First Among Equals (27 page)

L
IKE THE
F
OURTH
A
MENDMENT'S
exclusionary rule, the famous
Miranda
rule—fashioned by the Warren Court—has likewise held fast in the Burger and Rehnquist Courts.
Miranda v. Arizona
was a case about the Fifth Amendment, which provides in pertinent part that “no person … shall be compelled to be a witness against himself.” But the case took the law far beyond the familiar text of the Fifth Amendment. It was lawmaking by judicial interpretation. That it has been upheld by the more conservative Courts tells us how restrained and cautious the Rehnquist Court tends to be.

The now world-famous 1966 case involved a young man named Ernesto Miranda. Twenty-three-year-old Miranda was suspected of kidnapping and raping an eighteen-year-old woman. Arrested at his home, he was taken to a Phoenix police station. He was put in a lineup, but the victim was unable to make a positive identification. Showing less than robust self-confidence, Miranda then asked the police, “How did I do?” An astute policeman was not fully candid. “You flunked,” came the ominous reply. After two hours of questioning, Miranda confessed to not only the rape-kidnapping under investigation, but also the robbery and attempted rape of a second victim, as well as the attempted robbery of yet a third. He then wrote out his confession in longhand and signed a prepared statement acknowledging the voluntary character of his incriminating statements. At trial, Miranda's confession was admitted into evidence and he was convicted. After exhausting his state remedies, his case wound its way to the Supreme Court. The Warren Court reversed his conviction on the ground that the confession violated the Fifth Amendment privilege against compelled self-incrimination.

Miranda
is the most bitterly debated confession case in American history. Before
Miranda,
the issue of whether a confession should be admitted at trial was governed by a “voluntariness test.” Thus, courts inquired whether the confession was involuntary—that is, whether the defendant had been
forced
to incriminate himself. If so, a Fifth Amendment violation had occurred. In pursuing this question, courts looked at the “totality of circumstances.” In a word, they looked at everything.

Under the voluntariness test, there was no doubt that Miranda's confession would have been admissible. To be sure, Miranda had not been advised of his right to speak with a lawyer before answering police questions, nor of his right to have a lawyer present during the interrogations. But courts typically had not concluded that a confession obtained under these circumstances was involuntary. More important, the police in
Miranda
had not engaged in the kind of heavy-handed methods that in many cases had led courts to conclude that the confessions received had indeed been “coerced.”

In
Miranda,
the Warren Court simply created a new standard and then concluded that the defendant's confession had been obtained under circumstances that failed to satisfy that new standard. Indeed, the opinion began with a statement of the new rule—that police must give a person in custody certain warnings about his or her rights— and in due course proceeded to spell out those warnings. The reader probably knows them: Prior to any questioning, the accused must be warned that he has the right to remain silent; that any statement he does make may be used as evidence against him; that he has the right to the presence of an attorney; that if he cannot afford one, an attorney will be appointed; and that he can waive these rights but only in a knowing manner, yet if he does so and then indicates “in any manner and at any stage” that he wants to consult with an attorney, there can be no further questioning. These are the famous
Miranda
warnings, used by police ever since.

Miranda
was the Warren Court at its activist apogee. The decision embodied judicial legislation unapologetically aimed at bringing about reform in the conduct of law-enforcement investigations. It was a bold stroke to protect individual rights against the power of the police.

Miranda,
a 5–4 ruling, was then (in 1966) and now (even on rereading) a breathtaking decision. The majority opinion, written by Chief Justice Warren, reads less like a judicial opinion and more like a congressional report. Instead of starting with the facts of the case, including the circumstances of Ernesto Miranda's interrogation by the Phoenix police, Warren started with a panoramic survey of police methods throughout the country. It drew from police manuals, quoted generously from them, and canvassed case law from various states to show appalling examples of police excess. It drew from a report to Congress on the state of law enforcement. The Warren Court proceeded, in short, as if it were Congress, surveying the horizon to determine the state of the country in a particular field or subject matter.

The Court then reached the sweeping conclusion at the heart of
Miranda's
holding. Interrogation when an individual is in police custody is inherently coercive. The antidote? Procedures and safeguards must be employed to protect the person in custody against these inherent pressures and thus protect his Fifth Amendment privilege against being compelled to be a witness against himself. There would be no exceptions. Legislation tends to build in exceptions to general rules, but
Miranda
did not. No matter who the individual is, no matter how sophisticated, he must, said the Court, be afforded “adequate procedural safeguards.” All individuals are presumed vulnerable to skillful police methods designed to elicit confessions.

Chief Justice Warren began the Court's opinion reassuringly. “[O]ur holding is not an innovation in our jurisprudence but is an application of principles long recognized and applied in other settings.” This was not so, and surely Warren knew it. He had to justify this revolution in criminal procedure. To do so, the chief drew from the past, the Court's own decisions from yesteryear, in laying out the abiding judicial concern with coerced confessions. But after paying tribute to long-established Fifth Amendment principles (which no one was challenging), the Court took an unusual turn. Painting with a broad brush, the Court devoted page after page to police practices from long ago. It told a tale of violence, of beatings, hangings, whippings, and sustained, protracted questioning incommunicado. It pointed to the
Wickersham Report
to Congress in the early 1930s on “third degree” tactics employed by police. Drawing selectively, the Court described a then recent New York case in which “the police brutally beat, kicked, and placed lighted cigarette butts on the back of a potential witness” under interrogation for the purpose of securing a statement incriminating a third party.

This was a monochromatic, wildly distorted picture.

The Warren Court's recitation of case after dreadful case left the impression that the country was plagued with vicious police violence aimed at wrenching out confessions. A reader could not help but wonder how the new
Miranda
warnings could possibly have any impact in such a law-enforcement jungle. A lawless police department would surely cover up a
Miranda
violation if officers would engage in the kind of egregious misconduct cited by the Court. Take, for example, an Illinois case where the suspect “suffer[ed] from broken bones, multiple bruises and injuries sufficiently serious to require eight months' medical treatment after being manhandled by five policemen.”
Miranda
would accomplish nothing in this sort of reign of terror at the police station.

This recitation of horribles was entirely for rhetorical effect. For the Court indicated that police violence wasn't the order of the day, after all. The terrors that the Court had just laid out in the pages of
United States Reports
were “undoubtedly the exception now.” A reader might well ask: If this kind of unconscionable cruelty and abuse is the exception, why worry about fashioning a generally applicable, under-all-circumstances rule for every police department in the country?

As it happened, the Court, conceding that bad practices of yesteryear no longer prevailed, was really concerned about
psychological
factors, not physical brutality. “[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.”

The problem, the Court opined, was the setting of the interrogation. The suspect was alone. Beatings and similar tactics were largely a thing of the past, but “interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in interrogation rooms.” The Court assumed the role of a congressional oversight committee. In particular, the Warren Court wanted information about the realities of custodial interrogation throughout the country, but it was operating in the dark. The justices had moved entirely into a legislative mode. The
Miranda
Court was not focusing on the facts of the specific case at hand.

To be sure, there are times when courts are called upon to consider a broad set of facts going far beyond a simple dispute between two individuals or a person charged with a crime and the prosecuting authorities. School desegregation cases, by their nature, call upon courts to examine fact patterns in (at times) large, metropolitan districts. What are the city's demographic patterns? What are the conditions of the public schools within the school district? How do facilities and teacher qualifications vary from school to school? And so on.

But a criminal case comes down to specific facts involving identifiable individuals. Fifth Amendment rights are peculiarly personal and individual. At issue in school desegregation is the equality principle, with the state drawing lines based on race or ethnicity. In a criminal case, the individual's personal circumstances are at the core of the case. What happened at the police station? Was that individual's right to be free from having to be a witness against himself violated?

The Court's approach in
Miranda
was the ultimate in class-wide thinking. Earl Warren's opinion imagined the entire class of individuals across the country brought into police custody, and the Court then extrapolated as to the circumstances affecting all of them—including, say, a highly capable criminal defense lawyer who himself was arrested for a crime. They were all lumped together into the same mega-class.

But how to find the facts? In school desegregation cases, school officials, family members of students, and experts take the stand and testify, or they file detailed affidavits setting forth relevant facts. That process takes place in the context of a trial, where witnesses may be cross-examined. The Warren Court, in contrast, had no mega-trial record before it. Lacking anything other than the specific facts of Ernesto Miranda's interrogation, where he confessed to the rape as well as other crimes, the Court invented the record it wanted.

The “trial record” was a compilation of police manuals and texts. Page after page of the opinion was devoted to the methods of interrogation as set forth in those guides. And the Court was confident in its ability to discern nationwide reality from those manuals: “By considering these texts and other data, it is possible to describe procedures observed and noted
around the country.”
(Emphasis added.) The Warren Court was finding “facts” with no trial, no witnesses, and no opportunity for police departments to respond to the assumption that their methods in daily practice tracked the procedures set forth in the manuals.

The Court then treated the country to a formal primer in police methodology. Location, location, location, the real estate mantra, was also the polestar for successful police interrogation. Quoting from one police manual, the Court emphasized the interrogator's quest for a psychological advantage. And that meant finding the right spot for the questioning to occur: “’If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions of criminal behavior within the walls of his home…. In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.’”

The Court marched on to its anti-interrogation conclusion. Even without the use of physical force, “the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” Tellingly, the Court did not hint, much less conclude, that such confessions (or other statements that tended to inculpate the suspect) were unreliable. A confession extracted from an individual being subjected to beatings and the like was inherently unreliable. But this was not so with respect to confessions obtained under interrogation skillfully designed to get the suspect to commit an act of self-destruction—to confess to what he in fact did, knowing that the penalty for the offense might be quite severe. Reliable, yes, but nonetheless coercive. In-custody interrogation led to an atmosphere of “informal compulsion.”

The logic of the Court's conclusion, that in-custody questioning exacted a heavy toll on individual liberty in the form of “informal coercion,” seemed to suggest that custodial interrogation should simply be outlawed. If this kind of police tactic was so dangerous to individual liberty, as the Court emphasized, why not just end it? This argument, which echoes more contemporary assaults against the death penalty, was in fact advanced in the companion case to
Miranda
coming out of California. There, Los Angeles lawyer Bill Norris, a future Ninth Circuit Court of Appeals judge, had urged just such a rule.

But the Court would not go that far. Instead, by a 5–4 margin, the Court held that custodial interrogation was so inherently compulsive that specific warnings—the famous Miranda litany—had to be given in order to dissipate the otherwise unconstitutional compulsion. Custodial interrogation, although inherently suspect, could continue, but only with safeguards.