This is the first in a series of 10 special Politics Daily columns designed to complement C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The C-SPAN broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the Justices and the lawyers before them in arguments that shaped the law that has shaped our lives in countless ways. The first tape, of the
Miranda v. Arizona argument in 1966, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, October 2. Subsequent tapes will be aired, each Saturday evening, until December 18. Like this one below, subsequent articles will preview each taped argument.
"You have the right to remain silent..."
We've come to accept the phrase as part of the embedded language of television
and the pronounced scripture of law. It is typically the start of what is commonly known as the "Miranda Warning
"-- the formalized speech that law enforcement officials are required to give before they interrogate criminal suspects in the hopes of getting from them a legally admissible confession or some other incriminating information.
The "warning" is really a dividing line, marking the point at which the confrontation between police and suspect formally becomes an adversarial one. It is designed to chill the interrogative excesses of the police. And it is designed to remind a suspect -- "Don't forget that you have certain constitutional rights, one of which is the right not to incriminate yourself by continuing to talk with the police"-- before it places upon a suspect the legal choice of whether to tell his or her story to the cops or not.
in our story -- he was in prison at the time of the oral argument so we never hear his voice on tape -- was Ernesto Miranda. In 1963, the 23-year-old man ("of Spanish extraction," his lawyer told the Court) was convicted of rape and kidnapping following a trial in which his confession was the only evidence introduced by prosecutors. Miranda had confessed following an interrogation by police. He had not asked to halt the interrogation. The police had not told him he had a right to do so. By the time his appeal found its way to the United States Supreme Court, the justices had just decided a case, Escobedo v. Illinois
(1964), in which they had ruled the Constitution requires the police to stop an interrogation when the suspect requests his lawyer. So in that sense, at least, Ernest Miranda's timing was good; the justices were clearly open to the idea of expanding the scope of Esobedo.
Men and women are Mirandized
thousands of times each day in America. In many cases, the suspect is read his rights, waives them for one reason or another, and continues to cooperate with the police. This is how valid and admissible confessions are created. In many other cases, the suspect who is Mirandized
clams up and let's his lawyer do the talking. There has been a great deal of litigation about the scope of the warning -- when it is correctly used, when it is not -- over the past 44 years since Miranda
became law. This past spring, in fact, the United States Supreme Court limited the scope
of the warning. In Berghuis v. Thompkins
, a divided court ruled that a suspect had to expressly invoke her Miranda
rights in order for those rights to protect her later at trial; that the police are not required to stop an interrogation based merely upon the silence of a suspect.
This is a snapshot of where the original Miranda
ruling rests now -- a recent casualty, some say, of the "conservative" counter-revolution that has marked criminal procedure over the past 30 years. What is also called the "Rehnquist Revolution
," named after the late chief justice of the United States, has limited the rights of criminal suspects and defendants and lessened burdens on the police and prosecutors since Miranda
first was implemented around the country. Limited them from what? From the broad liberal milestones laid out from the mid-1950s through mid-1970s by the Warren Court
, named after another late chief justice of the United States. The tide comes. The tide goes. For now, Miranda
is still standing -- even, sometimes, in the age of the interrogation of certain terror suspects
But to hear the Miranda
case now is to flip back in time to when the Court was in the process of recognizing broader constitutional protections for individuals in their dealings with the state. Miranda v. Arizona
(1966) was heard and decided less than one year following the passage of the Civil Rights Act of 1965. It was heard and delivered while J. Edgar Hoover reigned at the Federal Bureau of Investigation. It was heard while the United States Senate was still dominated by Southern Democrats and just following the Johnson administration's tragic decision to expand the scope of American involvement in the war in Vietnam. As Chief Justice Earl Warren pointed out in his majority opinion, the case was decided at a time when "the third degree
" in interrogation practice wasn't just a cliche but common police practice.
The justices had only three years earlier given criminal defendants who could not afford a lawyer the right to a court-appointed one in Gideon v. Wainwright
(1963). The court was just a few years removed from its rulings in Baker v. Carr
(1962) and Reynolds v. Sims
(1964) in which it had dramatically altered the political landscape by creating new redistricting standards. The justices had not yet struck down Virginia's miscegenation statute in Loving v. Virginia
(1967). And they were still four years away from affording recipients of public benefits the right to notice and a hearing before the termination of such benefits (in Goldberg v. Kelly
(1970), and seven years away from Roe v. Wade
When you listen
to Miranda v. Arizona, when you transport yourself back to the spring of 1966, the first thing you notice is the the voices of the judges and lawyers. Constitutional standards aside, they even talked
differently back then -- slower, using a more formal diction, and with great regional accents. There were also fewer questions from the bench than we ordinarily see now. John Flynn, a Phoenix lawyer hired by the American Civil Liberties Union on behalf of Miranda, is the first lawyer to speak and he sounds positively stentorian, like John Facenda
in those old football highlights.
When Justice Potter Stewart, who would later vote against Miranda, invited Flynn to suggest to the court what a lawyer might have told Miranda had Miranda been advised of his right to an attorney, Flynn replied:
"That he had the right not to incriminate himself; that he had a right not to make any statement; that he had the right to be free from further questioning by the police department; that he had the right, at an ultimate time, to be represented adequately by counsel in court, and that if he was too indigent, too poor to employ counsel, that the state would furnish him counsel."
This was the taproot of the warning. But listen also for Justice Hugo Black
, in his Southern drawl, focus upon the coercive effect of being questioned while in custody at a police station. Listen for the brief exchange between Justice Black and Justice Byron "Whizzer" White, at the time one of the junior justices on the court. Justice White ultimately voted against Miranda. Justice Black did not. Listen to the courteous manner in which Justice Potter Stewart addressed the attorneys, and to the arguments offered by Duane Nedrud, of the National District Attorneys Association. He spoke for the law and order set (no doubt President Nixon's future "silent majority") when he told the justices: "If we are talking about equality between the policeman and the criminal, we are on dangerous ground."
A final note. Justice White, one of the dissenters in Miranda
, ultimately recognized its constitutional force 24
years later. And even Chief Justice William Rehnquist, who almost certainly would not have voted in favor of Ernest Miranda in 1966, conceded 34
years later that the court's precedent in the case was binding and precluded a legislative end to the requirement of the warning.