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tv   Supreme Court Landmark Case Miranda v. Arizona  CSPAN  August 14, 2017 12:03pm-1:38pm EDT

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any provision of the u.s. constitution and create a videon illustrating why the provision is important. >> all persons having business before the honorable the supreme court of the united states are e admonished to draw near and give their attention.he sup >> "landmark cases," c-span's n special history series produced in cooperation with the national constitution center, exploring u the human stories and ced constitutional dramas behind 12 historic supreme court decisions.. number 759. ernest miranda, petitioner, versus arizona. in >> we'll hear arguments in number 18. roe against wade. pular. >> quite often, many of our most famous decisions are ones the court took that were quite unpopular. >> let's go through a few cases
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that illustrate dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believe in a rule of law.elped good evening. welcome to c-span and the national constitution center's "landmark cases" series. tonight, case 11 out of 12. this is a 1966 case, miranda versus arizona, that helped revolutionize policing in america. >> you are under arrest. you have the right to an t. attorney. you have the right to remain silent. anything you say to us can be used against you in a court of law. >> do you even know the miranda rights?. >> yes. >> let's hear them now. >> do we -- you got a lot of lo stuff to do. dersta >> go ahead. >> are you sure you understand your rights? >> oh, yes.ought hi an he explained them to me.
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just like they do on television. >> done nothing wrong. to rem >> right to remain silent. ou sc >> i bought him. talk to my lawyer. >> you have the right to an attorney. >> anything you say may be used against you. >> sergeant hoffman. >> you have the right to remain silent. if you have the remain silent, anything you say can or will be used against you in a court of law.iranda of our you have the right to speak with an attorney. >> as you can see, miranda rights became part of our national our t we're going to learn the story of them tonight from our two guests.night, let me introduce them to you. jeffrey rosen returns to the e o table tonight, president and ceo of the national constitution u e center, and for you regular viewers, you know they are ries partners in the series. he is a supreme court expert. author of numerous books on the e courincluding "the supreme . t includ court: the personalities and els rivalries that defined america." thanks for being back. >> great to be back. >> paul cassell is with us for i the first time in our series. ah froo have you. former federal judge for the district of utah from 2002 to 2007. also served as u.s. associate deputy attorney general from '86
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to '88, and he's a professor of criminal law and procedure at the utah university of law. thanks for being here. >> thank for having me.he >> what are the constitutional issues in the miranda case? >> well, miranda settles or me. tries to settle a question that's been around the country ? for several hundred years now. the question is how much pressure can police officers pu on a suspect when they're tryinh to get information from that suspect? and what sorts of rules are going to regulate whether th confessions can be used in court. >> as we have talked about in the series, so many amendments to the constitution concerned criminal rights, rights of prosecution. what is it about this case that made it landmark? >> as your opening clip shows it's transformed the culture. look at all the tv shows that s gave the miranda rights.hts, r i was trying before the show toa see if i could do it by heart. you have the right to remain ws silent.ying b anything you say can and will b. used against you in a court of law. you have the right to consult i
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with an attorney. if you're indigent, one will be appointed for you. how did i do?? >> very good. >> just so central to the culture that, when chief justice rehnquist reaffirmed miranda, hu said the case has come to be accepted by the culture.on abo how many cases can we say about that? 0s pol >> how about a general rrently discussion about 1940s, '50s and early '60s policing in the country.hink wha we're currently in a big debate in this country about policing i tactics.pu one evolved in the '60s. why is that?ad tac >> i think what happened in the country is we saw already significant improvement in policing in this country. in the 1930s the third degree, putting pressure, threats to trs to get confessions, was a fairly widespread tactic.he que as you move into the '40s and '50s and '60s, those tactics started to disappear. then the question was, if pressure won't be used in the forms of physical threats to get confessions, police officers are going to use psychological tactics, psychological techniques to get confessions and what kind of regulation should there be on those techniques. on that was the issue that miranda had to wrestle with. >> jeff rosen, looking at the n
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country during that period of time, were there regional aspects to this? were there cases after jim crowj where perhaps blacks in the south might have had more problems with prosecution or was it uniform?time >> there was a huge debate abous police brutality and it focusese on the south. cro in the '30s the court had a wewh broad standard that confessions had to be voluntary. you couldn't literally beat ther confession out of people. but it's 1961 and the civil rights commission issues a report finding widespread police brutality in the south.poli so there is still a debate about how much that's going on. in the face of this there is a criminal procedure revolution in the warren court.broa the warren court issues the mapp decision in 1961 applying the ha exclusionary rule. 1963 it says you have to have ao lawyer present during police interrogation. conf in the gideon case, says that you have to have a l court-appointed lawyer. basically the supreme court led by earl warren is using the constitution, the fourth and poe fifth amendments, to address what it sees as a problem with t police brutality in the south.i that's the background against
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which the case was decided. ionn >> we'll spend more time on the warren court and the makeup.ave let's tell ernesto miranda's , s story. who is he? >> you have to also look at miranda but as well at his victim. at we can talk about her shortly. miranda was a repeat criminal, . somebody who had been arrested, convicted, sentenced a number of times, a drifter who really umb didn't have established lly employment or any place to work. then, on the night in question, he at knifepoint abducted a young woman and raped her. that's the backdrop that's here. jeff is talking about the warren court revolution. the other thing going on simultaneously with miranda committing this violent crime is violent crime is skyrocketing in
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america in the '60s. whether it's the warren court or something else that's responsible for that. that's part of the backdrop. >> march 2nd, 1963.she wa patricia, 18 years old, leaving work in phoenix, arizona. on the way home she was . kidnapped, raped and robbed and driven back to her house. we have a series of accusationsr of very serious crimes. how did this, then, proceed from here? >> so, the following week there is another robbery, and some a witnesses see a car that seems to belong to miranda at a bus . stop. the police check out the car. they go to miranda's -- the place where he is living, talk k to his girlfriend. she essentially fingers him. he is accused, taken down to thn station. there is a dispute about whether or not he is actually told his e rights. some states did it. others didn't.
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the fbi did read rights at the time. but essentially he signs a confession saying i did it.d it. and he is convicted. and then he claims that in factc he was never read his rights and that's when the case began. >> we visited the phoenix police department, and what makes this really interesting is that the detective who arrested ernesto miranda is still very much with us, still with the phoenix police department, and he gave us a tour, because this is verye much a part of the police play department's and national from t history, and they have a display there. he tells us the story from the d phoenix police department's point of view. let's watch. >> when she first looked at ther lineup, she said, it looks like the number 1 guy. the number 1 guy was ernie miranda. and i asked her, are you sure? and she says, well, it looks like him but maybe if i heard e his voice i might be able to make a positive. i didn't say anything. when we went back into the roomo i waited for a while. i wasn't quite sure what i was going to say. and ernie asked me, how did i do?
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and i said, well, you didn't do. so good, ernie.e what he said, well, i guess i better tell you about it then. i said, that would be a good idea. and he di he told us about the kidnapping, rape and robbery. after he told us, i said, would you sign a written confession, which says that at the beginning of the report, on the form, i did this statement voluntarily, without coercion or threats or promises of immunity. knowing my legal rights. then he wrote the statement all on one short page. the writing was excellent., and the spelling was excellent. and the description of the act was accurate. this is the entrance into the old city jail on the fifth floor of the old city/county courthouse and building.trance
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miranda would have been brought in here and processed just like every other prisoner.ocessed he would have been searched, and then he would have been transported or taken over, shown his new quarters, which was over here. we have four identical tanks. this particular tank here wouldt have been where miranda was kept, and it would have been what we call the felony tank.mid so he would have been booked into here. ernie would have spent maybe a l week. it may have been only a couple of days. >> so that is retired detective carroll cooley from the phoenix police department. you teach procedure.have s so we saw the signed confession. what is it about that that right off the bat led the system to el get interested in this prosecution? >> it's almost the perfect test case because this isn't a case where someone was beaten to get a confession. instead, the police came in ande used some tricks. they said, look, she has identified you as the one who raped her, you might as well e d
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tell us what happened.ut tha so it presents the issue of was psychological pressure brought to bear in a way that meant to the confession shouldn't be used. of course, one of the other interesting things that we'll see as the program unfolds tonight is miranda ends up radically changing the rules. in 1963 when this interrogation took place, there wasn't a icks. single precedent in america thae would support throwing that kin of a confession out. for 170 years those kinds of statements had been routinely ap admitted in court, and i think that's when chief justice warren and others started to get interested in this issue. >> miranda had two trials. one, the robbery trial of barbara.resting the other, the rape trial of patricia in june 1963. what happened to him?t throwi >> he was challenged on sixth amendment grounds. the court said you have a righta to counsel during interrogation. >> first step, he was convicted on both of those. >> he was indeed. he was >> he was convicted and endment
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sentenced to 20 to 25 years on r the robbery, and also on the kidnapping, rape and was scheduled to serve them all concurrently in june of '63. then we go to the challenge. he >> we go to the challenge. and the appellate court, it's t the arizona supreme court, the o constitutional issue is the sixth amendment, and the court z summarily rejects the claim thai the confession was improperly put in evidence.e conf the detectives testified they te informed him of his legal rights. the only question was was it a violation of the sixth olatio amendment. the court said we hold a endmen. confession may be admissible co when without an attorney if it's voluntary and does not violate the constitutional rights of the defendant. >> the sixth amendment says what? >> it says that you have the right to effective assistance os counsel. the argument that miranda's lawyers are making is, look, when talking to detective of cooley, who we saw a moment ago, he didn't have a lawyer then.lay he should have had a lawyer at
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that point.when t the problem with that argument is that for 170 years in american history the rule has been you get a lawyer once you o go to court, once charges have p formally been filed. historically the sixth amendment wouldn't have been in play. nor would the fifth amendment, n which says you have the right ye not to be compelled to be a witness against you. witnessing is heard in court.wis under the precedents that existed, this isn't the problem to use the confession of existe ernesto, miranda, that's why the lawyers are looking for creative theories to present to the supreme court. ve >> for the non-lawyers in the ti audience, we try to explain the process.>> f he didn't have his appeal upheln in the arizona supreme court. how does it make its way from there to the federal supreme ine court?how do >> you have to file a petition for what's called certiorari. the supreme court has to agree to take the case, a few years earlier in the gideon case, ee immortalized by the book "gideon's trumpet," the defendant hand-wrote a petitiond saying i was wrongly convicted because i didn't have a lawyer for my defense, and the court,
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overturning the previous rule, said that you are entitled to court-appointed counsel.are en here the aclu got interested and brought in a lawyer called john frank, an arizona lawyer, clerked for justice black, wrote a biography of him and was a sta yale law professor. distinguished constitutional scholar.r.brack, wro john frank decided to bring in local counsel.sel. a guy called john flynn, who he thought could argue it very calle once you get the big guns going, the supreme court gets interested. >> a note about john frank because he ended up not arguing the case. john frank popped up later in the national scene because he jf served as counsel for anita hilv in the clarence thomas tion h confirmation hearings. es fro >> very distinguished lawyer. miranda goes from someone who is in the bowels of the interrogation room to someone who has one of the most high powered legal teams imaginable on the supreme court. >> here is a note from warrbo bw who has been watching the
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series. he writes, miranda was a rapistn kidnapper and armed robber. landmark case. it's the defense of bad people that upholds liberty for us allt comments about that? >> the question, of course, is . what kind of liberty should we uphold.we for 170 years in this country there had never been a rule that the statement of the type miranda was making would not be admissible in it's hard to find a country today that would exclude the kind of stiement that miranda th gave. there is no debate that it's important to protect the liberty of all persons. even those accused of crimes. the problem with miranda is the pendulum swings so far in the direction of protecting suspect's interests that people like the woman who was raped are given short shrift in the decision. >> i should note that, in the decision itself chief justice warren disagrees and he said that at the time the fbi was routinely giving warnings like this.
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then he quotes the experience of other countries and said that a england, since the turn of the century, had been giving similar warnings. so we can certainly -- we're going to have a good discussionh about how rooted it was in the fifth and sixth amendments.ot it's not true that warren was o making this up out of thin air. >> certainly with respect to warnings it's true that the fbio was giving warnings before.ts. the problem with miranda isn't reading a few words off a card,r you have the right to remain silent. that's what you see on the tv programs. the problem with miranda is what i call the exclusionary rule ca aspects of it sets up rules that say you can't question certain people. or if you do certain things evidence can't be used. it's all of the procedural apparatus associated with miranda that even today means tens of thousands of criminal cases are going unsolved every year because of these procedural requirements. hings >> so let's get back to that. later on when we talk about the consequences of this and the other decisions from the warren court.
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but first i want to talk about the warren court.minal the last case we did in this series was 1962. there were a couple new justices appointed to the court since then.t. abe fortas, lbd appointee. byron white, a kennedy appointee. . out the how does the dynamic of the court change, jeff rosen, with t these new additions? >> well, fortas, first of all, had literally beenby appointed by the warren court to represent gideon. he is acutely interested in criminal procedure. he is an lbj supporter. he got into trouble when lbj t o nominated him to be chief he justice for both advising lbj on the side and some other matters. but he's someone who is very committed to the warren court's procedural revolution. byron white not so much.j on he was kennedy's only appointee. a rhodes scholar. champion football player.comm deferential to very pro-law enforcement and is in dissent in miranda.he so there was a balance on both sides, but essentially the most striking thing about the warren court that's deciding miranda, look at all the former judges
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and politicians on this court.d. hugo black, former police courti judge in alabama.arren he saw the third degree first co hand.s there is an amazing -- there is. another great biography -- so hu many that our viewers have to jg see.rst but the great biography of hugo black, which describes how, as a lawyer, he is trying a hispanic to he brings the defendant up and closes the shades so the defendant looks kind of menacins and doesn't say anything. he says, i just wanted the jury to take a look at that man. later he regrets that behavior and as a police court judge he i thought he saw how the system can be abused and the third he r degree is tom clark, a former politician r as well, just all of these guys -- most important, of course, we have to talk about earl warren, the district attorney of alameda county. he actually prosecuted these people.ict he is acutely sensitive in a in
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previous case called spano, which we can talk about, about how defendants can be sentenced for a huge amount of time because of procedural li factors beyond their control.tii these are not ivory judges. they're practical politicians and they really know how the system works. >> i want to talk about earl k abou's biography. jeff rosen mentioned the fact that he was the prosecutor. he was also the attorney genera of the state of california and served three terms as governor.d there is an interesting biographical note. his own father was murdered in . robbery. put that into context about the views that he brings to the court. >> right.e well, i think jeff hit it on the head.court. i think there are a large number of politicians on the supreme court at this period of time. frankly, i think in my view and lots of others they had not i tn successfully made that transition from politicians who get to have their own views, frn pose those own views, pose those views and pass legislation. they now shifted into a judiciar role where their duty is simply
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to interpret the law, not to geo make the law. when they see a problem like police interrogation, view politicians can pass laws, pass regulations, do different cial things. i think at least five justices on the court were ready to do the same thing through supreme court decision-making. and that's, of course, one of the legacies of the warren court is the decision-making approach is not to look at the narrow s facts of the case but to simplyu throw out some kinds of rules ts that they think everyone in the country ought to follow. on t >> you have both used the expression "the third degree."cr where does that come from? >> the third degree has to do f with beating, and you know, youe take it one degree, two and thee one more. but really, in the context of this case, the third degree fact means a kind of coercive pressure that doesn't involve physical violence.the there is a history it's fascinating.d degree we have to tell the story. the court tells it in the he thd miranda decision. history it has to do with the history of the fifth h
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every amendment has a story behind it. this is the story of john loburn and the puritan dissenters. during the british star chamberf if you were a heretic you could be forced to take an oath ex officio, which means you promise to answer any question.if if you're a dissenter and you are asked, are you a protestant, you can lie and go to eternal damnation or tell the truth and be burned as a heretic or refuse to answer and be imprisoned h a forever for contempt. loburn is called before the star chamber. says you have to answer. he says -- see if i can cham pronounce it. e ]. [ speaking foreign language ]. i'm mangling it. but it's basicallyelf. no man is bound to accuse the pn himself. but the principle is it's a form of the third degree that if you're called before a body and required to answer questions
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that put you in a situation that no person be forc who has human dignity should be forced to answer is what the l i court is trying to oh when it translates, the beatings of the 1930s, which were forbiddable under the old voluntariness standard. everyone agrees if your will is overborne with beating, it's not permissible under the old standards. now the court is trying to take the puritan era history and say, now that we know psychological pressure can be used, how do we honor the words of the fifth amendment today. >> we have a video of chief justice earl warren talking about the third degree. let's watch. >> the third degree, for instance, was a common thing icl 50 years ago and in the enforcement of the law, one had to watch for it very carefully to see that it was not -- not committed, but i think third comparatively few law enforcement officers now are rso addicted to the third degree and it's because the courts have -- have abhorred that kind of
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conduct and have said, if that kind of conduct is indulged in by the police, that the man is not given a fair trial and therefore his conviction cannot stand. certainly that's in the interest not of the particular defendanth alone but in the interest of everyone. >> paul cassell?est of what would you like to say about this? >> well, it's interesting. when you talk about the third degree, i think the chief >> pau justice warren hit the nail on the head when he said, even back when he was speaking, comparatively few cases involve the third degree. and of course, those tactics had long been outlawed by the supreme court.the he so what you are seeing, i think sometimes when people talk abou the miranda decision, it's the h something of a bait-and-switch. the point is made that, well, people have been tortured to anf give confessions so now we need the miranda rules.k of course, the miranda rules soe aren't really designed to
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address those kinds of things. torture had long been abolished by the supreme court and the real question, the question that we should be talking about and i think the supreme court should have been talking about in miranda is the psychological techniques the police officers t used. long b >> here is comment from joe reaq paulson on twitter who writes, o since the fbi had such a rule in place at the time were loads of federal crimes unsolved?have b >> the fbi had nothing like the miranda rules. what the fbi had was something that said you have the right tol remain silent. anything you say can be used rau against you and we'll get you a lawyer when you go to court. miranda frankly garbles what thg fbi was doing and says we're lay going to impose on the country the same thing. if miranda had imposed on the r country the same rules that the fbi -- i don't think any of us f would be here tonight talking cn about miranda -- it wouldn't be the most controversial criminal procedure decision in the history of the united states.
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what chief justice warren did was take some rules requiring to warnings to be provided and created in this vast what exclusionary rule apparatus thaa throws out all kinds of confessions and imposes all and kinds of prohibitions on even st asking reasonable questions of suspects who are in custody. >> comments?co >> well, we'll talk about whether it was -- what its ki effects were later. but the cops came to feel that it -- basically it was far less than both sides had asked for. essentially there were two polar positions at stake in miranda. aclu wanted a rule, you have to have a station house lawyer at all times and you cannot interrogate without a lawyer l present. the cops wanted the opposite. no warnings, no lawyer. warren came up with a moderate solution which essentially saida you have to be warned and, oncel you're warned, it's presumed er that the statement is voluntary unless you say the magic words "i want a lawyer." and when i teach criminal procedure really i say the most
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valuable thing i can do -- now we can share this incredibly sophisticated advice with c-span viewers.s.luntary if you are ever interrogated by the police, say the magic words "i want a lawyer." then the interrogation has to stop. you're hugely empowered if you say those words. that was the big innovation of miranda. we'll talk later about how manyp confessions that led to.r interr many people say it didn't the g actually decrease that many confessions.gation warren is doing three things in the opinion. first saying you have to read the warnings. second, if you say "i want a ero lawyer" the interrogation stops. third, in order to waive these d rights it has to be knowing, voluntary and intelligent and it puts the burden on the cops to prove that. rease th >> with the background you gavep us about the chief justice, he d was looking for a way to addres what he saw as the wrongs in th system and told his clerks to tb look for cases that might fit a the bill. when the cases came before the k
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court, there were four.wh miranda. could you talk about the other three. >> they were consolidated cases designed to present the supreme court with the full picture of police interrogation in america. one was the case we have been talking about. miranda versus arizona, the rapist out of arizona. then there was westover versus united states. the interesting thing there is that's a federal case. and the solicitor general of the united states argues in front of the supreme court. that's thurgood marshall, who is year later is elevated to the u. supreme court. he is arguing against the miranda rules and against those kinds of restraints on police st interrogation because, of course, they would affect not only state law enforcement agencies but, was we've been talking about tonight.traints ,w fbi and other federal law enforcement agencies that would have to comply with the rules as well. >> so when four cases go before the court, how does the process work? >> there are a lot of arguments. they take place over time. and there are lots of phenomenaa lawyers who are arguing. in addition to thurgood marshall, there was another distinguished lawyer, telford
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taylor. he had been a lawyer at nuremberg. he is arguing for the state of new york and resisting the broad imposition of a fifth and sixthg amendment rule in all cases. mostly he is concerned that the rule, if the court announces it, not be retroactive and not free a lot of people who have already been convicted.g for you do have, interestingly, two civil libertarian heroes. thurgood marshall and telford l taylor, arguing on behalf of the government. >> it came to the court februart 28 through march 2 of 1966. ten lawyers, lasting more than seven hours spread out over three days. we don't see these kinds of structures very often now. i mean, this seems like really l complicated because of the number of cases and lawyers. how does the court approach that? >> the court is trying to put in front of it, in the argument, the full array of different issues that come up in police interrogation. i think one of the things that's striking about miranda when you look at it in retrospect is how much it departed from the he cot
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ordinary approach to judging and the ordinary approach to judicial process in this rt is r country. typically you take the facts of a case and you reach a narrow r rule to address those particular facts. but, again, in keeping with the idea that i think that many of m the justices are politicians, e wanting to announce some broad and sweeping rule, they set up the case so that it would be designed almost to allow, i don't know, judicial legislation, regulation, whatever you want to call it, tr come out of the decision that they issued. re polit >> miranda, of those four casest had one our and 35 minutes of argument in front of the court. as we heard from jeffrey rosen, john flynn and john frank were h the two lawyers with john flynn actually making the argument before the court for miranda. arizona had, in addition to telford taylor, gary nelson, who made the argument and duane nedrud, attorney for the taylor
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national district attorneys association. anything particularly noteworthy about the arguments? >> one of the things that's striking we mentioned the strong legal team miranda had.the argu his legal team is arguing the h sixth amendment saying he didn'e get a lawyer during police teamr questioning. miranda's brief doesn't even argue that the fifth amendment was violated.a's brie the reason being that the fifth amendment had always been limited to the courtroom, that you can't be a witness against yourself in the courtroom.ason i so the fifth amendment was not a something that was the focus of the oral argument or certainly -- certainly the briefing.self in we'll talk in a moment about hoh the decision comes out, but there is a complete sort of ain- disconnect between the argument. being advanced and the decisioni that ultimately comes forward. i >> let me do calls, we welcome your participation in this nectb conversation tonight. ultimat and the lines for dialing in are divided geographically.nversa
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eastern and central time zones . 202-748-8900. mountain or pacific. 202-748-8901. dial carefully. send us a tweet with the #landmarkcases. finally, c-span's facebook page has a conversation under way. if you would like to make a comment there, three different ways to be involved. by phone, by tweet and by facebk facebook. pleas so please join the conversation. we welcome your comments. jeff rosen. >> just a brief response. flynn actually did mention the s fifth amendment at oral just argument. he says to justice stewart, if a man knew his rights, if he is g. rich enough, educated enough to assert his fifth amendment right.assert if he recognizes that he has a fifth amendment right to request counsel, so he does say that. that's key to overcoming inequality and coercion. counse >> he gives a speech the next tt
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year saying, look, talking about the effective assistance of >> h counsel you should know what i t did.coun i briefed and argued did. essentially -- he did mention it at one point in the decision.i e he says i briefed and argued the case entirely on a sixth the amendment proposition and now the supreme court decides it another way. frank and flynn end up saying, were we committing ineffective assistance of counsel because we were arguing one thing and the t court decides it another way. >> here are the questions befor the court in these cases. first, is a confession admissible in a court of law if, it was obtained without warnings of self-incrimination and without legal counsel.of s two, who determines whether a wh defendant has legally waived hi or her wheth third question, what is the standard for judging whether voluntary confessions are e're admissible.we'r fourth, when should an attorney be appointed for a person if he or she cannot afford one.
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these are the questions at stakf before the four cases in th particular.fl miranda, which is the case we're talking about.we we're in the era where the e supreme court has begun guests. recording audio of their oral arguments. next you'll hear a little bit of the two opposing attorneys, johd flynn and arizona's assistant attorney general gary nelson.mi we'll listen to some of the case as they made it and then come back and talk to the two guests. >> the only person who it adequately advise a person like miranda is a that he had the right not to incriminate himself, that he hah a night not to make any statement. that he had a right to be free from further questioning by the police department. that he had a right at ultimate time to be represented adequately by counsel in court. if he was too poor, to employ counsel, that the state would l furnish him counsel. d >> i certainly agree with mr. justice black 100%. that the fifth amendment, sixth amendment, every other part of our constitution applies to everyone, poor, rich, ignorant,m intellectual, what have you.
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there is no possible basis for differentiation. i don't argue that. i don't think any prosecutor argues it. miranda, i think characteristically by the petitioner is portrayed in thish light inform an attempt to makee something that isn't there. >> jeff rosen, what did you hea there? >> he is not arguing that the so confession is compelled by gunpoint. flynn is not claiming that.. >>j so we're not talking about the third degree.>> squarely, both lawyers are gu struggling to use both the sixt. amendment, which the court has already said applies during interrogation, and also the fifth amendment. they're also trying to come up with an alternative to the ing standard that the court already uses called a totality of the circumstances test. in a case called spano from 1959 chief justice warren wrote an td opinion saying you have to look at all the characteristics of a defendant, was he foreign born, uneducated, did he speak english well, did he fully understand r his rights. it was a mushy, open-ended test.
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that's why the lawyers there and in other parts of the oral argument were stressing miranda only had an eighth-grade here a education and wasn't educated and didn't understand his rights. in the years since spano, the justices and society had come t believe this was too , the unpredictable to actually be able to overcome the core suppressers of the station house.ors ofhous that's why you hear the lawyers saying the fifth and sixth amendments apply to everyone regardless of station.that'ssayg they're asking the court to come up with a bright-line rule to an protect all defendants. >> paul cassell, what did you hear? >> i hear sort of two arguments going on. one is the argument that, while this statement may not have been involuntary in a traditional sense, while we still think nts there was a lot of pressure one there. the problem with that argument is that for 170 years in sense, american history these kinds ofr
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statements had routinely been admitted.ther the supreme court is grappling with the idea, do we want to nt throw out everything that's gone on before and announce a new rule. the other thing i hear is a een pragmatic concern. if you take the arguments that are being made seriously, th particularly the sixth amendment argument and say miranda should have had a lawyer during police interrogation, the lawyer will t say, we don't want to answer ans questions right now.poli say nothing at all. nothing whatsoever.inal and if you go with that route, what you end up with is no hi, police interrogation in americao >> before we find out what the judges said, the court's final decision was and how we got there let's listen to our callers. josh in iowa. chief hi, josh. you're on the air. n a >> caller: hi. my question is, you know, from what i know, it seems like chieo justice warren, having been a district attorney, had wanted to expand the rights and escobedo versus illinois case. why was he so vested in expanding the rights given in that case?
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>> i would like to hear both of you talk about that. paul. >> one of the things that's ex going on in the 1960s is the notion that criminals are a product of their environment, that they're in a sense maybe pa not as accountable for their s decisions, they haven't gotten a higher education, as we heard thout with so, against that backdrop there is -- i think it's part of sort of a perverse interest in de cheering for the underdogs that somehow police outwitted suspects when they come up with something that gets them to d confess.there that's a strange backdrop to the decision. i don't know what jeff thinks about this. >> the notion of chief justice warren as a soft on criminals guy just isn't convincing. this chief justice wrote terry versus ohio, which is one of the most pro law enforcement i decisions ever written by says that the cops are allowed to ti stop you and pat you down on reasonable suspicion without a
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but what warren did care a lot about was human dignity. he uses that phrase in the decision.y says he was troubled when he wrote the spano case, that the guy who was involved in a barroom brawl there and ended up killing someone may have been acting in self-defense but according to the state rules at the time wasi liable for a big prison ho he is a kind of pragmatic judge and didn't think the totality o the circumstances test was hinkt protective enough at a time when he was really troubled by policr violence. he understood the third degree, as we heard on the clip.s to sto he understood what was going ony in the south. so far from being kind of an aclu guy who just wants to stop the cops all interrogations by requiring a lawyer at all times, i think he's trying to come up with a moderate, pragmatic compromise that will restrain y the police at a time when he thinks that's necessary. >> braxton is up next in long beach, california. >> caller: yes. my question is, understand -- i want to go back to -- before miranda rights were brought int. play. the question is, what was the
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fbi's rights -- how did they present their rights before -- miranda?into >> thank you. e >> what the fbi said was that e they instructed their special >o agents to tell people they had h the right to remain silent and that anything they said could b used against those were the kinds of rights given to miranda himself.nd with respect to whether they ule could have an attorney during questioning, the fbi would say, look, once you go to court that's when your sixth amendment rights to counsel apply. so the fbi had never done the sort of thing that was under ey discussion, and we'll talk abou in a minute in the opinion. they'd never done anything that said, look, if somebody says ri they don't want to talk the fbi has to stop asking them a m and that's, i think, the frankl radical step that miranda takes and the one that's been harmful for law enforcement from that a day even to today. rmful >> next is a viewer named fo celeste in tulsa.
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hi, celeste, you're on. >> caller: hi. i attend san miguel tulsa middl school. my question for your guests is e how long did it take for this case to reach the supreme courta >> okay, celeste. before you go, tell me about your interest in this case as a middle school student. >> well, my social studies socis teacher brought this up, and he said that, if we get on, we get extra credit on the test. >> good for you for getting on e and getting extra credit. >> excellent. >> thank you for participating tonight.extra cr congratulations. >> that is wonderful to get ou p extra credit. wonde you can also tell your teacher t that we know that the crime occurred in 1963 and the case came down in 1966, so it took three years between the crime , and the decision. betwee >> is that a long time in cisio supreme court context? a long >> no.t cont i think it seems like goldilocks, just right. >> next up is glen in freeland, michigan.
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>> thank you very much, y to l everyone. my question is about, does miranda apply to legal and illegal aliens, and specifically i'm thinking about that case inr san bernardino where it kind ofs blurs the line between a regular crime and terrorism. if the lady, who i guess was a legal alien, if she had survived and they were looking at it as a terrorist case, would miranda have applied to her specifically, for example? >> thanks for your question. >> it's a great question. i'll let paul take it away.aul a just to note, the question of to what degree miranda applies to terrorism suspects abroad is ana open question. the courts haven't definitively decided whether suspects interrogated outside of the han territorial united states. my understanding is the interrogation of anyone within g the united states have to be read their miranda rights. >> jeff's exactly right.ds
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that's one of the things the miranda decision does, is it extends rights to everyone inside the e united states. you can have some interesting questions about what if an fbi agent is overseas, and how do the rights come into play in that can you can also have some interesting questions that come up in what are called public safety situations nowadays. if there was a ticking time bomb that a terrorist had set, the supreme court suggested that tha maybe in those narrow circumstances miranda warnings might not need to be given because of the extreme public safety concern that exists. cirt >> brian on twitter asked, doeso the miranda decision apply to foreign combatants on u.s. soil. the answer would be it depends? >> it depends. the question is is the -- are wg talking about things in a e it d military context in which, thens miranda does not apply or are we talking about them in a civilia law enforcement context, in >> which case, of course, miranda does apply. >> jim is in california. you are on. >> caller: thank you very much. first of all, a comment.t of a i am a retired attorney, and i
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began law school in autumn of 1966. my criminal law professor, fredf inbau, at northwestern known as "freddie the cop" really did not like miranda. he was adamant about how dangerous it was for police work. so it's -- and i just brought back that remembrance. i just but also, judge cassell, you were talking about the court having politicians on it. i think one could say that the court now perhaps has too many judges on it and not enough, perhaps people from outside of the appellate court and supreme court clerk circuit. i don't really like the way it's gone in recent years. anyway, thank you. >> can i just -- he mentions fred inbau. he had written the police interrogation manual with different techniques and tactics and so forth.iques i think one of the reasons he was disappointed in the miranda decision is that he discovers
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that all of his techniques and tactics have been quoted as a i reason for the supreme court needing to step in and regulateb police interrogation. the big irony of the supreme court's miranda decision is it doesn't regulate or restrict any of the techniques, the g irony psychological techniques that inbau used. so he reworked his textbook the next year and it became a best-seller. >> two more questions and then n we'll come back to the decision in the case.l come b dale is here locally in s here l springfield, virginia. you're on, dale. >> caller: yes. good evening. i just wanted to point out that the supreme court did not just rush to the exclusionary rule as their first attempt to curtail x this sort of activity. there had been a whole series of decisions leading up to it, and finally the court seemed to just be convinced that the only way to get the police to follow thea rules they were laying down wasc to remove the incentive for them to violate the law by telling them, if you do this, we're nott
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going to allow the evidence to be used.ere that and i think that's an important factor here that's being glosset over. >> very important point. absolutely, miranda is not coming out of nowhere. the map decision from 1961 applying the exclusionary rule to the states arguably has as much or more practical importance than miranda itself d and miranda can be seen as a pro-police decision. as paul says ironically it didn't prevent the use of trickery or deception, and in some ways it inoculated the magi police. all you have to do is say the ss magic words, and then you can use the same interrogation manuals that chief justice warren is expressing concern about and now we learn about their origin.of all t think of all the things miranda didn't do.t requ it didn't require the videoing of interrogations. it didn't actually substantively prevent deception or trickery t for all those reasons.
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the court definitely wants a bright-line rule, but it wasn't a rule that uniformly disfavored the police. >> we can hear the continuing debate over miranda all these cr years later. it was a 5-4 decision.majority a divided court.en. the majority chief justice earl warren. hugo black, william brennan, william o. douglas and abe fortas. white, potter, stewart and e, pe clark. is there a back story of how they got to a 5-4 decision? >> i think one of the things bel we've been talking about tonight was the fbi practices, those wh were pushing -- chief justice warren, for example, pushing for broad regulation of the police x said, look, the fbi is already o administering this, wouldn't be a problem extending those practices to other agencies.s oi the problem was the fbi had not been doing anything like the sorts of things that miranda ended up opposing on not just federal agencies but every agency in the united states. itt
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>> from time to time in these s. cases we have heard stories about justices finding randa coalitions to bring them to their side. are there any good stories in the miranda case that either of you know of that convinced tha convinced someone to go one side or the other on this one..tty wo >> i don't >> do you. >> i know there was some debate about, and then the fbi warnings were included.includ they've gone back to look at the draft opinions that were added.t one thing that was added at the last minute, this is one way of regulating police. leave i maybe they'll come up with other ways of regulating police other interrogation. that compromised -- verbally str articulated, was critical to building the coalition.e deci >> i wanted to say, since we've been talking about the fbi warnings. here's what the fbi said at the time, any person being interviewed after warning of th
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council decides he wishes to consult withmi council, the ingn interview iste terminated.ith cn fbi agents don't pass judgment on the ability of the person to pay for council.e perstand the the best way to understand the miranda it misearch, you'll see paul ga sal and kate stiff.l com with a beautiful common statement about what miranda mean.consti constitution i have toe do the plug now, nt because it's so cool.on you can read the fifth amendment on this side in all of its beauty, and then you see this common statement where thehe professors talk about what stat everyone agrees the text was, thewh history was i think it's u inspiring. you have separate statements e about whatabou you disagree abo that's a great place for viewers to begin to understand the decision. >> we got it on screen. dec
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the chief justice chose to write the opinion himself. it was 60 plus pages, he read it allowed in the courtroom in its entirety, how often does that happen? >> not very often. it would take several hours to do that, i think everyone knew t when the decision came down, itn was a landmark decision and was going to have reverberations that would he can key for years and years. >> the miranda rules were written into the decision, so ht the text was really excerpted and became what we heard at the outset, used so often in police and crime dramas. here's a bit of chief justice e earl warren's opinion. a p if a person in custody is to be suggested to interrogation, he must be informed in clear and unequivocal terms that he has the right to remain silent. the warning is needed simply too make them aware of p it the
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threshold. we will not pauseft toh am inqu individual cases whether the department was aware of his rights without a warning being given. what are you hearing there?s b >> one of the things i think is frankly strange about the decision is there are 50 pages e of text, and it's only at the i last two pages, around page 49 and 50, you get to discuss specific facts of the case. there have been a lot of commentators that have read the decision and said, it read like a legislative report with an attached statute. a stand there's a legislative feel to the opinion.n.quite sixth >> it was true to the spirit. and not think it was radical. pu warren says both at the beginning and again in the t
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middle and the end. these are the rules we want the cops to this led to fierce criticism that it was indeed legislative, and set off a political firestorm. >> so before we get to the aftermath of it, we should tell the rest of our miranda 120erry. it's really quite a colorful and sad one. whatat lapped to him next?he he's just won this land mark ape case in the supreme court.d what happens legally?ark c >> so he is paroled in 1972. pad he's arrested again in 1974 for parole violations, he goes back to prison. after his release, he goes back to liz old neighborhoods. h he sells the miranda cards for one or two dollars, autographing them, that's how he makes his living. and then in 1976 he's playing i poker inng a bar, in a fist fig,
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killed in his pocket are found d copies of the miranda warning. >> he also tried to appeal his d conviction and once again to th supreme court, but was not successful, right?upreme >> he's reconvicted because a confession he made to his wife of all people is admitted, his common law wife, because she was merely a common law wife, the rules of spousal privilege did not block the use of that pr confession. i think it's important to not b understand the only way miranda. convicted, he gave a confession to his wife rather than the police officers. the police officer's confessionr was thrown out. >> here's an interesting code to ernesto miranda's tale. killed in a bar fight with the d cards in his pocket, and his killers when they arrested are read the miranda rules. >> we have carol cooley, the arresting officer in the case, e adding more to this 120erry, let's listen.
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>> after the supreme court decision in 1966, the various departments around the state and the country developed their own miranda warning cards based on the decision. and the cards that we have here are the original cards that we s had miranda sign as a souvenir after he got out of prison. and then we have the revised is. cards which are below it. and that is the one in english, and the one in spanish on the back. thesh and revised cards did notn require a signature.ignatu now, miranda used to get these cards from police and he would see in this downtown area.d he and he would introduce himself as the famous ernesto miranda. and then he would ask officers o if they had any spare cards, an
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they would really give him somem cards and he would take those n cards and sign them. and he would try to sell them for a dollar or two.>> >> there's the arresting office officer's story of the person who gave his name to the mirand' rights. we're going to go back to to ca and get more of your comments r and reaction about this. next up is john, west chester, h pennsylvania. hi, john. >> my understanding is that you can only invoke your right to e have a lawyer present when you are being interrogated. you at what point you're being interrogated and if that can happen only in a police station or if it can happen in other places? >> thank you. >> you teach criminal procedures. >> sure, my students were taking their criminal procedure exam na this morning.lthis the miranda rules are triggered when someone is in custody. they've been taken into the sti
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police station ason miranda doel they don't apply when someone's being questioned in their home or on thehe street.e the other part is interrogation. the police officers have to be e asking questions or the ing functional equivalent of asking questions in order to bring the miranda rules into play..equiva >> next is a call from brad watching us in desert hot springs, california.rom brad, your question? >> yes, i was detained for a dup stop and the officer on duty gave me the field test, i passes that, i went to the to breathalyzer, i passed that. he wanted to take me into the e police station for a blood testr once there, i had my glasses taken away from me and i wasn'tw allowed to read the paper in front of me. make a long story short. he marks it saying i refused it, i was detained, he kept asking
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me questions, i wasn't read my miranda rights until three hours later, at what point is he supposed to read the miranda rights? > there interesting thing isg don't have to be read your miranda rights to be given a blood test. blood is not testimonial, it's merely physical evidence. >> we saw the president of the p united states in the white aw house, having his blood he had no fifth amendment right to refuse that, because of the court's holding that that is not testimonial, the thing i remember most vividly was my teacher at -- jumping up and is down saying, blood, blood, blood. i guarantee, if there's nothing else you remember from this d. program, it may be just those 's words, although it seems very dramatic that the police are allowed to extract blood from you without your consent, you're not incriminating yourself with
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your own words. you don't have a fifth amendment right or a miranda right. mi >> next isrand laura in philadelphia. you're on the air, laura. g >> back to something bro fesser cassell said a while ago. b if i understand you correctly, it sounds like you're saying before 63, 66, police giving you the third degree to suspects is a lot worse than it is now. hasn't there been a lot of dn'tt informationhe coming out recentg about false confessions. my situation is, the situation hasn't improved at all?d at >> one of the interesting things in the myrrh an saturday decision, is the overprotection of some people and underprotection of others. of it over protects professional p criminals. they lawyer up and no then ques
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can be asked of those people. if you are incertainty and haven't committed the crime.firt i'll waive my rights, yeah, i want to talk. there have been dwoumted cases d ofoc mentally retarded persons others who have been convinced i theync committed a crime. miranda doesn't do anything for innocent tapeople. something like videotapes where we could look at the whole investigation and figure out what happened. miranda has been a complete be disappointment for preventing things like false con investigations fp . >> jeff rosen, i don't know if you can answer this hypothetical. what if, would miranda have been issued if tom dewey had won the presidential election?ewy >> obviously, earl warren is not going to be chief justice but on the other hand, we have a te
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moderate republican president b dewey, who is still -- might e have appointed a moderate republican like warren who was l his running mate. and warren's great achievement was as a states man. he was able to bring his colleagues together, and whether you think it's legislative or an act of states manship, it was f this practical politician from a republican party that at the time was notre especially much n tougher on crime than democratsr were, who was able to come up with this ruling. i think my -- as i think allowed, there's no one like earl warren. you can imagine another moderate republican chief being appointeh who may have come up with a similar decision.n.a s >> steve in sunbright tennessee. hi, steve.. >> is there a statute of limitations on when somebody can file an appeal when they feel
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their miranda rights have been violated. when involved in something i was about 10 years old, and i was pretty well forced into signing a confession. not physically, but mentally.d and i have tried several times a to get courtll papers and everything, no one will give rsa them to me is there a way to do that, and if so, how would i go about doing it? >> one of the things the supreme court has said since miranda, they have to be raised immediately at the time of trial you can't raise them later on, it becomes too collateral to allow it on a habeas corpus decision. >> the supreme court anticipated there would be a flood of appeals cases that had been tried before this so they put a marker down. a
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the june 13th rule, affecting all cases going-forward, and now allowing appeal before. that to me was confusing, because if it is a right, it's a right, not one set by time. >> what's interesting too there were a number of appeals that a were in process that had been filed before then, there were c truly cases of murderers. there was one case in new york where someone had knifed four oe five people and killed them, that confession which was n perfectly valid when the police obtained it, obviously they didn't have miranda cards and miranda rules was thrown out.ul fred graham has a very good book, whatever you think about the miranda decision, the idea to let it apply to police what t émáqq(rárjz wascisi announced, this i it created the spectacle of
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murderers walking free. >> the court is a pragmatic cri institution. there are other decisions that are not retroactive. one lawyer t begged the court tw not make it retroactive, you yoe have to draw some lines and that's the one they drew. . we're talking about the impact e of this decision on officers. and what they thought about, let's listen. >> they thought the police had c abuseder these individuals and taken advantage of them. and, therefore the police were bad guys.s in the minds of a lot of peopleo those people that knew the factt didn't see it that way. you'v but you have to look at the general public. so there was an impact on me that i felt like i had been put
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in an awkward position. that i had been somewhat demeaned because people thought that we hade peopl abused him.h it was the most friendly conversation you could ever hav we sit down with him, it was like talking to around old friend.d.we sat we did everything according to the book, in my opinion, and i e was very surprised, i thought, well, when i first heard it, it was going up before the supreme court. i didn't know about the state supreme court having looked at it and upheld i thought, it's going up, but ie don't think we're going to losed it, i think we did a good job, e in my opinion. when it turned out different on. than i thought it would, as a police officer you accept those things, that's -- if that's thea way they want us to do business. that's the way we'll do business. there's not much i couldll do,,l i could do is say, i think the , supreme court made a mistake, that's whey thought.that's
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we do the job according to what they tell us to do. sometimes the results are negative because we have less ni convictions. we have more crime, because a lot of people are turned back et into society to continue to do their evil, and -- but hey, no n skin off my nose or the police e department's nose when these guys go back to work, we'll jusg try to catch them again. e >> carol cooley, the arresting w officer in ernesto miranda. to i want to put another personal a story on the table. patrick leahy is now the senior democrat on the committee. at the time miranda came aroundt he was in his home state. he tells us about the miranda decision and its effect on the e
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state. >> at that time, it was very controversial. what do you mean we have to rea this guilty accused we have her as somebody once said -- a normer attorney general once used that expression. what do you mean we have to tell them their rights.course of course you do.ause what if you were arrested for something and you may think, theyey got the wrong guy, wouldt you want to know what your a rights are? that sunk in pretty heavily. >> he went on to tell us he hadi his own cards printed up with the miranda rights and passed them out to police officers around the state to educate them. every lawyeronderf knows police
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a myriad of tactics for avoidinf miranda. what's your reaction? >> i've done a lot of research on the effects of miranda. o and what you see is there's been a staggering effect on law be enforcement in this country. before miranda, if you go back o to the start of the 1960s, you're looking about a 60% crima clearance rate in this country. crime clearance rates fell to around 45%, and remained there in the 50 years since. that means about 60,000 violenta crimes and 100,000 property crimes each year go unsolved asr i say, it's not just reading the words off the card that miranda requires. it forbids police from asking t questions if someone refuses tou allow questioning to occur.r.
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it truly did handcuff the cops. >> this is an important debate, and professor gasal has made a strong argument for it. camisar notes that the currentlt prevailing view, even among police and prosecutors is that miranda's impact on conviction rates is carefully conducted studies indicate that 55% to 65% of all interrogations, the police the succeed in obtaining incriminating statements. this is an important statistican debate, we can go back and forth, professor gasal is the expert and not i. forth but i do endorse the view that . after having initially resisted
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miranda strongly, and president nixon denounced it and ran against it.. the police in the '80s and '90sc came toep accept miranda.o it's easy to have to get around. all you have to do is say the magic words and you can resort to the same trickery, and coercive pleasures that allow de people to confess in ways that go against their interest. miranda did not require people to make good decisions. unless you believe in a notion of divine absolution, it's not a good idea to confess if you're guilty.a to con miranda made it much easier foro the police tor inoculate themselves against future challenges. miranda is not bad for the police. >> so we talked about this i before, but just to get it on oo the record. there was a suite of policing f
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related decisions that the warren court took on. including griffin versus illinois in 1956. matt versus ohio, which is a story we told two weeks ago. gideon versus wainwright, the '63 case which has been referred to by our two guests here. e esscovido case -- co tobedo have a lawyer during interrogation. >> terry versus ohio. >> thehe stop and frisk case whichp legitimizes the ability to stop someone who's suspected of a crime. and if necessary frisk them because they might be carrying e weapon. >> we talked about theisk them controversy on this decision. the court argued it strongly on both sides. president nixon campaigned on ns
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the law in the '68 election. congress got into the act and passes the omnibus act in 1968.o >> criminals were going free, and there was expected to be a dramatic effect on law d s enforcement in 1968 congress passed the law re-establishing the old voluntary test. >> we have about 20 minutes left, i wanted to talk about what's happened to miranda in the years ensuing. they've begun to refine miranda what are the important ones to know about, and what was refined. >> the most important one is the one that upheld it. the n this is the dickerson case. professor gasal had a crucial role in it. i'll let him tee it up. a essentially, the argument was .
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that congress should reinstate t the test that congress had rt hd embraced in 1968 and admit confessions if they were f the voluntary. the time elapsing between the arrest and arraignment. whether he was advised of his rights or not.ights what is significant about the dickerson case is that not a up single administration had neithe defended it, from johnson throu through the bush administration. no presidents insisted it be used as the substitute for miranda. cou when the court surprised a lot of people. chief justice rehnquist himself cast the sixth vote to uphold it. they're acting not against the wishes of subsequent white houses, but in conjunction with them. >> it ended up being a 7-2 ine w
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decision, right? >> the majority was justice rehnquist, breyer, kennedy, suitor and stevens. as we learned from jeff rosen the judge was asked by special invitation to give an amici argument that miranda shoulding overruled. >> iso argued in defense of the 1968 statute, this is the history that it was disputed. president johnson said we're nos going to enforce this law but president nixon said it should be argued in court.d i eventually i ended up arguing it as a friend of the court. it one of the strange things that r happened, the clinton eral administration refused to defene the law, even though there weren very strong arguments that could be made on its behalf.s that's one of the unfortunate things that set the stage for the ruling against it.
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if they had sent their solicitoa general to defend the law, i 's think it would have turned out differently. >> we hold that miranda, being a constitutional decision of this court may not be overruled by an act of congress, and we decline to overrule miranda ourselves. we hold that miranda govern thet admissibility of statements made in both state and federal i courts. >> it's a remarkable decision. >> chief justice rehnquist has said miranda is not a constitutional decision and suggested he would come up to in the edge of overruling it. and he shocks everyone by s upholding it. eve why did he do this? >> one thing he says, it's come to be accepted by the culture, and this causes justice antonint scalia's head to explode. he says the court has converted miranda into the the peer made
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judicial arrogance.t kiop was the great king that was so arrogant he believed he could build the biggest pyramid in history and killed a a lot of people doing that. he was really was like warren in some ways, a pragmatist. hehe had been the lone ranger and a little pure in his constitutional views, i think he was moved as all the justices were, we saw those tv warnings the fact that this symbolizes law enforcement across the aw world, thanks to its acceptance in popular culture. and combined with the fact that the other justices thought the cops had accepted it meant that the press itself, made a powerful argument, a valiant -- in is a case brought in ga faith. 7-2 rejected it. broug >> pete is in georgia. you are on the air. 7-2, >> good evening.
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my question is about the salinas detective case in 2013. i think what professor is sayino about miranda was on full display in that case, we see a very divided court. i think the upshot of that case is that you have to express italy invoke your right to silence, you can't just be silent. that again assumes you s know those rights and you know when o you're inw custody and police cannot take that opportunity away from you,u,th but they don necessarily have to give you the cue. can you explain that case, and do you think it's been rightly s decided? >> that's one of the follow-up cases. one of the things that's r remarkable about miranda.
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the basic frameworkthis that ea warren set out in that decision applies today. i view that a little differently than jeff does. some people look at the dickerson decision and say that was a bullet that was dodged. i viewew dickerson and some of these other decisions like thist an opportunity missed. an we haven't updated miranda at all in the last 50 years. we haven't looked at emerging 5 technologies like videotapes. ti i would much rather have a video camera running during the interrogation, to make sure thed entire process can be reskrukted later. pro instead, all i get is an officer reading a few words off a card. i think we need to think about new ways of implementing miranda that protects suspects better and gives law enforcement the tune the to ask a few more questions.>> >> next is brian in awashingtonn
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>> my question is that the book is keen on having police officers ask more questions andd my question is, does he believee that the police should keep on asking questions when the suspect says, i don't want to talk? ?mira miranda says the police have tog stop asking questions at some dh point. does he believe that right should not exist?e >> i think what we ought to be n doing is changing the miranda rules soha they don't have thes question cut off rules. i call this the mother may i of police questioning. to if police officers have to give a warning and then a waiver to ask questions. they can't ask even reasonable e questions for a reasonable sk period of time. i would go to the voluntariness
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rules and allow police officers to ask questions so long as the an n't extracting involuntary confession. >> iphones are transforming the encounters between cops and ormg citizens. the american law institute on a committee that i'm privileged tv serve on is trying to come up e with rules u for bodycams.ules. there are plenty of people who agree that videotaping interrogations would help policd and suspect., that doesn't mean miranda should be thrown out as well. there's no doubt as paul said, the roberts court has changed since the rehnquist court reaffirmed the dickerson decision and descenters like ths
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salinas case. the suspect doesn't invoke his mirandada rights and the court says he waived his rights because he failed to do so una.m. big u housely. dis the court is cutting back on miranda. this is not a decision that has as broad support as it did at d the time of dickerson. sup >> trip wire g asked, could you comment on the 2010 thompkins decision. the suspects must tell police they are going to remain quiet t they must tell police they wantt a lawyer. there has to be an affirmative , ago by the part. >> that's a unique fact pattern. a situation where somebody sits quiet for 90 minutes and eventually ends up making a statement. those kinds of decisions cover
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those particular fact patterns, but in day to day law enforcement we don't see any real change in police hange effectiveness. that's not just my view i onn i data. the crime clearance rate today is the same as it was in 2010, the same as it was in 1970. police in america today are lesn effective in clearing or solving crimes than they were before the warren courts started handing down its decisions. >> quickly, to give the two views of the impact. the aclu criticized the court for opening the door to prolonged interrogations others in favor of the decision the former deputy u.s. attorney general said the flexibility would ease the burden on police and permit more flexible ci response to terrorism. these decisions are havingsion effect. >> kevin in tucson, you're on.
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>> my question concerns vifts in american law enforcement policyo in the '60s more generally. with the implementation of the warren court rule i'm wonderingm if it was the court itself that helped shift law enforcement hl policy or was it public opinion and the social turbulence cially especially in the south in the 1960s that had the biggest hanku impact. >> society versus the courts? >> you know whose book i would love you to read, the late lik william stunts. he wrote a beautiful book about the relationship between public opinion and criminal procedure. the court tends to mirror cou broader trends in society rather than cause them.irror when crime in the '60s went the down, the court became more liberal, when it went up in thet
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'70s it became more conservative. the notion that the courtore co transforms society doesn't seem. right. other the criminal procedure revolution of the warren court changed the rules the police c worked under in a certain way. and it symbolized the dignity oe every individual. >> and someone on twitter asked, did miranda work?ple most people waive their rights in hopes of gaming the system. we have a few minutes left in our program. s we have one more in our 12 part series, if you have missed any of it, and you want to learn more, we have a robust website with lots of background on these cases and also more video att h attached to each one of them.
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you also can buy a book that we have co published, and it is bk called landmark cases. it is written by veteran supreme court reporter tony morrow. we'll get it to you before the holidays. it's at our cost, it gives you background and legacy of all the 12 cases featured in this series. and next up is pam in irving texas.i >> hi, i wanted to ask a question question, do you thinks with the terrorismti and everything that we're facing now in this more modern -- i don't t know what you want to call it, era, the 50 years that it's been -- do you think it's time to update or change miranda in some way? >> well we know if fears of terrorism are increasing and people want the government to be
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tougher on crime, the court may mirror that. therefore, if you're predicting -- i think it's urt y unlikely the court would hold that miranda applies to terrorism suspects. on the other hand we're having t huge decision in this country about police brutality, that cuts in the opposite direction with a new sensitivity to the ew importance of human dignity, and the fact that all of these encounters are being caught on camera, makes it harder for the police to engage in the untransparent conduct they used to. i don't think miranda is going e to go away any time soon. iran >> ifda there's no consequence r wrongful police contact, what will dissuade if a rule is necessary. >> there should be exclusion of evidence. if there's an involuntary >> confession, that shouldn't be admitted.hly
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miranda puts into place a rule that throws out perfectly good s confessions because the police o have made a mistake along the way, that i think is the real problem, i think one of the things that has changed a littla bit in the last 50 years, we have i much more robust crime victimscr rights movement. no one's ever told the story ofa patricia, the young woman who was raped by miranda. r there's more attention to that side of the equestioning, and o that's a change for the good. >> ed in danbury, connecticut. >> does the supreme court ever , take a macro view of the legal system for self-assessment, a results focus, both good and bad? u.s. incarceration rate i he believe is the highest in the world on the other side, crime is declining, do they take that into consideration as how to how they go about their business?
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>> they're channeling it somehow. whether it's through the gestal or the general sense of things. what is striking is how g empirical many of these are. decisions are there's not a lot of engagement with law enforcement officials themselvea or victims or -- you know, the accused, and for all those or al reasons, much of the most interesting work in policing nowadays is being done not in on the courts and constitutional decisions, but in regulations of police departments passed by ra sta states, illinois and others, almost every state is grappling with questions of body cameras. these are often legislative decisions, i think professor dei gasal may agree that for mi legislators to grapple with this and come up with their own detailed rules is appropriate and good to focus on the facts on the ground. >> does it not sound as if these
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are going to be cases to make p their way to the supreme court? >> one of the things that the miranda did, it petrified the a law of police interrogation. the rules today in 2015 are the same as they were in 1966.e mad just as we've made advances in medicine we could make advancese in the way we relate to police interrogation. we could provide protections for suspects. cts. because miranda said this is a s constitutional right made those types of changes impossible.refm >> we're going to wrap this up by listen to earl warren's grandson who shares with us soms personal family history his grandfather's view of what the miranda decision and other polices decisions did for society.her p >> i would like the court
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throughout its history to be t remembered as the court of the e people no one can say how the opinions of any particular court or any particular era will stand the test of time. all one can do is to do his best to make his opinions conform tof the constitution and laws of the united states. and then hope that they'll be so considered in the future. >> this is a binder of letters i have of papa warren. he in 1969 had decided to resig and i had been at the university of california, i had written him a very passionate kid like letter. how we wereid-l goingike to bur everything down and i'd never bring children into this world because it was such a mess. he writes back to me -- i'll
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read a couple sections. the world isn't perfect becausee human nature isn't perfect.n nat then he goes on to say, if all of these laws were owe bad, many of our problems would be solved or at least they would be in manageable shape for solutions, but we must also take into consideration human nature. he goes on to say, we don't wand to burn everything down becausey the result would be anarchy. rel and i know you know from your books that governments and institutions are struck down, they're almost always replacesel by autocracies. i know that i have not resolved any of your perplexities, my hope is that the young people of today i believe that they can
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and they will bring to bare thee strength of their idealism to right the wrongs that regretfully have been done or ignored by former generations and particularly by my own. my >> earl warren, former chief justice in communication to his grandson. >> o in think earl warren's leg is a mixed one, miranda illustrates it's an example of politicize the courts, and oncez they becomein politicized, once the justices become nothing other than politicians in robes we have bitter battles and the sort of thing we've seen playing out over the decades. >> jeffrey earl warren, what that shows is earl warren's fundamental concern with translating the values of the fifth amendmentco concerned abo
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thought crimes, not exerting psychological pressure on heretics to confess. warren takes that and makes it modern and ens by quoting my hero justice brandeis about, how government is the potent, the omni potent teacher. he was a teacher and he thought the court has to be a shining emblem for what human dignity and the fifth amendment can be. >> time will effect decisions.l you're suggesting it's time for us to rethink some of these omeo based on changes in technology? >> i think it is miranda could be updated, more effective, and i think it would be an effort - there are a lot of people thinking about this, and hopefully we can all come together and try to think abouto things like body cameras,
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videotaping, other things that would update miranda. >> thank you for being here tonight on our 11 of 12 cases in the landmark cases series. we appreciate your insights on the miranda case and the overall approach of the warren court to policing in america. court and as always, thank you so much for being in our audience tonight for your great questions and comments.n
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landmark cases returns live next february on cpsan. join to hear more stories of the people who sparked groundbreaking cases. american history tv is in prime time all week on c-span3 with recent civil war conferences. tonight a symposium on the battles of gettys berg, antietam and vicks burg. american history tv begins at 8:00 p.m. eastern. a look at the history of
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evangelicals in american politics. we'll hear about henry ward beacher, prohibition and the 18th amendment, and the u.s. supreme court abortion case, roe versus wade. this is about an hour and a half. >> good evening and welcome to the university, and our first of a series of three forums on balances pie etty and pragmatism, evangelicals and politics. we appreciate you all being with us this evening. we thank you for the opportunity that we have here at bob joons university to learn more about our civic responsibilities and the great nation you have blessed us to be a part of. we pray for our nation. we pray for our elected


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