In the Matter of:

ERNEST A. MIRANDA, Petitioner,




Docket No. 759

Washington, D. C.

Monday, February 28, 1966.

The above entitled matter came on for oral argument, pursuant to notice:


EARL WARREN, Chief Justice of the United States

HUGO L. BLACK, Associate Justice

TOM C. CLARK, Associate Justice

JOHN M. HARLAN, Associate Justice

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

ABE FORTAS, Associate Justice


JOHN J. FLYNN, ESQ., 900 Title & Trust Building, Phoenix Arizona 85003, for Petitioner.

GARY K. NELSON, ESQ., Assistant Attorney General, Room 159, State Capitol Building, Phoenix, Arizona 85007, for Respondent.

TELFORD TAYLOR, ESQ., Special Counsel for the State of New York, on behalf of the State of New York.




MR. CHIEF JUSTICE WARREN: No. 759, Ernesto A. Miranda, petitioner, versus Arizona. We’ll wait just a few moments until you get seated.

Mr. Flynn, you may proceed.





MR. FLYNN: Mr. Chief Justice, may it please the Court:

This case concerns itself with the conviction of a defendant of two crimes of rape and kidnapping, the sentences on each count of 20 to 30 years to run concurrently.

I should point out to the Court, in an effort to avoid possible confusion, that the defendant was convicted in a companion case of the crime of robbery in a completely separate and independent act; however, the Supreme Court of the State of Arizona treated that conviction as a companion case in a companion decision, and portions of that record have been appended to the record in this case, as it bears on the issue before the Court.

Now the issue before the Court is the admission into evidence of the defendant’s confession, under the facts and circumstances of this case, over the specific objections of his trial counsel that it had been given in the absence of counsel.

The Trial Court in June of 1963, prior to this Court’s decision in Escobedo, allowed the confession into evidence. The Supreme Court of the State of Arizona in April of 1965, after this Court’s decision in Escobedo, affirmed the conviction and the admission of the confession into evidence. This Court has granted us review.

The facts in the case indicate that the defendant was 23 years old, of Spanish-American extraction; that on the morning of March 13, 1963, he was arrested at his home, taken down to the police station by two officers named Young and Cooley; that at the police station he was immediately placed in a line-up. He was here identified by the prosecutrix in this case and later identified by the prosecutrix in the robbery case. Immediately after the interrogations’ he was taken into the police confessional at approximately 11:30 a.m. and by 1:30 they had obtained from him an oral confession.

MR. JUSTICE BRENNAN: What is the “police confessional?”

MR. FLYNN: The interrogation room, described in the transcript as Interrogation Room No. 2, if Your Honor please.

He denied his guilt, according to the officers, at the commencement of the interrogation, and by 1:30 he had confessed. I believe the record indicates that at no time during the interrogation and prior to his oral confession was he advised either of his rights to remain silent, his right to counsel, or of his right to consult with counsel; nor, indeed, was such the practice in Arizona at that time, as admitted by the officers in their testimony.

The defendant was then asked to sign a confession, to which he agreed. The form handed him to write on contained a typed statement as follows, which precedes his hand-written confession:

“I, Ernesto A. Miranda, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.”

This statement was read to him by the officers, and he confessed in his own handwriting. Throughout the interrogation the defendant did not request counsel at any time. In due course the Trial Court appointed counsel to defend him in both cases, and defense counsel requested a psychiatric examination, which has been made—and the medical report—has been made a portion of the transcript of the record in this case, as it enlightens us to a portion or some of the factual information surrounding the defendant.

MR. JUSTICE FORTAS: Mr. Flynn, I am sorry to interrupt you, but you said that Miranda was not told that he might remain silent? Did you say that?

MR. FLYNN: That is correct, Your Honor.

MR. JUSTICE FORTAS: Is there a dispute as to that?

MR. FLYNN: Yes, there is, Your Honor, and I believe it arises as a result of the appendix to the robbery conviction. In this respect, I would answer Your Honor’s question by referring to page 52 of the petitioner’s brief, to the appendix at the top, at which the question was asked by Mr. Moore, the trial counsel:

Question: “Did you state to the defendant at any time before he made the statement you are about to answer to, that anything he said would be held against him?

Answer: ‘‘No, sir.”

Question: “You didn’t warn him of that?”

Answer: ‘‘No, sir.’’

Question: “Did you warn him of his rights to an attorney?”

Answer: ‘‘No, sir.”

“Mr. Moore: We object, not voluntarily given.

“Mr. Turoff: I don’t believe that is necessary.

“The Court: Overruled.”

On page 53, the succeeding page, a portion of the same record indicates further examination concerning this conversation, and starting approximately one-third down the page.

Question: “Had you offered the defendant any immunity?”

Answer: “No, sir.”

Question: “In your presence, had Officer Cooley done any of these acts?”

Answer: “No, sir.”

Question: “About what time did this conversation take place, Officer?”

Answer: “Approximately 1:30.”

Question: “Shortly after Miss McDaniels made her first statement, is that correct?”

Answer: “Yes, sir.”

Question: “Can you tell us now, Officer, regarding the charge of robbery, what was said to the defendant and what the defendant answered in your presence?”

Answer: “I asked Mr. Miranda if he recognized—” and there the questioning terminates.

MR. JUSTICE FORTAS: I was referring to page 4 of your brief in which you say that Officer Young believes that Miranda was told that he need not answer their questions.

MR. FLYNN: I was about to continue, if Your Honor please, to page 54, in which we find the question:

“You never warned him he was entitled to an attorney or anything he said would be held against him, did you?

“Answer: We told him anything he said would be used against him; he wasn’t required by law to tell us anything.”

Consequently, this would answer Your Honor’s question, except bearing in mind that the record clearly reveals that from the line-up and the identification to the interrogation room, the officers established the time as 11:30, and that the confession was completed and signed at 1:30.

Reading the testimony of the robbery conviction, it is apparent to me that the officers, when they recite or answered on page 54 of the transcript that he had been advised of his rights, were again relating to this formal typed heading, which would be at 1:30, at the time he signed a confession; that, hence, there really is no conflict in the record as to when he was advised of his rights.

The further history relating to this defendant found in the psychiatric examination would indicate that he had an eighth-grade education, and it was found by the Supreme Court that he had a prior criminal record and that he was mentally abnormal. He was found, however, to be competent to stand trial and legally sane at the time of the commission of the alleged acts.

Now, the critical aspect of the defendant’s confession, I think, is eminently demonstrated when, during the trial, the prosecutrix was asked the question concerning penetration, in which she first responded that she thought it was by finger, under questioning by the prosecuting attorney. Immediately thereafter, she expressed uncertainty as to the manner or method of penetration and, after some prompting, responded to the prosecuting attorney that it had been, in fact, by the male organ. On cross-examination, she again expressed the uncertainty in relation to this penetration which, of course, is the essential element of the crime of first-degree rape in the State of Arizona, when she responded to his question that she simply was unsure whether it had been by finger or by penis.

Now of course the defendant’s confession neatly corrects this “reasonable doubt” that otherwise would have been engendered, when in precise terminology he wrote, “Asked her to lie down, and she did. Could not get penis into vagina. Got about one-half(half) inch in.”

The only thing missing, or the only thing that the officers failed to supply in words to this defendant at the time he wrote this confession, was in violation of Section 13-611, Arizona Revised Statutes. Then, of course, they would have had the classic confession of conviction, because they could have argued that the man even knew the statutory provisions relating to rape.

The State, as I read their response, takes no issue with the statement of facts as I have outlined them to this Court, except to say that we overstate his mental condition and minimize his educational background; and also the concern that is expressed by Mr. Justice Fortas concerning at what stage of the proceeding he may have been advised of his right to remain silent.

Now the Petitioner’s position on the issue is simply this: The Arizona Supreme Court, we feel, has imprisoned this Court’s decision in Escobedo on its facts, and by its decision is refusing to apply the principles of that case, and for all practical purposes has emasculated it. Certainly every court desiring to admit a confession can find distinguishing factors in Escobedo from the fact situation before it.

I would like to very briefly quote from the transcript of the record which contains the Arizona decision at page 87:

“It will be noted that the Court in the Escobedo case set forth the circumstances under which a statement would be held admissible, namely: One, the general inquiry into an unsolved crime must have begun to focus on a particular suspect; two, a suspect must have been taken into the police custody; three, the police in its interrogation must have elicited an incriminating statement; four, the suspect must have requested and been denied an opportunity to consult with his lawyer; five, the police must not have effectively warned the suspect of his constitutional rights to remain silent. When all of these five factors occur, then the Escobedo case is a controlling precedent.”

The Arizona Supreme Court, having indicated its clear intention to imprison the Escobedo decision, set about to do precisely that. First, as to the focusing question, it indicated that this crime had occurred at night. Consequently, despite the positive identification of the defendant by two witnesses, which the State urged were entirely fair line-ups, the Supreme Court of Arizona indicated that even then perhaps under these facts, attention had not focused upon this defendant.

I think this is sheer sophistry and would indicate the obvious intent of the Arizona Supreme Court to confine Escobedo and to distinguish it whenever possible.

Next, the Court found that the defendant was advised of his rights in the reading of the typed portion immediately preceding its transcript. They permitted that document to lift itself by its own bootstraps, so to speak, and to indicate that here was a man who was knowledgeable concerning his legal rights, despite the facts and circumstances of his background and education. They further found that he was knowledgeable because he had a prior criminal record, though in the decision he indicated this would be knowledge of his rights in court and certainly not his rights at the time of the interrogation.

I think the numerous briefs filed in this case indicating the substantial split in the decisions throughout the various states, the circuits and the Federal district courts, indicate the interpretation that has been placed upon Escobedo. On the one hand, we have the California decision in Dorado. We have the Third Circuit decision in Russo, which would indicate that principle and logic are being applied to the decision, and in the words of Mr. Justice Goldberg, that when the process shifts from the investigation to one of accusation, and when the purpose is to elicit a confession from the defendant, then the adversary process comes into being.

On the other hand, the other cases that would distinguish this have found and give rise to what I submit is not really confusion by merely straining against the principles and logic in that decision.

MR. JUSTICE STEWART: What do you think is the result of the adversary process coming into being when this focusing takes place? What follows from that? Is there, then, a right to a lawyer?

MR. FLYNN: I think that the man at that time has the right to exercise, if he knows, and under the present state of the law in Arizona, if he is rich enough, and if he’s educated enough to assert his Fifth Amendment right, and if he recognizes that he has a Fifth Amendment right to request counsel. But I simply say that at that stage of the proceeding, under the facts and circumstances in Miranda of a man of limited education, of a man who certainly is mentally abnormal who is certainly an indigent, that when that adversary process came into being that the police, at the very least, had an obligation to extend to this man not only his clear Fifth Amendment right, but to accord to him the right of counsel.

MR. JUSTICE STEWART: I suppose, if you really mean what you say or what you gather from what the Escobedo decision says, the adversary process starts at that point, and every single protection of the Constitution then comes into being, does it not? You have to bring a jury in there, I suppose?

MR. FLYNN: No, Your Honor, I wouldn’t bring a jury in. I simply would extend to the man those constitutional rights which the police, at that time, took away from him.

MR. JUSTICE STEWART: That’s begging the question. My question is, what are those rights when the focusing begins? Are these all the panoply of rights guaranteed to the defendant in a criminal trial?

MR. FLYNN: I think the first right is the Fifth Amendment right: the right not to incriminate oneself; the right to know you have that right; and the right to consult with counsel, at the very least, in order that you can exercise the right, Your Honor.

MR. JUSTICE STEWART: Well, I don’t fully understand your answer, because if the adversary process then begins, then what you have is the equivalent of a trial, do you not? And then I suppose you have a right to a judge, and a jury, and everything else that goes with a trial right, then and there. If you have something less than that, then this is not an adversary proceeding and then you don’t mean what you’re saying.

MR. FLYNN: I think what I say - what I am interpreting “adversary proceeding” to mean is that at that time, a person who is poorly educated, who in essence is mentally abnormal, who is an indigent, that at an adversary proceeding, at the very least, he is entitled at that stage of the proceeding to be represented by counsel and to be advised by counsel of his rights under the Fifth Amendment of the Constitution; or, he has no such right.

MR. JUSTICE STEWART: Well, again I don’t mean to quibble, and I apologize, but I think it’s first important to define what those rights are—what his rights under the constitution are at that point. He can’t be advised of his rights unless somebody knows what those rights are.

MR. FLYNN: Precisely my point. And the only person that can adequately advise a person like Ernesto Miranda is a lawyer.

MR. JUSTICE STEWART: And what would a lawyer advise him that his rights were?

MR. FLYNN: That he had a right not to incriminate himself; that he had the right not to make any statement; that he had a right to be free from further questioning by the police department; that he had the right, at the ultimate time, to be represented adequately by counsel in court; and that if he was too indigent or too poor to employ counsel, the state would furnish him counsel.

MR. JUSTICE STEWART: What is it that confers the right to a lawyer’s advice at that point and not an earlier point? The Sixth Amendment?

MR. FLYNN: No. The attempt to erode, or to take away from him, the Fifth Amendment right that already existed—and that was the right not to convict himself, and be convicted out of his own mouth.

MR. JUSTICE STEWART: Didn’t he have that right earlier?

MR. FLYNN: If he knew about it.

MR. JUSTICE STEWART: Before this became a so-called “adversary proceeding”?

MR. FLYNN: Yes, Your Honor, if he knew about it and if he was aware—if he was knowledgeable.

MR. JUSTICE STEWART: Then did he have the right to a lawyer’s advise earlier?

MR. FLYNN: If he could afford it, yes; and if he was intelligent enough and strong enough to stand up against police interrogation and request it, yes.

MR. JUSTICE STEWART: What I’m getting at is, I don’t understand the magic in this phrase of “focusing,” and then all of a sudden it becomes an adversary proceeding. And then I suppose if you literally mean that it becomes an adversary proceeding, then you’re entitled to all the rights that a defendant is given under the Constitution that would be given in a criminal trial. If you mean less than that, then you don’t really mean it has now become the equivalent of a trial.

MR. FLYNN: Well, I simply mean that when it becomes an adversary proceeding, at the very least, a person in Ernest Miranda’s position needs the benefit of counsel, and unless he is afforded that right of counsel he simply has, in essence, no Fifth or Sixth Amendment right, and there is no due process of law being afforded to a man in Ernest Miranda’s position.

MR. JUSTICE FORTAS: Is it possible that prior to this so-called “focusing,” or let’s say prior to arrest—if those don’t mean the same thing—that a citizen has an obligation to cooperate with the state, give the state information that he may have relevant to the crime; and that upon arrest, or upon this “focusing,” that the state and the individual then assume the position of adversaries, and there is, at the very least, a change in that relationship between the individual and the state; and, therefore, in their mutual rights and responsibilities? I don’t know whether that’s what my Brother Stewart is getting at, and perhaps it is unfair to discuss this through you—


MR. JUSTICE FORTAS: —but if you have a comment on it, I’d like to hear it.

MR. FLYNN: I think the only comment that I could make is that, without getting ourselves into the area of precisely when focusing begins, that I must in this instance limit it to the fact situation and the circumstances of Ernest Miranda, because for every practical purpose, after the two-hour interrogation, the mere formality of supplying counsel to Ernest Miranda at the time of trial, is what I would submit would really be nothing more than a mockery of his Sixth Amendment right to be represented in court, to go through the formality, and a conviction takes place.

Well, this simply is not a matter of the record. It is in the robbery trial, and I think it so illustrates the position of what occurs in the case of persons who have confessed, as Ernest Miranda. The question was asked in the robbery trial—which preceded the rape trial by one day—of Mr. Moore:

“THE COURT: Are you ready to go to trial?

“MR. MOORE: I have been ready. I haven’t anything to do but—and sit down and listen.”

MR. JUSTICE BLACK: May I ask you one question, Mr. Flynn, about the Fifth Amendment? Let’s forget about the Sixth. The Amendment provides that no person shall be compelled to be a witness against himself. It’s disassociated entirely from the right to counsel.

You have said several times it seems, during the case, that in determining whether or not a person shall be compelled to be a witness against himself, that it might depend to some extent on his literacy or his illiteracy, his wealth or his lack of wealth, his standing or his lack of standing—why does that have anything to do with it? Why does the Amendment not protect the rich, as well as the poor; the literate, as well as the illiterate?

MR. FLYNN: I would say that it certainly, and most assuredly, does protect; that in the state of the law today as pronounced by the Arizona Supreme Court, under those guiding principals, it certainly does protect the rich, the educated, and the strong— those rich enough to hire counsel, those who are educated enough to know what their rights are, and those who are strong enough to withstand police interrogation and assert those rights.

MR. JUSTICE BLACK: I am asking you only about the Fifth Amendment’s provision that no person shall be compelled to be a witness against himself. Does that protect every person, or just some persons? I am not talking about in practical effect; I am talking about what the Amendment is supposed to do.

MR. FLYNN: It protects all persons.

MR. JUSTICE BLACK: Would literacy or illiteracy have anything to do with it if they compelled him to testify, whatever comes within the scope of that?

MR. FLYNN: At the interrogation stage, if he is too ignorant to know that he has the Fifth Amendment right, then certainly literacy has something to do with it, Your Honor. If the man at the time of the interrogation has never heard of the Fifth Amendment, knows nothing about its concept or its scope, knows nothing of his rights, then certainly his literacy—

MR. JUSTICE BLACK: —he’d have more rights, because of that? I don’t understand. The Fifth Amendment right, alone, not to be compelled to be a witness against himself? What does that cover?

MR. FLYNN: Perhaps I have simply not expressed myself clearly.

MR. JUSTICE BLACK: Does that cover everybody?

MR. FLYNN: It covers everybody, Your Honor. Clearly in practical application, in view of the interrogation and the facts and circumstances of Miranda, it simply had no application because of the facts and circumstances in that particular case, and that’s what I am attempting to express to the Court.

Now the Arizona Supreme Court went on, in essence we submit, to turn its decision primarily on the failure of the defendant in this case to request counsel, which is the only really distinguishing factor that they could find.

MR. JUSTICE STEWART: Is there any claim in this case that this confession was compelled was involuntary?

MR. FLYNN: No, Your Honor.


MR. FLYNN: None at all.

MR. JUSTICE WHITE: Do you mean that there is no question that he was not compelled to give evidence against himself?

MR. FLYNN: We have raised no question that he was compelled to give this statement, in the sense that anyone forced him to do it by coercion, by threats, by promises, or compulsion of that kind.

MR. JUSTICE WHITE: “Of that kind”? Was it voluntary, or wasn’t it?

MR. FLYNN: Voluntary in the sense that the man, at a time without knowledge of his rights—

MR. JUSTICE WHITE: Do you claim that his Fifth Amendment rights were violated?

MR. FLYNN: I would say his Fifth Amendment right was violated, to the extent—

MR. JUSTICE WHITE: Because he was compelled to do it?

MR. FLYNN: Because he was compelled to do it?

MR. JUSTICE WHITE: That’s what the Amendment says.

MR. FLYNN: Yes, to the extent that he was, number one, too, poor to exercise it, and number two, mentally abnormal.

MR. JUSTICE WHITE: Whatever the Fifth is, you say he was compelled to do it?

MR. FLYNN: I say it was taken from him at a point in time when he absolutely should have been afforded the Sixth Amendment -

MR. JUSTICE WHITE: I’m talking about violating the Amendment, namely the provision that he was—to violate the Fifth Amendment right, he has to be compelled to do it, doesn’t he?

MR. FLYNN: In the sense that Your Honor is presenting to me the word “compelled,” you’re correct.

MR. JUSTICE WHITE: I was talking about what the Constitution says.

MR. JUSTICE BLACK: He doesn’t have to have a gun pointed at his head, does he?

MR. JUSTICE WHITE: Of course he doesn’t. So he was compelled to do it, wasn’t he, according to your theory?

MR. FLYNN: Not by gunpoint, as Mr. Justice Black has indicated. He was called upon to surrender a right that he didn’t fully realize and appreciate that he had. It was taken from him.

MR. JUSTICE WHITE: But in all the circumstances—I’m just trying to find out if you claim that his Fifth Amendment rights were being violated. If they were, it must be because he was compelled to do it, under all circumstances.

MR. FLYNN: I would say that as a result of a lack of knowledge, or for lack of a better term “failure to advise,” the denial of the right to counsel at the stage in the proceeding when he most certainly needed it, that this could, in and of itself—and certainly in most police interrogations—constitute compulsion.

MR. JUSTICE BLACK: Why wouldn’t you add to that the fact that the State had him in its control and custody? Why would that not tend to show some kind of coercion or compulsion?

MR. FLYNN: The whole process of a person, I would assume, having been raised to tell the truth and respect authority.

MR. JUSTICE BLACK: Was he allowed to get away from there, at will?

MR. FLYNN: No, Your Honor. He was in confinement and under arrest.

MR. JUSTICE BLACK: The State had moved against him by taking him in to question him, did it not?

MR. FLYNN: That is correct.

Flynn, you would say that if the police had said to this young man, “Now you are a nice young man, and we don’t want to hurt you, and so forth; we’re your friends and if you’ll just tell us how you committed this crime, we’ll let you go home and we won’t prosecute you,” that that would be a violation of the Fifth Amendment, and that, technically speaking, would not be “compelling” him to do it. It would be an inducement, would it not?

MR. FLYNN: That is correct.

MR. CHIEF JUSTICE WARREN: I suppose you would argue that that is still within the Fifth Amendment, wouldn’t you?

MR. FLYNN: It is an abdication of the Fifth Amendment right.

MR. CHIEF JUSTICE WARREN: That’s what I mean.

MR. FLYNN: Because of the total circumstances existing at the time—the arrest, the custody, the lack of knowledge, the—

MR. CHIEF JUSTICE WARREN: In fact, we have had cases of that kind, that confessions were had, haven’t we, where they said it would be better for you if you do; we’ll let you go; and so forth?

MR. FLYNN: That, of course, is an implied promise of some help or immunity of some kind.

MR. CHIEF JUSTICE WARREN: Yes, but that isn’t strictly compulsion that we have been talking about?

MR. FLYNN: That certainly is not compulsion in the sense of the word, as Mr. Justice White had implied it.

MR. JUSTICE BLACK: As I recall, in those cases—I agree with the Chief Justice—as I recall, in those cases that was put under the Fifth Amendment, and the words of the Fifth Amendment were referred to in the early case by Chief Justice White, I believe it was, and the fact that inducement is a compulsion and was brought in that category, and therefore it violated the Amendment against being compelled to give evidence against yourself.

MR. FLYNN: I am sure Mr. Justice Black has expressed it far better than —

MR. JUSTICE BLACK: So it’s a question of what “compel” means, but it does not depend, I suppose—I haven’t seen it in any of the cases—on the wealth, the standing, or the status of the person, so far as the right is concerned.

MR. FLYNN: Yes, I think perhaps that was a bad choice of words, in context, if Your Honor please, at the time I stated them.

I would like to state, in conclusion, that the Constitution of the State of Arizona, for example has, since statehood, provided to the citizens of our State language precisely the same as the Fourth Amendment to the Federal Constitution as it pertains to searches and seizures. Yet from 1914 until this Court’s decision in Mapp v. Ohio, we simply did not enjoy the Fourth Amendment rights or the scope of the Fourth Amendment rights that were enjoyed by most of the other citizens of the other states of this Union, and those persons who were under Federal control.

In response to the Amicus for New York and the Amicus for the National Association of Defense Attorneys that would ask this Court to go slowly and to give the opportunity to the states, to the legislature, to the courts and to the bar association to undertake to solve this problem, I simply say that whatever the solutions may be, it would be another 46 years before the Sixth Amendment right in the scope that it was intended, I submit, by this Court in Escobedo, will reach the State of Arizona.

We’re one of the most modern states in relation to the adoption of the American Law Institute rules. We have a comparable rule to Rule 5. To my knowledge, there has never been a criminal prosecution for failure to arraign a man. And there is no decision in Arizona that would even come close to the McNabb or Mallory Rule in Arizona. In fact, the same term that Miranda was decided, the Arizona Supreme Court indicated that despite the necessity and requirement of immediate arraignment before the nearest and most successful magistrate, that Mallory v. McNabb did not apply.




MR. NELSON: Mr. Chief Justice, may it please the Court, counsel:

I’m somewhat caught up in where to begin. I think perhaps the first and most important—one of the most important—things to say right now is concerning Mr. Flynn’s last remarks. I, as a prosecutor, even of only short duration, take serious issue—as strenuous issue as I can take—before this Court, in the statement that it will take another 46 years in the State of Arizona for the right to counsel to become full-blown. I just simply think there is no reason for that statement to be made. If there is any reason for it to be made, or any possible justification for it to be made, then there is no point in going any further.

One issue that might be a good starting point is concerning the description of the Arizona court’s supposed “off-the-cuff” referral to, or ignoring of, the Escobedo decision, or the attempt to void it clearly. There is no such thing in the Arizona Supreme Court opinion, and a reading of it shows that they agreed that they must follow this Court, not begrudgingly.

They simply stated that it’s a fact, and then in exploring the case of Escobedo in the case of Miranda they try to find out what happened in Miranda, what the case of Escobedo says, and apply those principles There’s no attempt to avoid, and I don’t think you can read it, implicitly or otherwise, in the Arizona Court’s opinion. Clearly they did not base it on a request. They did not say we have A, B, C, D, and E, and F wasn’t present, therefore it’s not controlling. That is not what they said. They said other courts in that jurisdiction had gone off on that particular area. They mentioned that as a factor, but they discussed hundreds of—no, not hundreds - many other factors in Miranda, which differentiated it from Escobedo.

To get to the facts in Miranda I think it’s very clear from the record that Mr. Miranda, as an individual defendant, does not particularly require any special rule. I certainly agree with Justice Black 100 percent that the Fifth Amendment, the Sixth Amendment, and every part of our Constitution applies to everyone - poor, rich, intellectual and so on. There is no possible difference for differentiation.

I don’t argue that. I don’t think any prosecutor of note argues it. But Miranda I think characteristically by the petitioner, is portrayed in this light in an attempt to make something that isn’t there. Sure he only went through the 8th grade, and one of the psychiatrist said that he had an emotional illness.

I might say that there is another psychiatric report. It’s not in the printed record, and I just discovered it in my file, but it is in the record before this Court - the record that was on appeal, and I would urge the Court to advert to that psychiatric report, also. And as to the fact that Mr. Miranda could not have made the statement that he made, I just don’t think there is any basis for alleging that. The fact that he uses the medical words to describe the male and female sex organ rather than some four-letter vernacular words that he might have used, this doesn’t condemn him just because he knew those words and maybe felt in this context in writing the statement that he could use them. There is no indication in the record that the police put these words in his mouth. The fact that this particular one-half inch penetration is something that the police conjured up in his mind is just simply not supportable by the record.

You read the psychiatric report that is in the record and he said he was upset when he found out that she had not had sexual relations before. Well, she told him that. The only way he found out was because, obviously from the record, as he said, he was only able to make penetration only a slight way simply because of the fact that the woman’s hymen had not been ruptured. This is a clear fact that he knew why he made that statement and why it was accurate, not a fabrication of the police officers.

MR. JUSTICE FORTAS: Mr. Nelson, on page 19 of your brief you assert, “The petitioner was advised of his Constitutional rights, specifically including his right to remain silent, the fact that his statement had to be voluntary, and that anything he did say could be used against him.” Is the only basis for that the printed legend in the confession that he signed?

MR. NELSON: No, I don’t believe I would have put in as strong a statement concerning his right to remain silent had not we agreed to stipulate to this other portion of the other record. But I believe that as long as that’s in the record, I can make this statement because it’s supported in the finding of the court, based on the interrogation of the officers, the testimony of the officers in the trial that is actually before this Court concerning their advise to him, and the findings of the Court based on his understanding, the reading of the statement, the testimony coupled with this. I believe, then, that the court below, which clearly found that to be true, that he had been fully advised, had a proper basis for finding all of these to exist, except that there is no quarrel that he was not specifically advised that he had a right to counsel.

MR. JUSTICE FORTAS: Is it your position that the record shows that he was advised of these rights somehow, some way, in addition to the legend on his confession? That’s my question.


MR. JUSTICE FORTAS: How? Where is that?

MR. NELSON: I believe the police officers testified to the fact that they told him of his rights and that they also, besides telling him—perhaps the record is a little unclear, in both cases, as to exactly when it took place—but I believe the record supports a statement that he was advised specifically by them of his rights and then he was adverted to the paragraph and perhaps even again the paragraph was read to him. But the record is not really all four-square. It is not that clear.

MR. JUSTICE FORTAS: Let us assume he was so advised—and I understand you to say that the record is not clear on that point—let us assume that he was advised of his rights. In your opinion does it make any difference when he was advised? That is, whether he was advised at the commencement of the interrogation, or whether he was advised only when he was ready to sign the confession—the written confession? Does that make any difference in the terms of the issues before us?

MR. NELSON: Assuming for a moment that some warning is going to be required, or should have been given, then I would think that to be of any effect it must be given before he had made any statements. Perhaps he might have refused to sign the written confession. Certainly still, the oral statement could have been introduced against him.

MR. JUSTICE FORTAS: So you think that the warning, if necessary, has to be given prior to the interrogation?

MR. NELSON: At some meaningful time, right. I would think it would have to be at some time prior to the fact that after—if they used it before, of course the warning would mean nothing. If they could introduce what they had obtained from the time before they gave the warning, and not afterwards.

MR. JUSTICE FORTAS: Is it your submission to us that a warning is necessary, before a confession, in the absence of counsel, can be taken and subsequently introduced in the trial?


MR. JUSTICE FORTAS: What is your Position on that?

MR. NELSON: My Position basically is—concerning the warning - is that each case presents a factual situation in which the Court would have to determine, or a court or a judge or prosecutor at some level, would have to make a determination as to whether or not a defendant, because of the circumstances surrounding his confession, was denied a specific right—whether it be right to counsel, the right to not be compelled to testify against himself - and that the warning, or age or literacy, the circumstances, the length of the questioning, all these factors would be important. But I don’t think you can put it to one simple thing such as a warning, because there are perhaps many more situations that we could think of where a warning would be completely inadequate.

MR. JUSTICE FORTAS: Well, tell me some of the factors that would be relevant in the absence of a warning.

MR. NELSON: His age, his experience, his background, the type of questioning, the atmosphere of questioning, the length of questioning, the time of day, perhaps—all of these factors.

MR. JUSTICE FORTAS: Do you think what we ought to do is to devise something like the Betts and Brady rule, special circumstances?

MR. NELSON: Well, I think that’s what the Escobedo case indicates. In other words, I am—of course my Opinion is biased—if it’s not something like that, then it is an absolute right to counsel. I don’t think there can be any in-between unless some other theory. Under the way I read the decisions of this Court, if it is an absolute right to counsel, the same sort of right to counsel that attaches—

MR. JUSTICE FORTAS: We’re not talking about right to counsel. We’re talking about the warning. When is the warning necessary? As I understand you, you say that if the warning is necessary, if it should be held to be constitutionally necessary in the absence of counsel, then the warning has to be given at a meaningful time.

MR. NELSON: I would think so, certainly.

MR. JUSTICE FORTAS: And I then proceeded to ask you to give us the benefit of your views as to whether a warning was necessary. As I understand it, you say that you have to look at the circumstances of each case?

MR. NELSON: I would say, not absolutely.

MR. JUSTICE FORTAS: I ask you what are the relevant circumstances in each case—the relevant circumstances to look for in each particular case? And how about this particular case? Is the psychiatric report to which you refer, Psychiatric Report No. 2, at material variance with the one to which you are referring?

MR. NELSON: I don’t think so. I’m not a psychiatrist, so I can’t say. I think both reports say, in effect, the man has an emotional illness that should be treated, but that he knew what was going on. Both the reports say his mental faculties, whatever they were, were sharp, acute, and that he had no psychotic disorders. They both say basically the same thing. I think the diagnosis in the other report said a “sociopathic personality.”

MR. JUSTICE FORTAS: So that if the Betts against Brady test were applied in the way that this Court did apply it prior to Gideon, I suppose it’s quite arguable that Miranda, this petitioner here, was entitled to a warning. Would you agree to that?

MR. NELSON: It’s arguable. I have extensively argued the fact that he wasn’t of such a nature, as an individual who because of his mental condition or his educational background, as to require any more than he got. In other words, I’m saying that he got every warning, except the right—the specific warning, of the right to counsel. He didn’t have counsel. Counsel wasn’t specifically denied to him, on the basis of a request to retain counsel. The only possible thing that happened to Mr. Miranda that, in my light, assuming that he had the capability of understanding at all, is the fact that he did not get the specific warning of his right to counsel.

MR. JUSTICE FORTAS: Well, even if we assume that he got all the other warnings, and putting aside the question of the right to counsel, assume that the record does show that he got these warnings, still is there any evidence - and I have to ask you again— does the record show that he got it at what you would call a meaningful time?

MR. NELSON: Yes. I think the police officers - they were never pinned down, in other words, as to whether at 11:30 when they went into Interrogation Room 2 they immediately warned him. This was not pinned down by either side. But they did say he was warned. And they went on to elaborate that he was warned I believe, if my recollection serves me correctly, in response to a specific question concerning the statement - they said that part of the statement was read to him again.

Now I believe that the Court could find from the record that he was warned at 11:30. If the warning is required in this particular case to protect his rights, and it is found, as a matter of fact— which the court below did not find—that it was not given until the written statement, then I would suppose that it wasn’t given at the proper time.

MR. JUSTICE FORTAS: Mr. Nelson, I certainly want your views and only your views, and I don’t want to state anything unfairly, but am I correct in inferring from what you have just said, in answer to my questions, that the State of Arizona does agree that there are occasions when the United States Constitution requires that a warning as to the right to remain silent must be given to a person who is in custody, and must be given at a meaningful time? Do I correctly state the position that you are presenting to us here?

MR. NELSON: Not completely. I don’t think that the Arizona Supreme Court has worded its holdings, and I cite to the Court the case that followed Miranda and referred back to it concerning the point of waiver and they go on to expand on their thinking. I don’t believe the Arizona Court has specifically said that warnings, as such, are of a constitutional dimension. The court has said that in some cases warnings may be required in a given case.

In fact, in the Goff case, which I cite as the next case in the Arizona Court’s determination, they say it’s important that all steps be taken at the earliest possible time, when they are indicated by the fact situation, to ensure that the State doesn’t overreach, and that the man is given every benefit of his rights under the Constitution; but I don’t believe that they have yet said, as a constitutional dimension, any specific warning at any specific situation need be given.

It is my argument concerning the factors surrounding Escobedo that if Escobedo is a completely distinct and separate determination of a Sixth Amendment right, as divorced from the Fifth Amendment right, which I think is pretty hard to do, then in order for it to be meaningful and effective—not just to the defendant but to the people of the State, of the country—it’s got to announce a rule which forbids affirmative conduct on the basis of police officers or prosecutors calculated in a given situation to deny the man the implementation of his right, whether it be the right to counsel or the right against compulsory self-incrimination.

As I understand it, there is no right not to incriminate himself. The right is for him not to be compelled, whether it’s subtle compulsion or direct, but it is still a right not to be compelled to incriminate yourself. At least this is my understanding, and he doesn’t have a right not to incriminate himself. He has a right not to be compelled to incriminate himself by some means, either direct or devious. Now I think if the extreme position is adopted that says he has to either have counsel at this stage, or intellectually waive counsel, that a serious problem in the enforcement of our criminal law will occur.

First of all, let us make one thing certain. We need no empirical data as to one factor: what counsel will do if he is actually introduced. I am talking now about counsel for defendant. At least among lawyers there can be no doubt as to what counsel for the defendant is to do. He is to represent him 100 percent, win, lose, or draw—guilty or innocent. That’s our system. When counsel is introduced at interrogation, interrogation ceases immediately.


MR. NELSON: Well, for one reason: first of all there are several different situations, but assume counsel is immediately introduced and he knows nothing about the case. He has not talked to the defendant. He has been appointed, say, to an indigent defendant who says “I want a lawyer. I need a lawyer right now. I don’t want to talk to you without a lawyer.”

He is given a lawyer. He talks to the defendant. First of all he stops the interrogation until he can talk with him. I would think, if he is going to represent him, he cannot allow him to say anything until he finds out what his story is, what he is going to say, and how it is going to affect him. So the interrogation would immediately stop, for that purpose. And after he has had an opportunity to confer with his client—let’s assume another thing. Let’s assume the client said, “Yes, I am guilty. I did it.” He had all the requisite intents. He makes a statement to his lawyer in confidence that he did it, and asks his lawyer what he should do.

Well, the lawyer maybe doesn’t know his past history. Maybe the lawyer would want to find out what the police have, if he can. So maybe more time, in order to properly represent him, would be taken up here—time when there would be no interrogation. Let’s further assume that he advises his client, “Well, I think you ought to confess. I think there’s a possibility for a light sentence. You did it. They have other evidence; or maybe they don’t have any other evidence,”—let’s say they don’t have any other evidence—”and you can confess.”

The fellow says, “Well, I don’t want to confess. I don’t want to go to the gas chamber if I don’t have to. Is there anything else that you, as my lawyer, can do for me?” Well, what has he got to tell him? Under our system, he has got to tell him, “Yes, you don’t have to say anything. And the fact that you don’t say anything can’t in any way hurt you, inferred or otherwise, and we can put the State to its burden of proof.”

MR. JUSTICE BLACK: Why does our system compel his lawyer to do that?

MR. NELSON: He is compelled by the system to do this.

MR. JUSTICE BLACK: Well, why does it do it? For what purpose? What’s the object on the part of the lawyer?

MR. NELSON: Because we believe that it’s right, and proper, that the criminal defendant not be deprived of his life, liberty, or property, without due process of law.

MR. JUSTICE BLACK: And something about giving testimony against himself.

MR. NELSON: Right. I mean this is just one issue. The lawyer has to guard all these rights. But I’m saying that the practical effect of introducing counsel at the interrogation stage is going to stop the interrogation for any and all purposes, except what counsel decides will be in the best interest of his defendant. Otherwise, counsel will not be doing his job.

MR. JUSTICE BLACK: Isn’t that about the same thing as the practical effect and object of the Amendment, which says he shall not be compelled to give testimony against himself? Is there any difference between the objects there, and purposes of the two— what the lawyer tells him, and what the Fifth Amendment tells him?

MR. NELSON: Well, certainly that’s the object of what his lawyer tells him.

MR. JUSTICE BLACK: Isn’t that the object of the Amendment?

MR. NELSON: Well, that is the question, of course. The Fifth Amendment, he has the right never to be compelled to incriminate himself at whatever stage, and this is, of course, involves a knowledgeable implementation of that right at this time, if he wants to.

What I am saying is that the State does not have to, at this stage, insist on that right being enforced or waived, because the pre-trial police interrogation does more than just develop confessions. It develops incriminating statements. It develops exculpatory statements which pin a story down to a defendant very closely after the crime is committed, or very closely after he has been taken into police custody, which prevents or effectively makes it unprofitable for him to perjure himself or change his testimony at trial should he take the stand.

MR. JUSTICE BLACK: Is there anything fantastic in the idea that the Fifth Amendment—that the protection against being compelled to testify against oneself—might be read reasonably as meaning there should be no pre-trial proceedings when he was there in the possession of the state?

MR. NELSON: Of course to me, I think there is. I think there is a valid interest—

MR. JUSTICE BLACK: There is a valid interest, of course, if they can convict him—and that’s their business, to try to convict him.

MR. NELSON: Right. But I think this is another argument that I think must be made. Our adversary system, as such, is not completely adversary even at the trial stage in a criminal prosecu­tion because Canon Five of the Canons of Ethics of the American Bar Association—which are law in Arizona by rule of court—says that the duty of the prosecution is not simply to go out and convict, but it is to see that justice is done.

In my short time, I have gotten as much satisfaction out of the cases in which I was compelled to confess error in a case where a man had been deprived of his rights of due process as I got satisfaction out of being upheld in a tight case in a court.

MR. JUSTICE FORTAS: Do you give defendants access to the State’s evidence against him in your State?

MR. NELSON: Mr. Flynn would tell you more about that at the trial level. I don’t believe that the rule has been interpreted very broadly. I think it has been interpreted narrowly. I think he can get his own statements and perhaps he can get the police officers’ reports. There is a rule providing for motions, but the judges, as I understand it, have construed it fairly narrowly.

MR. JUSTICE FORTAS: So that it is possible to speculate, isn’t it, that the State has limitations - places limitations upon its obligation to cooperate with the defendant, as witnessed by the denial of discovery to the defendant, discovery of the evidence that the State has against him?

MR. NELSON: Yes. Of course I’m sure the prosecutors would go along 100 percent with full discovery for both sides.

MR. JUSTICE FORTAS: Maybe the prosecutors that you know.


MR. NELSON: The defendant, of course, is compelled to no discovery, no ordinary discovery procedures in the scope we think of them in a civil case. I just say that I am not sure that the analogy is completely -

MR. JUSTICE FORTAS: What I was drawing your attention to is that there are, in our system, limitations upon the degree of cooperativeness on both sides. It’s not just that the arrested person has, under the Constitution, a Privilege against self-incrimination; it is also that the state, when it assumes an adversary position even before that time, takes advantage of certain “reticence,” shall I say, with respect to disclosure to the accused.

MR. NELSON: It surely does. But there is no compulsion. In fact, the compulsion is, to the contrary, on the defense side to cooperate, whereas there is complete compulsion - at least by my interpretation of the law—for the prosecutor to do as much, if it’s available to him, to show that the defendant is innocent, as there is to prove he is guilty.

MR. JUSTICE FORTAS: I think we have established, in this colloquy, that complete” is a little bit of an overstatement

MR. NELSON: It doesn’t always work that way. I am sure that’s the case.

Here again is another point. This is no reason, I don’t think, for a constitutional rule which would, in effect, take care of what I consider to be exceptions to the rule rather than the general practice.

I might just say, since I notice that my time is about up, counsel made a statement to the effect, in answer to a question of one of the Justices - and I forgot which one—something about why Miranda talked; that “maybe he was raised to tell the truth; in our society you’re raised to tell the truth and respect authority.” This brings another thing into play, I believe, which is vitally important - and the prosecutors in my State consider it so—that if, in fact, you either have counsel or you don’t, it thereby seriously circumscribes interrogation and confession. You eliminate an early part of one of the most important principles, hopefully, in our criminal law. And that is not just to convict, not just to deter or not just to put somebody away, but to rehabilitate them, and at the earliest possible moment. I don’t have that many personal experiences, but we had a meeting of the prosecutors in our State. Many of the cases involving confession and the pre-trial interrogation were the cases where a man has at least admitted he has done something wrong. These were cases where the defendants were much more susceptible to rehabilitation, at this stage, and if you foreclose this, then you develop an attitude in the police officers—you take the personal attitude away.

Many a hardened police officer, when he has developed a case of tremendous circumstancial evidence against a man, and yet the man sits there and keeps telling him “I didn’t do it,” he is going to wonder. There is a personal factor there. He is going to wonder “Why doesn’t this man confess? Why doesn’t he say something about doing it?”

Even assuming, arguendo, it is not coercion—and I have no argument that whatever is considered coercion, whether it’s subtle or otherwise, should not be used. Assuming the interrogation is good, except for that. He is going to wonder, and maybe he is going to go out and examine that eye witness who saw him at 2:00 o’clock in the morning under a dark street light, and examine that other evidence, because he wonders—that personal element— he ought to confess. Here is all of the evidence. It’s a prima facie case. This is wiped out completely if you terribly circumscribe this particular pretrial investigation. This particular personal element is out, and he can say, “Well, I got the evidence. Maybe he’s guilty or maybe not. I didn’t talk to him. I don’t know how he acts or how he turns up.” And I think defendants could be hurt as much as the prosecution.




MR. TAYLOR: Mr. Chief Justice, Members of the Supreme Court:

The State of New York is appearing not only in the present case, the Miranda case, but in the ensuing four cases that have been scheduled for consecutive argument in which these problems of the right to the assistance of counsel are raised. I think the State has appeared here as amicus on numerous previous occasions when there has been a constitutional question in the general field of criminal procedure. The nature of our interest is stated in the opening pages of our brief, and I do not believe I need to elaborate on that orally.

I should add that I believe the brief has been circulated to the other states, and has been joined by something over half—I think about 27 of the states, as well as Puerto Rico and the Virgin Islands.

I will try to say what I have to say in less than the allotted time. My task of brevity is easier because some of the things I might otherwise say, I think, will be said much better by others, and I will also try to say a few things that I, as I read the briefs, thought no one else is going to say, or at least say in the same manner.

The factor common to all five of these cases is that a confession was received in evidence which was taken when counsel was not present and when there had been no waiver of counsel. And therefore a contention runs commonly through all five of them. That is the one that emerged, I think, most clearly from Mr. Justice Black’s question as to whether this is a matter of constitutional dimension under the Fifth Amendment, or for that matter the Sixth, or the due process clause.

MR. JUSTICE BLACK: You said “one thing in common.” Is there another thing in common as to where they were when the confessions were made?

MR. TAYLOR: Well, they were all in detention.


MR. TAYLOR: All in a state of detention, yes, sir. Other than that, there is quite a spectrum of circumstances that these cases reveal. The surrounding circumstances are not uniform.

Now, may I just state what the thrust of our position is, very briefly, before indicating likewise its limits and why we are taking this position? Our contention is that insofar as these cases present a constitutional claim that a valid confession cannot be taken unless counsel is present or has been waived, that that claim in constitutional terms in the constitutional dimension is not sound. In other words, Justice Black’s question we would answer in the negative. The Fifth Amendment cannot, and should not, be read as requiring counsel to be present at the time the confession is taken. I will come to my reasons for that very presently.

Our secondary position is that if the Court should decide to enunciate a rule of that sort in constitutional terms, or other new rules pertaining to the validity of pre-arrangement confessions, those should not be applied retroactively but should be prospective only.

Now, before speaking in support of those two positions—and I intend to spend most of my time on the first one—may I make clear the limits of our position here and what we are not saying, because I think this is of almost equal importance. We are not taking any position for either affirmance or reversal of any of these five cases. That is because all five of them, as we see it, involve problems—or possible problems—that go beyond the limits of our contention here.

In the Miranda case that’s just been argued, there is obviously division of opinion about the characteristics of the defendant about whether the warning which Mr. Justice Fortas’ questions were directed to was given at a meaningful stage—what the significance of that warning is, in legal terms.

The other five cases involve questions of trial procedure in which we are not presently interested. They also, two of them, involve a long period of detention from which counsel are making arguments derived from the McNabb-Mallory principles. We are not taking a position on those matters and therefore we could not say that in any one of these five cases we are supporting an affirmance of reversal.

Secondly, may I make it quite clear that we are not saying that new rules about requiring counsel to be present when an investigation is taken—when an interrogation is made or a confes­sion taken—we are not saying that such rules are necessarily unwise, without merit. We say that these are not matters of constitutional dimension. But we do not say that they might not be very wise rules to adopt. In fact, we are saying that this whole problem of the assistance of counsel at the pre-arraignment stage can, we think, be more appropriately and perhaps better dealt with in the legislative dimension and in the area of judicial policy, rather than on purely constitutional terms.

Now, of course, insofar as we say there is no constitutional basis here, our position outs against the defendant’s. But, as I repeat, we are not making a position against such rules found in other ways, through legislative means, through judicial policy, or otherwise.

Now, may it please the Court, the inclusion of these five cases of one Federal case, the Westover case, No. 761, I think underlines this distinction that I have been endeavoring to state, and it also discloses the one respect in which I think our position departs from that taken by the Solicitor General. As a Federal case, this being a confession taken by Federal agents introduced in evidence in a Federal prosecution, I would suppose that the Westover case is susceptible of disposition in non-constitutional terms under this Court’s Federal supervisory jurisdiction, as enunciated in the McNabb-Mallory cases, and that general line of authority.

As I read the Solicitor General’s briefs, however, he is saying not only that the Constitution does not raise a requirement of the presence of counsel, but is also saying that such a rule should not be laid down by this Court as a matter of judicial power, the way it was done in McNabb and Mallory.

Our position does not extend to that second step. We do not take any position, one way or the other, on it. I think it entirely appropriate to say, though, that that would be a dimension in which we would consider this Court might very appropriately deal with the matter.

MR. JUSTICE FORTAS: Can we do that, with respect to the states?

MR. TAYLOR: No, Mr. Justice Fortas. I was pointing out that the Westover case brings that out. It’s only in the Westover case that you can do that.

MR. JUSTICE FORTAS: I understand that. What you’re saying is that we might lay down such a rule, some way, somehow, short of a constitutional basis for the Federal Courts, and leave the state courts alone; and that is what it comes down to.

MR. TAYLOR: That’s correct. The states are, of course, affected only by the constitutional dimension. The Federal Courts are subject to a broader range of review. I might add that in New York our own Court of Appeals has noted and acted upon this very distinction between decisions in the constitutional dimensions and decisions in the domain of judicial policy.

MR. JUSTICE FORTAS: What’s the difference between this problem, in those terms, and the problem that this Court handled in Gideon the problem of the right to counsel?

MR. TAYLOR: Well, if Your Honor is asking what the reasons for drawing the distinction between the trial stage and the pre-trial stage may be—

MR. JUSTICE FORTAS: Yes, in the terms of what you are discussing. In other words, would New York State have taken the position that Gideon was wrongly decided?

MR. TAYLOR: Wrongly decided? No. Indeed, in New York State this would be treated, now, as a matter of constitutional requirement. There is no question about that in my mind.

MR. JUSTICE FORTAS: Well, in the Court’s mind, General.


MR. TAYLOR: That is the pre-arraignment right to counsel. New York State held, prior to Escobedo, Mr. Justice Fortas, that where, as in Escobedo, there is an inference by the police authorities with the access of counsel to his client, that in the constitutional dimension this was a violation of the defendant’s rights.

This case is cited with approval in the Escobedo decision. Just last year it went further than that in the Court of Appeals and held that if there is a telephone call from counsel to the police authorities asking that there be no more questioning of the client, that any questioning that takes place after that cannot result in admissible admissions or confessions. But when the further question was raised in a case where counsel arrived at the station while a confession was being taken, the State made the contention that that part of the confession that took place before counsel arrived could be admitted, and not the latter part.

MR. JUSTICE FORTAS: General, I don’t want to take any more of your time. I just want to say that I think the problem is whether it’s not too late in the day to make that kind of a distinction. I’m asking the question: That is to say, that once this Court has made the rulings that it has made in Gideon and Escobedo, I wonder if it’s still of much avail to argue that we ought to draw the kind of line you are suggesting here?

MR. TAYLOR: Well, that brings me back to Mr. Justice Black’s question and its relation to the ones you have been putting, Justice Fortas. And that is, whether there is anything in the Constitution, either in the Sixth Amendment assistance of counsel clause, or in the due process clause, or in the protection against self-incrimination, whether any of those clauses together or conjointly should be read as requiring counsel in the pre-arraignment stage.

Now it seems to me that if one is going to approach that question, one must enunciate a constitutional theory. Are we looking to history and original meaning of the Constitution, or are we looking to contemporary standards? Is the Constitution to be treated as fluid, with different and perhaps more rigorous meanings obtained by common consent at a later time, or are we to look to the original understandings, as it has been called? Now, I suggest, with all respect, Mr. Justice Fortas, that in those terms it’s very difficult to support the contentions being made here, and the situation is quite different from Gideon—quite different.

I forget the exact number of states that already were furnish­ing counsel in all criminal trials at the time of Gideon, but my recollection is that there wasn’t more than a handful that weren’t already doing this, as a matter of state practice. Therefore, one had a very broad practice and consensus in the states on this very point. The same thing, if I may say so, was true in the Mapp case, to a lesser extent. In Mapp you had about half the states that were applying the exclusionary rule, and the trend was solidly in that direction. California had changed its rule between Wolf and Mapp, so that in both of these situations you had a solid basis in practical experience in the states—and, really, your decision is not revolutionary, in these terms.

In the dimension that we are now talking about, I don’t know of a single state that presently excludes confessions that are taken pre-arraignment in the absence of counsel. I don’t think there is such a jurisdiction.

MR. CHIEF JUSTICE WARREN: Isn’t it a fact that most of the states have a regulation that the prisoner shall be taken, forthwith, before a magistrate and there advised of his rights, and so forth? And doesn’t practically every state in the Union have laws preventing people from being compelled to testify against themselves?

MR. TAYLOR: Indeed that is so, Mr. Chief Justice.

MR. CHIEF JUSTICE WARREN: So in that respect we are not much different from Gideon, are we? There are just an awful lot of states that weren’t giving counsel up to the time of Gideon. They had the rule on it, maybe, but they weren’t according counsel to them?

MR. TAYLOR: My understanding is that at the time of Gideon all but a very few states were, indeed, according full right of counsel at the trial stage, which is what Gideon related to, and what I am saying is that we have no such basis in precedent in the established practice when we are coming to the pre-arraignment stage.

MR. JUSTICE FORTAS: That is not constitutional doctrine. That is something that indicates wisdom. But that’s not the same thing as saying that—that’s not addressed to the question of the historical interpretation of the Constitution.

MR. TAYLOR: No, indeed. On the basis of historical interpretation, I think one would be hard-put to it to find any basis for finding the right to counsel at the pre-arraignment stage, and much less the right to be furnished counsel if you are indigent, and therefore it seems to me the stronger argument for the claim advanced here is not the historical basis, but the common consensus basis. And it is on that basis that I was suggesting, Mr. Justice Fortas, that we don’t have the Gideon situation here at all. This Court is being asked to enunciate a rule for which there is no basis in the practice.

MR. JUSTICE FORTAS: I believe that in Gideon there was no claim made that the result arrived at in Gideon was based on an historical interpretation of the Constitution. It was based upon a reinterpretation of the general constitutional guarantees.

MR. TAYLOR: And for that reinterpretation there was abundant support in what one could see around one, and the commonly accepted view that this was a very desirable and accepted thing. We don’t have that here.

Thank you, Mr. Chief Justice.

MR. CHIEF JUSTICE WARREN: General, you haven’t gotten to your second point, and there are only two or three minutes until closing time. Would you mind addressing yourself to that on the question of retroactivity?

MR. TAYLOR: On retroactivity? Well actually, Mr. Chief Justice, that point flows, I would think as a matter of logic, from our first proposition—if that be accepted. If, as we see it, this is not a constitutional claim based on an original understanding, if this is a matter that will be evolved from contemporary practice and changing standards, why then it seems to me that to apply such a rule retroactively presents considerable conceptual difficulties, and I find no conceptual difficulty in a prospective application. The Court has confronted this now twice, in Linkletter and Tehan. We have set out in our brief the reasons why it seems to us the considerations the Court went on there are applicable here.

I might say, also, that if we are to hope for legislative progress and action within the states by their own courts, why a principle of retroactivity may be a damper on change and improvement, rather than a stimulus to it. This would tend to freeze things and make people reluctant to develop new practices if everything else has to be unwound, going all the way back to the beginning, to make the new practice prevail.

MR. CHIEF JUSTICE WARREN: Very well. We will adjourn.

[Whereupon, at 2:30 o’clock p.m., the hearings in the above-entitled matters were recessed to reconvene at 10:00 o’clock a.m., March 1, 1966.]




CHIEF JUSTICE WARREN: No. 759, Ernesto A. Miranda, petitioner, versus Arizona

THE CLERK: Counsel are present.






MR. NEDRUD:Mr. Chief Justice, if it please the Court:

My name is Duane Nedrud. I am counsel for the amicus National District Attorney’s Association. My co-counsel is Miss Oberto. I thought that her presence might show that prosecuting attorneys aren’t all bad or she wouldn’t be working for us on a full time basis.

If I may use some words of one of the Justices of this Supreme Court, “The Escobedo decision and the Dorado interpretation makes it more necessary than ever that we stop and look where we are going. If we are talking about equality between rich and the poor, we are striving for a worthy objective. If we talking about equality between the policeman and the criminal, we are on dangerous ground.”

I would remind this Court that we are not talking about the police versus the defendant. We are talking about the people versus the defendant. In the same way that we would not talk about the Army or the Marine Corps versus the Viet Cong, but we would talk about the United States versus the Viet Cong.

I have not mentioned in my brief anything about the Fifth or Sixth Amendment. I concede that this Court can interpret Amendments in the way that it sees fit. I am willing to agree with the ACLU in their brief, in one point where they quote me, although they do misquote me when they refer to Malloy and Hayes in substitution form, on pages 26 of their brief, instead of Haley and Payne, whom I consider entirely different; that an admonishment in the Dorado interpretation will not materially affect confessions.

If this is to be our objective—to limit the use of the confes­sion in criminal cases—then you are taking from the police a most important piece of evidence in every case that they bring before a court of justice. Police officers are public servants. They are not attempting to put innocent people in jail. They want to follow the dictates of this Court, and they will follow them to the best of their ability, but they too are human beings. They do have, however, an experience and knowledge which many of us lack, because this is their job—the investigation of crime—and we have not, as lawyers, paid attention to their problems. We have seldom been down to the police station and asked, “What can we do to assist you in your problems?”

We are more inclined—and I talk about the prosecuting attorneys, and I am not referring to this Court any more than any other lawyer in the United States.

If I may use the present case of Miranda as an example, the defense admits that there is a voluntary confession. He says that we should not allow this confession because he did not have counsel present, because we would not have been able to convict him, because there was no other evidence except his own voluntary statement that his male organ had penetrated a half an inch. Otherwise, he would have been acquitted.

Is this what we are looking for, to acquit Miranda because he did not have counsel? The amicus here has presented data covering thousands of man-hours on the part of the members attempting to show the widespread use of confessions. I am not saying that the widespread use of confessions justifies their use. I am just attempting to present to you, through our members, the importance of the confession in our criminal administration of justice.

I believe that there is something beyond that which we are discussing here. I think that there is a need—and I have mentioned this, and I pray for it—that all public servants: law enforcement officers, prosecuting attorneys, trial courts, and Members of this Court, work together. We are not adversaries. There is a need, I think, on the part of the people, to be able to refer to “my policeman,” “our police,” “my court,” and not “those cops.”

MR. JUSTICE FORTAS: Do you think we ought to overrule Escobedo?


MR. JUSTICE FORTAS: Is it your position that we should overrule Escobedo?

MR. NEDRUD: If I knew what Escobedo meant, I may say so, but I have said in my brief, Mr. Justice Fortas, that I think that Escobedo should never have been appealed in the facts of the case. I think that this Court rightly reversed the case on the facts.

MR. JUSTICE FORTAS: Well, you’re not urging that we overrule Escobedo?

MR. NEDRUD: No, sir. It’s our system of justice, in effect, which we need as a matter of change. I do not attempt to say that defense counsel is wrong when they attempt to do the best they can for counsel. This is our system of justice.

But I could tell you, for example, in the State of New York, that when the defense counsel is picked by those who are in the profession of crime—if I can use this—that they wonder who is “hot,” for example, in winning cases now, and they are picked almost as if they were racehorses, because now they are winning. There is nothing so fickle as a criminal defendant. He wants only one thing. He wants to win. Now if a prosecuting attorney only wants to win, then we should not have that prosecuting attorney in office. We should make a change.

MR. CHIEF JUSTICE WARREN: May I ask you this, please, Mr. Nedrud? If you agree on the facts that Escobedo should have been reversed, what would you say as to the man who did not have a lawyer but who said he wanted a lawyer before he talked?

MR. NEDRUD: If he asked for a lawyer, and he does not waive his right to counsel, I think that he should have a lawyer. I think that even the state should—I would go so far as to say that I think the state should appoint him a lawyer, if he asks for a lawyer. I do not think, however, that we should in effect encourage him to have a lawyer.

MR. CHIEF JUSTICE WARREN: Why do you say we should not encourage him to have a lawyer? Are lawyers a menace?

MR. NEDRUD: Mr. Chief Justice, a lawyer must in our system of justice attempt to free the defendant. This is his job.

MR. CHIEF JUSTICE WARREN: Because it is his professional duty to raise any defenses the man has?

MR. NEDRUD: Yes, sir.

MR. CHIEF JUSTICE WARREN: Do you think, in doing that, is a menace to our administration of justice?

MR. NEDRUD: I think he is not a menace at the trial level. He is not a menace, per se, but he is, in doing his duty, going to prevent a confession from being obtained.

MR. CHIEF JUSTICE WARREN: When does he cease being a menace?

MR. NEDRUD: Mr. Chief Justice, I did not say he was a menace.

MR. CHIEF JUSTICE WARREN: You said he was if he interjected himself into it before the trial level.

MR. NEDRUD: I merely said he would prevent a confession from being obtained. And if this is what we are looking for, we should appoint a counsel even before the arrest stage, because the moment that a murder takes place the Government is out looking for the criminal.

MR. CHIEF JUSTICE WARREN: If a lawyer, as you say he is entitled to a lawyer under the facts of Escobedo, and the lawyer is entitled to tell him that he doesn’t want him to talk to the police, why would it be a menace for another lawyer whom the defendant didn’t want, to do the same thing?

MR. NEDRUD: Mr. Chief Justice, I am not disagreeing with you one iota. I am just saying that if, in effect, this is what should be done—if you want to equalize, for example, the defendant’s right against the policeman—naturally he should have counsel if this is what we are striving for.

MR. CHIEF JUSTICE WARREN: Well, suppose we put it on the basis of not equalizing anything, or balancing anything, but on protecting the constitutional rights of the defendant not to be compelled to convict himself, on his own testimony.

MR. NEDRUD: Mr. Chief Justice, I of course do not interpret the Constitution. This is, of course, your prerogative, sir.

MR. CHIEF JUSTICE WARREN: How do you interpret it?

MR. NEDRUD: I do not interpret it that the defendant is entitled to a lawyer, until the trial stage.

MR. CHIEF JUSTICE WARREN: Until the trial starts?

MR. NEDRUD: Yes, sir.

MR. CHIEF JUSTICE WARREN: Where do you set that authority?

MR. NEDRUD: As I read the Constitution—you asked me my opinion, and I said I have no authority to interpret the Constitution—I am saying that this is the way I read the Constitution.

MR. CHIEF JUSTICE WARREN: Has that been the way the Court has read the Constitution in days gone by?

MR. NEDRUD: I believe so.

MR. JUSTICE DOUGLAS: Counsel, everybody knows that if he is appointed a lawyer at the beginning of trial, then the lawyer can’t possibly represent him. He needs time to prepare for the trial, so the appointment must be at some point anterior to the trial. Our question here is at what point? How far anterior?

MR. NEDRUD: Mr. Justice Douglas, I am not concerned when the lawyer enters the stage, and maybe part of our problem is that the prosecuting attorney enters before he should.

MR. JUSTICE DOUGLAS: Under the procedures in some states, as you well know, very important rights can be lost many days, many weeks prior to the trial. We come down to the question, which begins with the Constitution, concededly—I think we’d say “concededly”—everyone is entitled to a lawyer at the trial, and also at some point anterior to the trial.

MR. NEDRUD: The question comes, I think, Mr. Justice Douglas, to whether or not we are going to allow the trial court to determine the guilt or the innocence, or the defense counsel. If the defense counsel comes in at the arrest stage, he will, as he should, prevent the defendant from confessing to his crime, and you will have fewer convictions. If this is what is wanted, this is what will occur.

MR. JUSTICE BLACK: I guess there is no doubt, is there, that the provision that provides for protection against compelling him to give testimony has a consequence of fewer convictions?

MR. NEDRUD: Mr. Justice Black, this is true. Moreover, again we are talking about the voluntary-involuntary rule, and I have not questioned this whatsoever. This is, I believe, a good rule. I have said that Mapp versus Ohio is a good rule. I believe, however, that there is a point of diminishing returns and at some stage the police must be in a position to protect us.

MR. JUSTICE BLACK: At some stage, according to our opinion, he is entitled to a lawyer—at some stage. And we have said, as I recall, that it’s at the stage when he needs it. At least after he has been detailed. What about the point where a man is seized by Government agents and, as you say, they are “our agents,” they are “our officers.” There is no antagonism. But what about the fact that when they’re seized by someone who has the power to detain him, keep him away from his friends and his relatives and in seclusion if it’s desired? Can you think of any time when he needs a lawyer more than at that point—at the point of detention?

MR. NEDRUD: Mr. Justice Black, again the question is are we interested in convicting the defendant? Or are we interested in protecting, or acquitting him? This is the only point that I can, in effect, make if you say that this defendant needs counsel at this time.

For example, if I may use this illustration: I worked when I was a professor of law—which I was, prior to taking this position—I worked on the defense project for the American Bar Association. In the questionnaire, there was a statement: “When is the ideal time for counsel to be appointed for the defendant?” The question is, when is the ideal time “for whom”? The people? Or the Defendant? Now if it is for the defendant, then it is the earliest possible opportunity. If it is for the people, it should not be until a critical stage. If it is White v. Maryland, I agree it should be at the preliminary hearing stage. If it is the question of arraignment, as in Alabama, I agree. If it is at the trial stage, and he has lost none of his rights which can be interpreted in one way or another, then I say that it should be at the trial stage.

MR. JUSTICE BLACK: Well, as a prosecutor, I have found out over many years that it’s a very critical stage when a person is taken to the police headquarters. There is nothing wrong with it. That is part of our government. A person is taken to police headquarters under arrest, under detention. He can’t leave if he wants to, unless they let him. Would you call that “voluntary” for him then—for them to have him there, in that situation, and probe him about his probable conviction of crime? Would you think of that as voluntary?

MR. NEDRUD: Being voluntarily in the police station? No.

MR. JUSTICE HARLAN: I suppose you would say, wouldn’t you, it’s a question of fact for somebody to decide, in the context of different circumstances that have arisen?

MR. NEDRUD: I would hope, Mr. Justice Harlan, that Court has “protected,” as I referred to it in my brief, by an involuntary rule of the totality of circumstances, and I hope that the Court would also continue to invoke this rule, but not go so far as to prevent the police from protecting us.

Thank you, sir.