# Amicus Curiae Brief — Michigan v. Tucker

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0306%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1974
- **Citation:** 417 U.S. 433

## Text

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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

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LETS

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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.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0306%3A03. Public record. Not legal advice.