Miranda v. Arizona/Concurrence-dissent Clark
MR. JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584.
It is with regret that I find it necessary to write in these cases. However, I am unable to join the majority because its opinion goes too far on too little, while my dissenting brethren do not go quite far enough. Nor can I join in the Court's criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers to as "police manuals"  are, as I read them, merely writings in this field by professors and some police officers. Not one is shown by the record here to be the official manual of any police department, much less in universal use in crime detection. Moreover, the examples of police brutality mentioned by the Court  are rare exceptions to the thousands of cases [p500] that appear every year in the law reports. The police agencies — all the way from municipal and state forces to the federal bureaus — are responsible for law enforcement and public safety in this country. I am proud of their efforts, which, in my view, are not fairly characterized by the Court's opinion.
The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that "we might not find the defendants' statements [here] to have been involuntary in traditional terms." Ante, p. 457. In short, the Court has added more to the requirements that the accused is entitled to consult with his lawyer and that he must be given the traditional warning that he may remain silent and that anything that he says may be used against him. Escobedo v. Illinois, 378 U.S. 478, 490-491 (1964). Now the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him. When, at any point during an interrogation, the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed. The Court further holds that failure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof. Such a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient.  [p501] Since there is at this time a paucity of information and an almost total lack of empirical knowledge on the practical operation of requirements truly comparable to those announced by the majority, I would be more restrained, lest we go too far too fast.
Custodial interrogation has long been recognized as "undoubtedly an essential tool in effective law enforcement." Haynes v. Washington, 373 U.S. 503, 515 (1963). Recognition of this fact should put us on guard against the promulgation of doctrinaire rules. Especially is this true where the Court finds that "the Constitution has prescribed" its holding, and where the light of our past cases, from Hopt v. Utah, 110 U.S. 574 (1884), down to Haynes v. Washington, supra, is to [p502] the contrary. Indeed, even in Escobedo, the Court never hinted that an affirmative "waiver" was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel — absent a waiver — during interrogation was required; that a waiver can be withdrawn at the will of the accused; that counsel must be furnished during an accusatory stage to those unable to pay; nor that admissions and exculpatory statements are "confessions." To require all those things at one gulp should cause the Court to choke over more cases than Crooker v. California, 357 U.S. 433 (1958), and Cicenia v. Lagay, 357 U.S. 504 (1958), which it expressly overrules today.
The rule prior to today — as Mr. Justice Goldberg, the author of the Court's opinion in Escobedo, stated it in Haynes v. Washington — depended upon "a totality of circumstances evidencing an involuntary . . . admission of guilt." 373 U.S. at 514. And he concluded:
- Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And certainly we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this, where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. . . . We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded.
Id. at 514-515. [p503]
I would continue to follow that rule. Under the "totality of circumstances" rule of which my Brother Goldberg spoke in Haynes, I would consider in each case whether the police officer, prior to custodial interrogation, added the warning that the suspect might have counsel present at the interrogation, and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that, in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary.
Rather than employing the arbitrary Fifth Amendment rule  which the Court lays down, I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering, and which we know from our cases are effective instruments in protecting persons in police custody. In this way, we would not be acting in the dark, nor, in one full sweep, changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding.
I would affirm the convictions in Miranda v. Arizona, No. 759; Vignera v. New York, No. 760, and Westover v. United States, No. 761. In each of those cases, I find from the circumstances no warrant for reversal. In [p504] California v. Stewart, No. 584, I would dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. § 1257(3) (1964 ed.); but, if the merits are to be reached, I would affirm on the ground that the State failed to fulfill its burden, in the absence of a showing that appropriate warnings were given, of proving a waiver or a totality of circumstances showing voluntariness. Should there be a retrial, I would leave the State free to attempt to prove these elements.
^ . E.g., Inbau & Reid, Criminal Interrogation and Confessions (196); O'Hara, Fundamentals Of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940).
^ . As developed by my Brother HARLAN, post pp. 506-514, such cases, with the exception of the long-discrSyllabus & Opinions Only in Bram v. United States, 168 U.S. 532 (1897), were adequately treated in terms of due process.
^ . The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As in Brother HARLAN points out, post, pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's letter, ante, pp. 484-486, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as "a right to counsel"; nothing is said about a right to have counsel present at the custodial interrogation. (See also the examples cited by the Solicitor General, Westover v. United States, 342 F.2d 684, 685 (1965) ("right to consult counsel"); Jackson v. United States, 337 F.2d 136, 138 (1964) (accused "entitled to an attorney").) Indeed, the practice is that, whenever the suspect
- decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point. . . . When counsel appears in person, he is permitted to confer with his client in private.
This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General's letter states:
- [T]hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, [are advised] of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.
So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself, and that he may have counsel appointed only when brought before the judge or at trial — but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court.
^ . In my view, there is "no significant support" in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point, see the dissenting opinion of my Brother WHITE, post pp. 526-531.