New Rules for Police Rooms

"The cases before us raise questions which go to the root of our concepts of American criminal jurisprudence."

With that dry and cautious comment, Chief Justice Earl Warren gave fair warning that the decision he was about to hand down for an angrily divided Su preme Court was sure to echo through law-enforcement agencies across the land. For the court was reversing the' convictions of four confessed crimi nals: Kidnaper-Rapist Ernesto Miranda, Mugger Roy Stewart, Stickup Man Mi chael Vignera and Bank Robber Carl Westover. It was a decision that seemed to invite controversy, but Warren in sisted that the court was not offering any innovations. It was merely reaffirming any criminal defendant's basic constitutional right to the assistance of a lawyer and the freedom from any compulsion to testify against himself.

If it seemed late in the day for the Supreme Court to feel the urge to reaffirm those rights, the court itself was at least partially to blame. "We dealt with certain phases of this problem recently," Warren said, "in Escobedo v. Illinois." In that case, the court overturned a murder rap against Danny Escobedo (TIME cover, April 29) because Chicago police had extracted a confession from him after denying him access to a lawyer he asked for--a lawyer who was also in the police station asking to see him. The generalities with which the court disposed of that specific problem, said Warren, had opened the way for "spirited legal debate." "Both state and federal courts," he reported ruefully, "have arrived at varying conclusions" about the decision. It was high time, conceded the Chief Justice, for the court to "give concrete constitutional guidelines for law-enforcement agencies and courts to follow."

Speaking for a slim 5-to-4 majority, Warren made it clear that he, along with Justices Hugo Black, William O. Douglas, Abe Fortas and William Brennan, was convinced that questioning in the back room of a police station--the kind of questioning that led to all four confessions under consideration last week--is inherently coercive. Even if there is no physical intimidation, said the Chief Justice, the suspect in "police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion" that are the stock in trade of the modern interrogator, "cannot be otherwise than under compulsion." The very atmosphere of the police station carries its own "badge of intimidation."

Inherent Compulsion. To dispel that coercive atmosphere, "adequate protective devices" must be employed. The Fifth Amendment privilege against selfincrimination is so fundamental to U.S. justice, said Warren, and an adequate reminder of the privilege can be so simply delivered to suspects, that there is no excuse for failing to give it. Congress and the individual states, he stressed, should be encouraged to "continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws." As the search goes on, though, the right to silence and the opportunity to exercise it must be guarded.

With that, Warren's majority opinion laid down three specific rules:

> "If a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent--the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court."

' >-"The right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege" to choose between silence and speech. Failure to ask for a lawyer does not waive the right to have one. An individual must be told of his right to counsel and reminded that the state will foot the bill if he is indigent.

> "If the interrogation continues without the presence of an attorney, and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against selfincrimination" and his right to counsel. And whenever an uncounseled suspect "indicates in any manner" that he does not wish to be interrogated, the police may not question him.

No Simple Expedient. Warren was careful to add that the decision was not intended to be "a constitutional straitjacket" on police; it did not mean, he said, that batteries of "station-house lawyers" should be on hand at all times to advise all suspects. What is intended, said Warren, is that as soon as police deprive anyone of freedom "in any significant way," he must be told of his rights. He must be made aware that "he is not in the presence of persons acting solely in his interest." If he chooses to remain silent, the Government must produce evidence against the suspect through painstaking detective work "rather than the cruel, simple expedient of compelling it from his own mouth."

The privilege against selfincrimination, continued the Chief Justice, has ancient and honorable origins. And where it has been enforced, it has not hampered justice. Indeed, the very cases that were before the court, said Warren, testified to the general "overstatement of the need for confessions." Standard police investigations had turned up damning evidence against each defendant. "Miranda, Vignera and Westover were identified by eyewitnesses. Marked bills . from the bank robbed were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home."

Horrendous Results. Little of Warren's argument impressed Justice John Marshall Harlan, who was joined by Byron White, Potter Stewart and Tom Clark in dissent. Reddening with anger and pounding his fist on the desk before him, Harlan accused the majority of peddling "poor constitutional law," which promised "harmful consequences for the country at large." During 25 years, said Harlan, "the court has developed an elaborate, sophisticated and sensitive approach to admissibility of confessions." To replace that "totality of circumstances" doctrine with hard and fast rules based on the Fifth Amendment seemed to Harlan downright silly. Cops who lie about third-degree tactics used to coerce confessions, he claimed, "are destined to lie as skillfully about warnings and waivers." And anyway, he asked, what is wrong with a little pressure on a suspect? "Until today," he answered, "the role of the Constitution has been only to sift out undue pressure."

Justice White seemed equally exercised. The majority, he said, was making "new law and new public policy" as it created a right to counsel to protect the Fifth Amendment privilege against selfincrimination. The results, said White, may be horrendous, and he had "no desire whatsoever to share the responsibility" for the impact on the criminal process. "In some unknown number of cases the court's rule will return a killer, a rapist or other criminal to the streets to repeat his crime whenever it pleases him." Seeing the police as now practically powerless, White worried about citizens who can "only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined."

The Doors Swing Open. As expected, such visions of justice undone also moved many a police chief and prosecutor. Maryland State's Attorney Charles E. Moylan Jr. insisted that the decision means "a large number of cases awaiting trial in Maryland will be thrown out." Others worried that cases already decided would now be reopened --even though the court had yet to rule on whether its guidelines will apply retroactively. New York's Police Commissioner Howard J. Leary argued that "there is being developed sophisticated law for an immature society"; a police chief in Garland, Texas, complained: "It's the damnedest thing I ever heard--we may as well close up shop." Local newspaper cartoonists, too, had a field day, most of them siding melodramatically with what they assumed would be handcuffed police (see cuts).

But for every quick complaint, there was a quiet and reasoned reminder that ever since Escobedo, police across the country have been opening their station rooms and doing their best to live up to the high standards of the court's dicta. Denver's Police Chief Harold Dill said that the decision was "nothing earthshaking. We generally follow that pattern anyway." Said Atlanta's Chief of Detectives Clinton Chafin: "We've been operating that way for some time now." Los Angeles' able and crusading Chief William Parker, who has often complained bitterly that the courts are hamstringing his men, said 'that the decision will not require any changes in his department.

Perhaps no one was more pleased than Chicago Lawyer Barry Kroll, who won the historic Escobedo case in the Supreme Court. "This decision means that the poor, uneducated and uninformed can now enjoy the rights that were previously only enjoyed by the wealthy and sophisticated," said Kroll. "The Escobedo case is now part of legal history. It will be looked upon as a real turning point in the administration of criminal law in this country."

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