Brief for Respondent

I. Introduction

Petitioner states that his life for all practical purposes was over when he walked out of Interrogation Room #2 on March 13, 1963.⁸ The real fact is that Miranda's life was unalterably destined ten days earlier during the late evening hours of March 2 and the early morning hours of March 3, when he kidnapped and raped his victim, Patricia Weir. What followed must not be described in cynical terms as "the ceremonies of the law";⁹ they were, and are, the carefully ordained processes of our judicial system, designed, at the optimum, to discover the truth, mete out justice to all, insure the guilty their just and proper recompense and vindicate the innocent. To be sure, thoroughly interwoven into these processes at all stages and levels is the implementation and zealous protection of those cherished rights and privileges guaranteed to all by the Constitutions of the United States and the several states; no police officer, prosecutor or judge dedicated to the basic precepts of our system of government advocates that it should be any different.

Unfortunately, or perhaps fortunately, so long as human beings rather than computers administer the processes of justice, mistakes and error will occur and injustices will be done. The courts of our land, including this Court with its highest and most final jurisdiction, are daily exposing and correcting these mistakes to the best of their ability. The question here before the Court is whether there was such a mistake or error in this case of a dimension to result in the denial of petitioner's right to counsel as set down in the Constitution of the United States, and as proclaimed by this Court in its decisions thereunder.

II. There are no inherent defects either in this defendant, the operation of law enforcement agencies, or in our system of criminal justice, which require a rule of the constitutional impact and proportions here sought by petitioner

A. The defendant The very description of the petitioner in his Question Presented¹⁰ subtly introduces a factual issue into this case which is of the gravest importance in resolving the ultimate legal question.

The words so carefully used were "poorly educated, mentally abnormal." No doubt other descriptive words and phrases could have been added—poor, motherless, unloved, downtrodden, culturally deprived, misguided, unguided, harassed, ad infinitum.

It is practically impossible to pick up a national magazine, professional journal, or listen to an address without some dramatic usage of these descriptive adjectives to characterize some greater or lesser portion of the American population.¹¹ And in the proper perspective, such attention, whether it be by this Court,¹² the Congress,¹³ the executive,¹⁴ or state and local governments,¹⁵ is long overdue and, hopefully, will do something about the root-source of our most perplexing problems—not the least of which is the rising crime rate.¹⁶

However, to use these heart-rending descriptions in an attempt to justify or excuse the knowing and deliberate violation of our criminal statutes and the imposition of violence and suffering and depravation upon some individuals of our society by others, is misleading to say the least. Of this ilk, Miranda is a clear example.

Perhaps an eighth grade education, under a literal definition of the term and in the context of our affluent society, is a "poor education." Under no stretch of the imagination, however, can Miranda be deemed to be uneducated or illiterate. In addition to his formal schooling, petitioner had considerable and varied experiences which broadened his knowledge, particularly in the area which is of primary importance to us now.¹⁷

Counsel would have us believe that petitioner was incapable of producing the statement which was admitted against him (Appendix B. infra).¹⁸ A simple reading and viewing of the statement refutes such a contention. The portion of the statement describing the actual events of the incident is in petitioner's hand and was written by him. Certainly the officers, if they were interested in putting words into Miranda's mouth, could have typed in these words also, in a favorable context, and simply obtained Miranda's signature to the whole. And although petitioner's grammar, sentence structure and punctuation leave much to be desired, the conclusion is inescapable that his knowledge and understanding of the difference between simple promiscuity and the crime of rape is more highly sophisticated than most of the Ph.Ds in our country.¹⁹

Miranda is also labeled as "mentally abnormal." The basis for this is the psychiatric report (Appendix A, infra). While Miranda had an "emotional illness," it is questionable that this even made him "abnormal."²⁰ Clearly the diagnosis of the psychiatrist was to the effect that the illness was not disabling and that Miranda was able to understand the predicament he was in and knew the conduct society demanded of him at the time he chose to ignore those demands.²¹

B. The police Admittedly there is no possible element of police brutality or coercion in this case, whether direct or subtle.²² Yet petitioner, nevertheless, paints a picture of police disregard for rights guaranteed by our Constitution. The picture is inaccurate—but proving it so is almost a practical impossibility.

The articles, the studies, and the cases,²³ dealing, as they almost unanimously do, with the negative aspect of the problem, make it difficult to see the rule because of the emphasis on the exception. It is true that all police officers are not interested in protecting the rights of the accused; it is true that there are convictions obtained by use of trumped-up evidence and wrongfully elicited incriminating statements and confessions; but these are the very few exceptions to the general rule. For every case of police insensitivity to individual rights, there are literally thousands of unreported incidents of the unstinting efforts of police and prosecutors which result in the extrication of an otherwise helpless and innocent victim, hopelessly intertwined in a web of circumstantial evidence of guilt.²⁴ The prime reason the vast majority of such instances go unreported and unstatisticized, is that the police and the prosecutor alike consider this just another important, but routine part of their work, which they do with the same dedication as they do the more spectacular phases.²⁵

This Court, together with all the courts of our land, should and will continue to firmly and courageously deal with the exceptions to this rule. We must be careful, however, not to foreclose, limit or unduly hamper investigative techniques which, in their legitimate use, are not barred by any Constitutional mandate, solely because a few use the techniques to effect an unconstitutional result. The promulgation of such a rule of constitutional dimension in any given case would be as necessary as "Dr." Jerry Colona's recently suggested solution to Bob Hope's medical problem of a sore and infected big toe—to cut off Hope's head to relieve the excess weight on the toe.²⁶ While it goes without saying that the problem of the big toe would most certainly be forever solved, it is questionable whether the patient would be at all happy with the ancillary side effects of the treatment. As to whether a similarly undesirable side effect would be forthcoming from an unnecessarily broad constitutional rule in this case, we must look ahead.

C. The nature of the contest Petitioner, it seems, would have us interpret our adversary system of criminal justice as giving the accused a right to "win" the contest.²⁷ While it may be inherent in the very nature of our system, with its vital and essential safeguards to individual freedom, that a person who actually commits a criminal act may have extra opportunities to escape punishment for his crime, it must be clear without comment or citation that the intent of the Constitutional safeguards were to insure, as much as humanly possible, that the innocent and unpopular would not be wrongfully harassed, intimidated or convicted—not that the guilty should have any special chances for acquittal or other favorable result.

If the prosecuting authorities have gained an overwhelming advantage over a particular defendant, assuming they have done so by proper methods, and not by violating any of his constitutional rights, this is to be highly commended, not condemned. It is a vital attribute of our society that the law enforcement machinery apprehend, convict and punish and/or rehabilitate those who would break the laws and endanger, if not destroy, our domestic tranquility. Law enforcement is not a game of chance, Massiah v. United States, 377 U.S. 201, 213 (1964) (Dissenting Opinion); McGuire v. United States, 273 U.S. 95 (1927). There is no "gamesmanship" or "sportsmanship" involved here, at least insofar as the criminal is concerned. He follows no code of conduct or canons of ethics. The death, suffering, and depravation caused by crime is as real to those who are touched by its sting as is that of any war ever fought. Certainly the criminal gives no quarter; and none should be given in return except as is required to insure the integrity and continuation of the system which we all cherish.

Criminals, like the rest of us, are inherently unequal. Some are skilled, some not; some intelligent, some not; some trained, some not; some blabbermouths, some not; some strong, some not; some cruel, some not, etc. It certainly would not be urged that if a criminal is foolish enough to leave physical clues, the police should not be allowed to use them because X, who committed the same crime, was more careful. Or if Y was callous enough, or "intelligent" enough, to kill his rape victim to prevent identification, certainly Z, who also raped, should not be given the same opportunity to kill so as to have an equal chance at the trial to "win." So, too, are there differences between what happened to Ernesto A. Miranda as contrasted with what happened to Danny Escobedo²⁸ which militate in favor of a different resolution of their problem by this Court.

III. Miranda was not denied his right to counsel as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States

The decision in this case must rest upon the scope and effect to be attributed to this Court's decision concerning right to counsel at the interrogation stage, in Escobedo v. Illinois, 378 U.S. 478 (1964). While petitioner's historical analysis is to be highly commended for the care and effort which it reflects, his almost cursory treatment of Escobedo, coupled as it is with an inaccurate treatment of the Arizona Court's decision in the instant case, belies some doubt as to the absolute accuracy of the conclusion forecast as unassailable. Rather than obscuring the "simple lines of the situation,"²⁹ the welter of the cases, the majority of which disagree with petitioner's conclusion,³⁰ coupled with the rather sharp divergence of opinion on this Court, not only in the recent decisions on this point, e.g., Massiah v. United States, 377 U.S. 201 (1964) and Escobedo v. Illinois, supra, but in the earlier decisions as well, e.g., Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. LaGay, 357 U.S. 504 (1958), indicate the problem posed here to be anything but simple.

A. The Arizona court's decision Petitioner, at least twice,³¹ states that the Arizona Supreme Court rested its opinion on petitioner's refusal to request counsel. A reading of the opinion clearly reveals that this was only one factor in many which resulted in a determination that Miranda was not denied his right to counsel (Statement of the Case, supra, at 4). The nature and length of the questioning, the warning advice given, and the background of the petitioner were equally important factors. Petitioner is correct in stating that the Arizona Court's decision did not in any way purport to rest on a waiver doctrine.³² This is made amply clear in the Arizona Supreme Court's decision in State v. Goff, ___Ariz. ___, 407 P. 2d 55 (1965), where the court referred to this aspect of its decision in Miranda:

"We did not conclude from Escobedo that the Supreme Court of the United States held that arbitrarily and in every instance admissions made to police officers after an investigation has become accusatory are inadmissible in evidence unless a suspect has knowingly waived his right to counsel." Id, 407 P. 2d at 57.

The Supreme Court of California, in People v. Dorado, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965), and indeed the dissenting Justices of this Court in Escobedo v. Illinois, supra, 378 U.S. at 495, have forecast, as a minimum, a contrary conclusion. If this latter view is proved to be correct, that is the end of this case, and untold thousands like it throughout the length and breadth of this land. We choose, however, in turning our attention to Escobedo, to approach the import of that decision with the "hope" expressed by Justice Stewart in concluding his separate dissenting opinion in Escobedo v. Illinois, Ibid.

B. Escobedo v. Miranda Petitioner prefers to dwell on the implicit in Escobedo.³³ The explicit facts of the case are considered by respondent to be highly relevant and very crucial to the indicated result in Miranda.

Danny Escobedo had retained counsel and repeatedly requested to consult with him. The requests were all denied. Escobedo was even told at one time that his lawyer didn't want to see him. On the contrary, Escobedo's lawyer was trying desperately to see his client, and was thwarted at every turn by the police, in spite of a specific Illinois statute requiring the police to admit the lawyer. Escobedo v. Illinois, supra, 378 U.S. at 480. Escobedo had no record of previous experience with the police. He was interrogated not only by police officers, but by a skilled and experienced lawyer. Escobedo was told that another suspect had pointed the finger at him as the guilty one. At no time was he ever advised of his constitutional rights by either the police or the prosecutor.

Ernesto A. Miranda was not represented by counsel at the time of the questioning here involved. He had not requested that counsel be provided, or that he be given an opportunity to consult with counsel prior to talking to the police. The officers did not deny him an opportunity to consult with counsel, nor did they in any way use chicanery in their questioning of Miranda. Petitioner had had considerable and varied experience with the police on previous occasions. 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.³⁴

In setting forth the holding of the case, this Court very carefully enumerated the factors which resulted in the denial of counsel to Escobedo:

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied counsel, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the assistance of counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the states by the Fourteenth Amendment,' Gideon v. Wainright, 372 U.S. at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." Escobedo v. Illinois, supra, 378 U.S. at 490 and 491.

Of the five specific elements, which might be set forth as: (1) Accusatory Stage; (2) Police Custody; (3) Interrogation to elicit incriminating statements; (4) Request and Denial of an opportunity to consult counsel; and (5) Effective Warning of his absolute right to remain silent, petitioner contends that only (4) is absent here and that its absence is not crucial. Both premises are incorrect.

The Arizona Court clearly considered that Miranda had been warned of his absolute right to remain silent. The facts cited in that opinion, together with the Appendix to Petitioner's Brief, provided an ample basis for such a conclusion. And to discount item (4) concerning the request, is to completely ignore not only the plain wording of the opinion in Escobedo, but to completely disregard the factual and legal bases for the opinions cited in petitioner's historical analysis as demanding the ultimate ruling sought herein. E.g., Crooker v. California, supra, (Douglas, J., dissenting):³⁵ Spano v. New York, 360 U.S. 315, 325 (1959), (Douglas, J., concurring).³⁶ The court lays a great stress on this factor, together with the failure of the police to warn the accused of his absolute right to remain silent. Escobedo v. Illinois, supra, 378 U.S. at 479, 480, 481, 482, 485, 486, 491, 492.

There are two other matters in the opinion itself which militate against petitioner's sought-for rule being all but announced. They are: (1) The treatment accorded the prior decisions of this Court in Crooker v. California, supra, 357 U.S. 433 and Cicenia v. LaGay, supra 357 U.S. 504, and (2) The Court's special and clear emphasis of the request for and denial of counsel in spite of its recent restatement that the right to counsel did not depend upon a formal request, Carnley v. Cochran, 369 U.S. 506 (1962).

Instead of completely overruling Crooker and Cicenia, the Court noted that the holding itself in Crooker, on the distinguishable facts in that case, which were set forth in some detail (Escobedo v. Illinois, supra, 378 U.S. at 491, 492), would possibly have been the same under the principles announced in Escobedo. In implicitly accepting the result in Crooker, while discarding the language inconsistent with the principles of Escobedo, the Court specifically approves the rejection of the absolute rule sought by Crooker:

"That 'every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard to the circumstances of the case." Id, at 491. (Emphasis in Crooker.)

The continued rejection of the absolute rule sought by Crooker, implying as it does that in some cases a state could even deny a request without denying an accused his constitutional right to counsel, clearly rejects, a fortiori, the absolute rule sought by petitioner.

This result is also pointed to by the inclusion and emphasis of the request for counsel as a vital factor in Escobedo while not even including a reference to this Court's recent reemphasis of the unimportance of a request for counsel in the implementation of the absolute right to be provided counsel in Carnley v. Cochran, supra, 369 U.S. 506. The omission of reference to Carnley must be considered to have been by design and not accident. Thus the scope of the rule, and the force of its emphasis, must be and is different.

The decision in Escobedo announces an exclusionary rule directed against the affirmative conduct of police and prosecutors calculated to deny to an accused his right to counsel. Any incriminating statements received thereafter, regardless of the fact that they are clearly the product of the free and uncoerced will of the accused, are inadmissible, Escobedo v. Illinois, supra, 378 U.S. at 491. The decision in Massiah v. United States, supra, 377 U.S. 201, although involving a federal prosecution, certainly reinforces this view of the Escobedo doctrine, particularly the last two paragraphs thereof.³⁷

The rule announced is a parallel to that announced in Mapp v. Ohio, 367 U.S. 643 (1961), designed as a specific deterrent to police activity calculated to render meaningless the citizen's rights under the search and seizure provision of the Fourth Amendment to the Federal Constitution. It must also be applied with the same practical, non-technical, common sense approach as is the Mapp exclusionary rule. United States v. Ventresca, 380 U.S. 102 (1965).

A contrary application would result in attempting to make police officers part-time defense counsel and part-time magistrates, or deprive them completely of an investigative technique which, in its proper use and application, is as invaluable as any modern, scientific tool for the detection and prevention of crime.

The legal scholars and commentators have produced volumes of material on Escobedo.³⁸ It ranges the complete spectrum, from law professors and lawyers³⁹ to second and third year law students.⁴⁰ Both poles of the controversy are forcefully presented, including extensive citations to both primary and secondary authority, in the very recent publication of the University Press of Virginia: Kamisar, Inbau, and Arnold, Criminal Justice in Our Time, (Magna Carta Essays, Howard ed. 1965).

Ultimately, however, neither the overwhelming weight of the writings of the commentators, nor the weight of the decisions of the Judges and Justices of the other appellate tribunals of our land, whether state or federal, can dictate or necessarily foreshadow this Court's determination of the scope and effect of the principles announced in Escobedo.

If the rule sought by petitioner is forthcoming, we can only re-echo the ominous warnings and misgivings of the dissenters in Massiah and Escobedo, supra. Miranda and Escobedo are not equal and there is no Constitutional reason for this Court to equate them in the manner sought by petitioner, any more than there would be for this Court to balance their skill in committing and concealing their crime. No amount of scientific advancements in crime detection will produce evidence which a clever criminal has not been foolish enough to provide for discovery. If a criminal has been clever in the commission of his crime, but is foolish or careless in his handling of the police interrogation of him concerning that crime, the evidence obtained as a result of the only honest investigative avenue left open to the law enforcement agency, should not be suppressed unless that evidence is determined not to be the product of the free and uncoerced will of the accused, or if it is obtained after the police have undertaken a course of conduct calculated to deny the accused his right to counsel. Certainly nothing less will be tolerated, but the United States Constitution requires no more.