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Crime, Confessions, and the Court

"Coddling criminals" and "handcuffing the police" are the latest bitter charges aimed at the Supreme Court. In fact, the stormy course the Court has followed through its Escobedo and Miranda decisions is much simpler, if subtler, than most of its critics realize. Mr. Cipes, a lawyer, former federal prosecutor, and now attached to the Georgetown University Institute of Criminal Law and Procedure, charts the Court's wary but determined progress toward guaranteeing the rights of the accused in the police interrogation room. The article is drawn from Mr. Cipes's book The Crime War, to be published by New American Library in January.

by Robert Cipes

More than thirty years ago, when Earl Warren was a career district attorney in California, he came to Washington to address a national conference on crime. His approach to crime control was dispassionate and objective. Distrustful of panaceas, he saw that the basic needs of law enforcement were improving its administration and personnel. He rejected vigilante groups whose solution to crime was enacting harsher penalties and giving more procedural advantages to the state. This he called a "popular war cry."

District Attorney Warren's speech paid tribute to the director of the Federal Bureau of Investigation, J. Edgar Hoover, for helping the states elevate their standards of law enforcement. Yet when Hoover spoke at the same conference, he sounded the "war cry." We are facing "desperate men and equally desperate women," he warned, "who have respect only for a power greater than theirs." The criminal "rules by fear, and fear is the only weapon which can rule him--fear of the certainty of arrest and punishment." Boasting of the Bureau's 94 percent conviction record, Hoover added, "Theories may come and theories may go, but this fact remains: The countries which speedily find, arrest and adequately punish their criminals have few major crime problems."

That men of such divergent philosophies could find a common meeting ground in 1934 is less remarkable than their finding a common ground once Earl Warren became Chief Justice of the Supreme Court. Yet when Warren delivered his opinion in the case of Miranda v. Arizona on June 13, 1966, J. Edgar Hoover emerged as a champion of civil liberties and the FBI as a model for police interrogation practices. This is only one of the ironies of this remarkable decision, which promises to alter the balance of power between the police and the criminal at a time when most of the nation, like Hoover, sees itself engaged in a life-and-death struggle against crime.

In reversing the convictions of four men because of improperly obtained confessions, the Court has placed a heavy--some think an impossible--burden on police interrogation of suspects. The Court has declared that no statement of the suspect may be used to convict him unless his Fifth Amendment privilege against self-incrimination has been scrupulously protected. Miranda was decided almost two years to the day after the Court's opinion in Escobedo v. Illinois. There the Court reversed a murder conviction because the suspect confessed after being denied access to his lawyer. The Court left open the question whether indigent suspects--some two thirds of those arrested--were entitled to similar protection. This question was answered affirmatively in Miranda.

Since Escobedo, the Warren Court has been a whipping boy of police, prosecutors, and their supporters. Some police officials--like Chicago's O. W. Wilson, to whose men Escobedo confessed--flatly instructed their officers to ignore the decision. Wilson claimed that the opinion was confusing, and he challenged the Court to issue clear guidelines for the police. In Miranda, the Court has accepted the challenge, setting down an extraordinarily detailed code of interrogation procedures.

The essential elements of the code are these: As a general rule the prosecution may not use statements resulting from "custodial interrogation" unless it follows procedural safeguards which will protect the suspect's privilege against self-incrimination. "Custodial interrogation" goes beyond station-house detention. It applies whenever the police deprive a suspect "of his freedom of action in any way." The following are the minimum procedural safeguards required:

1. A warning that the suspect has a right to remain silent and that any statements made may be used as evidence against him.

2. Advice that he is entitled to consult a lawyer prior to interrogation, and that if he cannot afford a lawyer, the state will make one available to him prior to interrogation.

3. If a suspect rests on his privilege, or states he wants a lawyer, the police must discontinue questioning. This is true at any stage of the interrogation.

4. If the suspect wants and gets a lawyer, questioning may continue, but it must be in the presence of the lawyer.

5. The privilege against self-incrimination and the right to counsel may be waived if the waiver is made voluntarily and with knowledge of the consequences. But the "heavy burden" of proving there was a waiver is on the state.

Despite this detailed code, which goes beyond the issues presented in the four cases, and despite the sharp dissents of four Justices, the Court's opinion in Miranda is essentially a logical outgrowth of Escobedo. Its significance lies not so much in breaking new legal ground as in the way in which it has brought into focus a cluster of vital social problems.

The Miranda case has many meanings. It reflects a deep dichotomy in the country over control of crime. Are we really in the midst of a "crime wave"? Can we deal adequately with the crime problem without sacrificing some of our civil liberties? On the technical level of law enforcement, what does Miranda mean to the ability of the police to solve crimes? Are confessions indispensable to such solution, and will the rules set down by the Court eliminate confessions? If police officers cannot comply with the new rules without sacrificing confessions, will they create techniques for evading the Court's requirements?

At the ethical level, Miranda challenges the propriety of the means used by society to catch and punish those who deviate. At still another level, the opinion tests the limits of the entire criminal process in this country. By making the boast of an accusatorial system a reality, it threatens to place impossible pressures on existing legal and judicial machinery. The final meaning of Miranda is its reflection of a growing polarity in American values--between authority and conformity on the one hand, and liberty and dissent on the other.

Before going into these meanings, some background on the pre-Escobedo and pre-Miranda period is necessary. Until Escobedo, state police and prosecutors had little cause to criticize the Supreme Court's confession decisions. The Court exercised only a narrow review over state police methods. To reach the Court a state defendant had to show some violation of due process, usually the use of the third degree--which means physical or psychological coercion. Police smarted for a time under the Court's search and seizure rules, but they seemed to be able to live with them.

On some other issues there was even a mild consensus among the courts and the police. One such issue was reforming the bail system to remove financial discrimination. Another was ensuring free trial counsel for the indigent, reflected in the Supreme Court's unanimous opinion in Gideon v. Wainwright. In May of 1964 the Justice Department sponsored a National Conference on Bail. At the opening session Chief Justice Warren shared the platform with Police Commissioner Michael Murphy of New York. The Chief Justice told Murphy he was "inspired and heartened" by the commissioner's support of a project to eliminate the stigma of arrest in minor offenses. And Murphy spoke earnestly of his department's efforts in "furthering the individual rights and liberties of the accused."

The truce between the police and the defense-oriented Justices was an uneasy one, however, though few persons imagined that the break would come as soon as it did. Only a year after the bail meeting, Warren and Murphy again appeared together, this time at a judicial conference in Atlantic City. In the interim Murphy had resigned his job in resistance to demands for creation of a civilian review board, the Warren Court had decided the Escobedo case, and Barry Goldwater had made "crime in the streets" a major political issue. This time Murphy wasted no breath on amenities, nor on homage to civil liberties. Reflecting the change in public mood, he excoriated the Warren Court for hampering law enforcement while "vicious beasts" were loose on the streets. He protested that police were being forced to fight by the Marquis of Queensbury Rules, "while the criminals are permitted to gouge and bite."

The rhetoric was a familiar part of the battle imagery which permeates law enforcement. President Johnson in his recent crime message, for example, referred to the local policeman as "the frontline soldier in the war on crime." Arguing the Miranda case, a spokesman for the National District Attorneys Association told the Court that the clash was not between the defendant and the "police," but between the defendant and the "people," just as it was the whole "United States," and not simply the "Army," against the Viet Cong. Analogizing the police to front-line soldiers evokes a demand for more weapons. Thus, in lobbying for a stop-and-frisk law, New York district attorneys made this appeal: "In every way America has always equipped its armies with the best and most modern weapons. We in law enforcement are engaged in a continuous war in peacetime. We ask only that we be properly equipped to meet the criminal enemy and to make certain that law enforcement and the public are not left defenseless in the war against crime."

The cry that the police were being handcuffed was a familiar one in at least one American city--Washington, D. C. In 1957 the Supreme Court in the Mallory case set aside a rape confession and the death sentence because the police had unreasonably delayed in taking the nineteen-year-old Negro defendant before a magistrate for arraignment. The confession was excluded not on constitutional grounds but under the Court's supervisory powers to maintain civilized standards of federal law enforcement. The Court refused to inquire whether the confession was voluntary or involuntary, reliable or unreliable. It recognized that when the police hold a man incommunicado there is a temptation for questioning to slide into the third degree, and the added temptation of the interrogator to testify falsely in court about the circumstances of the confession.

Law enforcement officers in the District and their friends in Congress were particularly exercised because the Mallory Rule operated in favor of the guilty. Mallory himself represented not just the escape of a guilty man, but the return of a dangerous criminal to the community. After his release Mallory committed rape in another city. Statistics recently compiled by the District Crime Commission show that only a small fraction of criminal convictions are reversed on Mallory grounds, and that only a few of the beneficiaries escape punishment entirely. But sobering facts such as these have a way of escaping notice in a community aroused by crime waves.

No person "shall be compelled in any criminal case to be a witness against himself." This Fifth Amendment privilege against self-incrimination is the focus of the Miranda opinion. The privilege has long been applied to protect an accused from compulsory testimony at his trial. Miranda makes clear that the privilege affords the same protection to a suspect under police interrogation.

The privilege stemmed from abhorrence of the Star Chamber statute of 1487 in Tudor England, under which a defendant could be forced to testify under oath at his trial for the purpose of eliciting a confession. The proceedings had a familiar justification, that "little or nothing may be found" by other means of investigation. The constitutional protection against the use of coerced confessions--the due process rule--had a different origin. Until the 1600s in England it was common to extract a confession from a suspect by means of torture. Such confessions were by their very nature unreliable. This was not necessarily true of confessions obtained in violation of the Fifth Amendment. Until Miranda the two types of confessions had generally been treated separately. In Miranda the distinction is blurred, for the Court seems to suggest that police interrogation itself is coercive.

To the majority of the Court, in Miranda the most dangerous aspect of police interrogation is that it takes place in secret in a "police-dominated" atmosphere. The "very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weaknesses of individuals." In the Escobedo case Justice White, dissenting, complained that the majority opinion reflected "a deep-seated distrust of law enforcement officers everywhere, unsupported by relevant data or current material based upon our own experience. Conscious of this complaint, the Chief Justice in Miranda marshals current facts about coerced confessions, such as the sixty-one-page false murder confession in New York's Whitmore case, and the case of the Brooklyn police burning an uncooperative witness with lighted cigarettes. The Chief Justice also refers to Civil Rights Commission reports of police brutality in the South.

But the principal evidence of coercion set forth in the opinion is not physical but psychological. The Court quotes at length from interrogation manuals authored by the top criminal detection experts in the country--widely used by the police, as evidenced by sales of 44,000 copies. These manuals represent the "modern, scientific" approach to police interrogation--methods developed to replace the discredited third degree. Now with a sweep of the pen Chief Justice Warren discredits the modern methods and apparently puts their originators out of a lucrative business.

The leading manual cited in the Miranda opinion is Criminal Interrogation and Confessions by Professor Fred Inbau of Northwestern University, long a critic of the Court's Mallory Rule and the favorite witness of congressional committees seeking to overrule Mallory. A reading of Inbau's book gives an illuminating insight into the "scientific" method. First, a description of the interrogation room. There are no windows. In a police station, windows must contain bars, and this naturally would discourage a confession. There are no distracting objects in the room, no telephone, no ashtrays (indicating there is no smoking). The chairs have straight backs to discourage relaxation. The interrogator takes no notes, is completely absorbed in the subject, and gives the impression of having unlimited time for questioning. The following are examples of Inbau's suggested "Tactics and Techniques for the Interrogation of Suspects Whose Guilt is Definite or Reasonably Certain":

"Sympathize with the subject by telling him that anyone else under similar conditions or circumstances might have done the same thing."

"Reduce the subject's guilt feelings by minimizing the moral seriousness of his offense." In questioning a thief, Inbau recommends showing the suspect one of Inbau's own articles. This says that "about 85 of every 100 persons will 'steal' if the opportunity to do so is presented to them." The technique of reducing guilt may also be very effective in a wife-killing case where investigation shows the husband has been treated "very miserably over the years." This line of examination is suggested:

"Joe, as recently as just last week my wife had me so angry with her nagging that I felt I couldn't stand it any more, but just as she was at her worst the doorbell rang and we had some out-of-town company. Was I glad they came! Otherwise I don't know what I would have done."

The guilt-reducing technique is not only effective in getting confessions, but it can actually fulfill a therapeutic function. A few days before being executed, one subject told Inbau how comforted he had been by Inbau's statement--just prior to confessing--that this crime was actually "no worse" than any of his others.

In cataloguing the evils of the coerced confessions, the Court referred to the Report of the Wickersham Commission, on Lawlessness in Law Enforcement. Issued in the early thirties, the report shocked some of the country with its revelations of third-degree practices. It actually contributed little new factual information to the coerced confession cases and to the popular literature on the third degree. But by adding the outrage of a presidential commission it probably had some influence on police officials to clean house. Its principal impact, however, seems to have been on the next generation of judges, including the Justices of the Supreme Court.

The Wickersham Report reviews the arguments made in defense of the third degree. Many of them are still made today, but one has a distinctly original flavor. Referring to the necessity of the third degree in controlling crime, a police chief complained that his department was being discriminated against: "A policeman should be as free as a fireman," he said, "to protect his community. Nobody ever thinks of hedging a fireman about with a lot of laws that favor the fire."

Were we to limit these constitutional rights to those who can retain an attorney," the Chief Justice wrote, "our decisions today would be of little significance." He pointed out that each of the four cases, like the vast majority of confession cases, dealt with defendants unable to retain counsel. "While authorities are not required to relieve the accused of his poverty, they have an obligation not to take advantage of indigence in the administration of justice."

The Court thus rejected the position of Attorney General Nicholas Katzenbach and his chief adviser on criminal procedure, Professor James Vorenberg. In writing the proposed Model Code of the American Law Institute, Vorenberg and his fellow draftsman had stated: "Criminal justice is not a sport or game and notions of fairness derived from the moral structure of games, premised on legitimation of self interests to the fullest extent consistent with the game, are by no means persuasive." In defending Vorenberg's draft, Katzenbach said the same thing in more colloquial terms: "I have never understood why the gangster should be made the model and all others raised in the name of equality, to his level of success in suppressing evidence. This is simply the proposition that if some can beat the rap, all must beat the rap." One month before Miranda was issued, the American Law Institute members, meeting in Washington, prophetically refrained from approving this feature of Vorenberg's draft.

In his Escobedo dissent, Justice Byron White anticipated that the Court would soon require appointment of counsel prior to interrogation. This rule, he said, would be "wholly unworkable and impossible to administer unless police cars are equipped with public defenders." Chief Justice Warren probably had this in mind when he disclaimed that Miranda required each police station to have a "station house lawyer." The disclaimer is nullified, however, by virtually everything else in the opinion. For if advice is clearly given, few suspects will refuse a lawyer. Then the only alternative to a station-house lawyer is simply for the police to forgo interrogation.

Does the presence of a lawyer mean an end to questioning? The opinion says that "an attorney may advise his client not to talk to the police until he has had an opportunity to investigate the case." The statement would be more accurate if "must" were substituted for "may." Since the attorney is sworn to protect his client's rights, he risks violation of that oath by turning the client over to the police without a full knowledge of the facts. Only in an unusual case will it benefit the client to talk to the police--for example, where he is in fact innocent or can claim self-defense.

That an attorney advises his client not to talk, said the opinion, is no cause for considering him "a menace to law enforcement." As Justice Jackson once stated, the criminal lawyer has no duty to help society solve its crime problem. It is true that defense counsel usually end up advising clients to plead guilty. But this is a tactical decision based on many factors, after the lawyer has discovered something of the state's evidence and had a chance to bargain with the prosecutor. It is quite different from surrendering at the outset.

In the adversary trial the traditional role of the lawyer contributes to the appearance of due process of law. Convicting an accused without giving him counsel is such a visible inequity that even men of an authoritarian stripe reject it. Though the lawyer occasionally obstructs enforcement by defeating conviction, his essential role is to keep the wheels of the prosecution machinery turning. The conscience of the community and of the trial participants is eased by the belief that no man is unjustly convicted.

The role of the lawyer at the investigatory stage, however, is more ambivalent. Because the privacy of the police machinery shields this stage from public scrutiny, the entry of defense counsel is a nuisance. Encouraging lawyers in the police station challenges the hypocritical framework of the adversary process--a framework which permits bar associations and judges to boast of our "accusatorial" system, while permitting the inquisition to flourish invisibly in the back rooms. Recognizing the hypocrisy of this position, the Court in Miranda attempts to make the criminal process conform to its image. In doing so, however, it inevitably casts the lawyer in an obstructive role.

To soften this impact, Miranda minimizes the role of the lawyer. In Escobedo the Court had been accused of obscuring the self-incrimination issue by pitching the decision on access to a lawyer. Now the Court changes field and reverses the relative importance of the two rights. Escobedo is a "right to counsel" case, Miranda a "self-incrimination" case. But if Escobedo obscured the underlying problem of self-incrimination, Miranda obscures the practical effect of counsel on interrogation. This would be no problem had the majority fudged and not made it mandatory for poor persons to have lawyers. But having been so forthright, it was necessary for the majority to disguise the obvious impact of the lawyer. To suggest that the lawyer might help the police was, as Justice Harlan dissented, "fanciful." But to emphasize that the lawyer would generally put an end to questioning would have required the Court to acknowledge frankly the meaning of Miranda. The Court was not prepared to announce to a crime-anxious society that the elimination of confessions is the inevitable direction in which it is moving.

To require the police to protect the suspect's self-incrimination privilege by warnings and other safeguards is one thing; to enforce the requirements is another. Professor James Vorenberg, the ALI reporter, is skeptical that the Miranda opinion will affect existing practices. The opinion "just moves the battleground from the voluntariness of the confession back to the voluntariness of the waiver" of defendant's rights. The courts would still have to decide on a case-by-case basis whether the police or the defendant is telling the truth about waiver. And, Vorenberg adds, "the police have done pretty well with these swearing contests over the years."

The Miranda opinion seeks to avoid the swearing contest by putting a "heavy burden" on the state to prove effective warnings and a voluntary waiver. But it does not suggest what type of proof would be appropriate. Vorenberg's ALI Code draft, for example, provided for sound recordings of interrogations or the presence of a neutral observer at the police station. In leaving the methods of proof entirely open, the Court invited litigation on this issue. Lower courts, more in sympathy with the goals of the police, are likely to accept less proof than the Court would, and eventually the problem will have to come back to the Court for resolution.

In trying to show that law enforcement would not be impeded by the new rules, the Court reached out for precedents from other countries. Its selection of England as a model was unfortunate, for the English Judges' Rules are far less rigid than Miranda. To rely on their example is to suggest that Miranda will be evaded and watered down in practice. The English Rules require advice to a suspect about silence but not the right to counsel. The suspect may retain counsel, but he can be excluded if the police find he would interfere with their investigation. Even if the rules are violated, the judge may nevertheless permit the confession to be used, something forbidden by our automatic exclusion. The English judge may also comment to the jury on the defendant's silence when questioned by the police, a comment which would violate our Fifth Amendment. Finally, even when a confession is not allowed in court, the English police may nevertheless use other evidence discovered as a result of that confession.

Another technique for evoking support for a seemingly unpopular decision was to identify the new code with the practices of the FBI. This is probably the most disingenuous part of the opinion. Not only did the Court adopt FBI procedures as a model, but it accompanied the ploy with quotes from a J. Edgar Hoover talk on Civil Liberties and Law Enforcement. "Over the years," the Chief Justice wrote, "the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement" despite its warnings to suspects about the privilege against self-incrimination and right to counsel. What the Chief Justice did not make clear is that the FBI warning omitted the crucial element required by Miranda--that the indigent suspect has the right to appointed counsel prior to interrogation.

This is not to suggest that FBI techniques are not qualitatively different from other police agencies'. In the typical case, FBI agents do not initially take a man into custody for questioning, but interview him at his home or place of work. They ask him casually about the offense, not probing too deeply on the first try. The agents do not bully or browbeat the suspect into incriminating himself. They operate on precisely the opposite theory, that the suspect's normal reaction will be to try to exculpate himself. Rarely will the suspect refuse to talk at all, for he fears that this will be taken by the agents as an admission of guilt. Unlike the Inbau school, the agents do not have to make this inference explicit. It is obvious and understood.

Since the instinct of the guilty man is to throw the agents off the track, he will invent an alibi or otherwise falsify minor details of his knowledge of the victim or the circumstances of the crime. The precise content of the lie is unimportant. When the FBI agents return for a second interview, they will have established the lie and compiled a dossier, impressing the suspect with the scope of their knowledge. Catching the man in his first lie is the wedge which will ultimately produce the confession.

How can the agents wait for a second interview? What of the danger that the suspect will flee? Lack of anxiety in the detection of crime is a key to the Bureau's effectiveness. It requires a certain detachment to feel sure that a man under suspicion will not flee. But experience teaches that flight is not the natural tendency in this situation. Most of the crimes which the Bureau investigates, contrary to common belief, are petty crimes--for example, auto thefts and thefts from railroad cars. There is no pressure from the community for immediate solution of these crimes. Bank robberies and kidnappings represent only a tiny fraction of the Bureau's work. Even in serious crimes most suspects do not flee when they are under suspicion since this is a clear sign of guilt. Usually they assume, unwisely, that they can bluff it out. Behind the agents' coolness in trapping a suspect is also the knowledge that if he does skip, the Bureau has a superefficient network for tracking him down.

On the second meeting, the agents might suggest to the suspect that they believe he is lying and that if he wants to convince them otherwise, he might like to submit to a lie detector test. Again, many will consent, afraid of the implications if they refuse. Once the test is administered, it is relatively simple to use it as a means to extract the confession. Working in this way, the FBI can obtain confessions without the use of coercion, threats, or even trickery in the usual sense. And--here is the rub--if they do not get a confession, they may temporarily drop the case, unless the suspect has been caught in a strong enough lie to ensure his conviction at trial. The Bureau's superlative batting average is hardly an accident. It is a tribute not only to superior investigation techniques, but to a high degree of selectivity in charging crime. The suspect who is questioned without being booked cannot hurt the Bureau's batting average.

What effect will Miranda have on the Bureau's techniques? It is the essence of Miranda that the suspect not feel compelled to talk and that adverse inferences will not flow from his failure to do so. A truly effective self-incrimination warning, which it is doubtful agents now give, should seriously weaken the Bureau's opening device in questioning. Making clear to the suspect that he is entitled to a lawyer before he talks, even if he cannot afford one, could put an end to the interrogation. To avoid this result, it will be claimed that the initial interview at home or work constitutes "general questioning . . . in the fact-finding process," in the language of the opinion, and not a deprivation of the suspect's "freedom of action." Thus the procedural safeguards of the new code would not apply. Here is an area for future litigation, with defense counsel expected to argue that confronting a suspect with an FBI badge is "inherently coercive" and the FBI arguing that the defendant was not a suspect at the time of the interview.

The second stage of the FBI's present interrogation practice--where the suspect "volunteers" to come to the Bureau--is sure to be restricted under Miranda. This may leave the government with false exculpatory statements as the sole confessional material. Such statements can be highly effective in proving guilt, so that the conviction rate probably will not be impaired. In terms of the interrogation features that the Court finds objectionable, this development will enhance the quality of law enforcement.

A recurrent argument made in these cases," the Chief Justice wrote, "is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court." Having refused to engage in the usual balancing act between society's needs and the Constitution, the Court was able to evade the argument that confessions were indispensable. It says merely: "Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the 'need' for confessions."

A footnote reviews the other evidence: "Miranda, Vignera, and Westover were identified by eye witnesses. Marked bills from the bank robbery were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home at the outset of the investigation."

But the Court selected these four cases for appeal from some 140 confession cases. In possessing substantial nonconfessional evidence, they are not necessarily typical. In fact, the Johnson case, denying retroactivity, suggests that in some of the 140 cases confessions were the only evidence, since the Court says retroactivity might have resulted in many releases.

The Court would have been more candid by acknowledging that the Miranda rule might mean the sacrifice of some convictions, but that this was the price of protecting civil liberties. By not responding directly to arguments of necessity, the majority tacitly accepts the dissenters' dark picture of the crime emergency. "The Court is taking a real risk with society's welfare," Justice Harlan warned. "The social costs of crime are too great to call the new rules anything but a hazardous experimentation." Aware that attempts statistically to prove a crime wave are also hazardous, Harlan in an oral statement relied instead on irrefutable "common knowledge."

Rejecting Miranda as going "too far on too little," Justice Clark also dissented. "Such a strict Constitutional specific inserted at the nerve center of crime detection may well kill the patient." Justice White accused the majority of returning the killer or rapist "to the streets and to the environment which produced him to repeat his crime whenever it pleases him. As a consequence," he predicted, "there will not be a gain but a loss in human dignity." For White, the Court had undermined " the most basic function of any government [which] is to provide for the security of the individual and his property."

Justice White's definition of governmental function and relative values was hardly new. In his 1965 message launching the new war on crime, President Johnson put it in these words: No right "is more elemental than the right to personal security, and no right needs more urgent protection." "Our streets must be safe," the President said, "our homes and places of business must be secure." Only six months before, Barry Goldwater had called "security from domestic violence the most elementary and fundamental purpose of any government."

Of the four cases decided in Miranda, the one which most clearly reflects this concern for security is Vignera v. New York. It is also a case which evokes little sympathy for the accused. Vignera is a thirty-one-year-old laborer with a high school education. On October 1l, 1960, Vignera robbed the small Brooklyn dress shop of Harry Adelman. At knifepoint he took from Adelman and others in the store some traveler's checks, a credit card, and other items. He was apprehended a few days later when an associate tried to use the credit card; he was identified in a lineup by the victims, was interrogated, and confessed.

Vignera's case came up for trial before Judge Samuel S. Leibowitz, probably one of the country's best criminal lawyers and surely one of its most punitive trial judges. When it came to the confession question, Leibowitz charged the jury in language which belongs in the famous-last-words category:

"The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what I said? I am telling you what the law of the State of New York is."

In the Supreme Court the Vignera case was argued for the People by William I. Siegel, a veteran appellate lawyer in the Brooklyn district attorney's office. Siegel is known in New York as a temperate and philosophical advocate--obviously rare qualities for a prosecutor. He approached the case with restraint, experienced in the foibles of humanity, which includes not only criminals and policemen, but judges as well. Siegel sincerely felt that the Court was moving too far in accommodating the rights of individuals to those of the community. But unlike other prosecutors before the Court, Siegel did not sound the alarm. He did not, even as the Court's dissenting brethren did, threaten the Justices with the dire consequences of a reversal. Indeed, he saw the handwriting on the wall and simply pleaded with the Court not to make the decision retroactive, a plea which the Court ultimately followed to avoid "seriously disrupt[ing] the administration of our criminal laws."

"Does man live alone or is he a member of the community?" Siegel asked rhetorically. Justice Abe Fortas took up the question. He told Siegel he was troubled hearing arguments which posed the question as if it were merely a matter of convicting the guilty. Reaching for some meaning in the cases that went beyond police interrogation, Fortas asked Siegel whether in fact they were not dealing with "the relationship of the state and the individual," not just the criminal and society. Fortas spoke of the Magna Carta and other testaments to individual liberty. Siegel acknowledged that these were noble ideals but suggested the immediate objective is to provide security, so that people have a chance to strive for these ideals.

Certainly Miranda means something in terms of security. The difficulty is in defining whose security is paramount. To the majority, security means protection against the dangers of abuse of power. To the dissenters, it is the security of person and property from the threat of the predatory-- those outside civilized society.

Each man has his own set of insecurities. The probability that any of the dissenting Justices would be victim of a violent crime is slim. To a middle-class shopkeeper in a poor urban neighborhood-- such as Harry Adelman--the probability of becoming a victim is naturally greater. But the likelihood of personal attack is obviously not the true index to a man's attitudes toward crime. The very discrepancy between reality and threat shows the operation of irrational influences. Perhaps the guilt of affluence has something to do with insecurity.

The insecurity of libertarians likewise has irrational components. Being a "cop-hater" has less to do with one's experience with police than with general response to authority. Jurists and professors who support Miranda do really abhor police abuses. The leader of the American Law Institute's liberal wing, for example, Professor Louis Schwartz, once obtained the release of a man who spent more than ten years wrongfully imprisoned after Philadelphia police tortured a false confession from him. But law professors themselves usually are not arrested or imprisoned falsely, nor subjected to the third degree. Their identification with the victims of police abuse obviously operates on an abstract level. Their anxieties do not stem from the immediate deprivations which threaten the daily lives of the lower class. They are haunted, rather, by a subtler threat--that which pervading conformity presents to the intellectual community.

Are the police, then, being made scapegoats? In his remarks in issuing Miranda, the Chief Justice, while praising the police generally, warned that when they adopt unfair methods, "they become as great a menace to society as any criminal we have." Considering that the police are not the sole, nor even a very important, instrument of power, this is a strong indictment. It means that as the most visible symbols of authority, the police are obvious targets for projected hostility.

The police alone are not responsible for the third degree, though obviously abuse would not occur without their willingness to participate. But who is guiltier of an atrocity, the interrogating policeman or the well-dressed prosecutor who arrives at the station house to take a suspect's statement after the interrogator has broken him down? Can guilt also be assigned to the community which closes its eyes in disinterest to the means used by law enforcers? Some critics in the twenties felt that popular hysteria over crime pressured the police into using the third degree. Perhaps the Court in Miranda is responding to a similar phenomenon, hoping to dissipate mounting pressures on the police before it is too late.

Justice White, on the other hand, feels that Miranda will push "those who rely on the public authority for protection" to turn to "violent self-help with guns, knives or the help of neighbors similarly inclined." This on the intellectual level is the same as the argument that the Court's interpretations of the Fifth Amendment will create popular reaction for its repeal.

If we acknowledge the educational role of the Court, then the majority in Miranda comes out on the better side of the argument. That the Court is ahead of popular currents is hardly an accusation of misconduct. Indeed, it is when the Court ceases to educate and lead that the quality of our civilization is in danger.

But, perhaps Miranda does not mean all this. Perhaps it is only a mirror of our uneasy times.

Copyright © 1966 by Robert M. Cipes. All rights reserved.
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