Unpopular roles. Casess go through a few that illustrate very dramatically and visually, what ofmeans to live in a society 310 million different people. Togetherd to stick because they believe in a rule of law. Good evening and welcome to cspan and the National Constitution centers landmark cases series. Case number 11 out of 12, this is a 1966 case, maranda versus arizona that help to revolutionize policing in america. Under arrest, you have the right to an attorney, you have the right to remain silent, anything you say can be used against you in a court of law. Do you know your miranda rights . Yes. Lets hear them. Are you sure you understand your rights. Oh yes, he explained them to me. Just like on television. Talk to my lawyer. You have the right to an attorney. Anything you say may be used against you. You have the right to remain silent. You have the right to remain silent, anything you say can be used against you in a court of law. You have the right to speak with an attorney. As you can see, miranda rights became part of our national culture. We will learn the story tonight from our two guest. Table, returns to the from the National Constitution center. Yet he is a Supreme Court expert. Thank you for being back. Paul is with us as well, good to have you. Former judge from a district in utah. He served as attorney general from 19 86 to 1988. Thank you for being here. What a constitutional issues . It tries to settle a question that has been around the country for several hundred years now. How much pressure can Police Officers put on their suspects when they are trying to get information from that suspect and what sort of rules will regulate what confessions can be used in court . So many of the amendments in the constitution concerned criminal rights. What made this landmark . It transformed the culture. Look at the tv shows. To see if i could do it by heart before the show. You have the right to remain silent. Anything you can say can be used against you in a court of law. You have the right to an attorney. How did i do . It is so simple to the culture. When chief Justice Rehnquist reaffirmed it, the cases come to be accepted by the culture. How many cases can we say about that . Before we get into the story, lets have a general discussion of the 1940s and the 1950s and the 1960s in terms of policing. A big debate in this country is policing right now. Why is that . What happened in the country, as we saw, significant improvement in policing in this country. 1930s,d degree in the was a fairly widespread tactic. As you move forward certainly in the 1960s, those tactics had started to disappear. The question was, if pressure isnt going to be used in physical form, police will use psychological test and techniques to get confessions and what kind of regulation should there be on them . That was an issue miranda had to wrestle with. At that time, where the regional aspects to this . , blacks in jim crow the south might have had more problem with executions in other areas of the country . A huge debate about police to Police Brutality, focusing on the south. In the 1930s, the court had a broad standard. The confessions had to be voluntary. You couldnt use the third degree and be confessions out of people. But in 1961, the Civil Rights Commission issues a report finding Widespread Police Brutality in the south. There is a debate about how much that is still going on. In the face of this there is a criminal procedure revolutionizing in court. In 1961, the matt decision. 1963 it says you have to have a lawyer present during Police Interrogation. Case, you have to have a courtappointed lawyer. Basically a Supreme Court led by the fourth is using and fifth amendment of the constitution to address what it perceives as a problem with Police Brutality in the south. That is the background. We will spend more time on the war in court warren court. Who is miranda . You have to look not just at him but at the victim. Criminal,s a repeat someone who had been arrested and convicted a number of times. He would just through an did not have established employment. Question, atin knife point he abducted a young woman and raped her. That is the backdrop. The revolution in court the other thing going on , violent crimeis is skyrocketing in america in the 1960s. Whether it is the court or something else, that is part of the backdrop also. Question, march 2, 1963, the womans name was patricia, leaving work in arizona and on the way home she was kidnapped, raped, robbed, and driven back to her house. Very serious accusations of serious crimes. How did it proceed from here . The following week there is another robbery and some witnesses see a car that seems to belong to miranda at a bus stop. The police check out the car and go to his house, talk to his girlfriend, she essentially fingers him. He is accused and taken to the station. There is a dispute about whether or not he is told his rights. Some states did and others didnt do it. Essentially, he signed a confession saying, i did it. He is convicted. Was never readhe his rights and that is when the case began. The Phoenix Police department and what makes this interesting is that the detective who arrested miranda is still very much with us and still with the venus Phoenix Police department. He gave us a tour. They have a display there. He tells us the story from their point of view. Lets watch. When she first looked at the lineup, she said it looks like the number one guy. The number one guy was miranda. I asked her, are you sure . She said it looks like him but if i heard his voice i might be able to make a positive. I didnt say anything. We went to the room and i waited. I wasnt quite sure what i would say. Ernie asked me, how did i do . I said you didnt do so good. I guess i better tell you about it. He did. He told us about the kidnapping, rape, and robbery. After that, i asked him if he would sign a written confession. Which says at the beginning of the report, i did this, without coercion or threats or promises of immunity. Knowing my legal rights. He wrote the statement, on one page, the writing was excellent. The spelling was excellent. 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. Miranda would have been brought in here and he would have been processed just like every other prisoner. He would have been searched. He would have been transported or taken over, shown his new we hadover here, four identical tanks. This particular one would have been where he was cap. Kept. Re he was the felony tank. He would have booked into here. He may have spent a week or a couple of days. That is retired detective harold cooley. That that offut the bat lead the system to get interested in this . Is the perfect test case. This was in the case where someone was beaten. , she isce used tricks identified you as the one who raped her you might as well tell us what happened. Psychological pressure. Of course, one of the other interesting things, as the program unfolds, miranda ended up radically changing the rules. In 1963 when this interrogation took lace, there wasnt a single precedent in place that supported throwing that confession out. For 140 years they had been admitted in court. That is when chief Justice Warren got interested in the issue. He had two trials, the robbery and the rape. What happened to him . He was challenged on six amendment grounds because they said you had a right to counsel during interrogation. He was convicted on both . He was. He was convicted and sentenced to 25 years on the robbery and also the kidnapping, all, and was serving them at the same time in 1963. The Appellate Court in arizona, the constitutional sixth amendment and the Court Rejects the claim that the confession was improper. They informed him of his legal rights and the only question was, was there a voluntary violation of the sixth amendment. It may be admissible and made without an attorney it did not violate constitutional rights. The sixth amendment says . You have the right to effective assistance of counsel. , he was talking to the detective, he didnt have a lawyer then and he should have had a lawyer. The problem with that argument is for 170 years in american history, the rule has always been you get a lawyer once you go to court, once charges have been filed. Historically the sixth amendment would not have been in play. The fifth amendment neither. That says you have the right not to be compelled to be a witness against you. Witnessing has always occurred in court. Under the precedents, this is not the problem at all. To use the confession. That is why the lawyers are looking for creative theories to present. For the nonlawyers we keep trying to explain. Appealt have this upheld. How does it make its way to federal . You have to file a petition. To agree to take the case. A few years earlier there was the gideon case, immortalized by book. Y lewis says book letterendant handwrote a saying that he did not have proper defense. The aclu got interested and they brought in a lawyer called john frank who was in arizona lawyer. Corporate justice black wrote a book about him. He was a constitutional scholar. Frank decided to bring in local counsel, john flynn, once you get the big guns like that going , then the Supreme Court is interested. A note about john frank, he didnt end up arguing the case. He pops up later in the national scene. He served as counsel for anita hills confirmation hearing. A very distinguished lawyer. Miranda goes from someone in the bowels of the Interrogation Room in arizona to someone who has a highpowered legal team. Warbo on comment from twitter. He was a rape her and a killer. The kind of question is what kind of liberty should we uphold. In fact if you go around the find today it is hard to a country that would find those inadmissible. Miranda is itth goes so far the pendulum swing so far in the direction of protecting suspects interests, people like patricia, the woman who was raped are given short shrift. Note that in that decision chief Justice Warren disagrees and he says at the time the f e i was routinely giving more the fbi was routinely giving warnings. In england, there were similar warnings. There was a good discussion about how rooted it was in the fifth and sixth amendments. We have to talk about the history of the fifth amendment. It was not sure that it was made up out of thin air. With respect to warnings, it is true about the f ei. The problem with miranda truth about the fbi. The problem with miranda is the exclusionary rule. It sets up rules that say you cannot question certain people or if you do certain things evidence can be used. If all of the procedural apparatus that is associated with miranda that even today needs tens of thousands of criminal cases are going unsolved every year because of these procedural requirements. Welets get back later on talk about the consequences. First about the chief Justice Warren court. 1962, inone we did was wright was ayron kennedy appointee. What about these new additions . Getting, ing gideon, he was an lbj supporter, he got in trouble when he was nominated to be chief justice for devising lbj on the side and for other matters. He is someone who is very committed to the courts procedural structure. Byron white, not so much. Scholar, a football player, detrimental to congress, proLaw Enforcement, in defense. Of miranda. There was a balance on both sides. The most striking thing about the warren court, look at all the former judges and politicians on this court. Judge inpolice court alabama. He saw the third degree firsthand. There is another great biography. There are so many. The great biography of hugo how as ach describes lawyer, he is trying the defendant. He brings them up and closes the shades of the defendant looks menacing and doesnt say anything. I wanted the jury to take a look at that man. Later he regrets that kind of behavior. As a police court judge he thought he saw how the system can be abused when the third degree is used. Politician asmer well. All of these guys. Most important, earl warren, the District Attorney of the county. He prosecuted these people. He is sensitive in a previous case called spano. Defendants can be sentenced for a huge amount of time because of residual factors beyond their control your these are not ivory tower judges and that they know how the system works. I want to talk a little bit more about earl warrens biography. He was also the attorney general of the state of california and as governor. Terms his own father was murdered in a robbery. But that into context as to the views he brings to the court. Mr. Cassel i think there are a lot of number a large number of politicians and the Supreme Court at this time. I think in my view it had not successfully made the transition politician who get to have their own views and impose their views on legislation, they have now switched to a judicial role where there duty is to interpret the law, not make it. Politicians can pass laws, do different things. And i think at least five justices were ready to do the same thing through Supreme Court decisionmaking. That is of course one of the legacies of the war in court court, to throughout rules they think everyone in the country should follow. You both used the expression in the third degree, where does that come from . Beating, to do with you take it one degree, two, and then one more. In this case, the third degree means coercive pressure that doesnt involve physical violence. There is a history here. It has to do with the history of the fifth amendment. This is the story of john and the tin dissenters. During the british star chamber, if you were a heretic you could forced to take an oath to answer any question matter what it will be. If you are at the center and you are asked are you a protestant, you can lie and go to eternal dam nation, tell the truth and be burned, or refuse to answer and be in prison for contempt. Saysave to answer and he lets see if i can pronounce it foreignng language] you are required to answer questions that someone with Human Dignity should never be forced to answer, it translates to the beatings of the 1930s which work for bid and which were forbidden. Now the court is trying to take history saying now that we know that psychological pressure can be used, how can we honor the word of the fifth amendment today. We have a video of chief Justice Warren talking about it. Lets watch. It was a common thing 50 years ago. Nothad to watch for it was committed, but i think lawaratively few enforcements now are addicted to the third degree. And it is because the courts bhorred that kind of conduct and say that kind of conduct is and old standby the police, a man is not given a fair trial, and therefore, his conviction cannot stand. That is in the interest of everyone. What would you like to say about this . Mr. Cassel it is interesting. When you talk about the third degree, i think the chief justice hit the nail on the head that even back when he was speaking, comparatively few cases involved the third degree. What youre saying, i think sometimes when people talk about the miranda decision is somewhat of a bait and switch. The point is made that people have been tortured to give confessions, so now we need the miranda rules. The miranda rules arent designed to address those kinds of things. Torture had long been abolished. I think what we should be talking about and the Supreme Court should of been talking about is psychological torture the Police Officers used. Here are comments from someone on twitter who writes, since the fbi had such were loads of federal crimes involved . Mr. Cassel the fbi had something you had the right to sayin silent, anything you can be used against you, and will get you a lawyer when we go to court. Miranda kind of garbled that and said were going to impose that on the whole country. One thatsed the same the fbi used, we wouldnt be here talking about miranda. What chief justice unwarranted providingules warnings be provided and created this fast exclusionary rule apparatus that throws out all kinds of confessions and imposes prohibitions on asking reasonable questions of suspects in custody. We willnts . Mr. Rosen talk about what its effects were later, but the cops came to feel that basically it was far less am both sides asked for your they were two core positions in miranda. Rule, no one questionings without an officer present. The cops wanted the opposite. A moderate oneth saying you have to be warned in once you are warned, it is presumed that the statement is voluntary unless you say the magic words i want a lawyer. The sophisticated device is say the magic words, i want a lawyer, because then the interrogation has to stop. You are hugely empowered if you say this words. That was the big innovation of miranda. Many people say it didnt increase that many confessions. First he a thing you have to read the warnings, second if you say i want a lawyer, the interrogation stops. Waiveird, an order to these rights, it has to be knowing, voluntary, and intelligent. With the background you gave us about the chief justice, he was looking for a way to address lookedin the system and for cases that that the bill. When a cases came up, there were four. Consolidated cases to present a full picture of Police Interrogation an america. One is miranda versus arizona, then westover versus United States, a federal case. The solicitor general argues that is Thurgood Marshall arguing against the miranda rules in the against those kinds of restraints on Police Interrogation, because of course a would affect state Law Enforcement agencies and also fbi and other federal Law Enforcement agencies would have to come i as well. When a to comply. Cases g