Amicus Curiae Brief — Michigan v. Tucker

+

4

Fa

PRELIM LION LILI LLY GOMES LER MEET PN ee Se ee he ae Ni dec a et

Supreme Court of the Gnited

OcTOBER TERM, 1973.

No. 73-482

STATE OF MICHIGAN,

Petitioner,

vs.

THOMAS W. TUCKER,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

BRIEF OF AMERICANS FOR EFFECTIVE LAW EN-

FORCEMENT, AND THE INTERNATIONAL ASSO-

CIATION OF CHIEFS OF POLICE, INC., AS

AMICI CURIAE IN SUPPORT OF THE

PETITIONER.

FRANK G. CARRINGTON, JR.. ESQ..

FRED E. INBAU, ESQ.,

Americans for Effective Law

Enforcement, Inc.,

Suite 960,

State National Bank Plaza,

1603 Orrington Avenue,

Evanston, Illinois 60201,

Counsel for Amici Curiae.

Of Counsel:

WILLIAM K. LAMBIE, ESQ..

WAYNE W. SCHMIDT, ESQ..

RICHARD O. WRIGHT, ESQ..

Americans for Effective Law

Enforcement, Inc.,

GLEN MURPHY,

PAUL KELLER, ESO...

International Association of

Chiefs of Police, Inc.,

Eleven Firstfield Road,

Gaithersburg, Maryland 20760.

JAMES B. ZAGEL, ESQ.,

Assistant Attorney General of the

State of Illinois,

188 West Randolph Street,

Chicago, Illinois 60601.

\ Hise Gunthorp-Warren Printing Company, Chicago @ 346-1717

TABLE OF CONTENTS.

ids ot PI oes ovis na Fyn en ee eee

icons OF Gee Ainied COO iw is 6 soo vv ce oh ees

Summary

Argument

I.

a

Ill.

IV.

Conclusion

8 err ee re rm rr

The Victims of Crime Are Entitled to Represen-

ee

The Miranda Decision Mandates Too Rigid and

Too Inflexible a Set of Absolute Standards for

the Admissibility of Statements of the Accused,

Which Standards Do Not Take Into Considera- :

tion the Necessity for Interrogation in Criminal

SOUT a eva 0 eee ess ee

The Rigidity and Inflexibility of the Absolute

Application of the Miranda Rule Has, in Many

Cases, Resulted in the Victimization of Indi-

viduals and of Society by Requiring the Reversal

of Convictions of Criminals Despite the Fact That

the Miranda “Violations” Were at Most Tech-

nical and the Confessions Were by Any Objec-

tive Seenined VoRMtY oe ke es eee ae es

The Instant Case Provides a Vehicle for This

Court to Review and Modify the Rigid and

Inflexible Requirements of the Miranda Decision

with Regard to Confessions as Well as Admis-

sions. We Urge the Court to Do So.........

62° eS Pe ee oe Eee eee ee Ss eS ee eee ee eS

At Ate Ratan OMEN OT ml RE NI RUN Rees DEE OE a AON SD

TABLE OF AUTHORITIFS.

Cases.

Atwell v. United States, 398 F. 2d 507 (Sth Cir. 1968)... 19

Berger v. New York, 384 U. S. 41 (1967)............ 13

Biggerstaff v. State, Okl. Cr., 491 P. 2d 345 (1971)... .18,19

Bivens v. Six Unknown Named Narcotic Agents, 403 U. S.

ey ee re rer ee 14, 29

Brown v. United States, 375 F. 2d 310 (D. C. Cir. 1967) 6

Commonwealth v. Davis, 270 A. 2d 199, 440 Pa. 123

CR no ss es 18

Commonwealth v. Goldsmith, 363 A. 2d 322, 438 Pa. 83

Bo) Ere rr pee rere a ror 21

Commonwealth v. Singleton, 266 A. 2d 753. 439 Pa. 185

2, | se ee one ek er ore rire rear 18

Coulumbe v. Connecticut, 367 U. S. 586 (1951)........ 18

DuPont v. United States, 259 A. 2d 355, D. C. App.

CIE Mo i ROE Rb en ko Se wc cas ish eiees 22

ris ¥. AOE, foe ULB. 191 (19ST). wo ee ees 18-

Franklin v. State, 252 A. 2d 487, 6 Md. App. 572 (1969) 19

Prenser vy. Come, 356 U. G70 C190). . oc cc ees 18

seatres v. New York, 401 U. &. 222 (1971)........... 19

Johnson v. New Jersey, 384 U. S. 719 (1966)..... eee

Miranda v. Arizona, 384 U. S. 436 (1966).......... passim

People v. Milton, 75 Cal. Rptr. 803 (1969)........... 20

People v. Tucker, 385 Mich. 594, 189 N. W. 2d 290

RU EE ei eek ee ee oe ee es ko 6, 28

Rogers v. Richmond, 365 U. S. 534 (1961)

Scott v. State, 475 S. W. 2d 699, Ark. (1972)......... 20

ga vere ei memento anes

iii

smith v. United States, 324 F. 2d e790 (D.C. Ck. 1969).. «S

United States v. Millen, 338 F. Supp. 747, U. = 1

“oe ee es eee ere et ee 21

Statutes.

18 U.S. C. 3501 (19GB) . 5.2. ee cece beer eee ces 30

Other Authorities.

A Study of the Victims of Violent Crime in the Ghetto by

Professor Herbert L. Packer, Stanford University, re-

ported in Crime Control Digest, March 25, 1970..... 31

Denver Post: “Black Crime Preys on Black Victims,”

Associated Press Report, August 23, 1970........-.. 31

Friendly, The Fifth Amendment Tomorrow: The Case for

Constitutional Change, The Robert S. Marx Lectures for

1968 at the University of Cincinnati College of Law,

ee OS i a ea 32

Graham, The Self-Inflicted Wound, the McMillan Com-

pany, New York, 1970......---.+-+ sees eee eees 11,12

Hook, Sidney, “The Rights of the Victim: A Reflection on

Crime and Compassion.” Encounter, March, 1972.... 9

Inbau and Reid, Criminal Interrogations and Confessions,

Williams and Wilkins Co., Baltimore, Md. (1967).... 13

Nedrud, “The Criminal Law,” 1968-1973, LE Publications,

Oe eee ee ae

Zagel, James B., Confessions and Interrogations After

Miranda, National District Attorneys Association, Chi-

We I, Fre ir re i ee 17

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1973.

No. 73-482.

STATE OF MICHIGAN,

Petitioner,

VS.

THOMAS W. TUCKER,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

BRIEF OF AMERICANS FOR EFFECTIVE LAW EN-

FORCEMENT, INC. AND THE INTERNATIONAL

ASSOCIATION OF CHIEFS OF POLICE, INC.,

AS AMICI CURIAE IN SUPPORT OF THE

PETITIONER.

This brief is filed pursuant to Rule 42 of the Supreme Court

Rules. Consent to file has been granted by the Office of the

Prosecutor of Oakland County Michigan, counsel for the Pe-

titioner, and by Kenneth M. Mogill, Esq., counsel for the

Respondent. Letters of consent of both parties have been filed

with the Clerk of the Court.

INTEREST OF THE AMICI CURIAE.

Americans for Effective Law Enforcement, Inc. (AELE) is

a national not-for-profit citizens organization incorporated under

5

the laws of the State of Illinois. As stated in its by-laws the

purposes of AELE are:

1. To explore and consider the needs and requirements

for the effective enforcement of the criminal law.

2. To inform the public of these needs and requirements,

to the end that the courts will administer justice based

upon a due concern for the general welfare and se.

curity of law abiding citizens.

3. To assist the police, the prosecution, and the courts in

promoting a more effective and fairer administration

of the criminal laws.

In furtherance of these objectives AELE seeks to represent in

our courts, nationwide, the concern of the average citizen with

the problems of crime and of police effectiveness to deal with

crime.

The International Association of Chiefs of Police, Inc.

(IACP) represents over 5,000 chiefs and top executives of

police departments and other law enforcement agencies in all

50 states and in 85 foreign countries. The IACP serves the

law enforcement profession and the public interest by advancing

the art of police service. Its aims are to foster police coopera-

tion and the exchange of information and experience among

police administrators throughout the world, and to encourage

adherence of all police officers to high professional standards of

performance and conduct. With regard to police professional-

ism law-related activities, the IACP, in 1970 formed the Police

Legal Center of the IACP. This center serves as a hub for

legal activities affecting police work, it coordinates the activities

of Police Legal Advisors and Police Legal Units, nationwide.

and publishes numerous periodicals, documents, and in-service

legal training materials for use both by police officers ané

executives.

The interest of amici in the instant case stems from the im-

portance of the issues involved, the resolution of which wil

have a direct and material impact upon the effectiveness of law

enforcement. The issue in this case to which amici address our-

selves: “Whether the standards set forth in Miranda v. Arizona

are too restrictive in excluding admissions and are not mandated

by the United States Constitution,” is, by definition, one of the

most important issues to come before this Court this term, or

for that matter, any other term. Miranda, at least in the rigid

and inflexible application of its dictates which we shall describe,

has had a major deleterious effect upon the effectiveness of law

enforcement, with a concomitant effect upon the rights of the

law-abiding to be reasonably free from criminal harm.

Miranda was decided on the narrowest possible basis—five

to four. The dictates of Miranda have now been the law for

almost seven years. This Court has not before agreed to con- ”

sider the implications of the decision. We believe that this case

presents a vehicle for the airing of the effects of this controver-

sial case. Amici, in accordance with their stated interests, seek

to present our views concerning the effects of Miranda to this

Court.

SUMMARY OF ARGUMENT.

Amici agree with and support the legal arguments of the

State of Michigan regarding the derivative use of third party

testimony obtained from a suspect who had not been properly

advised of his rights in accordance with Miranda v. Arizona,

384 U. S. 346 (1966); however we will address ourselves to

the second question certified: “Whether the standards set forth

in Miranda v. Arizona are too restrictive in excluding admis-

sions and are not mandated by the United States Constitution?”

Amici believe that the victims of crime—individual victims

in individual criminal cases and potential victiins of criminal

violence—are entitled to representation before this Court.

Likewise the right and duty of society to protect the law-abid-

ing from the lawless is entitled to such representation.

Mr. Justice White, dissenting in Miranda (384 U. S. at 539,

542. and 543) expressed concern over the impact of that case

4

upon the rights of the victims and the right of society to protect

the ‘victims. While we are committed to the principal of funda-

mental fairness to cfiminal suspects, amici share the concem

expressed by Justice White, and we believe that the rigidity and

inflexibility of the dictates of Miranda have tipped the balance

in favor of the criminal suspect and against the law-abiding.

The dictates with regard to the admissibility of statements of

the accused which are embodied in the majority opinion in

Miranda are absolute, rigid and inflexible. They leave no

margin for error on the part of law enforcement officers; if the

slightest inadvertent Miranda “violation” has taken place, the

statements of the accused: must be suppressed and often the

convictions of those whose factual guilt"Ts patent must be re-

versed and in many cases they must be freed.

As the dissenting justices in Miranda pointed out, the

language of the majority opinion is couched in such absolute

terms that no other factors, such as the obvious voluntariness of

a statement or the attempts of law enforcement officers to com-

ply in good faith with Miranda’s dictates, must be disregarded.

This contention is. borne out by expert analysis made by a

credentialed observer of the Miranda majority opinion.

In a broader sense, absolutes such as are found in Miranda

have no place in such a non-finite area as the law—especially

the enforcement of the criminal law. In a discipline as diff

cult and transitory as the criminal law, in which many learned

judges often cannot agree, the rigidity and inflexibility of cases

such as Miranda can often lead to the most serious miscarriages

of justice.

In order to prove this point, amici present examples

of appellate cases in which the absolute dictates of Miranda

have required the reversal of the convictions of those whose

confessions to crimes—in many cases the most serious sort of

crimes—were held to be invalid. These reversals came about.

moreover, despite overwhelming evidence that the police were

5

acting in good faith, the “violations” were highly technical, and

the statements made were, by any objective standard, com-

pletely voluntary.

The instant case presents a vehicle for the Court to modify

the excesses caused by the inflexibility of Miranda. Amici do

not contend that the Court should abandon the concept that a

criminal suspect ought to be advised of his right to be free from

self-incrimination; rather we-urge a modification of the all-or--

nothing, no-margin-for-error, rigidity of Miranda.

A modification might take the shape of a return to the pre-

Miranda standard of voluntariness, or it might take the shape

of some lesser modification such as reposing some discretion in

the trial court to admit a defendant's statements in cases where

there was no coercive police conduct and the statements were

made voluntarily, or where any of the Miranda violations were

inadvertent, or where a serious miscarriage of justice would

result if the statements were not admitted. ~

‘

In this context, amici urge that the Court modify Miranda's

inflexibility with regard to both confessions and admissions. _ 5

:

The facts of the instant case present a proper vehicle for

this Court to modify Miranda, as it is clear that there were no :

“coercive police practices involved, the defendant’s statements ;

were made voluntarily, the Miranda “violation” was completely

inadvertent, and a miscarriage of justice would surely take place

if the instant defendant’s rape conviction should be reversed.

A modification of Miranda’s absolute commandments would

do no injury to the concept of fundamental fairness to criminal

suspects. Egregious police conduct and coerced confessions, 4

the basic truthfulness of which is in doubt, would still be in- :

admissible, as they were before Miranda, and, indeed, they

should be. Amici urge only a balance between’ the rights of

the accused and the rights of the law-abiding in our society.

Amici anticipate a counter-argument that any modification

of Miranda would be used by the police to oppress minorities

6

and the poor and powerless. Our response is two-fold. Firs,

if a police officer uses coercive tactics to extort a confession

from a member of a minority race, that confession would bk

inadmissible under any modification of Miranda which we te.

lieve this Court might make. Second, and perhaps more in-

portantly, it is precisely the minorities and the poor and power.

less who bear the greatest burden of violent crime. If fewer

criminals were freed, to return to the ghetto to victimize again,

the great majority of ghetto dwellers who are decent, law-abid-

ing citizens living in constant fear of crime, would deservedly

benefit.

For these reasons amici urge this Court to utilize the instant

case as a vehicle to modify the rigid and inflexible mandate of

Miranda with regard to the admissibility of confessions and

admissions.

ARGUMENT.

Amici will notereiterate the legal arguments made by the

State of Michigan in this case with regard to the derivative us

of third party witness testimony obtained from a suspect who

had not been advised in accordance with the requirements of

Miranda v. Arizona, 384 U. S. 346 (1966). We do, however,

agree with, and support, such arguments and wish to associate

-

ourselves with them. In this context we urge the Court to

resolve the conflict of the lower courts on this issue in favor

of the reasoned and common sense position taken by the United

States Court of Appeals for the District of Columbia Circuit in

. Smith v. United States, 324 F. 2d 879 (1963) and Brown \.

United States, 375 F. 2d 310 (1967), and by the Supreme

Court of the State of Michigan in unanimously affirming the

conviction in the instant case. 385 Mich. 594, 189 N. W. 24

290 (1971).

_ Amici will address ourselves to the second question certified:

“Whether the standards set forth in Miranda v. Arizona are tw

restrictive in excluding admissions and are not mandated by the

COPY BOUND CLOSE IN CENTER

7

United States Constitution?” (Petition for Writ of Certiorari of

the State of Michigan, page 3). We will present to the court

evidence that the inflexible and rigid standards for the admissi-

bility of confessions and admissions found in the absolute

language of the Miranda majority opinion are having a signifi-

cant deleterious impact upon the enforcement of the criminal

law and we ask this court to review these standards in the

context of the instant case.

L The Victims of Crime Are Entitled to Representation Before

' This Court.

Mr. Justice White, in his dissenting opinion in Miranda v.

Arizona, 384 U. S. 346 (1966), with the concurrence of Mr.

Justice Stewart and the late Mr. Justice John M. Harlan, as-

sessed the impact of that decision upon the enforcement of the

criminal law and upon the victims of crime. Speaking of the

majority decision he stated: _

There is, in my view, every reason to believe that a good

many criminal defendants who otherwise would have been

convicted on: what this Court has previously thought to

be the most satisfactory kind of evidence will now, under

this new version of the Fifth Amendment, either not be

tried at all or will be acquitted if the State’s evidence,

minus the confession, is put to the test of litigation.

I have no desire whatsoever to share the responsibility for

any such impact on the present criminal process.

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. (384

U. S. 542)

He then spoke, with extreme irony:

‘There is, of course, a saving factor: the next victims are

uncertain, unknown, and unrepresented. 384 U. S. 543

(emphasis added)

8

Mr. Justice Clark also dissented from the majority opinion,

Amici seek to represent the “uncertain, unknown, and up

represented” victims of crime for whom Justice White and his

fellow dissenters expressed concern. Our concern, however,

goes beyond the representation of a particular individual who

happens to become the victim of a crime. We seek, in a broader

sense, to represent the vindication of the rights of all of the

actual and potential victims of crime and of the right, and th

duty, of society to provide for the security of all of the law.

abiding citizens of this country.

This right and duty was explicitly expressed by Justice

White, again in his dissenting opinion in Miranda:

The most basic function of any government is to provide

for the security of the individual and his property. . ..

These ends of society are served by the criminal laws

which for the most part are aimed at the prevention of

crime. Without the reasonably effective performance of

the task of preventing private violence and retaliation it

is idle to talk about human dignity and civilized values.

(384 U. S. 539)

We seek to represent these interests of society, as well as the

rights and, indeed the civil liberties of those who have suffered.

or who will suffer, as a result of the reversal of convictions or

the outright freeing of patently dangerous criminals via the rigid

and inflexible application of the absolute standards for the

admissibility: of admissions and confessions mandated by the

majority of the Court in the Miranda decision.

Amici state emphatically that we do not seek to represent the

rights of the victims of crime to the total exclusion of the rights

of criminal suspects. We merely urge that a balance be estab-

lished between these conflicting interests—a balance which

does not presently exist due to the rigid application of the

Miranda tule.

The Fifth Amendment rights of all persons to be free from

the use against them of coerced or illegally compelled state:

9

ments is a precious right and one that niust be fully safeguarded.

Amici in this case do not for a moment condone <xy police

practices, past or present, which are likely to induce anyone to

confess to a crime which he did not commit. In Miranda, how-

ever, the majority of the Court, in its zeal to protect suspected

or accused criminals from the consequences of almost any

statement that they might make, has tipped the balance too far

in favor of the criminal suspect, to the extreme and unwarranted

detriment of the victims of crime. When this happens, society

as a whole must be the loser.

Our position has been succinctly stated by Dr. Sidney Hook,

the distinguished professor of philosophy, formerly of New York

University, now at Stanford University:

The potential victim has at least just as much a human

right not to be violently molested, ‘interfered with and out-

raged as the person accused of such crimes has to a fair

trial and a skillful defense. As a citizen, most of the rights

guranteed me under the Bill of Rights become nugatory if

I am hopelessly crippled by violence and all of them be-

come extinguished if I am killed.’

I. The Miranda Decision Mandates Too Rigid and Too In-

flexible a Set of Absolute Standards for the Admissibility

of Statements of the Accused, Which Standards Do Not :

Take Into Consideration the Necessity for Interrogation in ‘

Criminal Investigations.

Pues

The dissenting opinions in Miranda dealt at length with the

lack of any constitutional basis for the majority position and

with the lack of wisdom of the policy considerations embodied

in that position. We see no need, therefore, to repeat these argu-

ments at any length, although amici certainly subscribe to them.

We, confine ourselves to pointing out just how inflexible these

standards are.

1. “The Rights of the Victim: A Reflection on Crime and

Compassion,” Encounter, March, 1972.

eae

MRE

10

Former Chief Justice Warren summarized the majority hold.

ing, stating:

. we hold that when an individual is taken into custody

or otherwise deprived of his freedom by the authorities in

any significant way and is subjected to questioning, the

privilege against self incrimination is jeopardized. Pro.

cedural safeguards must be employed to protect the privi-

lege, and unless other fully effective means are adopted

to notify the person of his right of silence and to assure

the exercise of the right will be scrupulously honored the

following measures ate required. He must be warned prior

to any questioning that he has a right to remain silent,

that anything he says can be used against him in a court of

law, that he has the right to the presence of an attorney.

and that if he cannot afford an attorney one will be ap

pointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to

him throughout the interrogation. After such warnings

have been given, and such opportunity afforded him, the

individual may knowingly and intelligently waive these

rights and agree to answer questions or: make a statement.

But unless and until such warnings and waiver are den-

onstrated by the prosecution at trial, no evidence obtained

as a result of interrogation can he used against him. 384

U. S. 479 (emphasis added)

This is about as categorical a mandate as will be found in any

court decision any time, anywhere. The warnings must be

given, the waiver must be secured and proven, and, if there is a

failure in any manner to do this, no evidence obtained as a result

of the interrogation may be used.

As Mr. Justice Clark, dissenting in Miranda, pointed out. any

failure to follow the Court’s mandate “. . . requires inexorably

the exclusion of any statements by the accused as well as the

fruits thereof.” 384 U. S. 500. (emphasis added)

The majority rule in Miranda is an absolute, inflexible com-

mand, phrased in the broadest possible terms. which brooks no

abridgment. There is not the slightest recognition in the ma

" jority opinion that policemen and prosecutors are human beings

and, as such, are prone to error. There simply is no margin

for error in the majority rule; and, if, perchance, error is

i

Lee eee ko ‘nada eee A TAA rete z - ,

fear foe ae SALA Aa CT OP te i R

— °

11

committed during the turmoil and complexity of a criminal in-

vestigation the statements of the accused—whether inculpatory

or exculpatory—must be suppressed, the fruits of such state-~

_ ments must be excluded, convictions must be reversed, in conse-

quence of which confessed criminals, whose factual guilt is

patent, must often be freed.

This is so, Moreover, no matter how slight the deviation from

the rigid Miranda standards, no matter what evidence there

might be of the good faith attempts of the police or prosecution

to comply with the Miranda dictates, and no matter what evi-

dence there might be that, by any other objective standard, the

statements of the accused were made voluntarily. Miranda,

quite simply, serves to suppress the truth; it dictates an all-or-

nothing situation with the criminal offender standing to benefit

greatly from the slightest inadvertent deviation by law enforce-

ment officers seeking to establish the truth in a criminal investi-

gation.

Mr. Fred P. Graham, then the highly capable and respected

Supreme Court reporter for the New York Times and an attor-

ney himself, wrote, in 1970, a book entitled, “The Self-Inflicted

Wound,” in which he described, from his particular vantage

point, the decisions made during the decade of the 1960s in the

area of the criminal law by the Supreme Court of the United

States under the Chief Justiceship of Earl Warren. Although

liberally oriented and basically sympathetic with the “Warren

Court’s” criminal law decisions with regard to the rights of

suspects, Mr. Graham had this to say with regard to the attitude

of the majority of the Court with regard to the Miranda de-

cision:

This was the core of the Supreme Court's difficulties over

Miranda—in order to abolish the abuses that cropped up

in some but by no means all police investigations, it would

have to condemn the “voluntariness” approach which the

Court itself had always approved before and which the

police saw as a reasonable way to do their job. If the

Court were to frame a prophylactic procedure rigid enough

2. Graham, “The Self-Inflicted | Wound,” The McMillan Com-

pany, 1970.

ea ee

12

to rule out all of the abuses that the voluntariness approach

could permit, it would also outlaw many instances of

reasonable, noncoercive police inquiry. about crime. (Em-

phasis added )*

* * * * *

Also, where the previous landmark decisions had imposed

rigid but narrow restrictions on state officials’ conduct,

Miranda was to lay down a statute-like code of procedure

consisting of four commandments, some of which included

sub-commandments.*

* * * * *

Despite the Court's zig zag course, its trend was clear: it

would continue to cast about for an objective standard

by which police questioning could be regulated and if the

standard proved so rigid that the police could not interro-

gate effectively at all, that would be a tolerable outcome

in [the majority of] the Warren Court's eyes. (Emphasis

added )° .

Amici agree with this appraisal of the Miranda majority

made by an objective and experienced observer, concerning the

absolute nature of the Miranda decision.

The inflexibility of the outlook of the Miranda majority is

also demonstrated by its attitude towards the potential availa-

bility of other evidence of guilt. besides the statements of the

accused in criminal cases. Chief Justice Warren, writing for

the majority stated: ‘

. Our accusatory system of criminal justice demands

that the government seeking to punish an individual pro-

duce the evidence against him by its own independent

labors rather than by the cruel, simple expedient of com-

pelling it from his own mouth. 384 U. S. 460

This statement appears to recognize only two means of police

investigation: 1) independent investigation and 2) compelling

evidence from the mouth of the accused. It simply ignores

both the fact that in many criminal investigations there may

be little or no other evidence than the statements of the ac-

——_-

3. Ibid., page 156.

4. Ibid., page 158.

5. Ibid., page 159.

13

cused, and tge fact that, in the majority of cases, the process

of interrogation by a competent criminal investigator, in the

normal course of his investigation, is neither “cruel” nor “com-

pelling.” The latter is a third means of police interrogation

in which cOmpulsion of evidence from the accused is not in-

herent; it is, rather, a search for the truth by questioning a

suspect about himself, his actions, and his explanations for

them.

As the late Justice Hugo Black, one of the five majority

justices in the Miranda case, stated in a Fourth Amendment

context, which we believe applies equally to the indispensa-

bility of the interrogation procedure:

It is always easy to hint at mysterious means available

just around the corner to catch outlaws.*

Likewise, in Criminal Interrogations and Confessions, the

authors, who disavow the use of any tactics or techniques

which might induce confessions from the innocent, describe

various situations in which statements of the accused may be

the principal or, in some cases, the only means of proving the

guilt of the perpetrator of a crime:

. A man is hit on the head while walking home late at

night. He does not see his assailant nor does anyone else.

A careful and thorough search of the crime scene reveals

no physical clues. Then take the case of a woman who is

grabbed on the street at night and dragged into an alley and

raped. Here, too, the assailant was unaccommodating

enough to avoid leaving his hat or other means of identi-

fication at the crime scene, and there are no other physical

clues. All the police have to go on is the description of

the assailant himself. She describes him as about six feet

tall, white, and wearing a dark suit. Or consider this

case, an actual one, in Illinois. Three women are vaca-

tioning in a wooded resort area. Their bodies are found

dead, the result of physical violence, alongside a foot

trail, and no physical clues are Present. ;

—_—__ 2

6. Berger v. New York, 384 U. S. 41, at 73 (1967) dissenting

opinion ).

7. Inbau and Reid, “Criminal Interrogations and Confessions,”

Williams and Wilkins Co., Baltimore, Md. (1967), page 214.

Ppesrresriercre sone neers Sep ETRE

ee Ne

LETS

eNO NTT NE ERE,

14

Cases such as these show the absolute necessity of police inter.

rogation of criminal suspects; yet this necessity was largely ig.

nored, or at best paid lif service to, by the majority of the

Court in Miranda. — |

In addition, we suggest the broader point that, in a discipline

such as the law, and particularly the highly complex area of -

the law pertaining to criminal investigations, there is simply no

place for categorical absolutes such as those embodied in the

Miranda opinion. ’ .

In the finite sciences such as physics or mathematics we must

perforce deal with absolutes. A falling body, for example, a-

celerates its fall at 32 feet per second, per second, no more and

no less. The field of Jaw, however, is by no means such an

exact science. This is clearly illustrated by the fact that, in

many, if not most, appellate opinions, learned judges cannot

agree about the law. An outstanding example is the Miranda

case itself; it was a five to four decision.

Chief Justice Burger has pointed up the fallacy of a resort

to absolutes in the area of the enforcement of the criminal law.

In his dissenting- opinion in Bivens v. Six Unknown Named

Narcotic Agents,” he criticized the absolute. across-the-board

application of the Exclusionary Rule to all Fourth Amendment

violations: :

Although unfortunately ineffective. the exclusionary rule

has increasingly been characterized by a single. monolithic

and drastic judicial response to all official violations of

legal norms. Inadvertent errors of judgment that do not

work any injustice will inevitably occur under the pres

sures of police work. These honest mistakes have been

treated in the same-way as deliberate and flagrant /rvinc

type violations of the Fourth Amendment. For example

in Miller v. United States, . . . reliable evidence was sup

pressed because of a police officer’s failure to say a “few

more words” during the arrest and search of a known

narcotics peddler. 403 U. S. at 418.

8. 403 U. S. 388 (1971).

1S

We submit that the same “single, monolithic and drastic”

response is to be found in the absolute. approach taken by the

Miranda majority towards confessions—an approach which has

no place in an area as difficult as the utilization of interroga-

tion procedures by criminal investigators in the determination

of deception or truthfulness on the part of persons suspected of

having committed criminal offenses.

Ill. The Rigidity and -Inflexibility of the Absolute Application

-of the Miranda Rule Has, in Many Cases, Resulted in the

Victimization of Individuals, and of Society, by Requiring

the Reversal of Convictions of Criminals Despite the Fact

that the Miranda “Violations” Were at Most Technical

and the Confessions Were by Any Objective Standard

Voluntary.

Justice White, in his dissenting opinion in Miranda, pre-

dicted that a good many criminals would, under the Miranda

mandate, “ . . . either not be tried at all or acquitted if the

State's evidence, minus the confession is put to the test of liti- ~

gation.” 384 U. S. 542

The necessary flexibility which would have helped to alleviate

the consequences which Justice White predicted was not per-

mitted by the majority in Miranda. We here illustrate the re-

sult of this inflexibility through examples of cases, selected from

a much greater number of cases, in which Justice White's redic-

tion of miscarriages of justice has been sustantiated. They are

actual appellate cases, and they present a clear picture of the

effects of Miranda.*

9. We are mindful, of course, that there have been some at-

tempts at empirical studies of the effects of Miranda upon law

enforcement made by spokesmen for both sides of the question.

We believe that, in this instance, the use of actual cases presents

a clearer picture than do the studies. Our reasons for this are two-

fold. First, we believe that the studies to date, both pro and con,

have serious weaknesses: the bias of those conducting the studies;

the relatively small and scattered samples involved; and the presence

of extrinsic factors which are simply not capable of measurement,

7

TR Ae! CUT

TN

PLC AEE PDI

16

Again, we wish to emphasize that we believe that funda.

mental fairness—to society as well as to the aaccused—requires

that a confession, to be admissible, must be voluntary. We

submit, however, that the absolute and total inflexibility of the

Miranda rule often requires the reversal of convictions and the

freeing of crimiffal suspects in cases in which there was no latk

whatsoever of such fundamental fairness and it is only the

rigidity of the Miranda rule, as interpreted by appellate and

trial courts, which requires reversal.

The interrogation process from start to finish is extremely

complex. It is a process in which there is so much room for

error, yet one for which the application of the rigid rule of

Miranda leaves no margin for error at all. Mr. James B. Zagel.

Assistant Attorney General of the State of Illinois, in a com-

prehensive analysis of Miranda and its progeny has categorized

some of the major “issues in Miranda” in the following manner:

Is the situation custodial?

Is It Interrogation?

Is It Interrogation by Law Enforcement Officers?

Is There Adequate Warning?

Does The Particular Suspect Require Warnings?

Were The Rights Fully Waived?

e.g. if a suspect refuses to make a statement after being given the

Miranda warnings, we really cannot know whether he would have

refused to make a statement even without the warnings or whether

the warnings, in effect, “talked him out” of making a statement.”

Our second reason for utilizing an actual case method to present

our position is more basic. We believe that any case in which a

confession, which is by every objective standard voluntary, must

be suppressed and a conviction reversed because law enforcement

officials ran afoul, in some slight manner, of the rigid standards of

Miranda, is, in fact, a miscarriage of justice. Moreover, when such

cases are multiplied by a factor of hundreds, there has occurred a

significant breakdown in the criminal justice system.

Several of these studies and their results are summarized in

Graham, “The Self-Inflicted Wound” (supra, pages 11. 12) at pages

279-282.

17

Under What Conditions May a Suspect be Interviewed More

Than Once?

Does It Apply To Misdemeanors and Other Proceedings?’°

This is a formidable array of legal and/or factual situations

in which the police officer or prosecutor must act, and, in ad-

dition, act in the sure and certain knowledge that because of

the inflexibility of Miranda, any error may be irredeemably

fatal to his case. Against this background we turn to specific

cases.”

In each of these -cases, the court excluded a confession ot

reversed a conviction based on its interpretation of Miranda. If

we make the reasonable assumption that the courts did not

want to reverse thé convictions of confessed murderers, rapists

and other assorted criminals, then the conclusion is inescapable

that the courts felt themselves bound to do so by the absdlute

language in the Miranda opinion.

There are additional factors common to each of the cases

presented :

1. There is absolutely no showing of flagrant, wilful or

coercive misconduct by the law enforcement officers

involved.

2. There is evidence of good faith attempts by the officers

to comply with both the letter and spirit of Miranda.

3. The Miranda violation is at most a highly technical one.

4. By any objective standard the confessions were volun-

tary, <. they would have passed muster with this

10. Zagel, “Confessions and “Interrogations after Miranda” pub-

lished by the National District Attorneys Association, January 1972.

11. Although they were not selected because of the seriousness

of the crimes, most of the cases do involve serious crimes such

as murder, rape or robbery. The actual crime involved, however,

is not the central issue, for the fact must be borne in mind that

Miranda applies, across the board, at least to all felonies, so that

an appellate case which requires the reversal of, say, a relatively

minor forgery conviction may also require the reversal of several

tape or murder convictions of other offenders because of the applica-

tion of the holding in the less serious forgery case.

18

Court's pre-Miranda holdings dealing with “volun.

tariness” and the “totality of the circumstances” as the

standards by which confessions were measured.”

Case No. |. Commonwealth v. Singleton, 266 A. 2d 753,

439 Pa. 185. Supreme Court of Pennsylvania. (1970)

Defendant confessed to and was convicted of murder in the

beating death of his mother, sister and grandmother. The

court noted that the Commonwealth’s case consisted primarih

of defendant’s incriminating statements: however his. statements

were nullified and his conviction was reversed. The defendant

had been given the proper Miranda warnings in every respect

execpt that he was advised that anything that he said could be

used “for or against” him. The court held that the use of the

single word “for” vitiated the entire confession under the Miranda

holding.

Case No. 2. Commonwealth v. Davis, 270 A. 2nd 199, 440

Pa. 123, Supreme Court of Pennsylvania. (1970)

Again the court reversed a first degree conviction for rob-

bery—murder because the word “for” was included in otherwise

satisfactory warnings.

Case No. 3. Biggerstaff v. State, Okl. Cr.. 491 P. 2d 345,

Court of Criminal Appeals of Oklahoma. (1971)

The defendant—convicted of first degree murder—had been

given Miranda warnings which were satisfactory in all respects

except that he was advised that he was entitled to an attorney

“at any time.” The court found this warning to be insuflicien

12. Coulumbe v. Connecticut, 367 U. S. 586 (1951): Rogers \.

Richmond, 365 U. S. 534 (1961); Fikes v. Alabama, 352 U. S.

191 (1957). The “totality of circumstances” test was even applied

in one of this Court’s post-Miranda decisions in a case involving

a pre-Miranda confession. In Frazier v. Cupp, 394 U. S. 73!

(1969), the validity of a confession was sustained even though the

police interrogator falsely told the defendant that his accomplice

had confessed, and even though the defendant had said: “I had

better get a lawyer before I talk any more.” Mr. Justice Marshall.

writing for the Court viewed this statement as a “passing comment’

rather than as a request for a lawyer.

a ~

19

advice to the suspect that he had a right to the presence of an

attorney during questioning. It cited a similar holding by the

United States Court of Appeals for the Fifth Circuit in Atwell

v. United States, 398 F. 2nd 507 (1968). The Court in

Atwell rejected the use of the words “at any time,” stating:

“‘Anytime’ could be interpreted by the accused in an atmosphere

of pressure from the glare of the law enforcer and his authority,

to refer to an impending trial or event other than the moment

the advice was given and the interrogation following.” 398 F.

2nd at 510. (Emphasis added )

The court in Biggerstaff also noted that, absent the defend-

ant’s confession, which had been ruled inadmissible, the evidence

was not suflicient to sustain a conviction for the crime of murder.

Comment: In the foregoing cases the courts apparently felt

compelled by the rigidity of the language in the Miranda deci-

sion to engage in extremes of semantic gymnastics in order

to hold the confessions of threé convicted murderers inadmissible

despite the fact that the intention on the part of the police to

comply with Miranda is clearly apparent. The courts in these

cases completely disregarded any objective standard which would

demonstrate that the confessions were voluntarily made and they

delved into the murky area of what the suspects might have

understood from otherwise sufficient warnings.

Case No. 4. Franklin v. State, 252 A. 2d 487, 6 Md. App.

572, Court of Special Appeals of Maryland (1969).

Defendant was convicted of several armed robberies. He

was given full and proper Miranda warnings on September 4th,

1967 at which time he made incriminating statements about

certain of the armed robberies. On September 6th, 1967 he

was interrogated about the armed robbery involved in his ap-

peal. Upon this latter occasion he made statements which were

used to impeach him when he testified at trial.'* Defendant

13. This case was decided prior to this Court’s decision in

Harris v. New York, 401 U. S. 222 (1971) in which the use: of

such statements for impeachment purposes was held to be proper.

LOL SAE TARA NT

20 -

was not readvised of his rights under Miranda at the September

6th interrogation. The court held that the September 6th state.

ments were inadmissible because of the two day hiatus since the

original warnings had been given. The court gave no reason

for this decision except to state that the two day delay “would

fall short of compliance with the dictates of the Miranda de.

cision.” 252 A. 2d 487 at 491.

Case No. 5. People v. Milton, 75 Cal Rptr. 803, Court of

Appeal of California (1969).

Defendant, when arrested for the murder of his wife was

given the proper Miranda advisements by the arresting officer,

at which time he stated that he did not wish to make a state-

ment. Some two hours later a detective, who. was apparently un-

aware of the previous warning and refusal to make a statement,

again properly advised the defendant of his rights, whereupon

the defendant made admissions which were inconsistent with

his later trial testimony. The appellate court held that the

admissions should have been excluded. Defendant's murder

conviction was thus reversed, despite the fact that the second

interrogator was unaware of the first refusal and that the admis-

sions made at the second interrogation were apparently volun-

tary.

Case No. 6. Scott v. State, 475 S. W. 2d 699, Supreme Court

of Arkansas (1972).

In reversing the defendant's conviction for the rape of a

two-year-old girl,.the court noted in this case that there were

no eyewitnesses to this crime as the victim was too young and

the only other witness, her father, had been killed in an auto-

mobile accident. Defendant was properly advised and refused

to make a statement. Then, according to the Court: “About

three months later a deputy sheriff who was passing the cell

where Scott was confined asked him, in the course of what

appears to have been a bantering conversation, if he had raped

the little girl. Scott replied, ‘yeah’.” 475 S. W. 2d

This statement was held invalid as not being voluntarily

made under Miranda and the rape conviction was reversed.

21

Comment: The preceding cases are examples of lower courts

engaging in some fairly energetic “second-guessing” of law

enforcement oflicers, because. of the compulsion of the inflexible

dictates of Miranda. Although in each case there is no evidence

of coercive questioning and the statements were made volun-

tarily, the courts saw fit to reverse the convictions on very close

issues such as the timing of the questions asked, the fact of a

prior refusal to talk even though this may well have been

unknown to the second questioner, or as in the Scott case, where

there was no real attempt at interrogation at all. In each case

it clearly appears that only the inflexibility of Miranda dictated

the reversal.

Case No. 7. United States v: Millen, 338 F. Supp. 747,

United States District Court for the Eastern District of Wis-

consin (1972).

Defendant was a practicing attorney who caused a package

of hashish to be mailed to himself at the office of the law firm

for which he worked. Federal agents observed him receive

the package and later arrested him.. Defendant, after being

given the Miranda warnings by a federal agent, made inculpa-

tory statements and told the agent where the package was

located in his office. Despite the fact that defendant was a

practicing attorney, his conviction was reversed because the

Court found that he had not sufticiently waived his rights under

Miranda, and the Court suppressed physical evidence in the

case, in part because it was located through defendant's state-

ments.

Case No. 8. Commonwealth v. Goldsmith, 363 A. 2d 322,

438 Pa. 83, Supreme Court of Pennsylvania (1970).

Defendant, wanted for murder and manslaughter, surrendered

to the police accompanied by his attorney. The attorney left

and defendant was interrogated by the police, at which time

he made incriminating statements. Prior to his interrogation

he was asked seven questions concerning whether or not he

understood his rights, to which he replied: “I will give you

PPAR EE PRIN Li ie hy ee

SAG PRE ESE ALISO LE LL EESTI IPE SEBEL

Mate Le

Data

22 s

an oral statement. My lawyer said I could make one withou:

giving you the motive of what happened.” The court held that

his was an invalid Miranda waiver and it rejected the inference

that defendant had knowledge of his rights from the fact that

he came to the station with his attorney.

Case No. 9. DuPont v. United States, 259 A. 2d 355, Dis.

trict of Columbia Court of Appeals (1969). ,

A Washington, D. C. police ofticer received information that

defendant had a machine gun concealed-in his bed in a girls

apartment. After receiving from the girl a valid consent to

search her apartment, the officer seized the machine gun from

the defendant's bed. Defendant was arrested. At the police

station the arresting oflicer called detendant’s attention to a

large sign on the wall containing the Miranda warnings. De-

fendant refused to look at it. Later a Sergeant Evanoff inter-

rogated defendant. He attempted to give defendant the Miranda

warnings, but defendant cut him off stating, “1 know my rights,

man,” and, according to the court, defendant indicated:

“. . . that Sgt. Evanoff didnt have to go into that.” Again

defendant did not look at the card on the wall.

Thereafter, defendant made inculpatory statements exonerat-

ing the girl in whose apartment the gun was found, called his

attorney, and then made further inculpatory statements. The

court suppressed all of the defendant's statements as violative of

Miranda. °

Chief Judge Hood, dissenting, stated that under these facis:

I think Miranda must be interpreted in a realistic and rea-

sonable manner, and that the officers did all that reasonable

men could do.

What more could the officers have done? Should they have

forced appellant to read or listen? Should the detectives

have continued to read when it was obvious that appellant

was not listening?

It is my opinion that when officers make a good faith

effort to inform an arrested person of his Miranda rights

and that person refuses to pay any attention to the officers,

2

such person has no standing to claim that he was not in-

formed of his rights. 259 A. 2d. 359 and 360.

Comment: In the three preceeding cases the investigating

officers had given, or attempted to give Miranda warnings, and

they had every reason fo believe that the defendant was well

aware of his rights, yet in each case the rigidity of the Miranda

rule compelled the courts to suppress the statements made. The

fact that any commonsense analysis would dictate that one who

is a practicing attorney, one who states he knows his rights, or

one who arrives at the police station with an attorney would be

aware of his rights and that the statements were voluntary was

disregarded by the courts and the inflexible Miranda standards

were applied.

* * * * *

These cases are not isolated instances. They were culled

from well over 150 appellate cases, decided during the years

1968—1973 in which law enforcement officers ran afoul of the

inflexible standards dictated by Miranda, even though. there was

a good faith attempt to comply with Miranda and no coercive

tactics had been used.'* And these are only appellate cases.

There is simply no way, at least in the time allowed for the

filing of this brief, to determine how many cases have been

dismissed at the trial level, or simply have not been brought to

trial, because of asserted Miranda violations. We believe that.

at a conservative estimate, such cases, nationwide, would number

in the hundreds, perhaps the thousands.

It is true, of course, that in many cases in which a confession

is suppressed and a conviction reversed, there may be enough

“untainted” evidence to secure a conviction at a new trial, but

in many instances this is not so, and, without the use of the

defendant's statements, he may have to be freed or the charges

against him dismissed.

Whether or not a given defendant is re-convicted or freed is

HF I

SL ENG LEGER LONE SOLON LW ENTE I es PNT I

24

not the central part of our argument. The rigid dictates 0‘

Miranda apply to all cases (at least all felony cases) involving

confessions, and whether or not there is sufficient evidence.

absent*a confession, to convict will be a completely fortuitous

event in any particular case, depending upon the nature of the

crime, the care with which the criminal goes about covering his

tracks, and the luck or diligence involved in the police investiga.

tion. As we pointed out in Section II of this argument. there

‘are some crimes in which a confession or admission by the guilty

party will be the only evidence available to the prosecution.

It is, beyond any question, a travesty of justice when a mur.

derer, rapist, robber, or other cirminal must be foisted onto

society because his otherwise voluntary confession fell, in some

slight measure, short of the Miranda requirements. and no other

evidence exists to convict him. This travesty affects many inno-

cent, law-abiding persons. The criminal’s original victims. or.

in some cases the families of his victims, surely suffer at secing

the one who has victimized them go unpunished. Should the

beneficiary of Miranda’s commandments commit other crimes.

additional victims surely suffer at his hands.'* Society itself

suffers, in addition, because it has failed to vindicate the rights

of the lawabiding against the lawless and violent.

Our argument, however, goes deeper than the question of

whether, in a given case, a confessed cirminal must be freed

or whether there is sufficient “untainted” evidence for a re-trial.

15. Cases such as this do happen. For example, in Baltimore

George McChan, who was serving a 40 year term for robbery was

freed because his confession was insufficient under Miranda. Four

days after his release he was re-arrested and convicted for the

robbery-murder of a restaurant proprietor. (Source: The Baltimore

City Police Department and a letter dated March 7, 1967 from

then States Attorney Charles E. Moylan Jr. of Baltimore City.

Maryland to Senator John L. McClellan, describing the effect of the

Miranda decision in Baltimore.) In Jacksonville. Florida, a con-

fessed murderer who had been released because his confession was

invalidated, was subsequently arrested on two counts of armed

robbery and two counts of assault to murder. He pled guilty to

one robbery charge and received a life sentence. (Source: Jackson-

ville, Florida Police Department Attorney Mr. Richard Gentry.)

Fs

We believe that the rigid and inflexible standards for the ad-

missibility of confessions and admissions which are dictated by

the absolute language in Miranda have no place in an area as

complex as the enforcement of the cirminal law. We submit

that fairness to the actual and potential victims of crime in our

society requires that this court re-examine the rigidity and in-

flexibility of the Miranda ruling with a view towards restoring a

balance between the interests of criminal suspects on the one

hand and the law-abiding citizens on the other.

IV. The Instant Case Provides a Vehicle for This Court to

Review and Modify the Rigid and Inflexible Requirements

of the Miranda Decision With Regard to Confessions as

Well as Admissions. We Urge This Court To Do So.

As we pointed out in the brief prefactory remarks to our

argument section, amici address themselves to the second ques-

tion certified by this Court in the instant case: “Whether the

standards set forth in Miranda v. Arizona are too restrictive in

excluding admissions and are not mandated by the United States

Constitution?”

We note that the actual question presented to this Court deals

only with admissions; however, our argument in this section will

deal with the broader question of both admissions and con-

fessions for the following reasons:

1. The majority in Miranda certainly made no distinction

between admissions and confessions.

2. The petitioner has argued the issue of confessions as

well as admissions in its brief.

3. In its Petition for Certiorari, at page 11, the State of

Michigan presented this Court with arguments dealing

with confessions as well as admissions: “While in

total agreement that such important [Fifth Amendment]

constitutional rights must be carefully protected, Peti-

tioner-urges that confessions may be intelligently and

voluntarily made, in some instances, even absent the

Miranda warnings.” (emphasis in the original).

PO

ray

26

4. Our argument is not concerned with the nature of the

statements made, 1.e., confessions vis-a-vis admissions,

but rather with the absolute flexibility of the dictate

of Miranda as applied to any statement made by q

criminal accused. ,

5. In the instant case the admissions made by the defend.

- ant—the name of an individual to whom the defendan:

had made incriminating statements and who the de-

fendant apparently hoped would support a_ totally

spurious alibi, could hardly be more damaging than a

confession.

In. this argument we are not urging the Court to abandon

totally the concept of advisement to a suspect of his right to be

free from self-incrimination. We do, however, urge some modif-

cation of the all-or-nothing, no margin-for-error, inflexibility of

Miranda which we have described in the preceeding section.

We respectfully urge the Court to utilize the instant case asa

vehicle to make such a modification as it sees fit: perhaps a

return to the pre-Miranda voluntariness standards for deter-

mining the admissibility of confessions in the “totality of the cir

cumstances,” with the presence or absence of warnings to te

considered along with other interrogation circumstances in the

determination of a confession’s voluntariness or trustworthiness:

perhaps some lesser modification such as reposing some limited

discretion in trial courts to admit or use the accused's state:

ments, even though Miranda has been “violated.” if:

1. No coercive tactics or egregious police conduct was

involved; and,

N

The “violation” was inadvertent or can otherwise b

satisfactorily explained; or

3. The statments appear to have been made voluntarily.

except for the Miranda violation; and

4. A miscarraige of justice—i.e., the freeing, or the re

versal of the conviction of a serious criminal offender

whose factual guilt is patent.

27

The instant case presents just such a situation.'® ‘The re-

spondent was convicted of a horribly brutal rape and assault.

So brutal, in fact, was the beating administered to the victim

that she has never been able to recall what happened to her or to

identify her assailant. Defendant's dog was found in the victim's

house, which led to his becoming a suspect. When he was

interrogated, pre-Miranda, the interrogating ofticer complied

with all of the law then in effect in the State of Michigan, but

he omitted the admonition, which Miranda was soon to require,

that the suspect could have court-appointed counsel. Defendant

gave the police the name of one Henderson apparently in the

hopes that Henderson would support defendant's completely

false alibi about being with him (Henderson) at the time of the

crime and that the scratches on defendant's face were caused

by a goose. Henderson, unfortunately for the defendant, re-

fused to confirm this alibi and gave extremely damaging testi-

mony against defendant at his trial. Concededly the prosecu-

tion learned of Henderson from defendant's statement and the

prosecution would not have obtained Henderson's cstnony

except for the defendant's statements.

Defendant's statements were made pre-Miranda but his trial

was post-Miranda and so, under the ruling of Johnson v. New

Jersey, 384 U. S. 719 (1966), Miranda applied to his state-

ments in its full rigidity. Defendant's statements were held in-

admissible as violative of Miranda but the testimony of Hender-

son was admitted and this admission was sustained on appeal

by the Michigan Court of Appeals and the Michigan Supreme

Court.

The United States District Court for the Eastern District of

Michigan, however, reversed defendant's conviction upon his

habeas corpus petition, holding that Henderson's testimony was

the “poisoned fruit” of the Miranda violation and that it should

have been held inadmissible. The United States Court of Ap-

16. This analysis is based upon ‘information from the Petition

for Certiorari of the State of Michigan and from the lower court ~

opinions in this case.

28

peals for the Sixth Circuit affirmed this decision. In effect, the

two federal courts applied Miranda in its most rigid and inflexi.

ble aspect. Although admitting that there was no applicable

precedent from this Court on the precise issue, the United States

District Court held Miranda fully applicable to the testimony

of Henderson, a holding which, as we have stated, was Subse.

quently affirmed by the Sixth Circuit. ‘

When this situation is placed in the context of the modifica

tion of the inflexibility of the Miranda rule, which we urge,

the following conclusions can be reached: that the defendants

admissions and the fruit thereof —Henderson’ $ testimony—were

barred despite the fact that:

1. There is no evidence of egregious police conduct or

coercive tactics.

2. The Miranda “violation” was clearly inadvertent, as

Miranda had not even been decided when the interrogation

took place and the ofticers complied with the then existing law

regarding the advisement of rights to criminal suspect.

3. Defendant's statements were clearly voluntary; he had

been advised of his rights to silence and to the presence of an

attorney and he gave an affirmative, although spurious, alibi

which he obviously hoped Henderson would confirm.

4. If defendant's conviction is reversed and he must be

retried without Henderson's testimony, a miscarriage of justice

will obviously take place, for, without that testimony, it is

highly likely that defendant will be freed. As the Supreme

Court of the State of Michigan, prior to being reversed on

habeas corpus by the Federal courts, in affirming defendant’

conviction, phrased the issue: “In the absence of reversible

error—of which there simply is none—the assailant should

not be granted a new trial which, in these days of more and

more shackling of law enforcement, usually means an order

for outright release upon society of one whose record justified

the latest sentence imposed.’ ove

17. 385 Mich. 594 at 595.

29

We submit that the rigidity of Miranda should be modified in

this case, and future cases of a like nature, to the extent that

not only the statements of the third party witness should be

admissible but also that the statements Of the defendant, in

the factual context of this case, should be admissible.

A modification of Miranda, either through a return to a

voluntariness standard or through the discretion in trial courts

to admit admissions and confessions in some instances, would

not, in our opinion, do injury to the concept of fundamental

fairness to criminal suspects which we firmly support. We be-

lieve that, as the dissenting Justices in Miranda forcefully pointed

out, the inflexibility of that case—again, as opposed to funda-

mental fairness—is not mandated by the Constitution of the

United States.

The suggested modification of Miranda would in no way

condone egregious or coercive police conduct. Even prior to

Miranda such conduct was not condoned by this Court, nor

should it have been. But the inflexible rule in Miranda bars

even those statements which are not the product of such con-

duct but rather of those “. . . inadvertent errors of judgment

that do not work any injustice [which] will inevitably occur

under the pressures of police work.”'* When an officer tells a

suspect in the course of otherwise perfect Miranda warnings

that his statement can be used “for or against” him, or when

an Officer tells the suspect that he may have a lawyer “at any

time,” this is the’ farthest thing in the world from coercive

conduct; yet in each of these instances lower courts, bound by

the inflexible dictates of Miranda, excluded otherwise voluntary

statements and reversed murder convictions because of such

inadvertent errors. A modification of Miranda would prevent

such miscarriages without doing harm to fundamental fairness

at all.

We believe that the rigid standards embodied in the absolute

language of the Miranda majority have resulted in no substantial

18. Burger, C. J., dissenting in Bivens v. Six Unknown Named

Narcotics Agents, 403 U. S. 388 at 418, supra, page 14.

30

additional protection of the rights of the accused. Rather, jt

has resulted in the exclusion of voluntary statements on hyper.

technical grounds which have no relation to the fundamental

fairness of police activities with regard to the accused.

Nor is the modification of Miranda suggested herein any

radical notion. This is borne out by the fact that Title I

of the Omnibus Crime Control and Safe Streets Act of 1968,"

which purports to return the voluntariness standards for the

admissions into evidence of statements by suspects in Federal

criminal cases, passed the United States Senate by a vote of

72 to 4 and the House of Representatives by a vote of 368 to

17. Amici do not take a position herein on the constitutionality

of such legislation; we merely point out that overwhelming ma-

jorities of this nation’s legislators are in agreement with our

basic premise that something should be done about the rigidity

of the Miranda rule.

Finally, we anticipate that our call for a modification of

Miranda will be countered by opposing counsel and amici as

being a new means for law enforcement officers to oppress

minorities and the poor and the powerless. Our answer to this

anticipated argument is two-fold. First, nothing that we sug-

gest should produce such a result. If a police officer drags ina

suspect of any minority race and beats or coerces a confession

out of him, then that officer is engaging in precisely that sort of

egregious misconduct which we deplore, and which would

vitiate any confession or statement made by anyone, either under

pre-Miranda “voluntariness” standard or under the modification

of Miranda's inflexibility which we suggest. .

More importantly, however, it is patent in that in many cases

the spolice have an absolute need to use admissions and con-

fessions to solve crimes and far and away the greatest majority

of the victims of crime, particularly violent crimes, are the

ghetto dwellers, the minorities and the poor and the powerless.

The late Herbert L. Packer, Stanford University Criminologist,

19. 18 U.S.C. 3501. saan lett

31

found in a study, released in 1970, that ghetto dwellers are at

least 100 times as likely to be victims of street crimes as are

middle class whites livng in the suburbs.*" According to Pro-

fessor Packer, one out of seventy ghetto inhabitants fell victim

to a mugger. rapist or assailant in 1969, while in the overall

population the incidence of these crimes was one in 10,000.

Those who should be the major source of concern in the criminal

justice system—the victims of crime who happen to be of a

minority race—will, in fact benefit if the criminal who preys

upon them ceases to be freed, because the rigidity of Miranda,

returns him “. . . to the street and to the environment which

produced him, to repeat his crime whenever it pleases him.””?

The contention that a relaxation of restraints on police con-

duct, such as a modification of Miranda would entail, will

a fortiori be used to repress minorities was refuted by Mr. James

R. Thompson, then a Professor of Law at Northwestern Univer-

sity and now the United States Attorney for the Northern Dis-

trict of Illinois, in an amicus curiae brief presented to this Court

by Americans for Effective Law Enforcement, Inc., one of the

amici herein, in the case Terry v. Ohio, 392 U.S. 1 (1968):

The police could, of course, withdraw from the ghetto... .

This alternative might be somewhat tolerable if only

criminals lived in the ghetto; at least their interferences

with human liberty in the form of murder, rape, robbery

and other crimes would be practiced on each other. But

others live in the ghetto as well—innocent, law-abiding

American citizens by far the overwhelming majority. They

are entitled under the Constitution to live their lives and

experience the safety of their homes and their streets with-

out fear of criminal marauders. They have suffered

enough—discrimination, poverty, lack of education. Must

they also be deprived of the protection of the law as

well.*

20. Crime Control Digest, March 25, 1970, page 7. See also:

“Black Crime Preys on Black Victims” Associated Press, Report

in the Denver: Post, August 23, 1970.

21. White, J., dissenting in Miranda v. Arizona, 384 U. S. at

542, supra, page 7.

22. Brief Amicus Curiae of Americans for Effective Law En-

forcement, Inc., in Terry v. Ohio, pages 28 and 29.

32

In closing our argument we cite to this Court the words of

the distinguished Judge Henry Friendly of the United State;

Court of Appeals for the Second Circuit, speaking in 1963

about the Fifth Amendment privilege against self-incrimination:

At the end of the 1960s it is necessary to vindicate the

rights of society against what in my view has become a

kind of obsession with the privilege, which has stretched

it far beyond not only its language and history but an

justification in policy.” ,

Amici concur, and we urge this Court to modify the in.

flexibility of Miranda in order to restore a balance to this area

of the criminal justice system.

CONCLUSION.

The Miranda decision mandates a rigid and inflexible set of

standards for the determination of the admissibility of con-

fessions and admissions in criminal cases. This inflexibility has

resulted in miscarriages of justice in many cases because con-

fessions and admissions have been suppressed, convictions have

been reversed, and often_criminals whose factual guilt was

patent were freed—this despite the fact that no coercive tactics

were used by the police, the “violations” of Miranda were at

most technical, and the statements suppressed were, by an)

objective standard voluntary.

Amici do not believe that there is a place in an area &

difficult and demanding as the enforcement of the criminal lav

for absolutes such as are mandated by the majority opinion in

Miranda. We do not advocate an abandonment of a suspect’

rights to be free from self-incrimination. Rather, we urge the

Court to utilize the instant case as a vehicle to modify the

23. Friendly, The Fifth Amendment Tomorrow: The Case For

Constitutional Change. The Robert S. Marx Lectures for 1968 at

the University of Cincinnati College of Law, November 6, 7, 8, 1968

—_—

—=—

33

extreme rigidity of Miranda so that a balance may be estab-

lished between the rights of the criminal accused and the rights

of the law-abiding citizen.

Respectfully submitted,

FRANK G. CARRINGTON, JR., ESQ.,

FRED E. INBAU, ESQ.,

Americans for Effective Law

Enforcement, Inc.,

Suite 960,

State National Bank Plaza,

1603 Orrington Avenue,

Evanston, Illinois 60201,

Counsel for Amici Curiae.

Of Counsel:

WILLIAM K. LAMBIE, ESQ..,

WAYNE W. SCHMIDT, ESQ.,

RICHARD O. WRIGHT, ESQ..

Americans for Effective Law

Enforcement, Inc.,

GLEN MURPHY, ESQ.,

PAUL KELLER, ESQ.,

International Association of

Chiefs of Police, Inc.,

Eleven Firstfield Road,

Gaithersburg, Maryland 20760.

JAMES B. ZAGEL, ESQ.,

Assistant Attorney General of the

State of Illinois,

188 West Randolph Street.

Chicago, Illinois 60601.