# State v. Smith > Oregon Supreme Court · September 16, 1986 · 301 Or. 681 URL: https://www.frixlaw.com/law-library/cases/9793684 ## Case - **Full name:** STATE OF OREGON, Respondent on Review, v. GRANT SMITH, Petitioner on Review - **Court:** Oregon Supreme Court - **Decided:** September 16, 1986 - **Citations:** 301 Or. 681; 725 P.2d 894; 1986 Ore. LEXIS 1489 - **Precedential status:** Published - **Opinion:** Dissent by Linde - **Judges:** Campbell, Jones, Linde, Lent - **Cited by:** 46 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9793684 ## How later opinions describe it (automated extraction) - explaining that “[w]e know of no case that interprets or applies ORS 136.425 independently of the common-law rules on confessions and admissions” and holding that the statute excludes confessions induced by threats or promises - holding that “the key to the ‘free and voluntary’ character of the confession is the inducement made to the defendant — was there any promise or threat made to the defendant which would elicit a false confession” - stating that “the key to the ‘free and voluntary’ character of the confession is the inducement made to the defendant—was there any promise or threat made to the defendant [that] would elicit a false confession” - holding, based on an extensive review of Oregon case law, that confessions are “initially deemed to be involuntary and the burden is upon the state to prove that it was voluntary” - explaining that “the tail goes with the hide” ## Opinion text LINDE, J., dissenting. Throughout its history, Oregon’s Bill of Rights has guaranteed that no one may be compelled in any criminal prosecution to testify against himself. Or Const, Art I, § 12. Throughout practically all of that history, Oregon statutes have secured this guarantee in a preliminary hearing by requiring that the magistrate inform a defendant of his rights to remain silent and to counsel, so that a defendant would not from ignorance of those rights or from the stress of his situation feel compelled to testify against himself. ORS 135.070(1), 1 General Laws of Oregon § 379 (Deady & Lane *703 1843-1864). Failure to give this information requires the exclusion of any evidence obtained thereby. ORS 136.435. 2 The plurality opinion begins by stating the question to be whether the Oregon Constitution itself requires law enforcement officers to give prescribed warnings before interrogating a detained person. That loads the question, because the Constitution obviously does not mention warnings. But the Constitution forbids the state to prosecute upon “compelled” statements of the defendant. The question is how this guarantee is to be made effective. Like the legislature that adopted the Deady Code provision in 1864 and reenacted it in 1981,1 believe that one obvious way to reduce the likelihood of “compelled” admissions or confessions is to tell suspects that they need not answer questions, that their answers may be used against them, and that they may consult counsel. Like the United States Supreme Court in applying the Fifth Amendment, I further believe that these warnings that Oregon long has required in a magistrate’s hearing are equally necessary and by analogy extend to interrogation by law enforcement officers before a detained person is brought before a magistrate. I. Only three years ago this court held warnings to be required in order to give effect to Article I, section 12, in State v. Mains, 295 Or 640, 645 , 669 P2d 1112 (1983). There, we wrote, as the present plurality opinion notes (301 Or at 695): “The Oregon Constitution similarly guarantees the right not to be compelled to testify against oneself in a criminal prosecution. Or Const, Art I, § 12. Like the United States Supreme Court, this court is called upon from time to time to specify the procedure by which a guarantee is to be effectuated. Such specifications are not the same as interpretations of the guarantee itself, that is to say, they may not always and *704 in all settings be the only means toward its effectuation but may be adapted or replaced from time to time by decisions of this court or by legislation in the light of experience or changing circumstances. In the absence of legislation, we believe that the following are the relevant information and warnings required in the setting of a psychiatric examination of a defendant conducted on behalf of the state to guarantee the right not to be compelled to testify against oneself in a criminal prosecution under Article I, Section 12, of the Oregon Constitution.” All but one member of the court joined in the Mains opinion; there was no dissent. 3 Thereafter, the quoted paragraph was repeated and applied to police interrogation in State v. Sparklin, 296 Or 85, 88 , 672 P2d 1182 (1983), in which the court went on to hold that the familiar federal Miranda formulation of the warnings also satisfied Oregon requirements. Again, there was no dissent. Today, three members of the court would disown what the court wrote in Mains and Sparklin . The other three members of the court would stand by the principle there stated, although, as Justice Jones’s concurring opinion shows, we disagree on its application to the facts in this case. Judge Campbell’s opinion for three judges, all of whom joined in Sparklin , attempts to dismiss Mains and Sparklin as “assuming” to require warnings to carry out Article I, section 12. That will not hold water. Presumably the author of Mains saw a reason for including the careful statement of this court’s duty “to specify the procedure by which [Article I, section 12] is to be effectuated.” Presumably the court read and agreed with that statement and with its further elaboration in State v. Sparklin. The judges joining in the plurality opinion can hardly say that they erroneously “assumed” something about the proper application of the Oregon Constitution, as if that depended on someone other than themselves. When this court assumes a disputed proposition for purposes of argument only, it knows how to say so. Nor can Sparklin’s reliance on Article I, section 12, be dismissed as obiter dicta, when the court went on to deal with and *705 to reject on the merits Sparklin’s claim for more elaborate warnings than those required by Miranda. Had the court not first concluded that Oregon law independently required warnings before interrogation, it could never have reached a question what those warnings should be. The plurality should not so readily denigrate its recent opinions as “assumptions” and “dicta.” I doubt that the court would welcome seeing a trial court or the Court of Appeals dismiss in that fashion a directive that is stated in the terms used in Mains . In fact, the Court of Appeals in this and in other cases-correctly understood that Sparklin required cautionary warnings as a matter of state law; only the circumstances under which they are required was disputed. State v. Smith, 70 Or App 675, 680 , 691 P2d 484 (1985); State v. Rowe, 79 Or App 801 , 720 P2d 765 (1986); State v. Kell, 77 Or 199 , 712 P2d 827 (1986). But I leave to members of the plurality whether it is more embarrassing to say that they did not mean what they wrote or joined in Mains and Sparklin , or that they did not know their own minds. Conceding that judges like other mortals may change their minds, the present decision on its own merits is a wrong and backward step. II. The plurality opinion begins by reciting the history of Oregon cases that dealt with the voluntariness of extrajudicial confessions. The common-law rule that an involuntary confession or admission must be excluded is not in dispute. That rule applies whether or not law enforcement officers caution a detained person before questioning. If the plurality wants to show that Oregon decisions did not hinge voluntariness on prior warnings, the recitals are needless; that, too, is not in dispute. The issue, rather, is what the constitutional and statutory provisions add to common-law “voluntariness” in restraining official efforts to obtain incriminating information from a present or potential defendant. None of the quoted cases before State v. Mains, supra, decided that issue. It was not decided or even discussed in State v. Henderson, 182 Or 147 , 183 P2d 392 (1947), or in State v. Nunn, 212 Or 546 , 321 P2d 356 (1958), on which the plurality chiefly relies. As the *706 plurality opinion acknowledges, the question was expressly left open for future decision in State v. Neely, 239 Or 487 , 295 P2d 557 (1965). 4 It was discussed and decided three years ago in State v. Mains and State v. Sparklin. Warnings based on Article I, section 12, or drawn by analogy from the statutes that effectuate it need not “overrule the Henderson line of cases” concerning voluntariness, as the plurality suggests. Neither Mains nor Sparklin purported to overrule anything. Rather, it is the plurality that now disowns its three year old opinions in those two cases. III. Arguments about precedents can show the weakness of a judicial opinion, but to little effect. As I have said, a judge who thinks he was wrong may change his mind. Today’s decision is wrong on its own merits. The plurality itself treats its recital of the earlier cases only as a prologue to its conclusion. The conclusion does not purport to follow from the quoted opinions. Rather, the plurality’s retreat from our 1983 opinions expressly rests on its rejection of a need for Miranda warnings in Oregon, at least at this time. The plurality singles out “police brutality” as the reason why Miranda warnings may once have been needed elsewhere but are not needed in Oregon today. If courts explain a rule of law as a deterrent to “police misconduct,” it is little wonder if law enforcement officers and some members of the public think that the judges are against the police. Nor are warnings before questioning simply a matter of judicial convenience, to be abandoned if they do not reduce the “case load,” as the plurality suggests. The practice of explaining a detained person’s rights before questioning has a legal footing independent of any police misconduct or numbers of appeals. As to the first argument, I do not know how the conduct of Oregon police officers compares with that of police officers elsewhere. The record before us contains nothing about that, nor should it. A rule should not be derived from *707 stereotypes and judicial generalizations about police conduct that differs over time, from one place to another, and with respect to different kinds of crimes, suspects, and circumstances. What we may assume about a rule of law is that officers (or others) ordinarily will abide by the rule; when a rule requires a search warrant or a cautionary warning, officers will obtain a warrant or give a warning, and if the rule allows them to search without a warrant or to question people without informing them of their rights to counsel and to remain silent, officers ordinarily will search or interrogate without seeking a legally unnecessary warrant or volunteering gratuitous advice not to answer their questions. We may assume this, not as an empirical fact, but because any rule is premised on the assumption that it affects and guides conduct, especially official conduct, unless it is known never to be enforced. 5 The plurality says that Oregon should be satisfied to return to the common-law rules governing the exclusions of “involuntary” confessions as they stood at the time of State v. Henderson, if the Supreme Court of the United States would let it. Henderson was decided almost 40 years ago. Under that standard, law enforcement officers could pursue their questioning of any person in their own way and in any setting, leaving it to later dispute and adjudication whether the answers were “voluntary.” It is hard to believe that this court in the 1980s would wish to return to the 1940s and 1950s and revive all the problems that led the United States Supreme Court 20 years ago to conclude that ad hoc determinations of voluntariness were inadequate to safeguard due process of law, let alone the rights to counsel and against self-incrimination. No generation would choose to relive that history unless it has forgotten it. I shall not recount it in detail here. In sum, for 30 years after Brown v. Mississippi, 297 US 278 , 56 S Ct 461 , 80 L Ed 682 (1936), the Supreme Court granted certiorari in case after case to review convictions based on confessions to state officers. Some of the confessions, as in Brown , had been obtained by physical torture, some by long, uninterrupted questioning of an isolated prisoner by relays of officers, and some by playing on the inexperience and fear of *708 young, black, or ignorant suspects, and by denying them access to legal counsel or to family or friends. See Chambers v. Florida, 309 US 227 , 60 S Ct 472 , 84 L Ed 716 (1940); Ashcraft v. Tennessee, 322 US 143 , 64 S Ct. 921, 88 L Ed 1192 (1944); Haley v. Ohio, 332 US 596 , 68 S Ct 302 , 92 L Ed 224 (1948); Watts v. Indiana, 338 US 49 , 69 S Ct 1347 , 93 L Ed 1801 (1949); Turner v. Pennsylvania, 338 US 62 , 69 S Ct 1352 , 93 L Ed 1810 (1949); Harris v. South Carolina, 338 US 68 , 69 S Ct 1354 , 93 L Ed 1815 (1949); Payne v. Arkansas, 356 US 560 , 78 S Ct 844 , 2 L Ed 2d 975 (1958); Crooker v. California, 357 US 433 , 78 S Ct 1287 , 2 L Ed 2d 1448 (1958); Cicenia v. LaGay, 357 US 504 , 78 S Ct 1297 , 2 L Ed 2d 1523 (1958); Spano v. New York, 360 US 315 , 79 S Ct 1202 , 3 L Ed 2d 1265 (1959); Rogers v. Richmond, 365 US 534 , 81 S Ct 735 , 5 L Ed 2d 760 (1961); Haynes v. Washington, 373 US 503 , 83 S Ct 1336 , 10 L Ed 2d 513 (1963). Some of the cases involved “police brutality,” others did not, nor even “police misconduct,” unless intensive questioning before letting a suspect see a defense lawyer or a magistrate is first defined as misconduct. Because the Supreme Court had not then held the states to the express constitutional standards of the federal Fifth and Sixth Amendments, the Court reviewed these cases only for “due process of law” under the Fourteenth Amendment, and it held that “involuntary” confessions (though not denial of access to counsel) violated due process. 6 One effect was to turn the “voluntariness” of every confession into a federal constitutional question to be decided by appellate courts, including the United States Supreme Court. Eventually, of course, the court recognized the rights to remain silent, to the assistance of counsel, and to the exclusion of unlawfully obtained evidence as essential elements of due *709 process, and it formulated the Miranda warnings as necessary to safeguard against the uninformed, thoughtless or frightened sacrifice of those rights. The striking fact about the Supreme Court’s cases under the “voluntariness” standard extolled by today’s plurality opinion is that in each case a state trial court let a jury find that the defendant’s confession was voluntary. In each case, a state appellate court affirmed that finding before the Supreme Court held that, on the undisputed facts, the confession was involuntary. The plurality says that it is important to keep Oregon law on involuntary confessions and admissions intact. Of course it is. No one suggests that reading a suspect a statement of his rights does away with the rule against involuntary confessions or admissions. Obviously a suspect may still wrongfully be induced to confess by “hope or fear,” State v. Wintzingerode, 9 Or 153, 163 (1881), after the warnings have dutifully been read to him. But in Oregon, too, the fact is that despite repeated recitals of the rule, not once has this court actually found a confession “involuntary” by reason of the coercive pressures of police questioning, although a few cases have excluded confessions induced by promises of leniency. 7 But the requirement of warnings, as I have said, has independent legal footing. IV. What Article I, section 12, of the Oregon Constitution guarantees is that no person “be compelled in any criminal prosecution to testify against himself.” As the United States Supreme Court recently repeated: “The privilege against self-incrimination enjoined by the Fifth Amendment is not designed to enhance the reliability of the fact-finding determination; it stands in the Constitution for entirely independent reasons. Rogers v. Richmond, 365 U. S. 534, 540-541 (1961) (Involuntary confessions excluded ‘not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying *710 principle in the enforcement of .our criminal law: that ours is an accusatorial and not an inquisitorial system’).” Allen v. Illinois,_US_, 106 S Ct 2988, 2995 , 92 L Ed 2d 296, 308 (1986). Article I, section 12, like other constitutional provisions, is addressed to the conduct of public officials, not to the reaction of the individual private citizen. It forbids acts designed or likely to compel self-incriminating answers. That a person in fact gives no such answer does not exonerate acts of the proscribed kind, any more than a fruitless search yielding no seizure exonerates a failure to obtain a required warrant. The application of Article I, section 12, therefore poses an issue beyond the common-law test whether a particular confession in fact was “voluntary.” Application of Article I, section 12, corresponds to the United States Supreme Court’s shift in the 1960s from its earlier, unsatisfactory, “due process” review of confessions deemed “involuntary” on appeal to the direct application of the Fifth (and the Sixth) Amendment to investigatory practices. For an Oregon court, unlike the federal courts, the difference between “volun-tariness” and application of Article I, section 12, requires no shift at all, because the direct application of the state’s own guarantees in its courts does not depend upon any intermediate “due process” clause. The present issue, then, concerns the role of cautionary warnings in giving effect to those guarantees. On this issue, ORS 135.070(1) and 136.435, and their predecessors are important. This court need not, like the United States Supreme Court in Miranda v. Arizona, set out to derive mandatory warnings directly from the Constitution. ORS 135.070(1) describes exactly the essential rights of which a suspect should be aware before he makes any statement that could be used as evidence (or could lead to evidence, ORS 136.435) against him. Of course the statutes do not expressly address police officers. If they did, this case would not be here. To the plurality, since the statutes do not mention investigative stages and officials other than magistrates’ hearings, they do not “apply” and are irrelevant. That narrow view of legislation long ago was criticized by Chief Justices Harlan F. Stone *711 and Roger Traynor, among others. 8 The long-standing laws requiring magistrates to inform defendants of their rights are important because they establish three principles of this state’s policy. First, they obviously mean to protect the privilege not to testify against oneself rather than to prevent the coercion of a false confession. Second, the legislature chose warnings as the proper means to assure that the privilege was not waived out of ignorance. Third, they provide that failure to follow these steps should lead to exclusion of the resulting evidence. The policy of the statutes clearly is independent of the common-law rule excluding “involuntary” confessions. Testimony elicited before a magistrate who has not cautioned the defendant (and evidence obtained thereby) “shall not be admissible, over the objection of the defendant,” no matter how voluntary the defendant’s statements may have been. The statutory test for admitting a defendant’s statements against him is not phrased in the terms of voluntariness alone *712 but in terms that require a waiver—the “intentional relinquishment or abandonment of a known right or privilege,” as we recently wrote about a guilty plea entered without an adequate statement by the judge of the right to confrontation that is relinquished by the plea. Stelts v. State, 299 Or 252, 259 , 701 P2d 1047 (1985) (quoting Johnson v. Zerbst, 304 US 458, 464 , 58 S Ct 1019 , 82 L Ed 1461 (1938)). In view of these principles long ago adopted by the legislature, it cannot well be said that protection of the privilege against self-incrimination by requiring warnings before questioning does not accord with the public policy of this state. On the contrary, it is the state’s public policy when a judicial officer rather than an executive officer becomes responsible. Rather than consider the statutes irrelevant, the court should ask why this public policy is negated simply by having the unwarned suspect incriminate himself under questioning by police officers beforb a magistrate belatedly explains his rights not to do so, and to have the assistance of counsel. In today’s structure of professional law enforcement, the statutory policy of protecting, the privilege against self-incrimination and the right to counsel by warning against uninformed waiver requires those warnings earlier than when a defendant first is brought before a judge. 9 1 shall not argue at length at what stage of confrontation between an officer and the person being questioned the warnings should be required. I stated my own views on that issue in the setting of police investigation of drivers of stopped vehicles in State v. Roberti, *713 293 Or 59, 91 , 644 P2d 1104 (1982), and I later joined Justice Lent’s opinion when it became the majority opinion, 293 Or 236 , 646 P2d 1341 (1982), before being once again reversed on remand by the United States Supreme Court, 298 Or 412 , 693 P2d 27 (1984). Justice Jones’s concurring opinion in this case notes that the defendants in Mains and Sparklin were in custody, and he would confine the requirement of warnings before questioning to that situation. I do not believe that the words “formal” before “arrest” and “full” before “custody” are distinctive legal concepts, and factually they have no obvious bearing on whether police questioning is either designed or likely to be perceived as “compelling” a responsive answer. I believe that a rule addressed to public officers must describe the conditions in which it applies from the perspective of the officer who is to follow it. This does not mean warnings whenever an officer asks questions of bystanders or other witnesses. It means that the officer should give warnings corresponding to those prescribed by ORS 135.070(1) and to the federal Miranda warnings whenever the officer knows that he is using official authority to detain the individual whom he questions, or when as a reasonable officer he should know that the individual, or a reasonable person in the individual’s position, would believe that the officer is using his authority to detain him until he answers the officer’s questions. The pressure to respond when confronted and detained by police authority is sufficiently like the pressure to respond when taken before a magistrate that the same precautions are needed. In the case before us, I believe that this test probably would lead a trial judge to find that warnings should have preceded questioning, but of course the trial judge was not applying this test. To conclude, I have refrained from stating that Article I, section 12, itself requires warnings before questioning. Sometimes it is unavoidable to spell out in detail how a broad constitutional principle is to be administered, but there is no need for a court to freeze details into constitutional law when guidance can be found in laws like ORS 135.070(1) and 136.435 that can be further considered and refined by the ordinary lawmaking process. Regrettably, the court’s present approach is to say that if the legislature wants to protect the rights of Oregonians beyond the inescapable minimum that *714 this court finds in the constitution itself, the legislature is free to do so. I believe, to the contrary, that a court should assume that individual liberty is to be protected unless and until politically accountable lawmakers legislate to the contrary and force the constitutional issue. “It is the government that must ask lawmakers for authority against the citizen, not the citizen that must ask lawmakers to enact laws against ‘inherent’ official power.” State v. Brown, 301 Or 268, 298 , 721 P2d 1357 (1986) (Linde, J., dissenting). Today’s plurality opinion would take Oregon back 40 years and overturn all that has been learned about the inadequacy of excluding “involuntary” confessions as a protection for the constitutional right against self-incrimination, if the United States Supreme Court did not bind Oregon to more civilized national standards than the plurality ascribes to our own laws. It is a reminder that, despite recent progress in many state courts, people in Oregon as elsewhere still need the protection of federal law for the basic liberties common to the national and the states’ bills of rights. 10 Lent, J., joins in this dissenting opinion. ORS 135.070 provides: “When the defendant against whom an information has been filed in a preliminary proceeding appears before a magistrate on a charge of having committed a crime punishable as a felony, before any further proceedings are had the magistrate shall read to the defendant the information and shall inform the *703 defendant: “(1) Of the defendant’s right to the aid of counsel, that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant.” ORS 136.435 provides: “Evidence obtained directly or indirectly as a result of failure of a magistrate to comply with ORS 135.070 shall not he admissible, over the objection of the defendant, in any court.” Peterson, C. J., dissociated himself from a statement about the presence of counsel at a psychiatric examination; Campbell, J., concurred in the result. State v. Mains, 295 Or 640, 665 , 669 P2d 1112 (1983). The plurality opinion erroneously implies that State v. Neely, 239 Or 487 , 295 P2d 557 (1965), rejected a claim under Article I, section 20. 301 Or at 694-95 . The Neely court said that “we need not determine that issue at this time” because it was settled by federal law. Since Neely, of course, this court has corrected the past practice of applying federal limits on state laws before deciding state issues. The Oregon Evidence Code even enacts as statutory presumptions that “official duty has been regularly performed” and “the law has been obeyed,” OEC 311(j), (x). In a related development, the Supreme Court found a subconstitutional premise for limiting police questioning in federal prosecutions by excluding statements obtained after a defendant should have been brought before a magistrate. McNabb v. United States, 318 US 332 , 63 S Ct 608 , 87 L Ed 819 (1943); Mallory v. United States, 354 US 449 , 77 S Ct 1356 , 1 L Ed 2d 1479 (1957). Voluntariness continues as an independent requirement of due process, both on the theory that “certain interrogation techniques, either in isolation, or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment,” Miller v. Fenton, 474 US_, 106 S Ct 445, 449 , 88 L Ed 2d 405, 410 (1985), and as an element that a jury must be permitted to consider as bearing on the credibility of a confession. Crane v. Kentucky, 476 US-, 106 S Ct 2142 , 90 L Ed 2d 636 (1986). See State v. Ely, 237 Or 49 , 390 P2d 348 (1964); State v. Linn, 179 Or 499 , 173 P2d 305 (1946); State v. Green, 128 Or 49 , 273 P 381 (1929); State v. Garrison, 59 Or 440 , 117 P 657 (1911). Chief Justice Stone wrote 50 years ago: “The reception which the courts have accorded to statutes presents a curiously illogical chapter in the history of the common law. Notwithstanding their genius for the generation of new law from that already established, the common-law courts have given little recognition to statutes as starting points for judicial lawmaking comparable to judicial decisions. They have long recognized the supremacy of statutes over judge-made law, but it has been the supremacy of a command to be obeyed according to its letter, to be treated as otherwise of little consequence. The fact that the command involves recognition of a policy by the supreme lawmaking body has seldom been regarded by courts as significant, either as a social datum or as a point of departure for the process of judicial reasoning by which the common law has been expanded. <<* * * * * “* * * I can find in the history and principles of the common law no adequate reason for our failure to treat a statute much more as we treat a judicial precedent, as both a declaration and a source of law, and as a premise for legal reasoning. * * * Apart from its command, the social policy and judgment, expressed in legislation by the lawmaking agency which is supreme, would seem to merit that judicial recognition which is freely accorded to the like expression in judicial precedent. But only to a limited extent do modern courts feel free, by resort to standards of conduct set up by legislation, to impose liability or attach consequences for the failure to maintain those or similar standards in similar but not identical situations, or to make the statutory recognition of a new type of right the basis for the judicial creation of rights in circumstances not dissimilar.” Stone, The Common Law in the United States, 50 Harv L Rev 4 (1936). See also Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213 (1934); Traynor, Statutes Revolving in CommonLaw Orbits, 17 Cath U L Rev 401 (1968). Before development of organized police forces and full-time prosecutors, prosecutions were brought by private citizens and defendants were questioned for the first time when brought before a magistrate or justice of the peace. English magistrates were forbidden to interrogate an accused person by statute in 1848, shortly before Oregon required the warnings now found in ORS 135.070(1), and the famous Judges’ Rules requiring British police officers to give similar warnings grew from the assumption that “what was forbidden to the magistrate as a judicial officer was also forbidden to the police.” Williams, Interrogation Privileges and Limitations Under Foreign Law: England, 52 J Crim L Criminology and Police Sci 50, 53 (1961). On the changes brought by the shift of administration of criminal justice, especially investigation, to executive institutions, i.e., police and prosecutors, and the consequences for the privilege against self-incrimination and the right to counsel, see generally Kamisar, Police Interrogation and Confessions 51-55 (1980); Note, An Historical Argument for the Right to Counsel During Police Interrogation, 73 Yale L J 1000 (1964). Justice Brennan recently told the American Bar Association: “[W]e must not be beguiled with thinking that, because state supreme courts are increasingly evaluating their state constitutions and concluding that those constitutions should be applied to confer greater civil liberties than their federal counterparts, we can safely ignore the deterioration being worked on Fourteenth Amendment protections. We can and should welcome this development in state constitutional jurisprudence—indeed, my own view is that this rediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions-* * * is probably the most important development in constitutional jurisprudence of our times. * * * “But this most welcome development does not mean that we can stop resisting cut-backs, particularly by the Supreme Court of the United States, of Fourteenth Amendment protections. One of the great strengths of our federal system is that it provides a double source of protection for the liberties of our citizens. Federalism is not served when the federal half of that protection is crippled.” “The Fourteenth Amendment,” address by Justice William J. Brennan, Jr., American Bar Association Section on Individual Rights and Responsibilities, New York University Law School (August 8,1986). See also Cabranes, The Need for Continued Federal Protection of Individual Rights, 15 Conn L Rev 31 (1982). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793684. Public record. Not legal advice.