Amicus Curiae Brief — Michigan v. Tucker

TABLE OF CONTENTS

Page

Table of Authorities .............. 0... e eee ee eee i

Interest of the Amicus Curiae .................. 2

Summary of Argument ....................00- 2

TOON ooo ois ce oo ee ne ess Seckesieee teews 3

Miranda v. Arizona represents a viable and

necessary rule of law which cannot and should

not be modified or abandoned by this Court.

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TABLE OF AUTHORITIES

Cases Pages

Boyd v. United States, 116 US 616 (1913) ....... 10

Miranda v. Arizona, 384 US 436 (1966) ........ Passim

Schneckloth v. Bustamonte, —US—, ............ 7, 8, 10

36 L Ed 2d 854 (1973),

Other Authorities

ALI Model Code of Pre-Arraignment Procedure

101-49 (Study Draft No. 1, 1968) .......... 11

Bell, Racism in Ameican Courts: Cause for Black

Disruption or Despair? 61 California Law Re-

view 165, 185 (1973) ............. 0c ee eee 6

Cray, Criminal Interrogation and Confessions:

The Ethical Imperative, 1968 Wisconsin Law

Review 173, 174 (1968) ................0.8.

Ellis, A comment on the Testimonial Privilege of

the Fifth Amendment, 55 Iowa Law Review

GL] |) i re en ene

Foster, Confessions and the Station House Syn-

drome, 18 DePaul Law Review 683 (1969) ..

Leiken, Police Interrogation in Colorado, 47 Den-

ver Law Journal 1 (1970 ...................

Note, Miranda in Pittsburgh, 29 U Pittsburgh Law

OVI 1 UNOGEY 6 is kes sae ogee as5055n=e

Stephens, Flanders & Conner, Law Enforcement

and the Supreme Court: Police Perceptions of

the Miranda Requirement, 39 Tennessee Law

Review 407, 429 (1972) ............0....04..

Note, Interrogations in New Haven: Impact of

Miranda, 76 Yale Law Journal 1519 (1967), ..

Page

5, 8,9

8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

———f——

No. 73-482

—+—

STATE OF MICHIGAN,

Petitioner,

vs

THOMAS W. TUCKER,

Respondent.

a

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

- APPEALS FOR THE SIXTH CIRCUIT

a

BRIEF OF DETROIT BAR ASSOCIATION

AS AMICUS CURIAE IN SUPPORT

OF THE RESPONDENT

—

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 Petitioner, and by Kenneth M. Mogill, Esq., coun-

sel for the Respondent. Letters of consent of both parties

have been filed with the Clerk of the Court.

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INTEREST OF AMICUS CURIAE

The Detroit Bar Association is a private non-profit

corporate association of attorneys with some 4,000 mem-

bers.

The purposes for which the Association is formed as

set forth in Article II of its Articles of Incorporation

are as follows:

1.To maintain honor and“dignity in the profession

of law.

2.To increase :its usefulness in promoting the due

administration of justice.

3. T'o cultivate social intercourse among its members.

The Detroit Bar Association counts among its members

the majority of attorneys practicing law in the City of

Detroit.

The interest of Amicus in the case at bar stems from

the importance of the issue involved, and the impact

which the decision of this Court will have upon the crimi-

nal justice system.

SUMMARY OF ARGUMENT

Miranda v. Arizona, 384 US 436 (1966) has not proved

to be an impediment of any consequence to effective law

and forcement. Quite the contrary, in addition -to the

prophylaxis contemplated by this Court’s decision, it has

proven to have effectively served an educational purpose

in sensitizing law enforcement officials to the constitu-

tional rights of the subjects of their investigation, and in

a

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so doing has tended to effectuate the basic principles upon

which the decision was based. In addition to alleviating

the inherent coercion of a custodial interrogation situa-

tion, the rule has deemphasized the role played by con-

fessions in the prosecution of criminal offenses. This effect

is in line with the traditional Anglo-American abhorence

of convicting an accused out of his own mouth, a prin-

ciple fundamental to the underlying rationale of Miranda.

This area of criminal procedure is not one which is sub-

ject to half measures, or less than strict rules and guide-

lines. It is ingeruous in the extreme to speak of ‘‘modi-

fying” the strictures of Miranda. Miranda represents a

continuing normative principle of juridical morality, and

the value of the rule in the context of criminal juris-

prudence is not only as a procedural precept, but also as

an ethical imperative. This function cannot be denigrated,

and must not be abandoned. This Court’s commitment to

the principles embodied in Afiranda should not be retreated

from, and the prophylactic rule of that decision should not

be retreated from.

ARGUMENT

With respect to the first question presented in the Writ

of Certiorari, amicus concurs and urges upon the Court

the arguments of law put forth by the respondent, but will

not formally brief or argue that question.

Amicus will address itself herein only to the second

question certified for review, and takes the position that

Miranda v. Arizona, 384 US 436 (1966), represents a prin-

ciple of continuing constitutional and practical validity.

Which should not be limited or abandoned by this Court.

It is submitted that the logic of Miranda is as compelling

luday as it was on the date of decision, some seven years

Bega Sele edis. w RE Re te

Dasrerseiiss: iuisraa ine

ago. Indeed, experience under /Miranda not only demon.

strates that the rule has not significantly impeded police

work, but also points out the need for such a prophylactie

principle in the first instance.

Studies conducted in large metropolitan areas such as

Pittsburgh’ and Denver* have shown that the Miranda rule

has not significantly impaired the ability of law enforee-

ment agencies to apprehend and convict the perpetrator

of a criminal offensé. 4,

In Pittsburgh, for example, the study revealed that al-

though only approximately two thirds as many suspects

actually gave confessions after having been advised of

their rights as did without Miranda warnings,’ the con-

viction rate has decreased less than one half of one per-

cent.*

Contrary to the predictions of the Nay-sayers, neither

confessions nor, more importantly, convictions, have be-

come impossible to obtain of persons duly advised of their

constitutional rights. What is striking about the Pittsburgh

survey, amicus submits, is not how few confessions have

been obtained since the advice of rights has been required

to be given, but rather, how many. While it has been sug-

gested that the persistence and efficacy of police attempts

to secure admissions through interrogation has not been af-

1 Note, Miranda in Pittsburgh, 29 U Pitt L Rev 1 (1967).

2 Laiken Police Interrogation in Colorado, 47 Denver Law Journal

1 (1970).

3 According to the above cited study, the police practice of attempt-

ing to obtain a confession in all cases did not change even with the

requirement that suspects be informed of their rights to counsel and

to remain silent. In the pre-Miranda era, 48.5% of the suspects gave

confessions, while in the post-Miranda period, only 32.3% confessed.

Miranda in Pittsburgh, supra, at 12.

‘The pre-Miranda conviction rate was 66.8% while the post-Miranda

conviction rate has been 66.4%. Miranda in Pittsburgh, supra, at 19.

5

fected by Miranda,’ amicus suggests that the more signifi- -

cant observation to be gleaned from these data is that

confessiona] statements are either playing a less signifi-

cant role in the obtaining of convictions then they used to,

or, perhaps, confessions were never as crucial to effec-

tive police work as was represented.®

Law enforcement can, and has learned to, live with

Miranda.’ Yet focusing on the ‘‘ workability” of the warn-

5 Laiken, supra, at 41.

‘The Pittsburgh study disclosed that the police felt confessions

to be necessary to secure convictions in about twenty percent of all cases.

Miranda in Pittsburgh, supra, at 15. The inaccuracy of this perception

is shown by the data compiled by the Pittsburgh study, showing that

no marked drop in conviction rate attended. the rather notable decrease

in the number of confessions obtained. If confessions were really neces-

sary to conviction in one fifth of all cases initiated by the police, any

drop in the number of confessions should produce a coordinate drop

one fifth as large in the conviction rate (assuming all other factors

to be equal) ; this, however, has simply not been the case.

7A study conducted in Macon and Knoxville, Tennessee, provides

some interesting data. Law enforcement officers who regularly work

with, and under the strictures of, the Miranda warning requirements,

were interviewed with respect to their perceptions of that decision’s

effect on law enforcement. While the officers interviewed generally felt

that Miranda was an obstacle to effective police work, less than one

third of the officers interviewed identified the rising crime rate as a

product of court decisions. The nature of the “obstruction” posed by

Miranda, however, as perceived by the officers, is instructive. The study

concluded, in this regard:

They seemed to view the decision as a “stumbling block” to

investigation—not so much because of any particular effect on

the questioning process per se, but because, as one officer remarked,

it required them “to go through the ritual and paper work and

legal technicalities.” They resented the alleged inconvenience and,

to an even greater extent, they perceived a front implicit in the

requirement of advising suspects prior to interrogation.

Stephens, Flanders and Conner, Law Enforcement and the Supreme

Court: Police Perceptions of the Miranda Requirements, 39 Tennessee

Law Review 407, 429 (1972). .

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Satine atthe mentieeaeeeninien anion the ltnet eae Se w

6

ing requirement obscures the real question at issue; that

is, the values which are served by the Miranda rule.

This Courts’ decision in Miranda was premised upon

a recognition that the custodial interrogation process is

inherently coercive, coupled with the notion, fundamental

to Anglo-American jurisprudence, that it is somehow un.

seemly, and improper in the context of our adversary

system, to secure convictions out of an accused’s own

mouth. (The embodiment of this latter precept is, of

course, the central meaning of the Fifth Amendment privi-

lege against self-incrimination.) No rule of law can equal-

ize the position of interrogator and accused.* The Miranda

requirements, however, are designed, it appears, to direct-

ly affect this relationship by (1) sensitizing the interro-

gator to the rights of the accused and (2) increasing the

ability of the accused to assert his rights in the context

of the interrogation relationship.

The rights of the accused are not subject to question.

They are embodied, after all, in the constitutional pro-

visions which Miranda was designed to effectuate. Neither

8In this connection, the Courts’ attention is drawn to the conclu-

sions of severa] studies aimed at determining the effect which Miranda

has had upon the interrogator-accused relationship, and the perceptions

of criminal defendants of the criminal justice system. It appears, first,

that the relative lack of powerlessness which most suspects feel the

: setting of police investigation has not been significantly altered by the re

: quirement that the police advise them of their constitutional rights

; Thus, for most. persons, accused of crime, the effective ability to assert

; those rights in the context of what is essentially an adversary relation-

: ship with law enforcement authorities has no been significantly in-

N creased. Moreover, the overall perception of the criminal justice sys-

tem of most criminal defendants (particularly members of minority

: groups) particularly in regard to their ability to effect the course of

q enrorcemen’’ afinty far thair own nosition vis a vis law enforcement

3 activities, has not been significantly altered. Laiken, supra, at 21;

Bell, Racism in American Cotirts: Cause for Black Disruption or De

spair? 61 California Law Review 165, 185 (1973).

7

can it be seriously argued that we do not want citizens

to assert these rights. To so argue, of course, would be to

suggest that the operative constitutional commands should

be ignored. Yet this argument, or suggestion, seems to

be the underlying, unspoken assumption of those who op-

pose the continuing viability of Miranda. This basically

subversive position must be rejected by this Court.

Miranda was, after all aimed at enhancing and protect-

ing the integrity of the fact-finding process, and at safe-

guarding the primacy of the State’s interest in a fair

criminal trial. The centrality of the interests represented

by Miranda has recently been recognized and reaffirmed

by this Court in Schneckloth v. Bustamonte, —U.S.—36 L

Ed 2d 854 (1973), in declining to extend the warning re-

quirement in effectuation of the ‘‘less central” protections

of the Fourth Amendment. The Court there set out what

is perhaps the central teaching of Miranda:

That counsel is present when statements are

taken from an individual during interrogation ob-

viously enhances the integrity of the fact finding

process in Court. The presence of an attorney and

- the warnings delivered to the individual, enable the

defendant under otherwise compelling cireum-

stances to tell his story without fear, effectively,

and in a way that eliminates the evils in the inter-

rogation process. Without the protections flowing

from adequate warnings and the rights of counsel,

“*all the careful safeguards erected around the giv-

ing of testimony, whether by an accused or any

other witness, would become empty formalities in a

procedure where the most compelling possible evi-

‘

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dence of guilt, a confession, would have already

been obtained at the unsupervised pleasure of the

police.” [384 US] at 466, 16 L Ed 2d 694, 10 ALR

3rd 974

Set out in Schneckloth v. Bustamonte, supra,

—US—, 36 L Ed 2d at 870.

The psychological correctness of the underlying precept

of Miranda, that coercion is inherent in even ethical inter-

rogations, has been completely validated not only by the

literature of social psychology, but also by those studies

and reviews of the subject which have been conducted

since that decision.°

* Whether or not Miranda has altered the perceptions of

criminal defendants with respect to the power of police, it

has certainly had a,salutory effect in regard to educating

the police themselves to the significance of the Fifth

Amendment guarantee. For one thing, the studies seem

to suggest that police officers, operating under Miranda,

have come to downgrade the importance of confessions

in effective police work.” The notion that the criminal

laws can be adequately enforced without the necessity of

securing evidence of guilt from the accused himself is

certainly in line with the policies embodied by the Fifth

Amendment privilege against self-incrimination.

Moreover, the studies point up that regardless of the

police estimate of the Miranda decision, the warnings re-

® See, e.g., Ellis, A Comment on the Testimonial Privilege of the

Fifth Amendment, 55 Iowa Law Review 829 (1970); Foster, Confes-

sions and the Station House Syndrome, 18 DePaul Law Review 683

(1969).

10 Stephens, Flanders and Conner, supra; see also, Note, Interroga-

tions in New Haven: Impact of Miranda, 76 Yale Law Journal 1519

(1967). :

9

quirement has produced in law enforcement officers at

Jeast a rudimentary knowledge of and respect for the

Fifth Amendment guarantees." This educational value

should not be lightly taken, as the recognition of funda-

mental rights is an indispensable prerequisite to ensuring

that those rights are respected by those in whose hands

they are most easily abused.

Not without significance, too, is the observation that

Miranda represents a significant effort to elevate the

morality of the criminal law. That it is the responsibility

of the courts to ensure evenhandedness and propriety in

the day to day street-level application of the law ean

hardly be questioned. Nor can the proposition that the

greatest measure of fairness is appropriate to the admini-

stration of the criminal justice system. As a moral im-

perative, Miranda may be seen as an embodiment of the

following precept:

The administration of justice must attain the

highest standard of fairness, indeed, of basic de-

cency. In a government of law, the administration

of that law is the measure of the society.”

Indeed, those who urge the abandonment of Miranda as

an unaffordable procedural nicety would require this Court

to disregard this normative precept, and to accept instead

the proposition that it is acceptable to take advantage of

an accused’s ignorance in the name of combatting crime.

Amicus contends that this nation had not reached the state

of moral decay where this Cout can conclude that the

formalities of warning and advice can only be tolerated at —

the arraignment and preliminary hearing stage so long as

1 See, e.g., Stephens, Flanders and Conner, supra.

Cray, Criminal Interrogation and Confessions: The Ethical Im-

perative, 1968 Wisconsin Law Review 178, 174 (1968).

ER LE LP ENO YEARS OP Ee Uh Pram DEAE REL E AOP ENE Oh Lees bate oe Reed pate eee oe oe

so

66a 3 bling RPE So eee BI RY RRC Ra A Ih ROLE AAI OD A, Milla? MATA OO NT,

10

we allow the police an opportunity to render them mean-

ingless by obtaining a confession absent the assurances

provided by the giving of warnings.

Through long and hard endeavor, through experiment

and experiential validation, and a refusal to sacrifice prin.

ciple for expediency, this Court has sought to erect a

panoply of basic freedoms about the criminal accused.

Petitioner urges upon this Court, in the name of expedi-

ency, and in the face of empirically derived intelligence

to the contrary, the suggestion that a major portion of

these protections be done away with. There is simply

no way in which the values to be served in this area can

be adequately protected by half measures. The Court

must be guided by what it has so recently characterized

as the ‘‘classic admonition” of Boyd Vv. U.S. 116 US 616,

635 (1913) (Schneckloth v. Bustamonte, Supra, —US—, 36

L Id 2d at 863):

It may be that it is the obnoxious thing in its

mildest and least repulsive form; but illegitimate

and unconstitutional practices get their first footing

in that way, namely, by silent approaches and

slight deviations from legal modes of procedures.

This can only be obviated by adhering to the rule

that constitutional provisions for the security of

person and property should be liberally construed.

A close and literal construction deprives them of

half their effacacy, and leads to gradual deprecia-

tion of the right, as if it constituted more in sound

than in substance. It is the duty of courts to be

watchful for constitutional rights of the citizen, and

against any stealthy encroachments thereon.

This Court should reject the facile argument that the

goals of Miranda ean be achieved even while “modifying”

1l

the requirements therein enunciated. Miranda was based

upon the recognition that, in this fragile area of liberty,

nothing less than an absolute rule would serve to protect

the constitutional values involved. Subsequent experience

has not shown this assumption to have been mistaken.

Neither has this experience shown the costs of the abso-

lute protection to have been of crippling magnitude. In-

deed, such reliable evidence as we have indicates that

Miranda has been no deterrent to competent law enforce-

ment.’* Moreover, given the basic commitment to the ad-

versary model, and the intelligence gleaned from the

behavioral sciences regarding the inherent unreliability of

extra-judicial confessions, and the illusory nature of ‘‘vol-

untariness” in a custodial interrogation setting, amicus

submits that the ‘‘price” which we pay for the prophylaxis

insured by the Miranda rule is small indeed in relation to

the magnitude of the values which we seek to protect.

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‘8 See authorities cited above, and, in summary, ALI Model Code

of Pre-Arraignment Procedure 101-49 (Study Draft No. 1, 1968).

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12

CONCLUSION

The rule enunciated by this Court in Miranda v. Arizona,

384 US 436 (1966) is a sound one, which has its roots not

only in the fundamental precepts of our Anglo-American

jurisprudence, but also in the most informed current in-

telligence regarding human behavior. The social costs

attendant upon its enforcement are, at most, negligible. It

has served an important and continuing purpose in

actualizing fundamental constitutional guarantees at the

most meaningful level—Citizen Interaction with Law En.

forcement Officials and it represents a continuing social

commitment to the fundamental precepts of our system

of ordered liberty. To ‘‘modify” the rule is to abandon it,

and to abandon the rule is to take a giant step backward

in ‘the development of a human and realistic criminal

jurisprudence.

The holding of this Court in Miranda v. Arizona, supra

must remain inviolate.

Respectfully submitted,

DETROIT BAR ASSOCIATION

Amicus Curiae

By: Neil H. Fink

3150 Guardian Building

Detroit, Michigan, 48226