: That, of course, is an implied promise of some
help or immunity of some kind.
MR. CHIEF JUSTICE WARREN: Yes, but that isn’t strictly
compulsion that we have been talking about?
MR. FLYNN: That certainly is not compulsion in the sense
of the word, as Mr. Justice White had implied it.
MR. JUSTICE BLACK: As I recall, in those cases—I agree
with the Chief Justice—as I recall, in those cases that was put under the Fifth
Amendment, and the words of the Fifth Amendment were referred to in the early
case by Chief Justice White, I believe it was, and the fact that inducement is
a compulsion and was brought in that category, and therefore it violated the
Amendment against being compelled to give evidence against yourself.
MR. FLYNN: I am sure Mr. Justice Black
has expressed it far better than —
MR. JUSTICE BLACK: So it’s a question
of what “compel” means, but it does not depend, I suppose—I haven’t seen it in
any of the cases—on the wealth, the standing, or the status of the person, so
far as the right is concerned.
MR. FLYNN: Yes, I think perhaps that
was a bad choice of words, in context, if Your Honor please, at the time I
stated them.
I would like to state, in conclusion,
that the Constitution of the State of Arizona, for example has, since
statehood, provided to the citizens of our State language precisely the same as
the Fourth Amendment to the Federal Constitution as it pertains to searches and
seizures. Yet from 1914 until this Court’s decision in Mapp v. Ohio, we simply
did not enjoy the Fourth Amendment rights or the scope of the Fourth Amendment
rights that were enjoyed by most of the other citizens of the other states of
this Union, and those persons who were under Federal control.
In response to the Amicus
for New York and the Amicus for
the National Association of Defense Attorneys that would ask this Court to go
slowly and to give the opportunity to the states, to the legislature, to the
courts and to the bar association to undertake to solve this problem, I simply
say that whatever the solutions may be, it would be another 46 years before the
Sixth Amendment right in the scope that it was intended, I submit, by this
Court in Escobedo, will reach the
State of Arizona.
We’re one of the most modern states in relation to the
adoption of the American Law Institute rules. We have a comparable rule to Rule
5. To my knowledge, there has never
been a criminal prosecution for failure to arraign a man. And there is no
decision in Arizona that would even come close to the McNabb or Mallory Rule in
Arizona. In fact, the same term that Miranda
was decided, the Arizona Supreme Court indicated that despite the necessity
and requirement of immediate arraignment before the nearest and most successful
magistrate, that Mallory v. McNabb did not apply.
MR. CHIEF JUSTICE WARREN: Mr. Nelson?
ORAL ARGUMENT OF GARY K. NELSON, ESQ.,
ON BEHALF OF THE RESPONDENT
MR. NELSON: Mr. Chief Justice, may it
please the Court, counsel:
I’m somewhat caught up in where to begin. I think perhaps
the first and most important—one of the most important—things to say right now
is concerning Mr. Flynn’s last remarks. I, as a prosecutor, even of only short
duration, take serious issue—as strenuous issue as I can take—before this
Court, in the statement that it will take another 46 years in the State of
Arizona for the right to counsel to become full-blown. I just simply think there
is no reason for that statement to be made. If there is any reason for it to be
made, or any possible justification for it to be made, then there is no point
in going any further.
One issue that might be a good starting point is
concerning the description of the Arizona court’s supposed “off-the-cuff”
referral to, or ignoring of, the Escobedo
decision, or the attempt to void it clearly. There is no such thing in the
Arizona Supreme Court opinion, and a reading of it shows that they agreed that
they must follow this Court, not begrudgingly.
They
simply stated that it’s a fact, and then in exploring the case of Escobedo in the case of Miranda they try to find out what
happened in Miranda, what the case of
Escobedo says, and apply those
principles There’s no attempt to avoid, and I don’t think you can read it,
implicitly or otherwise, in the Arizona Court’s opinion. Clearly they did not
base it on a request. They did not say we have A, B, C, D, and E, and F wasn’t
present, therefore it’s not controlling. That is not what they said. They said
other courts in that jurisdiction had gone off on that particular area. They
mentioned that as a factor, but they discussed hundreds of—no, not hundreds -
many other factors in Miranda, which
differentiated it from Escobedo.
To
get to the facts in Miranda I think
it’s very clear from the record that Mr. Miranda, as an individual defendant,
does not particularly require any special rule. I certainly agree with Justice
Black 100 percent that the Fifth Amendment, the Sixth Amendment, and every part
of our Constitution applies to everyone - poor, rich, intellectual and so on.
There is no possible difference for differentiation.
I
don’t argue that. I don’t think any prosecutor of note argues it. But Miranda I think characteristically by
the petitioner, is portrayed in this light in an attempt to make something that
isn’t there. Sure he only went through the 8th grade, and one of the
psychiatrist said that he had an emotional illness.
I
might say that there is another psychiatric report. It’s not in the printed
record, and I just discovered it in my file, but it is in the record before
this Court - the record that was on appeal, and I would urge the Court to
advert to that psychiatric report, also. And as to the fact that Mr. Miranda could
not have made the statement that he made, I just don’t think there is any basis
for alleging that. The fact that he uses the medical words to describe the male
and female sex organ rather than some four-letter vernacular words that he
might have used, this doesn’t condemn him just because he knew those words and
maybe felt in this context in writing the statement that he could use them.
There is no indication in the record that the police put these words in his
mouth. The fact that this particular one-half inch penetration is something
that the police conjured up in his mind is just simply not supportable by the
record.
You read the psychiatric report that is in the record and
he said he was upset when he found out that she had not had sexual relations
before. Well, she told him that. The only way he found out was because,
obviously from the record, as he said, he was only able to make penetration
only a slight way simply because of the fact that the woman’s hymen had not
been ruptured. This is a clear fact that he knew why he made that statement and
why it was accurate, not a fabrication of the police officers.
MR. JUSTICE FORTAS: Mr. Nelson, on page 19 of your brief
you assert, “The petitioner was advised of his Constitutional rights,
specifically including his right to remain silent, the fact that his statement
had to be voluntary, and that anything he did say could be used against him.”
Is the only basis for that the printed legend in the confession that he signed?
MR. NELSON: No, I don’t believe I would have put in as
strong a statement concerning his right to remain silent had not we agreed to
stipulate to this other portion of the other record. But I believe that as long
as that’s in the record, I can make this statement because it’s supported in the
finding of the court, based on the interrogation of the officers, the testimony
of the officers in the trial that is actually before this Court concerning
their advise to him, and the findings of the Court based on his understanding,
the reading of the statement, the testimony coupled with this. I believe, then,
that the court below, which clearly found that to be true, that he had been
fully advised, had a proper basis for finding all of these to exist, except
that there is no quarrel that he was not specifically advised that he had a
right to counsel.
MR. JUSTICE FORTAS: Is it your position that the record
shows that he was advised of these rights somehow, some way, in addition to the
legend on his confession? That’s my question.
MR. NELSON: Yes.
MR. JUSTICE FORTAS: How? Where is that?
MR. NELSON: I believe the police
officers testified to the fact that they told him of his rights and that they
also, besides telling him—perhaps the record is a little unclear, in both
cases, as to exactly when it took place—but I believe the record supports a
statement that he was advised specifically by them of his rights and then he
was adverted to the paragraph and perhaps even again the paragraph was read to
him. But the record is not really all four-square. It is not that clear.
MR. JUSTICE FORTAS: Let us assume he
was so advised—and I understand you to say that the record is not clear on that
point—let us assume that he was advised of his rights. 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 whether he was advised only when he was
ready to sign the confession—the written confession? Does that make any
difference in the terms of the issues before us?
MR. NELSON: Assuming for a moment that some warning is
going to be required, or should have been given, then I would think that to be
of any effect it must be given before he had made any statements. Perhaps he
might have refused to sign the written confession. Certainly still, the oral
statement could have been introduced against him.
MR. JUSTICE FORTAS: So you think that the warning, if
necessary, has to be given prior to the interrogation?
MR. NELSON: At some meaningful time, right. I would think
it would have to be at some time prior to the fact that after—if they used it
before, of course the warning would mean nothing. If they could introduce what
they had obtained from the time before they gave the warning, and not
afterwards.
MR. JUSTICE FORTAS: Is it your submission to us that a
warning is necessary, before a confession, in the absence of counsel, can be
taken and subsequently introduced in the trial?
MR. NELSON: No.
MR. JUSTICE FORTAS: What is your Position on that?
MR. NELSON: My Position basically
is—concerning the warning - is that each case presents a factual situation in
which the Court would have to determine, or a court or a judge or prosecutor at
some level, would have to make a determination as to whether or not a
defendant, because of the circumstances surrounding his confession, was denied
a specific right—whether it be right to counsel, the right to not 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.
But I don’t think you can put it to one simple thing such as a warning, because
there are perhaps many more situations that we could think of where a warning
would be completely inadequate.
MR. JUSTICE FORTAS: Well, tell me some
of the factors that would be relevant in the absence of a warning.
MR. NELSON: His age, his experience,
his background, the type of questioning, the atmosphere of questioning, the
length of questioning, the time of day, perhaps—all of these factors.
MR. JUSTICE FORTAS: Do you think what
we ought to do is to devise something like the Betts and Brady rule,
special circumstances?
MR. NELSON: Well, I think that’s what
the Escobedo case indicates. In other
words, I am—of course my Opinion is biased—if it’s not something like that,
then it is an absolute right to counsel. I don’t think there can be any
in-between unless some other theory. Under the way I read the decisions of this
Court, if it is an absolute right to counsel, the same sort of right to counsel
that attaches—
MR. JUSTICE FORTAS: We’re not talking about right to
counsel. We’re talking about the warning. When is the warning necessary? As I
understand you, you say that if the warning is necessary, if it should be held
to be constitutionally necessary in the absence of counsel, then the warning
has to be given at a meaningful time.
MR. NELSON: I would think so,
certainly.
MR. JUSTICE FORTAS: And I then
proceeded to ask you to give us the benefit of your views as to whether a
warning was necessary. As I understand it, you say that you have to look at the
circumstances of each case?
MR. NELSON: I would say, not
absolutely.
MR. JUSTICE FORTAS: I ask you what are
the relevant circumstances in each case—the relevant circumstances to look for
in each particular case? And how about this particular case? Is the psychiatric
report to which you refer, Psychiatric Report No. 2, at material variance with
the one to which you are referring?
MR.
NELSON: I don’t think so. I’m not a psychiatrist, so I can’t say. I think both
reports say, in effect, the man has an emotional illness that should be
treated, but that he knew what was going on. Both the reports say his mental
faculties, whatever they were, were sharp, acute, and that he had no psychotic
disorders. They both say basically the same thing. I think the diagnosis in the
other report said a “sociopathic personality.”
MR.
JUSTICE FORTAS: So that if the Betts against
Brady test were applied in the way
that this Court did apply it prior to Gideon,
I suppose it’s quite arguable that Miranda, this petitioner here, was
entitled to a warning. Would you agree to that?
MR.
NELSON: It’s arguable. I have extensively argued the fact that he wasn’t of
such a nature, as an individual who because of his mental condition or his
educational background, as to require any more than he got. In other words, I’m
saying that he got every warning, except the right—the specific warning, of the
right to counsel. He didn’t have counsel. Counsel wasn’t specifically denied to
him, on the basis 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.
MR. JUSTICE FORTAS: Well, even if we
assume that he got all the other warnings, and putting aside the question of
the right to counsel, assume that the record does show that he got these
warnings, still is there any evidence - and I have to ask you again— does the
record show that he got it at what you would call a meaningful time?
MR. NELSON: Yes. I think the police officers - they were never pinned down, in other
words, as to whether at 11:30 when they went into Interrogation Room 2 they
immediately warned him. This was not pinned down by either side. But they did
say he was warned. And they went on to elaborate that he was warned I believe,
if my recollection serves me correctly, in response to a specific question
concerning the statement - they said that part of the statement was read to him
again.
Now I believe that the Court could find
from the record that he was warned at 11:30. If the warning is required in this
particular case to protect his rights, and it is found, as a matter of fact—
which the court below did not find—that it was not given until the written
statement, then I would suppose that it wasn’t given at the proper time.
MR.
JUSTICE FORTAS: Mr. Nelson, I certainly want your views and only your views,
and I don’t want to state anything unfairly, but am I correct in inferring from
what you have just said, in answer to my questions, that the State of Arizona
does agree that there are occasions when the United States Constitution
requires that a warning as to the right to remain silent must be given to a
person who is in custody, and must be given at a meaningful time? Do I
correctly state the position that you are presenting to us here?
MR.
NELSON: Not completely. I don’t think that the Arizona Supreme Court has worded
its holdings, and I cite to the Court the case that followed Miranda and referred back to it
concerning the point of waiver and they go on to expand on their thinking. I
don’t believe the Arizona Court has specifically said that warnings, as such,
are of a constitutional dimension. The court has said that in some cases
warnings may be required in a given case.
In fact, in the Goff
case, which I cite as the next case in the Arizona Court’s determination,
they say it’s important that all steps be taken at the earliest possible time,
when they are indicated by the fact situation, to ensure that the State doesn’t
overreach, and that the man is given every benefit of his rights under the
Constitution; but I don’t believe that they have yet said, as a constitutional
dimension, any specific warning at any specific situation need be given.
It is my argument concerning the
factors surrounding Escobedo that if Escobedo is a completely distinct and
separate determination of a Sixth Amendment right, as divorced from the Fifth
Amendment right, which I think is pretty hard to do, then in order for it to be
meaningful and effective—not just to the defendant but to the people of the
State, of the country—it’s got to announce a rule which forbids affirmative
conduct on the basis of police officers or prosecutors calculated in a given situation
to deny the man the implementation of his right, whether it be the right to
counsel or the right against compulsory self-incrimination.
As I understand it, there is no right
not to incriminate himself. The right is for him not to be compelled, whether
it’s subtle compulsion or direct, but it is still a right not to be compelled
to incriminate yourself. At least this is my understanding, and he doesn’t have
a right not to incriminate himself. He has a right not to be compelled to
incriminate himself by some means, either direct or devious. Now I think if the
extreme position is adopted that says he has to either have counsel at this
stage, or intellectually waive counsel, that a serious problem in the
enforcement of our criminal law will occur.
First of all, let us make one thing
certain. We need no empirical data as to one factor: what counsel will do if he
is actually introduced. I am talking now about counsel for defendant. At least
among lawyers there can be no doubt as to what counsel for the defendant is to
do. He is to represent him 100 percent, win, lose, or draw—guilty or innocent.
That’s our system. When counsel is introduced at interrogation, interrogation
ceases immediately.
MR. JUSTICE BLACK: Why?
MR. NELSON: Well, for one reason: first of all there are
several different situations, but assume counsel is immediately introduced and
he knows nothing about the case. He has not talked to the defendant. He has
been appointed, say, to an indigent defendant who says “I want a lawyer. I need
a lawyer right now. I don’t want to talk to you without a lawyer.”
He is given a lawyer. He talks to the
defendant. First of all he stops the interrogation until he can talk with him.
I would think, if he is going to represent him, he cannot allow him to say
anything until he finds out what his story is, what he is going to say, and how
it is going to affect him. So the interrogation would immediately stop, for
that purpose. And after he has had an opportunity to confer with his
client—let’s assume another thing. Let’s assume the client said, “Yes, I am
guilty. I did it.” He had all the requisite intents. He makes a statement to
his lawyer in confidence that he did it, and asks his lawyer what he should do.
Well, the lawyer maybe doesn’t know his past history.
Maybe the lawyer would want to find out what the police have, if he can. So
maybe more time, in order to properly represent him, would be taken up
here—time when there would be no interrogation. Let’s further assume that he
advises his client, “Well, I think you ought to confess. I think there’s a
possibility for a light sentence. You did it. They have other evidence; or
maybe they don’t have any other evidence,”—let’s say they don’t have any other
evidence—”and you can confess.”
The fellow says, “Well, I don’t want to confess. I don’t
want to go to the gas chamber if I don’t have to. Is there anything else that
you, as my lawyer, can do for me?” Well, what has he got to tell him? Under our
system, he has got to tell him, “Yes, you don’t have to say anything. And the
fact that you don’t say anything can’t in any way hurt you, inferred or
otherwise, and we can put the State to its burden of proof.”
MR.
JUSTICE BLACK: Why does our system compel his lawyer to do that?
MR.
NELSON: He is compelled by the system to do this.
MR.
JUSTICE BLACK: Well, why does it do it? For what purpose? What’s the object on
the part of the lawyer?
MR.
NELSON: Because we believe that it’s right, and proper, that the criminal
defendant not be deprived of his life, liberty, or property, without due
process of law.
MR.
JUSTICE BLACK: And something about giving testimony against himself.
MR.
NELSON: Right. I mean this is just one issue. The lawyer has to guard all these
rights. But I’m saying that the practical effect of introducing counsel at the
interrogation stage is going to stop the interrogation for any and all
purposes, except what counsel decides will be in the best interest of his
defendant. Otherwise, counsel will not be doing his job.
MR.
JUSTICE BLACK: Isn’t that about the same thing as the practical effect and
object of the Amendment, which says he shall not be compelled to give testimony
against himself? Is there any difference between the objects there, and
purposes of the two— what the lawyer tells him, and what the Fifth Amendment
tells him?
MR.
NELSON: Well, certainly that’s the object of what his lawyer tells him.
MR. JUSTICE BLACK: Isn’t that the object of the Amendment?
MR. NELSON: Well, that is the question, of course. The
Fifth Amendment, he has the right never to be compelled to incriminate himself
at whatever stage, and this is, of course, involves a knowledgeable
implementation of that right at this time, if he wants to.
What I am saying is that the State does
not have to, at this stage, insist on that right being enforced or waived,
because the pre-trial police interrogation does more than just develop
confessions. It develops incriminating statements. It develops exculpatory
statements which pin a story down to a defendant very closely after the crime
is committed, or very closely after he has been taken into police custody,
which prevents or effectively makes it unprofitable for him to perjure himself
or change his testimony at trial should he take the stand.
MR. JUSTICE BLACK: Is there anything fantastic in the idea
that the Fifth Amendment—that the protection against being compelled to testify
against oneself—might be read reasonably as meaning there should be no
pre-trial proceedings when he was there in the possession of the state?
MR.
NELSON: Of course to me, I think there is. I think there is a valid interest—
MR.
JUSTICE BLACK: There is a valid interest, of course, if they can convict
him—and that’s their business, to try to convict him.
MR. NELSON: Right. But I think this is another argument
that I think must be made. Our adversary system, as such, is not completely
adversary even at the trial stage in a criminal prosecution because Canon Five
of the Canons of Ethics of the American Bar Association—which are law in
Arizona by rule of court—says that the duty of the prosecution is not simply to
go out and convict, but it is to see that justice is done.
In my short time, I have gotten as much
satisfaction out of the cases in which I was compelled to confess error in a
case where a man had been deprived of his rights of due process as I got
satisfaction out of being upheld in a tight case in a court.
MR. JUSTICE FORTAS: Do you give defendants access to the
State’s evidence against him in your State?
MR. NELSON: Mr. Flynn would tell you more about that at
the trial level. I don’t believe that the rule has been interpreted very
broadly. I think it has been interpreted narrowly. I think he can get his own
statements and perhaps he can get the police officers’ reports. There is a rule
providing for motions, but the judges, as I understand it, have construed it
fairly narrowly.
MR. JUSTICE FORTAS: So that it is
possible to speculate, isn’t it, that the State has limitations - places
limitations upon its obligation to cooperate with the defendant, as witnessed
by the denial of discovery to the defendant, discovery of the evidence that the
State has against him?
MR. NELSON: Yes. Of course I’m sure the
prosecutors would go along 100 percent with full discovery for both sides.
MR. JUSTICE FORTAS: Maybe the
prosecutors that you know.
[Laughter.]
MR. NELSON: The defendant, of course,
is compelled to no discovery, no ordinary discovery procedures in the scope we
think of them in a civil case. I just say that I am not sure that the analogy
is completely -
MR. JUSTICE FORTAS: What I was drawing
your attention to is that there are, in our system, limitations upon the degree
of cooperativeness on both sides. It’s not just that the arrested person has,
under the Constitution, a Privilege against self-incrimination; it is also that
the state, when it assumes an adversary position even before that time, takes
advantage of certain “reticence,” shall I say, with respect to disclosure to
the accused.
MR.
NELSON: It surely does. But there is no compulsion. In fact, the compulsion is,
to the contrary, on the defense side to cooperate, whereas there is complete
compulsion - at least by my interpretation of the law—for the prosecutor to do
as much, if it’s available to him, to show that the defendant is innocent, as
there is to prove he is guilty.
MR.
JUSTICE FORTAS: I think we have established, in this colloquy, that complete”
is a little bit of an overstatement
MR.
NELSON: It doesn’t always work that way. I am sure that’s the case.
Here
again is another point. This is no reason, I don’t think, for a constitutional
rule which would, in effect, take care of what I consider to be exceptions to
the rule rather than the general practice.
I
might just say, since I notice that my time is about up, counsel made a
statement to the effect, in answer to a question of one of the Justices - and I
forgot which one—something about why Miranda talked; that “maybe he was raised
to tell the truth; in our society you’re raised to tell the truth and respect
authority.” This brings another thing into play, I believe, which is vitally
important - and the prosecutors in my State consider it so—that if, in fact,
you either have counsel or you don’t, it thereby seriously circumscribes
interrogation and confession. You eliminate an early part of one of the most
important principles, hopefully, in our criminal law. And that is not just to
convict, not just to deter or not just to put somebody away, but to
rehabilitate them, and at the earliest possible moment. I don’t have that many
personal experiences, but we had a meeting of the prosecutors in our State.
Many of the cases involving confession and the pre-trial interrogation were the
cases where a man has at least admitted he has done something wrong. These were
cases where the defendants were much more susceptible to rehabilitation, at
this stage, and if you foreclose this, then you develop an attitude in the
police officers—you take the personal attitude away.
Many a hardened police officer, when he has developed a
case of tremendous circumstancial evidence against a man, and yet the man sits
there and keeps telling him “I didn’t do it,” he is going to wonder. There is a
personal factor there. He is going to wonder “Why doesn’t this man confess? Why
doesn’t he say something about doing it?”
Even assuming, arguendo,
it is not coercion—and I have no argument that whatever is considered
coercion, whether it’s subtle or otherwise, should not be used. Assuming the
interrogation is good, except for that. He is going to wonder, and maybe he is
going to go out and examine that eye witness who saw him at 2:00 o’clock in the
morning under a dark street light, and examine that other evidence, because he
wonders—that personal element— he ought to confess. Here is all of the
evidence. It’s a prima facie case.
This is wiped out completely if you terribly circumscribe this particular
pretrial investigation. This particular personal element is out, and he can
say, “Well, I got the evidence. Maybe he’s guilty or maybe not. I didn’t talk
to him. I don’t know how he acts or how he turns up.” And I think defendants
could be hurt as much as the prosecution.
MR. CHIEF JUSTICE WARREN: General Taylor?
ORAL
ARGUMENT OF TELFORD TAYLOR, ESQ.,
ON
BEHALF OF THE STATE OF NEW YORK
MR. TAYLOR: Mr. Chief Justice, Members of the Supreme
Court:
The State of New York is appearing not only in the present
case, the Miranda case, but in the
ensuing four cases that have been scheduled for consecutive argument in which
these problems of the right to the assistance of counsel are raised. I think
the State has appeared here as amicus on
numerous previous occasions when there has been a constitutional question in
the general field of criminal procedure. The nature of our interest is stated
in the opening pages of our brief, and I do not believe I need to elaborate on
that orally.
I should add that I believe the brief
has been circulated to the other states, and has been joined by something over
half—I think about 27 of the states, as well as Puerto Rico and the Virgin
Islands.
I will try to say what I have to say in
less than the allotted time. My task of brevity is easier because some of the
things I might otherwise say, I think, will be said much better by others, and
I will also try to say a few things that I, as I read the briefs, thought no
one else is going to say, or at least say in the same manner.
The factor common to all five of these
cases is that a confession was received in evidence which was taken when
counsel was not present and when there had been no waiver of counsel. And
therefore a contention runs commonly through all five of them. That is the one
that emerged, I think, most clearly from Mr. Justice Black’s question as to
whether this is a matter of constitutional dimension under the Fifth Amendment,
or for that matter the Sixth, or the due process clause.
MR. JUSTICE BLACK: You said “one thing in common.” Is
there another thing in common as to where they were when the confessions were
made?
MR.
TAYLOR: Well, they were all in detention.
MR.
JUSTICE BLACK: All what?
MR. TAYLOR: All in a state of detention, yes, sir. Other
than that, there is quite a spectrum of circumstances that these cases reveal.
The surrounding circumstances are not uniform.
Now, may I just state what the thrust
of our position is, very briefly, before indicating likewise its limits and why
we are taking this position? Our contention is that insofar as these cases
present a constitutional claim that a valid confession cannot be taken unless
counsel is present or has been waived, that that claim in constitutional terms
in the constitutional dimension is not sound. In other words, Justice Black’s
question we would answer in the negative. The Fifth Amendment cannot, and
should not, be read as requiring counsel to be present at the time the
confession is taken. I will come to my reasons for that very presently.
Our secondary position is that if the
Court should decide to enunciate a rule of that sort in constitutional terms,
or other new rules pertaining to the validity of pre-arrangement confessions,
those should not be applied retroactively but should be prospective only.
Now, before speaking in support of
those two positions—and I intend to spend most of my time on the first one—may
I make clear the limits of our position here and what we are not saying,
because I think this is of almost equal importance. We are not taking any
position for either affirmance or reversal of any of these five cases. That is
because all five of them, as we see it, involve problems—or possible
problems—that go beyond the limits of our contention here.
In the Miranda case that’s just been argued, there is obviously division
of opinion about the characteristics of the defendant about whether the warning
which Mr. Justice Fortas’ questions were directed to was given at a meaningful
stage—what the significance of that warning is, in legal terms.
The other five cases involve questions
of trial procedure in which we are not presently interested. They also, two of
them, involve a long period of detention from which counsel are making
arguments derived from the McNabb-Mallory
principles. We are not taking a position on those matters and therefore we
could not say that in any one of these five cases we are supporting an
affirmance of reversal.
Secondly,
may I make it quite clear that we are not saying that new rules about requiring
counsel to be present when an investigation is taken—when an interrogation is
made or a confession taken—we are not saying that such rules are necessarily
unwise, without merit. We say that these are not matters of constitutional
dimension. But we do not say that they might not be very wise rules to adopt.
In fact, we are saying that this whole problem of the assistance of counsel at
the pre-arraignment stage can, we think, be more appropriately and perhaps
better dealt with in the legislative dimension and in the area of judicial
policy, rather than on purely constitutional terms.
Now, of course, insofar as we say there is no
constitutional basis here, our position outs against the defendant’s. But, as I
repeat, we are not making a position against such rules found in other ways,
through legislative means, through judicial policy, or otherwise.
Now, may it please the Court, the
inclusion of these five cases of one Federal case, the Westover case, No. 761, I think underlines this distinction that I
have been endeavoring to state, and it also discloses the one respect in which
I think our position departs from that taken by the Solicitor General. As a
Federal case, this being a confession taken by Federal agents introduced in
evidence in a Federal prosecution, I would suppose that the Westover case is susceptible of
disposition in non-constitutional terms under this Court’s Federal supervisory
jurisdiction, as enunciated in the McNabb-Mallory
cases, and that general line of authority.
As I read the Solicitor General’s briefs,
however, he is saying not only that the Constitution does not raise a
requirement of the presence of counsel, but is also saying that such a rule
should not be laid down by this Court as a matter of judicial power, the way it
was done in McNabb and Mallory.
Our position does not extend to that
second step. We do not take any position, one way or the other, on it. I think
it entirely appropriate to say, though, that that would be a dimension in which
we would consider this Court might very appropriately deal with the matter.
MR. JUSTICE FORTAS: Can we do that, with respect to the
states?
MR. TAYLOR: No, Mr. Justice Fortas. I was pointing out
that the Westover case brings that
out. It’s only in the Westover case
that you can do that.
MR. JUSTICE FORTAS: I understand that. What you’re saying
is that we might lay down such a rule, some way, somehow, short of a
constitutional basis for the Federal Courts, and leave the state courts alone;
and that is what it comes down to.
MR. TAYLOR: That’s correct. The states are, of course,
affected only by the constitutional dimension. The Federal Courts are subject
to a broader range of review. I might add that in New York our own Court of
Appeals has noted and acted upon this very distinction between decisions in the
constitutional dimensions and decisions in the domain of judicial policy.
MR. JUSTICE FORTAS: What’s the difference between this
problem, in those terms, and the problem that this Court handled in Gideon the problem of the right to counsel?
MR. TAYLOR: Well, if Your Honor is asking what the reasons
for drawing the distinction between the trial stage and the pre-trial stage may
be—
MR. JUSTICE FORTAS: Yes, in the terms of what you are
discussing. In other words, would New York State have taken the position that Gideon was wrongly decided?
MR. TAYLOR: Wrongly decided? No. Indeed, in New York State
this would be treated, now, as a matter of constitutional requirement. There is
no question about that in my mind.
MR. JUSTICE FORTAS: Well, in the Court’s mind, General.
[Laughter.]
MR.
TAYLOR: That is the pre-arraignment right to counsel. New York State held,
prior to Escobedo, Mr. Justice
Fortas, that where, as in Escobedo, there
is an inference by the police authorities with the access of counsel to his client,
that in the constitutional dimension this was a violation of the defendant’s
rights.
This case is cited with approval in the Escobedo decision. Just last year it
went further than that in the Court of Appeals and held that if there is a
telephone call from counsel to the police authorities asking that there be no
more questioning of the client, that any questioning that takes place after
that cannot result in admissible admissions or confessions. But when the
further question was raised in a case where counsel arrived at the station
while a confession was being taken, the State made the contention that that
part of the confession that took place before counsel arrived could be
admitted, and not the latter part.
MR.
JUSTICE FORTAS: General, I don’t want to take any more of your time. I just
want to say that I think the problem is whether it’s not too late in the day to
make that kind of a distinction. I’m asking the question: That is to say, that
once this Court has made the rulings that it has made in Gideon and Escobedo, I
wonder if it’s still of much avail to argue that we ought to draw the kind of
line you are suggesting here?
MR. TAYLOR: Well, that brings me back
to Mr. Justice Black’s question and its relation to the ones you have been
putting, Justice Fortas. And that is, whether there is anything in the
Constitution, either in the Sixth Amendment assistance of counsel clause, or in
the due process clause, or in the protection against self-incrimination,
whether any of those clauses together or conjointly should be read as requiring
counsel in the pre-arraignment stage.
Now it seems to me that if one is going
to approach that question, one must enunciate a constitutional theory. Are we
looking to history and original meaning of the Constitution, or are we looking
to contemporary standards? Is the Constitution to be treated as fluid, with
different and perhaps more rigorous meanings obtained by common consent at a
later time, or are we to look to the original understandings, as it has been
called? Now, I suggest, with all respect, Mr. Justice Fortas, that in those
terms it’s very difficult to support the contentions being made here, and the
situation is quite different from Gideon—quite different.
I forget the exact number of states
that already were furnishing counsel in all criminal trials at the time of Gideon, but my recollection is that
there wasn’t more than a handful that weren’t already doing this, as a matter
of state practice. Therefore, one had a very broad practice and consensus in
the states on this very point. The same thing, if I may say so, was true in the
Mapp case, to a lesser extent. In Mapp you had about half the states that
were applying the exclusionary rule, and the trend was solidly in that
direction. California had changed its rule between Wolf and Mapp, so that in
both of these situations you had a solid basis in practical experience in the
states—and, really, your decision is not revolutionary, in these terms.
In the dimension that we are now
talking about, I don’t know of a single state that presently excludes
confessions that are taken pre-arraignment in the absence of counsel. I don’t
think there is such a jurisdiction.
MR.
CHIEF JUSTICE WARREN: Isn’t it a fact that most of the states have a regulation
that the prisoner shall be taken, forthwith, before a magistrate and there
advised of his rights, and so forth? And doesn’t practically every state in the
Union have laws preventing people from being compelled to testify against
themselves?
MR.
TAYLOR: Indeed that is so, Mr. Chief Justice.
MR. CHIEF JUSTICE WARREN: So in that respect we are not
much different from Gideon, are we?
There are just an awful lot of states that weren’t giving counsel up to the
time of Gideon. They had the rule on
it, maybe, but they weren’t according counsel to them?
MR. TAYLOR: My understanding is that at the time of Gideon all but a very few states were,
indeed, according full right of counsel at the trial stage, which is what Gideon related to, and what I am saying
is that we have no such basis in precedent in the established practice when we
are coming to the pre-arraignment stage.
MR. JUSTICE FORTAS: That is not constitutional doctrine.
That is something that indicates wisdom. But that’s not the same thing as
saying that—that’s not addressed to the question of the historical
interpretation of the Constitution.
MR. TAYLOR: No, indeed. On the basis of historical
interpretation, I think one would be hard-put to it to find any basis for
finding the right to counsel at the pre-arraignment stage, and much less the
right to be furnished counsel if you are indigent, and therefore it seems to me
the stronger argument for the claim advanced here is not the historical basis,
but the common consensus basis. And it is on that basis that I was suggesting,
Mr. Justice Fortas, that we don’t have the Gideon
situation here at all. This Court is being asked to enunciate a rule for
which there is no basis in the practice.
MR. JUSTICE FORTAS: I believe that in Gideon there was no claim made that the result arrived at in Gideon was based on an historical
interpretation of the Constitution. It was based upon a reinterpretation of the
general constitutional guarantees.
MR. TAYLOR: And for that reinterpretation there was
abundant support in what one could see around one, and the commonly accepted
view that this was a very desirable and accepted thing. We don’t have that
here.
Thank you, Mr. Chief Justice.
MR. CHIEF JUSTICE WARREN: General, you haven’t gotten to
your second point, and there are only two or three minutes until closing time.
Would you mind addressing yourself to that on the question of retroactivity?
MR. TAYLOR: On retroactivity? Well actually, Mr. Chief
Justice, that point flows, I would think as a matter of logic, from our first
proposition—if that be accepted. If, as we see it, this is not a constitutional
claim based on an original understanding, if this is a matter that will be
evolved from contemporary practice and changing standards, why then it seems to
me that to apply such a rule retroactively presents considerable conceptual
difficulties, and I find no conceptual difficulty in a prospective application.
The Court has confronted this now twice, in Linkletter
and Tehan. We have set out in our
brief the reasons why it seems to us the considerations the Court went on there
are applicable here.
I might say, also, that if we are to
hope for legislative progress and action within the states by their own courts,
why a principle of retroactivity may be a damper on change and improvement,
rather than a stimulus to it. This would tend to freeze things and make people
reluctant to develop new practices if everything else has to be unwound, going
all the way back to the beginning, to make the new practice prevail.
MR. CHIEF JUSTICE WARREN: Very well. We will adjourn.
[Whereupon, at 2:30 o’clock p.m., the
hearings in the above-entitled matters were recessed to reconvene at 10:00
o’clock a.m., March 1, 1966.]
PROCEEDINGS
CHIEF JUSTICE WARREN: No. 759, Ernesto A. Miranda, petitioner, versus Arizona
THE CLERK: Counsel are present.
MR. CHIEF JUSTCE WARREN: Mr. Nedrud?
ORAL
ARGUMENT OF DUANE R. NEDRUD, ESQ.,
ON
BEHALF OF NATIONAL DISTRICT
ATTORNEYS
ASSOCIATION, AMICUS CURIAE
MR. NEDRUD:Mr. Chief Justice, if it please the Court:
My name is Duane Nedrud. I am counsel
for the amicus National District
Attorney’s Association. My co-counsel is Miss Oberto. I thought that her
presence might show that prosecuting attorneys aren’t all bad or she wouldn’t
be working for us on a full time basis.
If I may use some words of one of the
Justices of this Supreme Court, “The Escobedo
decision and the Dorado interpretation
makes it more necessary than ever that we stop and look where we are going. If
we are talking about equality between rich and the poor, we are striving for a
worthy objective. If we talking about equality between the policeman and the
criminal, we are on dangerous ground.”
I would remind this Court that we are
not talking about the police versus the defendant. We are talking about the
people versus the defendant. In the same way that we would not talk about the
Army or the Marine Corps versus the Viet Cong, but we would talk about the
United States versus the Viet Cong.
I have not mentioned in my brief
anything about the Fifth or Sixth Amendment. I concede that this Court can
interpret Amendments in the way that it sees fit. I am willing to agree with
the ACLU in their brief, in one point where they quote me, although they do
misquote me when they refer to Malloy and
Hayes in substitution form, on pages
26 of their brief, instead of Haley and
Payne, whom I consider entirely
different; that an admonishment in the Dorado
interpretation will not materially affect confessions.
If this is to be our objective—to limit
the use of the confession in criminal cases—then you are taking from the
police a most important piece of evidence in every case that they bring before
a court of justice. Police officers are public servants. They are not
attempting to put innocent people in jail. They want to follow the dictates of
this Court, and they will follow them to the best of their ability, but they
too are human beings. They do have, however, an experience and knowledge which
many of us lack, because this is their job—the investigation of crime—and we
have not, as lawyers, paid attention to their problems. We have seldom been
down to the police station and asked, “What can we do to assist you in your
problems?”
We are more inclined—and I talk about
the prosecuting attorneys, and I am not referring to this Court any more than
any other lawyer in the United States.
If I may use the present case of Miranda as an example, the defense
admits that there is a voluntary confession. He says that we should not allow
this confession because he did not have counsel present, because we would not
have been able to convict him, because there was no other evidence except his
own voluntary statement that his male organ had penetrated a half an inch.
Otherwise, he would have been acquitted.
Is this what we are looking for, to
acquit Miranda because he did not
have counsel? The amicus here has
presented data covering thousands of man-hours on the part of the members
attempting to show the widespread use of confessions. I am not saying that the
widespread use of confessions justifies their use. I am just attempting to
present to you, through our members, the importance of the confession in our
criminal administration of justice.
I believe that there is something
beyond that which we are discussing here. I think that there is a need—and I
have mentioned this, and I pray for it—that all public servants: law
enforcement officers, prosecuting attorneys, trial courts, and Members of this
Court, work together. We are not adversaries. There is a need, I think, on the
part of the people, to be able to refer to “my policeman,” “our police,” “my
court,” and not “those cops.”
MR. JUSTICE FORTAS: Do you think we ought to overrule Escobedo?
MR. NEDRUD: Sir?
MR. JUSTICE FORTAS: Is it your position that we should
overrule Escobedo?
MR. NEDRUD: If I knew what Escobedo meant, I may say so, but I have said in my brief, Mr.
Justice Fortas, that I think that Escobedo
should never have been appealed in the facts of the case. I think that this
Court rightly reversed the case on the facts.
MR. JUSTICE FORTAS: Well, you’re not urging that we
overrule Escobedo?
MR. NEDRUD: No, sir. It’s our system of justice, in
effect, which we need as a matter of change. I do not attempt to say that
defense counsel is wrong when they attempt to do the best they can for counsel.
This is our system of justice.
But I could tell you, for example, in
the State of New York, that when the defense counsel is picked by those who are
in the profession of crime—if I can use this—that they wonder who is “hot,” for
example, in winning cases now, and they are picked almost as if they were
racehorses, because now they are winning. There is nothing so fickle as a
criminal defendant. He wants only one thing. He wants to win. Now if a
prosecuting attorney only wants to win, then we should not have that
prosecuting attorney in office. We should make a change.
MR. CHIEF JUSTICE WARREN: May I ask you this, please, Mr.
Nedrud? If you agree on the facts that Escobedo
should have been reversed, what would you say as to the man who did not
have a lawyer but who said he wanted a lawyer before he talked?
MR. NEDRUD: If he asked for a lawyer, and he does not
waive his right to counsel, I think that he should have a lawyer. I think that
even the state should—I would go so far as to say that I think the state should
appoint him a lawyer, if he asks for a lawyer. I do not think, however, that we
should in effect encourage him to have a lawyer.
MR. CHIEF JUSTICE WARREN: Why do you say we should not
encourage him to have a lawyer? Are lawyers a menace?
MR. NEDRUD: Mr. Chief Justice, a lawyer
must in our system of justice attempt to free the defendant. This is his job.
MR. CHIEF JUSTICE WARREN: Because it is
his professional duty to raise any defenses the man has?
MR. NEDRUD: Yes, sir.
MR. CHIEF JUSTICE WARREN: Do you think,
in doing that, is a menace to our administration of justice?
MR. NEDRUD: I think he is not a menace at the trial level.
He is not a menace, per se, but he is, in doing his duty, going to prevent a
confession from being obtained.
MR. CHIEF JUSTICE WARREN: When does he cease being a
menace?
MR. NEDRUD: Mr. Chief Justice, I did not say he was a
menace.
MR. CHIEF JUSTICE WARREN: You said he was if he
interjected himself into it before the trial level.
MR. NEDRUD: I merely said he would prevent a confession
from being obtained. And if this is what we are looking for, we should appoint
a counsel even before the arrest stage, because the moment that a murder takes
place the Government is out looking for the criminal.
MR. CHIEF JUSTICE WARREN: If a lawyer, as you say he is
entitled to a lawyer under the facts of Escobedo,
and the lawyer is entitled to tell him that he doesn’t want him to talk to
the police, why would it be a menace for another lawyer whom the defendant
didn’t want, to do the same thing?
MR. NEDRUD: Mr. Chief Justice, I am not disagreeing with
you one iota. I am just saying that if, in effect, this is what should be
done—if you want to equalize, for example, the defendant’s right against the
policeman—naturally he should have counsel if this is what we are striving for.
MR. CHIEF JUSTICE WARREN: Well, suppose we put it on the
basis of not equalizing anything, or balancing anything, but on protecting the
constitutional rights of the defendant not to be compelled to convict himself,
on his own testimony.
MR. NEDRUD: Mr. Chief Justice, I of
course do not interpret the Constitution. This is, of course, your prerogative,
sir.
MR. CHIEF JUSTICE WARREN: How do you
interpret it?
MR. NEDRUD: I do not interpret it that the defendant is
entitled to a lawyer, until the trial stage.
MR. CHIEF JUSTICE WARREN: Until the trial starts?
MR. NEDRUD: Yes, sir.
MR. CHIEF JUSTICE WARREN: Where do you set that authority?
MR. NEDRUD: As I read the Constitution—you asked me my
opinion, and I said I have no authority to interpret the Constitution—I am
saying that this is the way I read the Constitution.
MR. CHIEF JUSTICE WARREN: Has that been the way the Court
has read the Constitution in days gone by?
MR. NEDRUD: I believe so.
MR. JUSTICE DOUGLAS: Counsel, everybody knows that if he
is appointed a lawyer at the beginning of trial, then the lawyer can’t possibly
represent him. He needs time to prepare for the trial, so the appointment must
be at some point anterior to the trial. Our question here is at what point? How
far anterior?
MR. NEDRUD: Mr. Justice Douglas, I am not concerned when
the lawyer enters the stage, and maybe part of our problem is that the
prosecuting attorney enters before he should.
MR. JUSTICE DOUGLAS: Under the procedures in some states,
as you well know, very important rights can be lost many days, many weeks prior
to the trial. We come down to the question, which begins with the Constitution,
concededly—I think we’d say “concededly”—everyone is entitled to a lawyer at
the trial, and also at some point anterior to the trial.
MR. NEDRUD: The question comes, I think, Mr. Justice
Douglas, to whether or not we are going to allow the trial court to determine
the guilt or the innocence, or the defense counsel. If the defense counsel
comes in at the arrest stage, he will, as he should, prevent the defendant from
confessing to his crime, and you will have fewer convictions. If this is what
is wanted, this is what will occur.
MR. JUSTICE BLACK: I guess there is no doubt, is there,
that the provision that provides for protection against compelling him to give
testimony has a consequence of fewer convictions?
MR. NEDRUD: Mr. Justice Black, this is true. Moreover,
again we are talking about the voluntary-involuntary rule, and I have not
questioned this whatsoever. This is, I believe, a good rule. I have said that Mapp versus Ohio is a good rule. I believe, however, that there is a point of
diminishing returns and at some stage the police must be in a position to
protect us.
MR. JUSTICE BLACK: At some stage, according to our
opinion, he is entitled to a lawyer—at some stage. And we have said, as I
recall, that it’s at the stage when he needs it. At least after he has been
detailed. What about the point where a man is seized by Government agents and,
as you say, they are “our agents,” they are “our officers.” There is no
antagonism. But what about the fact that when they’re seized by someone who has
the power to detain him, keep him away from his friends and his relatives and
in seclusion if it’s desired? Can you think of any time when he needs a lawyer
more than at that point—at the point of detention?
MR. NEDRUD: Mr. Justice Black, again the question is are
we interested in convicting the defendant? Or are we interested in protecting,
or acquitting him? This is the only point that I can, in effect, make if you say
that this defendant needs counsel at this time.
For example, if I may use this
illustration: I worked when I was a professor of law—which I was, prior to
taking this position—I worked on the defense project for the American Bar
Association. In the questionnaire, there was a statement: “When is the ideal
time for counsel to be appointed for the defendant?” The question is, when is
the ideal time “for whom”? The people? Or the Defendant? Now if it is for the
defendant, then it is the earliest possible opportunity. If it is for the
people, it should not be until a critical stage. If it is White v. Maryland, I
agree it should be at the preliminary hearing stage. If it is the question of
arraignment, as in Alabama, I agree.
If it is at the trial stage, and he has lost none of his rights which can be
interpreted in one way or another, then I say that it should be at the trial
stage.
MR. JUSTICE BLACK: Well, as a prosecutor, I have found out
over many years that it’s a very critical stage when a person is taken to the
police headquarters. There is nothing wrong with it. That is part of our
government. A person is taken to police headquarters under arrest, under
detention. He can’t leave if he wants to, unless they let him. Would you call
that “voluntary” for him then—for them to have him there, in that situation,
and probe him about his probable conviction of crime? Would you think of that
as voluntary?
MR. NEDRUD: Being voluntarily in the police station? No.
MR. JUSTICE HARLAN: I suppose you would say, wouldn’t you,
it’s a question of fact for somebody to decide, in the context of different
circumstances that have arisen?
MR. NEDRUD: I would hope, Mr. Justice Harlan, that Court
has “protected,” as I referred to it in my brief, by an involuntary rule of the
totality of circumstances, and I hope that the Court would also continue to
invoke this rule, but not go so far as to prevent the police from protecting
us.
Thank you, sir.