Vol. 15 No.1 (January 2005), pp.35-38

MIRANDA:  THE STORY OF AMERICA’S RIGHT TO REMAIN SILENT, by Gary L. Stuart.  Tucson:  University of Arizona Press, 2004.  212 pp.  Hardcover.  $24.95.  ISBN:  0-8165-2313-4. 

Reviewed by David S. Mann, Department of Political Science, College of Charleston.  Email: Mannd@cofc.edu

The formal names of most Supreme Court cases we know and teach often reduce themselves to a single name or word, such as MARBURY or BOERNE.  One case may have the unique distinction of being reduced to a verb.  MIRANDA is no less part of the criminal justice lexicon than is the mass public’s concept of a fair trial.  Yet, often the people involved in cases are left behind, lost, or forgotten.  This book by Gary Stuart corrects some of that; it is in part about Ernesto Miranda.  It is in much larger part a story about the right to know what your rights are.  In this tome, a quote attributed to Arizona Supreme Court Justice Robert J. Corcoran:  “How can you actually waive something unless you know what it is?” (p.143).

When reading any court case study, one may invariably use GIDEON’S TRUMPET as a template.  No doubt a reader or two will anticipate my judgment: is it as good?  It is different, good, contemplative, and relevant to current events. 

This is a short book.  It is not a book for those who want to study every detail of every justice’s opinion in MIRANDA.  About 100 pages are devoted to MIRANDA and progeny from the crimes to oral argument and the Court’s opinion.  Another 30 or so pages concentrate on DICKERSON and its progeny.  The author also “sought to interview many uniquely situated individuals” (p.139) closely connected to the case and report their views.

The focus, then, of this book is not the Court’s opinion itself, but rather all the links in a chain the length of which is indefinite.  Is it merely interesting or additionally ironic:  the author attributes to Richard Kleindienst, in his role as political operative for Barry Goldwater and his presidential campaign, the phrase “law and order.”   And they of course are from Arizona, as is the author, and Ernesto Miranda. 

Perhaps most who teach the criminal justice amendments struggle with the chicken or egg question.  How can you teach MIRANDA without ESCOBEDO and without GIDEON?  In what sequence?   The author discusses all of this quite nicely, describing how lawyers and courts wrestled with that question in the 1960s. 

A student of John P. Frank (to whom the book is dedicated)—one of Miranda’s assigned counsel courtesy of GIDEON—the author provides a nice discussion of the Supreme Court’s oral argument of MIRANDA, where another of the author’s heros, John F. Flynn, stood at the podium.  In response to a query from Justice Stewart, Flynn states:  “He can’t be advised of his rights unless [*36] somebody knows what those rights are.”  And then, “And the only person that can adequately advise Ernesto Miranda is a lawyer” (p.56).  In response to Justice Black, Flynn stated:  “He was called upon to surrender a right he didn’t fully realize and appreciate he had” (p.58).

Stuart’s discussion of oral argument is well balanced.  He summarizes Assistant Attorney General for Arizona Gary K. Nelson’s oral argument, where he was grilled by Justice Fortas, previously Gideon’s counsel, as we all know—but unless I missed it, the author did not mention that;  the general reader might miss that link.  Nelson’s main point was this:  “When counsel is introduced at interrogation, interrogation ceases” (p.60).  From the law enforcement perspective, we are adequately reminded of the other side of the scale.  As many have said and written, where do we draw the line?  Where is the balance?

More brief summaries of oral arguments of other counsel and in the companion cases to Miranda add some insight (I did not know there were companion cases to MIRANDA).  What Stuart demonstrates is that the Court, whatever it decided, had to be systematic and inclusive if a novel interpretation of the 5th/6th Amendments would be forthcoming.

I was a bit disappointed that in his discussion the Court’s MIRANDA opinions, Stuart gives rather short shrift to the dissenting opinions.   It is clear here that the author’s lenses are rights-based.  Stuart’s last words in the book are “Thank you, Miranda” (p.173).  But a lengthy discussion of the opinion would have (a) made the book much longer and (b) distracted from perhaps the most important part of the book.

The second part of the book, or about 70 pages, concentrates on the aftermath of MIRANDA.  “The accused may waive the protection afforded him by the Fifth and Sixth Amendments.  He may elect to continue the interrogation, believing, as he might, that his words of innocence will not only be accepted but also that the police will thank him for his time and wave goodbye—an occurrence that probably takes place once or twice a day somewhere in America” (p.90).  Yeah, and Lennie Briscoe makes a snide comment on his way out the door in each episode of LAW AND ORDER (in memoriam, Jerry Orbach).

After spending some time discussing DICKERSON v. U.S., the successful challenge to Congress’ legislative attempt to limit MIRANDA, the author reflects on a “Broader Perspective” (p.139).  Yet, even earlier he discusses terror suspects Hamdi and Padilla, where at least for the former the outcome is known (but not at the book’s press time).  So this is one of the broader perspectives we have to think about.   There are more questions than answers.  Though we know now that enemy combatants are entitled to counsel, but when?  [Isn’t that the question the Court answered for those accused of domestic crime in MIRANDA?  Isn’t that the point?]  Or are we balancing with a different scale?  The ironies are not lost, just like when the closely divided Court in TEXAS v. JOHNSON ruled that the symbol of the flag represents the right to burn one in political protest.

Stuart poses several domestic queries as well.  “Did MIRANDA retard law enforcement?” (p.152) is pretty much a standard question to which we really do not have an answer.  I would rephrase [*37] the question, changing the verb to present tense.  That was the claim of the dissenters in MIRANDA.  It remains the claim of many whose scale tips toward law enforcement. 

I was intrigued by Stuart’s brief consideration of false confessions, in which he provides an example of a false confession case from Tucson.  In the morning newspaper this January 2005, as I write this review, I read an Associated Press report about Attorney-General designate Gonzales and a death penalty case in Texas where the death row inmate falsely confessed to murder.  Perhaps it is my own naivete, but the criminal justice system tries to “get it right.”  But in some instances we can only approximate, and in some cases we do “get it wrong.”  The hope is to, again, balance the scales.  Where would we be without MIRANDA?  How large would our prison population be without MIRANDA? 

There are four more issues the author briefly addresses; each could fill volumes and warrant further discussion.  From the standpoint of constitutional interpretation, Stuart asks:  “If MIRANDA was a liberal decision, why was DICKERSON a conservative decision” (p.159)?  As one who spends his time teaching undergraduates, this kind of question is one that makes students’ heads spin like the character in THE EXORCIST.  But it is a fun discussion.

The second is:  “Why did the Court switch from the Sixth Amendment in ESCOBEDO to the Fifth Amendment in MIRANDA” (p.161)?   Here the mantra is repeated.  How can one meaningfully invoke the right to remain silent without the presence of an attorney?  We could fill volumes with studies and discussions of criminal defense alternatives.

“Was it police methodology or political ideology”? (p.162) is the next topic.  Here the author bullets from Chief Justice Warren’s opinion in MIRANDA for about a page, showing the Chief’s distrust of police.  Stuart provides brief paragraphs on Warren, Black, Douglas, Brennan, and Fortas—but erroneously indicates that Fortas “may have had the shortest tenure on the Court with his resignation in 1969” (pp.165-6).  The objective is to show that theirs was a valid distrust of police interrogation methods at that time. 

The last question, of constitutional importance but of little importance to the general reader, is:  “When Did MIRANDA become a ‘constitutional’ decision” (p.167)?  The answer for now is DICKERSON and does not warrant any further discussion here.

What does warrant discussion in classrooms and town hall debates for our immediate future is Stuart’s summary point of view on the most contemporary issue.  “The right to remain silent should never be rescinded in the interests of national security . . . or on the strength of any other reason. . . . Whether we choose silence or choose to confess is not really the point.  Knowing  that we can choose one or the other is the point” (p.173).   What do we do if the author is right, that there is no scale to employ here?  Do we know what to do?  

REFERENCES:

Lewis, Anthony.  1964. GIDEON’S TRUMPET. New York: Vintage Books. [*38]

CASE REFERENCES:

CITY OF BOERNE v. FLORES, 521 US 507 (1997).

DICKERSON v. U.S., 530 US 428 (2000).

ESCOBEDO v. ILLINOIS, 378 US 478 (1964).

GIDEON v. WAINWRIGHT, 372 US 335 (1963).

MARBURY v. MADISON, 5 US 137 (1803).

MIRANDA v. ARIZONA, 384 US 436 (1966).

TEXAS v. JOHNSON, 491 US 397 (1989).

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© Copyright 2005 by the author, David S. Mann.