The Miranda “Revolution”
We have shown that, over the centuries, the confessions pendulum swung from permitting extreme coercion, or even torture, to the Hawkins-Leach dictum, and then to a rationalist model. Part of the fallout from the move to rationalism was the American third degree. We turn now to the United States Supreme Court doctrine that, with remarkable speed, moved back to a robust embrace of the Hawkins-Leach dictum, at least rhetorically. We saw the Court’s early confessions cases in chapter 4. Those were federal cases, where the Court could apply the common law rules or the Fifth Amendment privilege against compelled self-incrimination.
The Fourteenth Amendment requires states to provide “due process of law” before they “deprive any person of life, liberty, or property.”1 A state defendant can appeal to the United States Supreme Court claiming that his confession was admitted in error, thus denying him “due process of law.” But the Court was loathe to intervene in state criminal processes, as can be seen in its initial foray into the world of state court confessions cases. In 1907, the Court refused to review a claim that a confession was involuntary because it was made “while in the ‘sweat box’ of the St. Louis police department.”2 To be sure, the defendant’s lawyer did not properly preserve the federal claim, but the Court stated its holding in a way that seemed to preclude relief even to a properly pleaded claim: “[I]f, as decided, the admission of this testimony did not violate the rights of the plaintiff in error under the Constitution and laws of the state of Missouri, the record affords no basis for holding that he was not awarded due process of law.”3
The implication here, startling though it may be to modern readers, is that the Fourteenth Amendment due process clause did not regulate the admission of confessions but only required that state law be fairly applied. Viewed through a 1907 lens, this is not as odd as it might seem. For over a century in England, as we have demonstrated, the admission of confessions was regulated by common law evidence rules. The Court in 1907 likely thought that common law was the vehicle for regulating interrogations that were not included within the ambit of the Fifth Amendment privilege against compelled self-incrimination, which the Court had not yet applied to the states. Indeed, a year later the Court explicitly held that the self-incrimination clause was not part of the Fourteenth Amendment due process clause.4 If the common law and state constitutions were the only mechanisms regulating the admission of confessions, then the Supreme Court in 1907 could have believed that state involuntary confessions claims presented no federal issue.
It is difficult to know how long that extreme deference to state power would have lasted but for a series of horrific cases that came from the South. George Thomas has written about the Court’s failure in the early twentieth century to save defendants from Southern juries trapped in racist and anti-Semitic cultures.5 In 1932, the Court did save from execution nine young black men falsely accused of rape in Alabama.6 And in 1936, the infamous Brown v. Mississippi case came to the Court.7 The road to Miranda v. Arizona8 began in Kemper County, Mississippi on March 30, 1934, when a white man was discovered dead, killed by blows from an axe.9
Exactly one week after the March 30, 1934, murder in Mississippi, three black men had been arrested, indicted, convicted, and sentenced to hang.10 Their confessions were virtually the only evidence presented by the prosecution,11 and the defense established that the confessions were tortured from the defendants by a mob that included a deputy sheriff. The suspects were subjected to persistent whippings and hangings while being told repeatedly that the torture would continue until they confessed in the very words that the torturers demanded. In one episode, two of the suspects
were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers.12
The deputy who had participated in the torture was asked on the witness stand how severely one of the defendants had been whipped in his presence. He responded: “Not too much for a negro; not as much as I would have done if it were left to me.”13 As one of the dissenters in the state supreme court put it:
The facts are not only undisputed, they are admitted, and admitted to have been done by officers of the state, in conjunction with other participants, and all this was definitely well known to everybody connected with the trial, and during the trial, including the state’s prosecuting attorney and the trial judge presiding.14
One mystery is why the state supreme court affirmed a conviction based on a confession obtained by torture. Nine years earlier, in two cases also involving black defendants charged with murder, a unanimous Mississippi Supreme Court embraced the common law rule forbidding confessions taken by force or threat.15 In one of the cases, Fisher v. State, the court waxed eloquently about the need to protect against coerced confessions: “Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the inquisition, and other similar institutions.”16
But in Brown, a majority of the state supreme court looked the other way when the State admitted torture far worse than what justified reversal in the earlier cases. The justice who wrote the dissent in Brown was consistent; he wrote the opinion in one of the 1926 cases. The Brown majority sought to hide behind the bizarre decision of defense counsel to move to exclude the testimony about the torture. Presumably, defense counsel thought that the added details about the murder were more harmful than the testimony about the torture was helpful. The state supreme court took this procedural turn as a waiver of the right to object later to the admissibility of the confession. But Fisher had said that “while it is true that ordinarily the competency of a confession must be raised when the evidence is introduced, there are exceptions to that rule.”17 Certainly, the torture in Brown cried out for an exception to any waiver rule.
That was the position of the United States Supreme Court. The state’s waiver argument “is a contention which proceeds upon a misconception of the nature of petitioners’ complaint. That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void.”18 Why a majority of the Mississippi Supreme Court did not take that position, given the extreme torture and state precedents that permitted the court to ignore procedural errors, remains a mystery. Perhaps the statewide reaction to the murder was more intense in the Brown case than in the earlier cases, but we found nothing in our research to support that hypothesis.
Despite the horrific torture and the failure of the Mississippi Supreme Court to follow its own precedents, we are not making a claim that Brown should be understood as “the South was evil.” Indeed, Thomas has written about the heroism displayed by white Mississippians in Brown.19 The victim was killed by repeated blows from an axe, and it would have been easy for everyone to look the other way when the authorities tried the defendants. But the defendants received able counsel at trial and on appeal from white Mississippi lawyers, including a former governor of the state, and two members of the state supreme court did dissent. Moreover, the authorities prevented lynch mobs from taking matters into their own hands, both before trial and following the reversal by the United States Supreme Court. Neither Ed Johnson nor Leo Frank was so fortunate when convicted of capital crimes in Chattanooga, Tennessee in 1906 and Atlanta in 1915.20
Cases like Brown showed that it took horrific state conduct to persuade the Court to intervene in state criminal processes. While Brown was an easy case to justify federal intervention, it was the beginning of a long, largely unsuccessful doctrinal grind seeking to regulate police interrogation. In Craig Bradley’s memorable words, “Having opened the Pandora’s box of police interrogation procedures [in Brown], the Court was to find that it could never close it.”21
There are epistemological problems of the first order at the heart of the common law voluntariness doctrine. Courts have used different terms to describe inadmissible confessions without indicating whether they identify different problems. An involuntary confession given because of mental illness seems different from one that is coerced by police interrogators.22 A confession tricked from a suspect might be viewed as compelled but seems unlikely to be thought coerced. At a more fundamental level, all three terms assume that a court can isolate the will of the suspect and determine whether that will has been overborne. But, as Louis Michael Seidman has noted, “[S]ophisticated lawyers in the 1930s had read and assimilated determinist theories that made the very concept of free will problematic.”23 Following the determinists, “virtually all human conduct was coerced. Choice was always embedded in an external context that made one alternative more attractive than the other; context could always be said to coerce the more attractive choice.” Following Wigmore, “Even a person with a gun to his head retained the choice to refuse the demands of the gunman and suffer the consequences.”
Not long after Brown, the United States Supreme Court decided three state cases that lacked an admission of State violence. As we will see, these cases tested the notion of “voluntary” confessions along with other formalisms that marked nineteenth-century doctrine. As Seidman observed, the New Deal justices whom Roosevelt put on the Court were deeply skeptical of formalism—the most famous example of which was Lochner v. New York.24 In Lochner, the Court held in 1905 that freedom of contract was implicit in the due process clause. The “freedom of contract” formalism gave employees the “right” to decide how many hours to work and thus invalidated the New York statute limiting the hours that bakers could work. But in 1937, shortly after President Roosevelt introduced a plan to expand the size of the Court, Justice Owen Roberts changed his voting pattern and the Court upheld, 5 to 4, a state restriction of liberty of contract when necessary to protect the community.25 Thus ended the formalist notion that freedom of contract had a privileged status somehow “outside” the normal balancing of harm and benefit that attends legislating and judging.
The formalist category that concerns us is the idea that there is such a thing as an involuntary confession. [A]s “soon as the Court moved away from this polar case [of Brown,] the difficulties … that played so prominently in the New Deal critique of the Lochner era re-emerged.”26 As Robert Weisberg puts it, “What image of the autonomous human being do we believe in? The irony is that once modern … law eliminated the worst abuses of police interrogation, it finessed the question of the choice-making process of human beings regarding their willingness to submit to state authority or to moral authority. We have had no coherent analysis of what it means to be autonomous in the face of the law, and we are left instead with shallow rationalizations about the psychology of volition.”27
In the first of the post-Brown confession cases, Chambers v. Florida, an elderly white man was robbed and murdered. The crime produced “an enraged community.”28 The local sheriff responded by rounding up twenty-five to forty black men. He took several to a jail in a different county because he feared a lynch mob. Some of the prisoners “underwent persistent and repeated questioning” over five days.29 The defendants claimed that they “were continually threatened and physically mistreated until finally, in hopeless desperation and fear of their lives, they confessed on Sunday morning just after daylight.”30 The State, perhaps learning a lesson from Brown, denied that the defendants were mistreated. Justice Black, writing for a unanimous Court, archly noted: “Be that as it may, it is certain that by Saturday, May 20th, five days of continued questioning had elicited no confession.” The implication is that something changed to make the defendants confess on Sunday and that “something” might have been an escalation in violence or threats.
In the Court’s view, however, it did not matter whether the authorities used violence or even threats of violence. This is where the New Deal skepticism manifests itself. It was enough that the State engaged in “drag net methods of arrest on suspicion without warrant” and then “protracted questioning and cross questioning of these ignorant young colored tenant farmers by State officers and other white citizens … where as prisoners they were without friends, advisers or counselors, and under circumstances calculated to break the strongest nerves and the stoutest resistance.”31 The “undisputed facts,” the Court unanimously held, “showed that compulsion was applied.”32 Notice the renewed vitality of the Hawkins-Leach dictum and the shift in focus. The critical inquiry was not whether compulsion moved the suspect to confess, as it surely did in Brown, but merely whether “compulsion was applied.”
We do not believe that the shift from confessions “procured by coercion” in Brown33 to whether “compulsion was applied” in Chambers was merely a change in locution. Justice Black would have understood that the constructed category of coerced confessions is indeterminate, and that it is difficult, if not impossible, to construct a category of cases where coercion has truly displaced the will of the suspect. It is much easier to decide whether the authorities were attempting to compel a confession.
Black sets the stage for his “compulsion was applied” standard by reminding the reader that due process developed in part from “[t]he rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross-questioning, and other ingenious forms of entrapment of the helpless or unpopular who had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake, and the hangman’s noose.”34 Notice that “protracted questioning” takes a place along with the rack and screw. Black “closes the deal” by reminding the reader of what was going on in the world in 1940:
Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution—of whatever race, creed or persuasion.35
Three months later, the Court applied the same methodology to White v. Texas36 in a unanimous opinion, again written by Justice Black. White was one of fifteen or sixteen young black men rounded up without warrants or the filing of charges. He claimed that “armed Texas Rangers on several successive nights took him handcuffed from the jail ‘up in the woods somewhere,’ whipped him, asked him each time about a confession and warned him not to speak to any one about the nightly trips to the woods.”37 As in Chambers, the State denied using violence, but one of the Texas Rangers did admit taking White into the woods to interrogate him. The Court offered no analysis beyond quoting Chambers : “‘Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.’”38
The Court’s concern about confessions made by young black men to white officers in the South can be seen most clearly in Canty v. Alabama, where there is (almost) no evidence of abusive interrogation.39 Canty apparently did not testify, and the only evidence about the interrogation in the state court opinion comes from the prosecution witnesses. One witness testified that Canty had a scratch on the back of his head. Suggested by cross-examination, but denied, was that the officers cursed Canty, told him that they were going to see where his grave was being dug, and subjected him to unmentioned “rough treatment” and “abuse.”40 But there was no direct evidence of any of that treatment. Remarkably, the United States Supreme Court reversed and remanded in a unanimous per curiam opinion that we quote in its entirety: “The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is also granted and the judgment is reversed. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, decided February 12, 1940.”
Given this solicitousness toward suspects, the next Supreme Court confession case, Lisenba v. California, is an outlier.41 Lisenba planned to kill his wife, Mary, to collect on a double indemnity insurance policy he took out a few months before her death.42 He enlisted the aid of Charles Hope. They blindfolded Mary, tied her to a table, and forced her foot into a box containing rattlesnakes. She suffered snake bites that made her left leg “greatly swollen and almost black.” They left her tied to the table all night, waiting for her to die. But in the morning, she was still alive. Lisenba and Hope then dragged her into the backyard and put her “face down at the edge of a fish pond with the head and shoulders in the water.” She drowned. Although Lisenba was an obvious suspect, the police initially closed their investigation without arresting anyone.
In a delicious irony, Lisenba would have escaped the executioner had he not demanded the insurance proceeds. The insurance company checked Lisenba’s records and discovered that three years earlier Lisenba had collected a double indemnity insurance policy on his previous wife, which was taken out mere months before she was murdered. The insurance company, smelling a rat, refused to pay, and the police reopened their investigation.
The police account of the interrogation varied from Lisenba’s. He said that they beat him black-and-blue, impaired his hearing, and caused a hernia.43 The police admitted that they subjected him to a grueling interrogation by relays of officers for forty-eight consecutive hours on one occasion; the session ended only when he fell asleep. The state court dissent said that he fell asleep from “fatigue and exhaustion” several times.44 Despite the grueling first stage of the interrogation, he said nothing that would justify charging him with his wife’s murder.
Two weeks later, Hope confessed to the grisly murder, claiming that it was Lisenba’s idea to kill Mary and that he had merely assisted. When the prosecutor reinitiated questioning, Lisenba requested counsel. His lawyer was out of town, and his request for different counsel was not granted.45 The prosecutor turned the interrogation over to the police. After ten hours of interrogation, according to police, Lisenba told a deputy sheriff, “‘Why can’t we go out and get something to eat; if we do I’ll tell you the story.’”46 After dinner at a café and cigars, Lisenba narrated a story that attempted to shift most of the blame onto Hope. Lisenba said at trial that his confession was false, that he was simply attempting to “retell the tale Hope had told, which had been constantly dinned into his ears.”47
The California Supreme Court clothed the trial court with “considerable discretion” in confessions cases because admissibility “largely depends upon the special circumstances connected with the confession.”48 Thus, “it is difficult, if not impossible, to formulate a rule that will comprehend all cases.” Looking at the facts of the case, the state court found it “not … improper” that Lisenba “was questioned for many hours … particularly when, as testified, he freely responded thereto.”49 The court stressed that “no promises, immunities, threats or forms of violence were employed to overcome the free will of the defendant.”
Two state justices dissented in a lengthy opinion that characterized the majority opinion as “deficient in its statement of the facts.”50 Beyond the dispute about the facts, the dissent also complained about the majority’s failure “to adhere to the age old rules and maxims of criminal jurisprudence, which are cherished next only to the Magna Charta as safeguards of life and liberty.”51 To the dissent, the confession should have been held inadmissible because it “followed a long course of deprivation and physical mistreatment of a prisoner held incommunicado.”52
The United States Supreme Court affirmed, returning by a vote of 7-2 to its earlier view that it should rarely intervene in the criminal process of a “quasi-sovereign” jurisdiction.53 The outlier status of Lisenba is, we think, explained by five facts: (1) He was not a young black man in the South; (2) he did not confess after the first and by far the longer interrogation; (3) according to the police, the interrogation contained no threats or promises; (4) he confessed only after being told that his accomplice had implicated him; and (5) he later said “that there were not enough men in the District Attorney’s office to make him talk, and if Hope [his accomplice] had not talked he would never have told the story.”54 These facts gave seven members of the Court enough ammunition to refuse to disturb the voluntariness findings of the trial judge, the jury, and the California Supreme Court.
But the deference to state courts would not last. The Court had already shown solicitude toward black suspects questioned by white officers in the South. What remained was to extend that attitude to all suspects. The process would begin in earnest in 1944.
Ashcraft v. Tennessee,55 also authored by Justice Black, does not receive the credit it deserves in the march toward Miranda. Though the Miranda opinion claimed it was relying on Bram v. United States, that truly odd nineteenth-century case cannot bear the weight that the Court placed on it (more about Bram later).56 It is Ashcraft, not Bram, that is the true ancestor of Miranda.57 Justice Black forges an opinion in Ashcraft that required only a small additional step to reach Miranda. Justice Jackson, dissenting in Ashcraft, saw where the Court was heading and accused the Court of using “the due process clause to disable the states in protection of society from crime,” which was a “dangerous and delicate … use of federal judicial power.”58 Justice Jackson was joined in dissent by Justice Roberts, who wrote the Court’s opinion in Lisenba, and Justice Frankfurter, who would later try to salvage confessions law from Ashcraft’s analytical structure.
Unlike the defendants in Brown, Chambers, White, and Canty, Ashcraft was not a poor black man who would expect rough treatment from the police. Ever the advocate, Justice Black sought to turn Ashcraft’s stature in the community in favor of reversing his conviction of murdering his wife. He was “a citizen of excellent reputation.”59 A ten-day investigation “had revealed nothing whatever against Ashcraft. Inquiries among his neighbors and business associates likewise had failed to unearth one single tangible clue pointing to his guilt.” The point here is that the interrogation was a “fishing expedition” that lacked a foundation. While this charge was leveled against the Star Chamber in seventeenth-century England, and appears in Chambers and White, the Court had yet to hold that an arrest without probable cause could cause a confession to be suppressed.60
Nor was that the holding in Ashcraft. Instead, the Court held that the confession was involuntary. Because Ashcraft was interrogated for thirty-six hours “without sleep or rest” by “relays of officers, experienced investigators, and highly trained lawyers,” the police conduct bordered on the third degree, and the holding is unexceptional.61 It is the analytical structure that is pathbreaking. The Court analogized the situation of a suspect to that of a criminal defendant on the witness stand, an analogy that Yale Kamisar would recreate in vivid fashion in 1965. Before we get to Kamisar, here’s Justice Black’s 1944 version:
It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross examination for thirty-six hours without rest or sleep in an effort to extract a “voluntary” confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room.62
Of course, the courtroom analogy would find almost any extended police questioning to be coercive. The Ashcraft Court comes close to saying that when it observed, “We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.”63 Though the Court was careful to limit its holding to the “situation such as that here shown,” Justice Jackson was not fooled. In his dissent, Jackson asks the hard question: “If thirty-six hours is more than is permissible, what about 24? or 12? or 6? or 1? All are ‘inherently coercive.’”64
Jackson sees the game here. Going down the Ashcraft road will relieve future Courts from having to identify the external force that overbore the suspect’s will. It will be enough to conclude that pressure was applied. The latter is obviously far easier for the defendant to show than the former. To be sure, the Court began developing this due process analytical framework in Chambers when it said that whether or not violence was done or threatened, the “‘undisputed facts showed that compulsion was applied.’”65 But Ashcraft moves the analytical ball toward the Hawkins-Leach dictum in three important ways. First, Ashcraft was not a young, poor, black suspect who might be less able to resist the official interrogation than someone who was a fixture in the community. Second, the courtroom analogy in Ashcraft raised the specter that any police questioning of a suspect in custody might be coercive. Third, the Court begins to view routine police interrogation as potentially deviant. Unlike Chambers and White, there were no dragnet arrests and detention of many suspects in Ashcraft. Unlike Brown, there was no torture.
If the police are to be believed, Ashcraft faced an intense, lengthy police interrogation, from which he emerged “cool, calm, collected, normal,” with “eyes not bloodshot,” and with “no outward signs of being tired or sleepy.”66 Yet without rejecting the police account, the Court describes what Ashcraft endured as an example of “secret inquisitorial practices.”67 The Court cautioned that defendants have difficulty contesting “the inner details of secret inquisitions …, particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause.”68 Then, the coup de grace for 1944. Noting that the American Constitution protects against conviction “by means of a coerced confession,” the Court wrote:
There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.69
To use a movie analogy, this is Rick in Casablanca persuading Ilsa to go with Victor by telling her: “It doesn’t take much to see that the problems of three little people don’t amount to a hill of beans in this crazy world.” The Ashcraft Court is asking the state courts, what’s the trouble of a few unsolved murders if the alternative is a regime like Nazi Germany?
As to the doctrine that Ashcraft announces, Jackson sees the future. “Arrest itself is inherently coercive, and so is detention. When not justified, infliction of such indignities upon the person is actionable as a tort. Of course such acts put pressure upon the prisoner to answer questions, to answer them truthfully, and to confess if guilty.”70 To Jackson, the majority’s holding portends: “A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.” While Miranda will not go quite that far, it will hold that a single question asked of a suspect who is under arrest is too much pressure. That idea was first planted in Chambers, applied in White and Canty, and then expanded to almost Miranda size in Ashcraft. After Ashcraft, all that remained was for the Court to recognize the logical implications of its assumption that custodial police interrogation is inherently coercive. But it took more than two decades of stumbling through the voluntariness fog to get to Miranda.
Spano v. New York, offers another example of what the Court considered deviant police interrogation.71 Spano faced “skillful” questioning by a prosecutor and was, over eight hours, “subjected to questioning not by a few men, but by many.”72 The questioning about a murder “continued into the night” as the authorities ignored Spano’s “repeated refusals to answer” on advice of counsel and “his reasonable requests” to speak to his lawyer.73 Three times the police sought “to extract sympathy” from Spano by telling him that he had gotten his childhood friend, a rookie police officer, in trouble by calling him for advice.74 Spano could get his friend, who had a pregnant wife and three children, out of trouble only by confessing. The Court held that Spano’s “will was overborne by official pressure, fatigue and sympathy falsely aroused.”75 The latitude given police interrogators is shrinking fast. An eight-hour interrogation, persistent to be sure but far less persistent than in Ashcraft, is now viewed as “abhorren[t]” and “illegal”:
The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.76
The Court’s tolerance for persistent police interrogation had ended. The stage was set for Miranda.
Indeed, Spano signaled that something like Miranda was in the cards. Chief Justice Warren’s opening sentence in Spano was, “This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth Amendment.”77 The “long line of cases” locution suggests that the Court had tired of deciding these issues on a case-by-case basis. The second sentence in Spano suggested the Miranda compromise that would follow seven years later: “As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement.” An opinion that created rights that could be easily waived would (and did) address both concerns.
To be sure, Justices Jackson and Frankfurter tried to stem the Ashcraft tide. In his majority opinion in Stein v. New York, Jackson included the following two sentences: “Interrogation is not inherently coercive, as is physical violence. Interrogation does have social value in solving crime, as physical force does not.”78 In 1961, Justice Frankfurter, who also dissented in Ashcraft, tried one last time to wrest the analytical structure away from the one Black had created. Throughout a “long and brilliant career” Frankfurter “returned to the confession problem with obsessive regularity. The story of his ultimate, utterly abject and deeply personal failure to make sense of the area poignantly embodies all of the difficulties” in the voluntariness inquiry.79
Given the task of writing the Court’s opinion in Culombe v. Connecticut, another murder case, Justice Frankfurter insisted that the proper inquiry was whether the pressure of the interrogation acted to overbear the will of the suspect.80 One can almost hear him saying, “Forget the Ashcraft nonsense about inherent coercion. Overbearing the will is what matters.” An old New Dealer, Frankfurter recognized the difficulty of making that determination—assuming that custodial interrogation is inherently coercive is an easier task—and he wrote a lengthy, scholarly opinion that sought to create a jurisprudential framework within which the suspect’s internal psychological state could be inferred from “external, ‘phenomenological’ occurrences and events.”81
But Frankfurter’s effort to avoid the easy logic of Ashcraft and Spano was doomed to failure. In Seidman’s words, the opinion “grapples with the problem in all its intricacy” and “explicates the full complexity of the problem.”82 Yet “it is riven with contradictions from beginning to end and leaves the effort to justify and systematize the Court’s role in shambles.” Only Justice Stewart joined Frankfurter’s opinion that announced the judgment of the Court. What could have been a majority opinion for six justices wound up being an opinion for two. Moreover, it took Frankfurter thirty-four pages to apply his framework to the facts before the Court—nineteen pages to describe the “phenomenological” facts and events, and fifteen pages to infer the suspect’s psychological state and then decide that he had not confessed voluntarily.83
Chief Justice Warren, who agreed that the confessions were inadmissible, refused to join Frankfurter’s opinion because it “has not been the custom of the Court … to write lengthy and abstract dissertations” when deciding cases.84 The irony here is rich; five years later Warren would write the “convoluted, repetitious, and seemingly interminable” Miranda opinion.85 Justices Douglas, Black, and Brennan also agreed that the confessions were inadmissible and also refused to join Frankfurter’s opinion.86 Perhaps even more devastating to Frankfurter’s attempt to bring clarity to the confessions problem, Justices Harlan, Clark, and Whittaker accepted his analytical structure and reached precisely the opposite conclusion—that the confession was voluntary. Seidman describes Frankfurter’s failure: “The Justices who concurred on an analytical framework for resolving the problem disagreed on the result … while the Justices who concurred on the result disagreed on the analytic framework producing that result. In short, the Culombe opinion was a total disaster.”87 It was the opinion of “an old man at the very end of his long and brilliant career.”88
By 1964, the Court’s confessions doctrine was truly “in shambles.”89 Two lines of cases existed. One line, featuring Chambers and Ashcraft, asked only whether compulsion was applied to the suspect. Though a crude, imperfect inquiry, it is at least a coherent quest. Unfortunately, it will almost always lead to the exclusion of the confession. Cases where, in Jackson’s words, “a guilty person gives himself up to the law and becomes his own accuser” are rare indeed.90 When the Court faced really blameworthy defendants, like Lisenba, the Court returned to the Brown question of whether compulsion produced the confession. In the ordinary run-of-the-mill case, excluding Brown, the second question is crude, imperfect, and unanswerable. Did Lisenba confess because of the fifty-eight hours of grueling interrogation over two sessions or because his accomplice had accused him of being the mastermind and he wanted to tell his side of the story? No one could ever know. In Welsh White’s understated words: “The premises that undergirded the [due process confessions] test … were never clear.”91
So much for the common law voluntariness norm. It had been undone by twentieth-century skepticism about whether or when humans act freely. What the Court needed was a rule, not a soft norm. As Bradley observed, “The Court, excluding evidence case by case resulting from illegal police practices, was simultaneously aware both that it was not a rulemaking body and that it must be.”92 The Court had tried a rule in the 1940s and 1950s, drawn from the federal rule of procedure that required production of an arrested person before a commissioner “without unnecessary delay.”93 The Court held in 1943 that a violation of that rule required exclusion of any statements made after the unnecessary delay.94 But this was not much of a rule—what is “unnecessary”? Moreover, the rule applied only to federal cases, and the troubling cases of the period beginning with Brown were all state cases. Perhaps worst of all, Congress could always (and did in 1968) change the rule.95
The next attempt at a rule had its origin, oddly enough, in the Sixth Amendment right to counsel.96 In 1964, the Court suggested, ever so tentatively, a rule in Escobedo v. Illinois that sometimes required the presence of counsel during interrogation.97 The Court held that, on the facts of Escobedo, the Sixth Amendment right to counsel had been violated. There were, however, three fatal flaws in the Escobedo approach as a solution to the run-of-the-mill police interrogation problem. First, Escobedo had already retained a lawyer and repeatedly asked to talk to his lawyer who was, during the three-hour interrogation, also trying to see his client.98 These facts set the case apart from almost all routine police interrogations.
To be sure, it was possible to extend the Escobedo principle to run-of-the-mill interrogations. That is where Escobedo’s second and third flaws become critical. The text of the Sixth Amendment provides a right to counsel “[i]n all criminal prosecutions.”99 Because Escobedo was the target of the police investigation and because he had a lawyer who was trying to reach him, it was plausible, barely, to analogize what Escobedo faced to a “criminal prosecution.” But the questioning of a typical suspect who is arrested on bare probable cause, and who does not have a lawyer, does not look like a criminal prosecution. It was fashionable in the twentieth century to argue that courts were free to do as they wished, and that even the clearest rule did not limit judicial discretion. Perhaps the most robust of these claims was that a court was free to ignore the constitutional language requiring the president to be at least thirty-five years old and allow a “particularly precocious thirty-four year old” to assume the office.100
That notion was, of course, utter hogwash, and Escobedo’s fate is yet one more proof that language is ultimately a limiting factor. Ludwig Wittgenstein famously remarked, “If I tell someone ‘Stand roughly here’—may not this explanation work perfectly? And cannot every other one fail too?”101 Even an activist Supreme Court like the Warren Court in the mid-1960s was not willing to interpret questioning of a suspect at the beginning of a criminal investigation as a “criminal prosecution.”
The third flaw of Escobedo was political. The most effective solution to the interrogation problem was to require counsel for all interrogations. The American Civil Liberties Union amicus brief in Miranda, written by Anthony Amsterdam and Paul Mishkin, argued that only the presence of counsel could dispel the inherent compulsion of police interrogation.102 Facing the political problem of requiring states to raise armies of lawyers, the Court could have, as Sandra Guerra Thompson points out, instead banned police interrogation.103 As much as the Court might have wanted to move to either of those solutions, it surely sensed that the political costs would be extreme.
That left the Court with a stark choice. It could retreat to Justice Frankfurter’s complex process that sought to infer internal psychological states. Or it could embrace the easy logic of Ashcraft as elaborated in Spano. Some insight into which way the Court would go can be gained from Frankfurter’s opening paragraph in Culombe:
Once again the Court is confronted with the painful duty of sitting in judgment on a State’s conviction for murder, after a jury’s verdict was found flawless by the State’s highest court, in order to determine whether the defendant’s confessions, decisive for the conviction, were admitted into evidence in accordance with the standards for admissibility demanded by the Due Process Clause of the Fourteenth Amendment.104
Painful duties are best avoided. It should have been predictable that the Court would adopt the Ashcraft-Spano model. And Yale Kamisar was there, in real time, to urge the Court down the Ashcraft road. In perhaps the most influential article ever published about police interrogation, “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” Kamisar, in 1965, embraced the analogy between the courtroom and the police interrogation room.105 He showed how solicitous the process is when the defendant reaches the courtroom—the “mansion”—and how very different it is in the police interrogation room—the “gatehouse.” If the Fifth Amendment privilege limited the way defendants could be questioned in the courtroom, why not in the police interrogation room?
The courtroom is a splendid place where defense attorneys bellow and strut and prosecuting attorneys are hemmed in at many turns. But what happens before an accused reaches the safety and enjoys the comfort of this veritable mansion? Ah, there’s the rub. Typically he must first pass through a much less pretentious edifice, a police station with bare back rooms and locked doors.106
Ashcraft set the stage. Spano expanded the definition of illegal police interrogation. Culombe, McNabb, and Escobedo were, for different reasons, unworkable “solutions” to the puzzle of when police interrogation crossed the line between constitutional and unconstitutional. Now Kamisar had given the Court the doctrinal solution. Why not take Escobedo’s idea that counsel could assure voluntariness and give it a new doctrinal home? Forget the due process clause. Who knew what process is due suspects at the interrogation stage anyway? The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”107 If police interrogation was inherently coercive, as Ashcraft claimed, why wouldn’t the Fifth Amendment give suspects the right not to answer any question and the right to consult with counsel before deciding whether to answer?
If all of that is right, then it remained only to operationalize the principle by requiring the police to warn the suspect that he need not answer questions and, to protect his right to choose, to tell him that he can have a lawyer advise him during interrogation. Indeed, the Court had already laid the groundwork for this radical departure from a totality of the circumstances test. In Haley v. Ohio, in 1948, Justice Douglas’s plurality opinion emphasized the need of the fifteen-year-old suspect for “counsel and support if he is not to become the victim first of fear, then of panic.”108 A young suspect “needs someone on whom to lean lest the overpowering presence of the law, as he knows it, may not crush him.” He had no friend to stand at his side “as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion.”
Justice Frankfurter provided the critical fifth vote to reverse Haley’s conviction. While he did not join Douglas’s opinion, his separate opinion even more clearly signals where the Court would turn eighteen years later in Miranda. The key to the case, for Frankfurter, was that
[d]uring the course of the interrogation the boy was not advised that he was not obliged to talk, that it was his right if he chose to say not a word, nor that he was entitled to have the benefit of counsel or the help of his family. Bearing upon the safeguards of these rights, the Chief of Police admitted that while he knew that the boy “had a right to remain mute and not answer any questions” he did not know that it was the duty of the police to apprise him of that fact.109
In Gallegos v. Colorado, decided only four years before Miranda, the Court expanded the Haley notion of counsel and support.110 The Court had begun to talk about whether suspects are the equal of their police interrogators:
[A] 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protest his own interests or how to get the benefits of his constitutional rights.111
To be sure, Gallegos was only fourteen years old. But all that remained after Gallegos was to find a basis to conclude that adult suspects were not much better off than juveniles, and then we would have all the ingredients for the Miranda stew. We would have Escobedo without the embarrassing textual problem that the Sixth Amendment created. Moreover, if the right to counsel is conceptualized as a mechanism to protect the right not to answer questions, it can be waived. The expected political costs of creating a waivable right to counsel were not as high as for the ACLU position or for a flat ban on interrogation. Now we have what turns out to be a consummate compromise—Miranda v. Arizona.112
Lacking real-world data, the Miranda Court drew its description of police interrogation strategies from the Inbau-Reid manual first published in 1942 and still in print.113 The Inbau-Reid manual treats police as the “good guys” trying to get the truth from unwilling suspects, but the Miranda Court turned the tables and treated police as the deviant player in the interrogation room. Sullen, unwilling suspects in the Inbau-Reid manual become vulnerable, frightened lost souls who are too easily tricked or bullied. It is a remarkable change from Lisenba, Wig-more, and hundreds of state cases from the early part of the twentieth century. Forget Lisenba, whose wife’s murder the Court described in grisly detail. Now we have the police as the deviant actor, unfairly trading on the weaknesses of suspects. Justice John Marshall Harlan II accused the Court of painting a “generally black picture of police conduct”114 and of “portray[ing] the evils of normal police questioning in terms which I think are exaggerated.”115
A threshold goal of the interrogator is to be alone with the subject “to prevent distraction and to deprive him of any outside support.”116 The interrogator’s “confidence in his guilt undermines his will to resist.” In the hands of a skilled interrogator, the subject “merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed.” The subject, described in Inbau-Reid as the “quarry” of the interrogator, must be “manuever[ed] … into a position from which the desired objective may be attained.” If necessary, “the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.”
Modern police interrogation, the Court tells us, is “psychologically rather than physically oriented.”117
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.118
The interrogator “must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth.”119 To solve a serious crime, the officer should be prepared to interrogate “for days, with the required intervals for food and sleep … to avoid a charge of duress that can be technically substantiated,” but “with no respite from the atmosphere of domination.”
Custodial interrogation, the Court concluded, thus “exacts a heavy toll on individual liberty and trades on the weakness of individuals.”120 The critical fact about custodial interrogation is that its purpose is
to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.121
To help combat the inherently compelling atmosphere of custodial police interrogation, the Court gave Escobedo’s right to counsel a new “home” in the Fifth Amendment. Counsel will “assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights.”122 Thus, the Court concluded: “the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”123
The recharacterization of police interrogation, that began in Chambers and Ashcraft, is now complete. Suspects must be encouraged to make “free choices,” and police attempts to undermine those free choices are seen as, at best, unfortunate and, at worst, deviant. The bare back-rooms of the third degree are to be replaced with orderly interrogation and a lawyer at the side of the accused to advise whether and when to answer police questions, and to defeat police strategies designed to force him to forsake his “free and rational choice.”124 The Miranda dissents, naturally, objected to the majority’s characterization of police interrogation. Justice Harlan, for example, wrote: “Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law.”125
It seems unlikely that, when he sat down to write the majority opinion in Miranda, Chief Justice Earl Warren anticipated the intensity of the reaction that greeted the decision. But he had been a California prosecutor, attorney general, and governor, and he was probably not surprised by the forceful opposition from the four dissenters.126 Justice Frankfurter was no longer on the Court, but his role as defender of the “overbear the will test” was filled by Justices Harlan, Clark, Stewart, and White. During the Court’s conference on Miranda, Justice Harlan said that Warren’s approach would “repudiate all of our precedents and history.”127 Justices Stewart and White noted that compulsion means coercion, which “is not present here.”128
Facing this kind of criticism, Warren strove mightily to make the holding appear connected with the past and the present. He drew on the law in Ceylon, India, England, and Scotland to show that Miranda was not out of step with the world.129 We hazard a guess that Miranda is the only time the Court has relied on the law in Ceylon, now Sri Lanka. Justice Harlan’s dissent blew pretty big holes in the majority’s reliance on foreign law, showing how the relevant institutions in those countries differed greatly from those in the United States.130
Warren relied on Bram v. United States to show that Miranda was not out of step with the past.131 Bram held that the admissibility of confessions in federal court was determined by the Fifth Amendment privilege against compelled self-incrimination, the same doctrinal move underlying Miranda. As Justice Harlan noted, however, Bram was the only case standing for that proposition; all of the Court’s other confession cases were based on due process or common law, both of which made voluntariness the touchstone.132 Moreover, Bram by implication had rejected the Miranda solution. If lack of warnings was sufficient to make the confession inadmissible, there would have been no need to consider, as Bram did rather at length, the facts of the questioning before concluding that the answer was involuntary. More significant, one year before Bram, the Court in Wilson v. United States squarely held that the lack of warnings did not render a confession inadmissible,133 and Bram cited and quoted from Wilson with approval.134 Thus, except for Bram’s reliance on the Fifth Amendment as an analytical structure, it supported the Miranda dissents rather than the majority. The Court never admitted that Wilson had rejected its holding and never attempted to square Miranda with eighty years of precedent. Citing Wilson and a later case, however, Justice Harlan pointed out in dissent that “the right to warnings [had] been explicitly rebuffed in this Court many years ago.”135
Another attempt to connect with the past was Warren’s recitation of the seventeenth-century Star Chamber controversy involving the “Levellers,” a group that included the brave John Lilburn. Here is Warren’s version:
We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating:
“Another fundamental right I then contended for, was, that no man’s conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.”
On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber. … We cannot depart from this noble heritage.136
The difficulty with the Lilburn history is that it had nothing, nothing at all, to do with interrogations in criminal cases. The Lilburn controversy was over the power of the Star Chamber to compel an oath to answer questions, usually in cases against political opponents of the monarch. The Star Chamber, however, was not a common law court that tried criminal cases. Created by the monarchs in the fourteenth century, the Star Chamber had more power than common law courts, which lacked the authority even to compel a defendant to testify at trial.
As we saw in chapter 3, the common law of confessions during the Lilburn period admitted out-of-court confessions made by the accused without exception and without concern about compulsion or voluntariness.137 The earliest common law skepticism about involuntary confessions came a half-century after the Lilburn-Star Chamber controversy. Thus, the Court’s lofty rhetoric about Lilburn is not only beside the point but actually proves the thesis of the dissenters (though they too seemed unaware of the relevant history). With the solitary exception of Bram, the privilege against compelled self-incrimination had for three centuries been completely separate from the law of confessions.138 Lilburn’s case had consequences, of course—it led Parliament to abolish the Star Chamber—but its connection to the common law of voluntariness is, in our view, nonexistent.
It is surprising that the Miranda Court did not follow the historical trail that Bram partly illuminated in its detailed examination of eighteenth and nineteenth century confessions cases. After all, the Court could not rely on Bram’s holding, which implicitly rejected Miranda’s holding, and the Court had to ignore Wilson, which explicitly rejected a warnings requirement. But, as we saw in chapters 3 and 4, the historical trail leads to a pretty remarkable world that connects with Miranda much more securely than the authorities that the Court provided. The Miranda Court ignored the English Indictable Offenses Act of 1848 that required magistrates to warn the accused before questioning him.139 That act would have supported a claim that the default position in Anglo-American law for over a century was the very procedure that Miranda required. The outlier or deviation, the argument goes, was the period from roughly 1880–1960 when police were sometimes willing to do almost anything to get a confession. That period could have been dismissed as a product of police desperation when faced with organized crime, Prohibition, the Great Depression, and rising crime rates.
Anyone who has watched police shows on television—for example, the apparently endless iterations of Law and Order—has heard the Miranda warnings so many times that the words “you have a right to remain silent” probably sound as inevitable and morally neutral as gravity or the sun rising in the east. But Miranda caused intense controversy. In 1966, the FBI index crime rate was in the midst of a decades-long sharp ascent.140 The 1965 riots in Watts and the harsh response unnerved the nation. Riots erupted in Newark in 1967 and would consume many American cities after Martin Luther King, Jr. was murdered in Memphis in April 1968. The Vietnam War was increasingly killing and wounding our young men, and the draft was intensely unpopular. Hippies, marijuana, LSD, the Beatles, and the Rolling Stones were disruptive influences on American youth. The American public was resentful and in a sour mood.
If the Court thought it would appease critics by permitting waiver of the newly created rights to silence and to counsel, it was mistaken; the initial tidal wave of criticism assumed that few suspects would waive, and the political costs turned out to be very high indeed. The Miranda dissents foreshadowed the firestorm that would greet Miranda. Concluding that the Court “goes too far on too little,” Justice Tom Clark rose to defend the police from the majority’s attack:
Nor can I join in the Court’s criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers to as “police manuals” are, as I read them, merely writings in this field by professors and some police officers. Not one is shown by the record here to be the official manual of any police department, much less in universal use in crime detection. Moreover, the examples of police brutality mentioned by the Court are rare exceptions to the thousands of cases that appear every year in the law reports. The police agencies—all the way from municipal and state forces to the federal bureaus—are responsible for law enforcement and public safety in this country. I am proud of their efforts, which in my view are not fairly characterized by the Court’s opinion.141
Even the patrician Justice Harlan could not resist a claim that Miranda portended grave harm: “I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large.”142 But the most hostile criticism was in Justice White’s dessent:
In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.143
In sum, in the fall of 1966, the police felt outgunned and abandoned by the Supreme Court. When Miranda was announced, “In every part of the country and in all ranks, police complained bitterly at what they considered this heaviest of reprimands from the Supreme Court so far.”144 Police chiefs in Boston, Philadelphia, Cleveland, and Los Angeles condemned Miranda as a shield for the guilty, and the police chief of Los Angeles went so far as to predict that Miranda “would effectively end the use of confessions in convicting criminals.”145
Congress sought political gain by attacking Miranda while debating the Omnibus Crime Control and Safe Streets Act of 1968. Arkansas Senator John McClellan said that “if this effort to deal with these erroneous Court decisions is defeated, every gangster and overlord of the underworld; every syndicate chief, racketeer, captain, lieutenant, sergeant, private, punk, and hoodlum in organized crime; every murderer, rapist, robber, burglar, arsonist, thief, and conman will have cause to rejoice and celebrate.”146 President Johnson signed the act into law, requiring federal judges to admit “voluntarily given” confessions.
Both Republican Richard Nixon and Independent George Wallace sought to use the Warren Court as a campaign issue in 1968 against Democrat Hubert Humphrey. Wallace said that the Supreme Court was a “sorry, lousy, no-account outfit.”147 Murderers and rapists are “just laughin’ while the police are crying for help.” If a criminal “knocks you over the head,” he will be “out of jail before you’re out of the hospital and the policeman who arrested him will be on trial. … But some psychologist says, ‘well he’s not to blame, society’s to blame. His father didn’t take him to see the Pittsburgh Pirates when he was a little boy.’”148 Wallace “promise[d] his audience, wildly cheering by now: ‘If we were President today … you wouldn’t get stabbed or raped in the shadow of the White House, even if we had to call out 30,000 troops and equip them with two-foot-long bayonets and station them every few feet apart.’”149
Richard Nixon’s strategy was to “appear as a ‘more respectable alternative’” to Wallace, “countering his rhetoric ‘with a velvet-glove version of the mailed fist.’”150 Although there were many contentious issues in the 1968 campaign (Vietnam, welfare, inflation, taxes, President Johnson’s War on Poverty, Social Security), “the issue that stood out, its theme in every speech at every airport and on every makeshift stage, the one that was remembered most vividly years later, was [Nixon’s] appeal for ‘law and order.’” Focusing specifically on Miranda, Nixon said in Ohio two weeks before the election:
I was in Philadelphia the other day. I found that a cab driver who had been cruelly murdered and robbed, and the man who murdered and robbed him had confessed the crime, was set free because of a Supreme Court decision. An old woman, who had been brutally robbed and then murdered—the man who confessed the crime was set free because of a Supreme Court decision. … And an old man who had been robbed and clubbed to death—and the man who confessed the crime was set free in Las Vegas because of a Supreme Court decision. My friends, when that’s happening in thousands of cases all over America, I say this. Some of our courts have gone too far in their decisions weakening the peace forces as against the criminal forces in the United States of America. And we’re going to change that.151
Just as telling as the attacks on the Court by Wallace and Nixon was Hubert Humphrey’s failure to defend the Court. Only one position was presented to the American voter in 1968: The Court had gone too far in the direction of protecting criminals; the criminal forces were gaining the upper hand over the peace forces; something had to be done to right the ship. As Fred Graham put it:
Where its predecessors had been bold, Miranda was to be brazen—Gideon v. Wainwright152 had created a constitutional right to counsel in felony cases at a time when all but five states already provided it; Mapp v. Ohio153 had extended the exclusionary rule to illegal searches after roughly one-half of the states had adopted the same rule; Miranda was to impose limits on police interrogation that no state had even approached prior to the Escobedo decision.154
Nixon carried Ohio by 90,000 votes and defeated Humphrey at the national level by only 500,000 votes.155 It seems likely that the “law and order” attack on Miranda was part of the reason for Nixon’s victory.
Why deviance shifted from suspected rapists, robbers, and murderers to the police for the Miranda majority is not entirely clear. Gerald Caplan noted that Escobedo “shows sympathy for Danny Escobedo because he was the underdog. One detects what Thurman Arnold referred to as ‘the humanitarian notion that the underdog is always entitled to a chance.’”156 Caplan continued:
Perhaps the impulse to allow even the unquestionably guilty some prospect of escaping detection or conviction is universal. Wigmore referred to this impulse as the “instinct of giving the game fair play.” Pound characterized it as “the sporting theory” of justice, and Bentham derisively labeled it “the fox hunter’s reason.” Under this view, fairness is given that special definition that sportsmen reserve for their games. Bentham elaborated on his analogy to the fox hunt: “The fox is to have a fair chance for his life: he must have … leave to run a certain length of way, for the express purpose of giving him a chance for escape.” Fairness, so defined, dictates that neither side should have an undue advantage; the police and the criminal should be on roughly equal footing and the rules of the game should be drawn to avoid favoring one side or the other. … The state was sovereign, but so was the individual. The individual possessed the “sovereign right … to meet the state on terms as equal as their respective strength would permit … strength against strength, resource against resource, argument against argument.”157
Caplan is correct that the Court’s attitude toward police and suspects had changed dramatically by the time we get to Escobedo and Miranda. He offers two theories for the radical change, both limited to the 1960s. First, “Miranda seems most understandable as an exaggerated response to the times rather than as an enunciation of a natural right mined at last from the Constitution. Miranda was a child of the racially troubled 1960’s and our tragic legacy of slavery.”158 A related point was the 1960s understanding of the causes of crime:
[I]t was popular to see the criminal as a type of victim; he was caught in the role assigned to persons in his circumstances, a member of the underclass. One spoke not of volition but of status or condition. The idea of individual guilt and remorse for wrongful deeds was out of fashion. The causal factors of criminality were thought to lie outside the individual, in the deeper, corrupt foundations of the society—the so-called ‘root causes.’159
Accurate as far as it goes, Caplan’s account ignores the historic relationship between the law of interrogation and larger cultural forces that define deviance and shape the legal reaction to perceived threats to social order. Far from evolving in a more or less straight line to the shining hill of Miranda, the history of law regulating interrogation is contingent and always in flux. Indeed, Anglo-American law since the seventeenth century has shifted dramatically about once a century. If we narrow the historical focus to the last two centuries, the claim is that, once the storm of the early twentieth century had passed, Miranda merely reconnected with the Hawkins-Leach dictum that ruled the confessions world for over a century.
To be sure, the reconnection is largely a matter of rhetoric. In chapter 8, we will consider how Miranda evolved into the doctrine that Chief Justice Rehnquist was able to embrace (if somewhat tepidly) for seven members of the Court in 2000. In chapter 9, we address whether Miranda succeeded, which requires us to identify what the Court’s goals probably were. We will conclude that Miranda fails in some fundamental ways, that it was largely rhetoric from the beginning, and that the parsimonious application of Miranda by later Courts made it emptier still of substantive content. Rhetoric is important, as it affirms our values, but Miranda on the ground appears to offer far less protection than the Hawkins-Leach dictum did in the late eighteenth and early nineteenth centuries. Our ultimate conclusion, reached in chapter 9, is that courts view the current law of interrogation as the best of both worlds. American law affirms our commitment to fair play and level playing fields by giving suspects the key to the interrogation room, but when they hand the key back and incriminate themselves, courts are eager to receive those confessions.
Figure 7.1 Copyright, The Commercial Appeal, 1966
