Miranda v. Arizona – Oral Argument – March 02, 1966

Media for Miranda v. Arizona

Audio Transcription for Oral Argument – February 28, 1966 in Miranda v. Arizona
Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Earl Warren:

Number 584, California, Petitioner versus Roy Allen Stewart.

Mr. Ringer.

Gordon Ringer:

Mr. Chief Justice, and may it please this Honorable Court.

This case presents with perhaps more poignancy than any of the others that had previously been argued this week.

It’s a problem of determining the scope of the investigative powers of the police in the exercise of their function as guardians of society and determining the scope of the constitutional rights of the accused.

Beginning in December 1962, and continuing through January 1963, there occurred in a limited area of the City of Los Angeles a series of extremely brutal crimes.

A lady named Mrs. Wells on her way home from work on December 21, 1962 was waylaid, robbed, brutally beaten by an unknown assailant who made off with her purse and its contents.

Later a Mrs. Dixon had the same thing occurred to her.

A Mrs. Mitchell was waylaid near her home and struck down and killed and her possessions were taken.

A Mrs. Miyauchi on her way to work in the early morning was similarly accosted and her possessions taken.

And finally, a Miss Ramirez on the day before the arrest of the respondent here, suffered a similar occurrence.

In the case of Mrs. Mitchell, the victim died.

And the case of the other victims, they suffered long hospitalization periods.

There were fractured skulls, fractured jaws, losses of equilibrium, and certainly an inability to identify the perpetrator of the crime.

Whoever this person was, he made one mistake.

With the assistance of a lady named Lena Franklin, he negotiated some checks which had been stolen from Mrs. Wells at a market.

This occurred on the 22nd of January 1963, the negotiation of the checks.

On the 30th, the officers learned that he had done so.

On the 31st, they located Lena Franklin.

Upon locating her they went with her to find the person who has been introduced to her as Roy Wells, the person who cashed the checks.

She did not know the address.

She did know what the house had looked like because she’d been there.

They went there.

They saw the respondent on the front porch.

They called out his name, Roy Wells, the name he’d signed to the checks.

He went inside the house.

They followed him, they entered, they arrested him for a series of purse snatch robberies, and they came upon [Inaudible].

Potter Stewart:

They did what?

Gordon Ringer:

They came (Voice Overlap).

Potter Stewart:

(Voice Overlap) what they do —

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

I’m sorry, Your Honor if I — I have a habit of not knowing whether I’m talking loud enough.

Upon entering the house and searching it, incident to the arrest which was a lawful arrest and has never been challenged, the officers found a great deal of stolen property.

They found particular items of property which have been taken from each of the individual victims with the robbery or murder of whom, that the respondent here was subsequently charged.

In addition, according to the testimony of the arresting officers, they found a number of other purses and a number of other wallets whose providence is not identified in this record.

In the house were five persons.

The respondent Stewart, his mistress or wife as the case may be, his niece (a lady named Jacky Jackson), and two other gentlemen.

At the time of this arrest, search and seizure, the officers had no means of knowing, other than perhaps a bland suspicion perhaps, that the same person had committed all these offenses.

They had no means of knowing that this was not a ring of the five people who were all in this house at the same time.

And this is certainly different than the type of situation envisioned by the Chief Justice yesterday, where the police get a vague description of somebody and pick up 90 people who looked like them and take them down to the police station.

So these persons were taken, arrested, taken to the police station.

Potter Stewart:

All five of them?

Gordon Ringer:

All five of them, yes.

That’s in the record.

The defendant Stewart, Lillian Lara, a man named Burnam, a man named Evans, Jacky Jackson, the niece of the defendant Stewart.

During the ensuing five days, before the production of Stewart before a magistrate, he was questioned as the record shows.

The record shows also the amount and the length of the questioning, approximately a total of two hours and 45 minutes or two hours and 46 minutes as the case maybe.

This was the total amount of the questioning.

There’s no claim here he was questioned at late hours continually by relays of police.

There’s no claim here that he was denied access to anybody he wanted to see whether a wife, or a friend, or a relative, or counsel, or bondsman or whatever.

There was indeed a claim of coercion at the trial, a claim which was, I would suggest, devoid of substance.

Earl Warren:

You would suggest what?

Gordon Ringer:

It is devoid of substance, a claim solely that the common law – that the confession by the defendant was given in return for a promise to release Lillian Lara, this was rebutted by the officers.

The questions here are whether antecedently to the giving of his confession, the police were constitutionally obliged to give Stewart a warning of a right to remain silent and a right to consult counsel.

There is a second issue which was raised by Mr. Norris in his brief; a claim that there was an unlawful delay in the arraignment and because there was an unlawful delay in the arraignment, the confession being according to Mr. Norris, the product of that unlawful delay, the confession should also have been excluded.

I will address myself first to the first point.

As suggested in the briefs, and this is a good phrase,

I like it so I keep saying it, this case is a grandchild of Escobedo and a child of Dorado.

What we are contesting here is the interpretation which the California Supreme Court placed on the Escobedo case, an interpretation of which the California Supreme Court in Dorado and by extension here claimed to be and here, I’m thinking perhaps of Justice Black’s use of the word compelled under the Fifth Amendment.

That they said that we are compelled as a matter of federal constitutional law to hold on the basis of the Escobedo case that these warnings must be given, these rights must be waived otherwise a statement no matter how free and voluntary it may otherwise be, may not be received in evidence.

In other words, the California Supreme Court has held that there is a generalized Sixth Amendment right to counsel which emanates from circumstances occurring either at or after the arrest of the accused.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

We believe that the true interpretation of Escobedo is the interpretation which was suggested by questioning in oral argument by Mr. Justice Stewart and Mr. Justice Harlan, that it is a totality of circumstances case. Continually throughout that decision in its limited holding,

Escobedo speaks of under the circumstances here where as here, under the facts as here, and certainly in that case which was the de — involved the denial of a request to consult, retain, counsel by a person whose attorney was on the outside trying to get in at the same time.

This was an affirmative act of denial by the State under the circumstances as found by this Court.

We do not therefore read Escobedo as our Supreme Court has done, as creating in any individual, a kind of in coed executory interest which vests at the time of arrest.

It’s been suggested and in here, I’m thinking of an article which Mr. Justice Fortas wrote several years ago, that the Right to Counsel begins at the time of arrest because at that time the adversary system commences.

Now does it?

We believe, as does the Solicitor General, that a certain amount of questioning is a social necessity.

That is, not only because some prosecutors may say, “We must have confession,” but also because questioning serves both an inculpatory and exculpatory purpose and let me if I can find in my notes, bring out a few statistics which I think will make this point.

These facts are contained in “Crime in California”, a very compendious book which is issued by the California Bureau of Criminal Justice — Criminal Statistics Department of Justice.

In 1964, there were approximately 100,000, a little over arrest for felony in California.

Of these, 27.5% were arrested by department were released without charge.

These are men who were either determined to be innocent by the police or determined there was insufficient evidence to even seek a complaint from the district attorney.

Hugo L. Black:

What percent?

Gordon Ringer:

27.5% were released.

Of those arrested for robbery, 43.1% were released.

Of those arrested for burglary, 31% were released.

Hugo L. Black:

Were what?

Gordon Ringer:

Released.

Those arrested for aggravated assault, 28.2% were released.

Homicide, and that is the most serious conceivable charge, 20.8%.

Hugo L. Black:

What’s the overall?

Gordon Ringer:

The overall, 27.5% and it would be of assistance to the Court, I have a copy of the book.

I don’t know if it’s available in your library but may I lodge it?

Earl Warren:

You may.

Gordon Ringer:

I don’t have an extra copy for Mr. Norris here, but if they’re not available in his library, then we could furnish him with the copy.

Earl Warren:

Very well.

Gordon Ringer:

The lowest —

Potter Stewart:

What is that book?

Gordon Ringer:

It’s called “Crime in California”.

It’s compiled by the Bureau of Criminal Statistics, Division of Law Enforcement California Department of Justice.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

The particular table I’m concerned with is on page 49.

It’s table, III/7.

The lowest percentage of releases, and I think this is significant, forgery and check offenses which I think all will agree are the type of offenses where an investigation after an arrest is the least necessary.

I write a check on a bank in which I have no account.

The check is dishonored.

You check with the bank and you find out I have no account.

There is the offense and the need to investigate after an arrest on probable cause is a minimal importance.

In all of these other matters that I’ve laid out, something that occurred after the arrest, based on probable cause, resulted in the release of the man.

We do not know whether these gentlemen had counsel in the police station or not,

there’s no way of knowing or cross checking. But certainly questioning by the police must be regarded as having played a significant factor in the decision not to charge.

I do not know how significant the factor because we cannot empirically go to that much more deeply.

But I think this makes my point, that questioning serves a dual purpose not merely to get confession because we’ve got to have confessions in all cases, but it does serve the police function of bringing the charge to trial of those against whom there is evidence sufficient to justify such establishment and not bringing the charge of those who are not guilty and should be released.

Hugo L. Black:

May I ask you of this?

Gordon Ringer:

Yes sir.

Hugo L. Black:

28 — 27.5% meant that that many people had been detained or arrested and interrogated while they were under detention?

Gordon Ringer:

Again Your Honor, I’ve no means of knowing but let me make that — let me accept that for the purpose of argument because I believe you are — you are intending to raise a question which you raised earlier in the — in the other arguments.

Let us assume so.

I think the tenor of Your Honor’s question yesterday based on the Fifth Amendment were simply that under the Fifth Amendment as Your Honor interprets it, under the Fifth Amendment as applied to the States under Malloy and Hogan, a statement made by a person, who is under arrest and in the police station, is a statement which is compelled within the meaning of the Constitution of the United States.

I think that was the drift of the questioning and the point which you were putting to counsel.

Secondly, I think Your Honor was also concerned with the number of Escobedo cases, it would have to be determined by somebody unless there were a simple and easy to follow test for determining the admissibility of confessions.

I talked to the Solicitor General on Sunday and was informed that there are/or have been this term 170 Escobedo cases which either are now pending or have been pending.

Hugo L. Black:

Where?

Gordon Ringer:

Here and there are probably thousands more elsewhere.

Hugo L. Black:

Oh what do you —

Gordon Ringer:

But I would suggest —

Hugo L. Black:

What inference would you draw from that?

Gordon Ringer:

The inference I would draw is there are a lot of people who are contending they’re improperly convicted.

I draw no other inference from that because I have not examined the facts of any of the cases.

But to get —

Tom C. Clark:

[Inaudible] to be?

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Tom C. Clark:

In fact the [Inaudible] Escobedo.

Gordon Ringer:

I would say so.

I would say so Your Honor.

Tom C. Clark:

Thank you.

Gordon Ringer:

That had not occurred to me.

Hugo L. Black:

Might all be possible, you were trying to take advantage of Escobedo and what it held by is it not?

Gordon Ringer:

That depends upon the — that depends upon the facts of those cases and that’s exactly the point I’d like to make, Justice Black and I think I’m sort of bouncing off the question by Justice Harlan or a comment by Justice Harlan that was made yesterday in argument.

That I don’t see how you can say, as a matter of law, that any statement in any case, that is all statements in all cases made by the accused who has been arrested on probable cause and taken down at the station is necessarily by virtue of the fact of arrest and detention alone a compelled statement.

Hugo L. Black:

You wouldn’t deny —

Gordon Ringer:

I think it’s a question —

Hugo L. Black:

You wouldn’t deny that he was held under compunction, would you?

Gordon Ringer:

I do not deny that, no.

But this —

Hugo L. Black:

But in this question is it not as it always well of the approach you made how liberally you would construe the Bill of Rights amendment just when in duty.

Gordon Ringer:

Well let me — let me suggest this.

I think that it’s a question of fact depending on the totality of the circumstances in each individual case just as under the —

Hugo L. Black:

Well the provision doesn’t say that.

It doesn’t say it depends on the totality, but that’s the matter to be compelled —

Gordon Ringer:

Yes but if the — if the provision — the provision of the Constitution simply says no person may be compelled to be a witness against himself and it doesn’t suggest any particular circumstances in which he is or is not. Its compendious terminology which must be understood in the context to particular facts.

Now —

Hugo L. Black:

Well its natural inference, isn’t it, that if a man who’s taken under arrest,

he’s taken under compulsion.

He’s expelled to go away and tell him to go (Voice Overlap) —

Gordon Ringer:

What about — yes, under legal process, yes.

That is if the gun is pointed at me, I don’t have much choice.

Hugo L. Black:

And that the general idea is that a man is arrested only if you detain him in order to await a proper trial in the Court, is that it?

Gordon Ringer:

I would accept that.

I would accept that, but Your Honor, I would still — I would still suggest that it would be a factual question in each particular case just as under the Fourth Amendment which is a specific constitutional guarantee, the question whether a particular search —

Hugo L. Black:

What does the Fourth Amendment say?

Gordon Ringer:

Well I don’t have the exact wording in mind.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Hugo L. Black:

Reasonable, doesn’t it?

Gordon Ringer:

It says unreasonable searches and seizures.

Hugo L. Black:

There’s a difference in it.

Gordon Ringer:

Alright, there’s a difference between reasonable and unreasonable.

Hugo L. Black:

And there’s also a difference between saying no unreasonable search should be made and no witness shall be compelled, no person shall be compelled to be a witness against himself.

Gordon Ringer:

Well they deal with different things but the thing I want to make Your Honor is this.

That here you have a specific term of art in the Fourth Amendment which is applied to the States.

You can’t have an unreasonable search and you have an exclusionary role.

And the point that I want to make is, that even there is this specific constitutional guarantee, it’s a question of fact in each individual case.

Probable cause is based on the facts.

Hugo L. Black:

I agree with you — I agree with you when you say unreasonable.

Gordon Ringer:

Probable cause is based on the facts of each individual case and I would suggest and this ties in also with the — with the Sixth Amendment interpretation of Escobedo because the farthest reach which has been given to Escobedo that we know of is that of a California Supreme Court, which by the inherent force of the logic of its own decisions has come to the conclusion that the Sixth Amendment Right to Counsel vests at the time of arrest.

And under the decisions as set out in our brief, there is a certain pattern that once you start with that presumption, I — I do not go so far as to say that necessarily you do bring the members of the grand jury into the — that you do bring the members of the grand jury physically into the police station, but the only statements which can be admitted under the California rule are those which are either completely volunteered by the defendant.

In other words, when the officer comes up to me, I pull out the gun that I used and said, “This is the gun I used, I am the man you want”, or those statements which under the California courts’ construction of Escobedo are made where there’s a possibility of victim they’d still be alive and there is a compelling necessity to find the victim.

And so you find the powers of the police to investigate either for inculpatory purposes or exculpatory purposes reduced to this point that unless you have reason to believe that a victim might still be alive, you can’t question.

And the other exception is a statement can be received in evidence if the defendant’s remorse strikes him so quickly, so quickly, that he begins to blurt things out.

Earl Warren:

Mr. Ringer, do you believe —

Gordon Ringer:

Yes Mr. Chief Justice.

Earl Warren:

Do you believe on your constitution, the police without having probable cause to the person who has committed the crime can arrest him, put him in jail, and hold him there for the purpose of interrogation?

Gordon Ringer:

As a general principle, I would suggest no however —

Earl Warren:

It’s a general principle.

Gordon Ringer:

Well I don’t know Your Honor —

Earl Warren:

A principle is a principle, isn’t it?

Gordon Ringer:

I’m sorry Your Honor, I don’t know whether that question is antecedent to something that has to do with this case.

I will agree. The police should not.

Earl Warren:

Well don’t try to read our minds of what we might feed you later —

Gordon Ringer:

I’m sorry Your Honor.

Earl Warren:

— let’s just (Voice Overlap) when we ask you.

Gordon Ringer:

I agree without qualification, that is true.

Earl Warren:

That is true.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

Well because arrest must be made on probable cause.

Earl Warren:

Alright, well and if it’s made on probable cause, the man is taken to the — to the jail, he’s taken there preliminary to put him on trial, is he not?

Gordon Ringer:

One would assume so, yes.

Earl Warren:

Well when does his Right to Counsel attach?

Gordon Ringer:

Well we’ve understood and that the right to counsel attaches at critical stages of the State proceedings which followed the formal, the filing of formal charges.

Escobedo said bringing the time back prior to the filing of formal charges, that if a man has an attorney who he wants to see and he wants to see that attorney, the police have no right to keep them apart and that’s a principle with which we agree wholeheartedly.

Earl Warren:

Well do you think that — that because a man hasn’t hired a lawyer, an anticipation of being arrested that he should be treated less generously by the law than the man who perhaps does have reason to believe he’d be arrested and is arrested when he has lawyers.

Gordon Ringer:

If it please the Court, we don’t believe and we’ve perhaps — we’ve argued this I think perhaps with some vigor in our brief that the equal protection principles apply this far back.

And I think this was suggested by Justice Black yesterday in a question, “Do the principles of Griffin versus Illinois apply to the State?”

We would suggest they do not.

Society is full of inequities and inequalities of all sizes, sorts, and shapes and we suggest that these principles do not apply at this particular stage.

Earl Warren:

And why don’t they apply?

Gordon Ringer:

Because we’ve — I’ve always understood and if I’m wrong please I’m subject to correction, that in the judicial process, the Equal Protection Clause applies on the appellate stage certainly, that’s the right of a poor man to have a transcript, the right of a poor man to get a brief on appeal.

Everybody is entitled to counsel at trial and there are only a few states who did not conceive that prior to Getty.

We agree that the critical stages of the State proceedings which followed the filing of formal charges that he’s entitled to counsel as a matter of right, but the question is not so much whether he should have a lawyer in the station house with him, sitting beside him during interrogation or whether he could telephone, but whether the State is constitutionally oblige to advice him that he has a right to consult an attorney before being questioned by the police.

And that’s the fundamental question in the case to which we suggest the answer should be in the negative.

I don’t know whether that answered your question Your Honor but I have attempted to.

Earl Warren:

I guess we’d all agree that you need — that he should have a lawyer when he actually becomes desperately in need of a lawyer, wouldn’t he?

Gordon Ringer:

Well, may I ask —

Earl Warren:

When the Government has taken him in and charged.

Gordon Ringer:

Well, that’s a flash.

I think what Stewart needed in this case more than a lawyer or anything else is something no longer he could give in and that’s a convincing explanation that would exculpate him —

Hugo L. Black:

They what?

Gordon Ringer:

A convincing explanation that would exculpate him of how that property came to be in his house.

I would suggest that.

Earl Warren:

I don’t quite understand your answer.

Gordon Ringer:

We think —

Earl Warren:

You say — you say that if he had not been guilty, he could have convinced the authorities that he was not guilty by explaining how he got that, is that —

Gordon Ringer:

Well that’s part of it.

That’s part of it, yes.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Earl Warren:

And you say that’s his obligation when the police have him in the — in the (Voice Overlap) —

Gordon Ringer:

I don’t say he has a constitutional obligation that exculpate himself.

I suggest that was his greatest need under the circumstances in this case.

Earl Warren:

And don’t you think that at times a man might need a lawyer to have to exculpate himself.

Gordon Ringer:

Well again, there are perhaps times where he might, but the question here, the question again and I do not — I wish to — perhaps I wish to focus to use a phrase on the way we deal with the problem and I keep returning that if the person doesn’t know he can consult with a lawyer.

Earl Warren:

If what?

Gordon Ringer:

If a person doesn’t know he consult — can consult with the lawyer.

Earl Warren:

Yes.

Gordon Ringer:

If he doesn’t know that he doesn’t have to talk; these are factors which go to whether his statements are voluntary.

These are factors which can’t be considered at the trial, be considered on appellate review as part of a totality of circumstances in determining whether a man has been denied due process of law at his trial.

And we suggest the test is a compendious one which requires I’m sure a considerable degree of analysis with the facts of particular cases, but that it is a test which this Court should adopt as the test for determining admissibility.

Earl Warren:

Well, wouldn’t that test be that he was informed of his rights by the authorities before they took a statement from him and then there wouldn’t be much question about whether he knew?

Gordon Ringer:

Well there again, this raises a problem, Mr. Justice Warren, a problem which I — how’s my time?

This raises a problem which was suggested in our brief that if he has a right to a warning, then he has the right which must be waived, is that not true?

That’s quite clear, that follows.

If there’s a warning, there must be a waiver.

Now let us suppose that so and so was taken to the police station and he is read his rights as under the Dorado decision.

He said you have a right not to say anything, anything you say maybe use against you.

You have a right to consult an attorney before you speak to us or — or at any particular time in addition.

Then the defendant either remains silent, nods his head, exercises one or the other of these rights.

Or, he says words, “Thanks, I know that”, or something.

In any rate, he makes some reply.

If a waiver is required, the test of waiver is the Johnson and Zerbst test, a knowing an intelligent waiver of these rights and the very factors which are involved in a determination whether a right has been knowingly and intelligently waived are those which go to voluntaries.

If the man is a mental defective, the policemen may not know this and even the man, he may read his rights to someone and someone may say, “Alright, I’ll go ahead and talk.”

At the trial, perhaps years later on collateral attack, it will come out that this person was one who is incapable of waiving his rights and so you are imparting complicated principles of waiver that are difficult enough to determine in the context of a judicial trial, and I’m thinking here of Henry and Mississippi where you couldn’t tell from the record of a trial whether there was a knowing waiver of a particular right to object to particular evidence.

You were imparting these concepts into the police station, Mr. Justice Warren and you’re putting them on the shoulders of police who are not sophisticated experts in the criminal law and particularly not sophisticated experts in problems of waiver in constitutional law.

Earl Warren:

Do you agree that — agree that if a man says, “I have a lawyer but I’d like to talk to my lawyer before I talk to you.” Do you agree that in that case the police should interrogate him?

Gordon Ringer:

They certainly should have afforded him an opportunity to get a lawyer if he wants some.

Earl Warren:

Suppose he says, “Well I just can’t go to a phone, I just can’t go to a phone and call because I don’t know a lawyer but maybe my friends and relatives can get a lawyer for me sometime during these proceedings and I’d like to have one, is that —

Gordon Ringer:

That’s a request for help, isn’t it Mr. Justice Warren?

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Earl Warren:

Yes, a request.

Now is that sufficient in your opinion to prevent the police from further interrogating?

Gordon Ringer:

I think they should afford him that opportunity before going any farther.

Earl Warren:

He has a right to that.

Gordon Ringer:

I think he should do that.

He has the right under — under the Haynes case to call his wife.

If you remember the Haynes case and that was suggested in our argument by the Solicitor yesterday that Escobedo is the lawyer equivalent to the wife in the Haynes.

I think he should be afforded that opportunity and the statutes of California provided even before the Escobedo case.

I’m referring specifically to Section 851 of the Penal Code of the State of California provided that upon arrest, upon arrest and booking and no later than three hours after arrest that a person has the right to make several phone calls to a person who maybe his relative, his friend, his attorney, his bondsman or whatever and these were liberally construed in practice.

If he didn’t have the money to make the call, he would be given a dime or whatever it took of public expense.

I would like — since I don’t wish to discuss another problem in the rebuttal that I’ve not mentioned before, I would simply — because I wish to reserve time, mention the contention under Wong Sun versus the United States.

There is a claim made by Mr. Norris that there was an illegal detention here which would render inadmissible the statement which was made by Stewart on the last day of his detention.

We submit that the detention was lawful within the statute of California Section 825 whose constitutionality has not been challenged by Mr. Norris.

On that basis, I would wish to submit my opening — submit my opening argument and then wait for Mr. Norris to reply.

Abe Fortas:

Before you sit down —

Gordon Ringer:

Yes.

Abe Fortas:

— may I ask you.

Do you — as you read the majority opinion of the California Supreme Court, do you think that the Court felt that — do you think that the Court felt that the result which they have reached in this case whereas compelled by this Court’s decision in Escobedo (Voice Overlap) —

Gordon Ringer:

Yes sir, there’s no question about that.

There can be no question.

Now this Stewart case is the third — the third case on this point in the California Supreme Court.

First was Dorado in which they stated they were compelled by the decisions of this Court to so hold.

The second was in the case of Modesto, the third is Stewart and Stewart cites Dorado and it’s —

Abe Fortas:

I — I understand that —

Gordon Ringer:

Yes.

Abe Fortas:

— but I’m still asking you whether you feel that as you read the case, whether you think that the California Supreme Court felt that the result in the present case was compelled by this Court’s decision in Escobedo or alternatively whether the California Supreme Court may have felt that this was an appropriate, desirable application of Escobedo in its judgment.

That will make the distinction clear to you.

Gordon Ringer:

I think I understand the distinction.

It is one which I do not think can be made because all of the ramifications of the Dorado rule which stem from Escobedo are stated by the California Supreme Court to be emanations in the — from the Dorado — from the Escobedo case as they conceive it.

And these are applications, they’re not state rules of evidence, and they aren’t regarded by the California Supreme Court state rules of evidence.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

They’re regarded as constitutional compulsions as well.

I think that answers your question.

I hope it does — I hope that satisfies of what we — your view of what we believe that the California Supreme Court is done here.

Abe Fortas:

Well I wouldn’t go quite that far with you but I understand you.

Gordon Ringer:

Yes, that is our position which is all I was attempting to say.

Earl Warren:

Mr. Norris.

William A. Norris:

Mr. Chief Justice, may it please the Court.

At the outset, I may — if I may, I would like to follow up on Mr. Justice Fortas’ question because as an advocate of course, I was looking for some independent state ground upon which to base a claim that it’s’ written as granted improvidently.

There was another ground as you know which I did find and argued but that is now behind us.

I was satisfied Mr. Justice Fortas that there was no independent state ground.

That the California Supreme Court did feel compelled to reach the results it reached in this case because of Escobedo.

Whether or not the California Supreme Court would have reached the result anyway in the absence of Escobedo is of course another question.

I think and I will argue this, I hope I would find time to argue this, that the California Supreme Court has taken the correct approach in interpreting and applying Escobedo.

The California Supreme Court in effect said there are three questions.

One is the “accusatory stage” reached at the time of the interrogation.

Two, is the right to counsel which attaches at that point dependent upon a request?

The answer, no of citing Carmony and Crawford (ph).

Thirdly, was there a waiver of the right to counsel?

And the California Supreme Court again correctly I believe, looked to such questions as warning as the age and experience of the accused to determine whether there was a waiver.

I believe, Mr. Justice Fortas that the California Supreme Court was relying squarely on Escobedo.

Potter Stewart:

In other words, it felt bound to reach the result we did in this case by the United States Constitution as it understood that Constitution had been interpreted in the Escobedo decision, is that right?

William A. Norris:

That as I read the California Supreme Court’s opinion, Mr. Justice Stewart.

Potter Stewart:

It did not feel itself free to reach any other conclusion in this case because of the compulsion of the United States Constitution.

William A. Norris:

That’s my reading case, yes sir.

And it is my position here that on the facts, the Stewart case raises a very narrow question and that is whether the requested itself was an essential ingredient in the Escobedo case.

I believe of course that constitutional rights cannot possibly turn on such a tenuous ground.

I was interested that the deputy attorney general conceded that if Stewart had requested counsel, presumably the State would have had to furnish him counsel whether he knew a lawyer or not, whether he could afford a lawyer.

Now once you reach that point, I think we can’t penalized of course the accused who may not even know enough to ask for a lawyer.

This case is indistinguishable as I say on all of its facts except for the absence of a request.

So to reverse the judgment of the California Supreme Court it seems to me, this Court must either overrule Escobedo or distinguish Escobedo on such a tenuous ground that for all practical purposes I believe it would be overruled.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

The State makes an argument that in denying a request, the State took an affirmative act and placed itself between the accused and his lawyer.

Well if it’s an affirmative act that we’re looking for and I don’t really think when it’s necessary, we have it when the police prolonged the detention for five days before taking Stewart before a magistrate.

That is an affirmative act keeping Stewart from his lawyer because once he gets into the formal judicial process he’s entitled to a lawyer.

I would like to review the facts of the detention just briefly.

He was arrested along with his wife and three other persons who just happened to be at his house on the evening of January 31st.

Potter Stewart:

The house was full of stolen goods, wasn’t it?

William A. Norris:

The house was full of stolen goods, Mr. Justice Stewart.

Potter Stewart:

And the police took to the police station the five occupants of the house.

William A. Norris:

That is correct, Mr. Justice Stewart.

Whether or not the arrest of all five of them was based on probable cause, I don’t know.

I can see that the arrest of Stewart was based on probable cause.

Potter Stewart:

In his case.

William A. Norris:

In his case and the record is silent on the reasons to why they arrested the other four.

Maybe it was because of the stolen goods.

Abe Fortas:

I hope you’ll forgive me for interrupting the order of your argument, but I’d like to give fact to what you were talking about a few moments ago and let me try to state to you what’s going through my mind now on the basis of what Deputy Attorney General said and I’m going to use different language.

It seemed to me that perhaps voir dire was assigned and as translated in the Escobedo terms is that the investigation, the interrogation should not be considered to focus on the suspect until a point well beyond the arrest, did I make myself clear to this point?

William A. Norris:

Yes, Mr. Justice Fortas.

Abe Fortas:

Now yesterday or the day before, the counsel read from the prosecutor’s office in Kings County, New York.

As I remember, I suggested that the accusatorial stage begins not upon arrest but when the police have a prima facie case.

I made a note of it and I think that is what he said and there’s another suggestion that the — perhaps the Right to Counsel in Escobedo terms, that is to say one of this focus — focuses arises at some point after the arrest, but let us say before the formal accusation of the indictment or what not.

And in view of that, what would you say?

Does the distinction between this case in Escobedo turned solely on the request that was made in Escobedo and the lack of a request here.

In other words, is there any difference in time as to the request when the request has to be made in one case rather than the other?

William A. Norris:

If I understand the question Your Honor, if it is whether we adopted the prima facie test, we would have reached the accusatory stage in this case as well as in Escobedo.

I would say clearly yes without regard to the request because here, I believe the police had much more evidence against him than a — at the time — by the time of the confession service and even at the time of the arrest than against Escobedo.

They had a personal identification of him as the one who negotiated the checks.

They found the stolen property.

After they took him into custody and questioned him, they got the opinion of a handwriting expert that he did indeed signed those checks.

They finally got some admissions from him that he had possession of some of these articles although he always denied his involvement in any of the crimes.

And finally upon the morning of Tuesday the fifth, the fifth day of detention, the sergeant testified that he opened up the interrogation by saying, “Roy, you killed that old woman and you aren’t even sorry.”

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

Now if that isn’t enough for focus in the accusatory stage, I don’t know what it is.

Abe Fortas:

In other words, if the test should be that the right to counsel attaches at a time when demonstrably the police are out — the police are out to establish a case against the individual and something beyond just probable cause.

That even if that — if that should be a test, it’s your submission that the facts in this case would fall within the limits of that test —

William A. Norris:

Without question.

Abe Fortas:

Is that it?

William A. Norris:

Yes and I do think, Mr. Justice Fortas that the — I think the Court in Escobedo made them what — made what I considered to be a good effort to try to answer what I consider to be the hard question in these cases.

It’s the question that I — that Mr. Justice Douglas asked the other day saying at what point in period to trial do Sixth Amendment rights accrue and I think this Court in Escobedo did a good job in trying to come up with some guidelines as to when that point is reached.

I think the California Supreme Court is doing an excellent job in interpreting and applying Escobedo, giving some more flesh to the guidelines that brought here.

Hugo L. Black:

May it not be a little confusing to talk about the right to the appointment of counsel at that time?

Of course, it’s never been done.

They’re not ready on the trial.

But to talk about it, is all that means? The complete rights to appointment of counsel to continue to represent a man?

Is it not more in line with the facts?

There’s a man under detention and held under compulsion.

He has asked the questions that would tend to incriminate beyond the doubt.

And the Court simply says that he shall not be compelled or he shall not be held to have waived his constitutional rights, one of the reasons being that he doesn’t have a lawyer who could advise him.

I think maybe the difficulty of getting it because of all that these includes to be — talk so much about the right to appoint counsel and basically the question here is whether you’re going to admit a confession given by a person who is held under compulsion without letting a lawyer advise him so that he could determine whether he could waive his rights to — not to be compelled in discriminating that.

William A. Norris:

Mr. Justice Black, I —

Hugo L. Black:

You’re not arguing I’m sure that we’re going to establish a new rule that every time a man gets arrested, he’s got to have a lawyer appointed at that moment.

William A. Norris:

I would not argue that Mr. Justice Black and I think that is not required by Escobedo.

Hugo L. Black:

It’s the section —

William A. Norris:

And I think that’s a false argument.

Hugo L. Black:

Circumstances that come up that show that he’s held in custody when the purpose of holding usually is simply to keep him at the trial.

He’s interrogated and the Court had begged what it held that you couldn’t hold with that man and waive his right not to be compelled to incriminating himself when he had no lawyer telling him what it means.

William A. Norris:

Mr. Justice Black, I agree with you but I also must part company because I do think it is important to analyze these cases in terms of the Right to Counsel.

Hugo L. Black:

Undoubtedly —

William A. Norris:

Because —

Hugo L. Black:

With that connection but for what purpose?

William A. Norris:

Well for a number of purposes, Mr. Justice Black, I can’t conceive of a situation for example in which there could not possibly be any finding that the compulsion itself caused the man to answer the police officer’s questions.

I can imagine a case for example where you have a reasonably intelligent layman who maybe advised a Gideon if you will who may be advised by the police that your — we’re going to have to hold you until tomorrow morning when we’ll take you before judicial officer.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

You don’t have any obligation to talk to them.

So you’re not going to be held here very long just until we get you before a magistrate.

Now we’d like to talk to you.

You don’t have to understand, but we have a few questions and feel free to answer them.

Now what — the only thing he doesn’t know is that he — is his Right to Counsel.

Hugo L. Black:

He knows it by the six policemen around that and he’s in custody and can’t get away.

William A. Norris:

He does know that, that’s right.

The compulsion is that he can’t get away but I think that it would be pretty hard to find compulsion that he — to answer the question.

Hugo L. Black:

Say about what you think about compulsion.

William A. Norris:

Yeah.

Well I —

Hugo L. Black:

If you think about it as the old drawing a gun that might but you have is here a man who is in custody of the law can’t get away with the group of policemen, probably in a little room and they’re asking questions but then what I’m suggesting is that maybe we shouldn’t go too far in saying that under all of the circumstances and condition, the man who was arrested has a right to a lawyer.

It can be said we are simply holding, we’re not going to let any confessions in that were taken at a time when a man was in the custody of the law and he didn’t have a lawyer to advise him.

William A. Norris:

Mr. Justice Black I think we end up with the same point because I think my position is that the only effective way to protect the right to remain silent, the right not to testify against yourself, is to make sure that he has a lawyer.

It is counsel that is the vehicle for protection of all of the other rights.

I was interested that the American Civil Liberties Union argued this primarily as a Fifth Amendment case on the ground that there may be some other ways of protecting their right to remain silent, but when it was all said and done, they agreed that the only one they could really think of was the Right to Counsel.

Potter Stewart:

Now can’t the Escobedo case on analysis be explained in precisely the terms that Mr. Justice Black is suggesting.

After all Escobedo had a lawyer, Danny Escobedo had a lawyer.

He had a lawyer’s advice and the lawyer had advised him not to talk and the very fact that Escobedo then did talk after he was confined within the police station, it was a very clear evidence that he’d been compelled to talk, isn’t that right because he had been advised by a lawyer not to —

William A. Norris:

But Mr. Justice Stewart I could argue that I think the other way.

That those facts shown that Danny Escobedo waived his right to counsel and waived his right to silence, that his knowledge would under Johnson against Zerbst could be argued that way.

Potter Stewart:

Well that would be true if there were any evidence of the waiver but the evidence was all the other way.

He kept asking to see this lawyer who had already given him this advice which was evidence that he did not waive it, did not intend to waive it.

William A. Norris:

Well, that may be and it maybe a totality of circumstances case, but I question whether this Court would reach a different result just because Danny Escobedo either didn’t have a lawyer or didn’t know of his right to a lawyer.

Potter Stewart:

I wasn’t trying to put in your mouth any totality of circumstances theory because I know that you don’t espouse any such theory.

I was merely trying to suggest that the Escobedo decision can be explained in terms of the compulsion of a compelled confession particularly in view of the fact that — and because of the fact that he did have a lawyer who had advised him not to talk.

William A. Norris:

I suppose Mr. Justice Stewart it could be read that way but I prefer to read it the way the California Supreme Court had.

I might say that —

Abe Fortas:

Mr. Norris, excuse me again but as Justice Stewart said you did not espouse a totality of circumstances rule.

I’m not quite clear yet as to what the — what you consider to be the right rule?

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Abe Fortas:

Whether you do or do not regard a totality of circumstances rule as appropriate.

William A. Norris:

I would urge this Court not to adopt the totality of circumstances rule.

Abe Fortas:

And what — what rule would you urge on us?

William A. Norris:

If I may answer that first by saying that even though as an advocate I could go down each of the circumstances cited by the Solicitor General in his brief and argue that on each one of them.

In my case —

Abe Fortas:

I understand —

William A. Norris:

– it argues for over reaching as a conclusion clearly.

The view that I would — that I would urge upon the Court is that the hard question again and the question I think we should grapple with is when a criminal prosecution begins under the Sixth Amendment because it’s the advent of that process that the Right to Counsel comes into play.

Now that’s a hard question.

I don’t think it’s a totality of circumstances question.

Hugo L. Black:

You know the right came in in advance of that, that the right not to be compelled to be a witness against himself.

William A. Norris:

That may be Mr. Justice Black but the Fifth Amendment also talks in terms of criminal cases.

So maybe you have the same problem under the Fifth Amendment of determining for all practical purposes when does a person stand accused of a crime by the forces of the State.

Abe Fortas:

Well you don’t have that problem in terms of the Fifth Amendment privilege against self incrimination, do you?

William A. Norris:

Well I’m not sure about that, Mr. Justice Fortas.

It does talk in terms of in a criminal case.

Now maybe it is arguable that unless you have reached this point in the proceedings you don’t have a criminal case and the Fifth Amendment cannot apply.

Abe Fortas:

[Inaudible] That’s none of the self incrimination provisions been successfully invoked and I think sustained by decisions of this Court in administrative proceedings?

William A. Norris:

That’s right.

Abe Fortas:

Congressional hearings and all kinds of things which aren’t criminal prosecutions so you don’t have that problem if you approach this from the point of view of privilege against self incrimination.

William A. Norris:

Well I don’t think this Court can escape that problem, Mr. Justice Fortas.

At some point, this Court must decide what marks the beginning of a criminal prosecution in the Sixth Amendment.

Hugo L. Black:

Why?

William A. Norris:

Well because —

Hugo L. Black:

The Court’s held a long time ago that what that means is that the Government shall not compel a man to give evidence against himself anywhere on any circumstances.

So why do we have to determine when the prosecution actually began?

The words of the amendment are very simple.

William A. Norris:

Well —

Hugo L. Black:

And it’s been construed its meaning that that means the Government mustn’t compel a man to give evidence against himself of anywhere and anytime.

William A. Norris:

And I would prefer Mr. Justice Black to avoid the question as to whether during secret police interrogation, it happened to be voluntary or not voluntary because I can conceive of some circumstances in which it might be involuntary — er, voluntary.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

And if it is, then I see no more reason to exclude — to admit the confession than — than in the case of arraignment where he’s asked to plead.

The difficulty I have is distinguishing White against Maryland and Escobedo.

Those who argue against Escobedo without regard to the question of compulsion, let’s assume it’s totally voluntary which I think is not the case here, but let’s assume that it is.

You mean to tell me we’re going to let the police effectively charge the man with crime one night and then interrogate him in the absence of a lawyer, and let him confess his guilt, and make a judgment as to whether he should talk, make a judgment for example as to whether or not he is not committing himself to taking the stand at trial as in the Carnley with the consequence results or — but in the next —

Hugo L. Black:

As far as you — as far as you were taken by the police come down, they’re going to interrogate you about a murder and they thought you’ve probably committed it.

They’ve brought a number of policeman to take you down — took you down and interrogated you.

Do you think you need anymore compulsion then that show that it’s compelled testimony?

William A. Norris:

That’s a hard question.

Hugo L. Black:

Aside from anyway —

William A. Norris:

Yes, it’s a hard question for — Oh! All aside from any waiver but what right does he have to waive?

Can he right his — waive his right to remain silent in the absence of counsel?

Hugo L. Black:

We have held many times that a man can knowingly and voluntarily waive a constitutional right.

William A. Norris:

That’s right, but I don’t — that’s correct, Mr. Justice Black.

Hugo L. Black:

What you are going on the assumption is you’ve got to say we compel beyond all doubt to say that I believe you’ve got to plead of the counsel in that.

In order to compel beyond any [Inaudible] to say that, it is not compulsory or the Government to send the police agents, take the man in with a large number of — get him down into a little room by himself and then interrogate him about whether he’s guilty or not.

Does not feel compulsion to you and compelling?

William A. Norris:

What Mr. Justice Black he may waive that intelligently.

Hugo L. Black:

Well that’s — that’s quite difficult, that don’t have the waiver.

That’s why I said maybe in the Escobedo case, if that was brought in because if the counsel was there and told him that — that he could intelligently waive it but nevertheless it wouldn’t keep it from being compulsive unless he made up his own mind that despite the fact that he’s held there secret with these officers, I’m willing to go the limit and give the information.

William A. Norris:

That’s what I’m concerned about, Mr. Justice Black.

Hugo L. Black:

With my advice of counsel.

William A. Norris:

Provided he had the advice.

Hugo L. Black:

No that would — that would be enough to show it as a waiver.

William A. Norris:

Well, I’d like to say my view is that — that’s the case of indistinguishable from White.

If we won’t let him answer the judge’s question as to whether he’s guilty or not guilty without legal counsel we shouldn’t let him confess the night before to police officers who have him in detention.

That’s even more.

He had a greater need I should think for a counsel at that point, perhaps even at arraignment.

Tom C. Clark:

[Inaudible]

William A. Norris:

Mr. Justice Clark, I really don’t think that follows from my position.

I’d like to discuss for a moment the consequences of —

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Tom C. Clark:

[Inaudible]

William A. Norris:

But that it seems to me is a choice for the police to make.

In my view, Escobedo does not require the State to provide lawyers in the police station.

What happens after he’s arrested and after this process of interrogation began is determined by the State.

If the State wants to engage in that process, then he’s accused of a crime, he’s all practical purposes these of the defendant and he must be furnished with counsel but if it — what the State must forgo and the practice that the Escobedo rule will end is the very practice that I think this Court should end and that is secret interrogation of a person accused of a crime by the police and in the absence of counsel.

Potter Stewart:

If we should adopt your rule — your proposal as I understand your proposal then the controversy which shifts to the issue of the question of whether or not the investigatory process had ceased and the accusatory process had began whether the — whether they’re going to focus and certainly that’s a very evanescent kind of a concept to try to pursue, isn’t it?

William A. Norris:

Not as evanescent, Mr. Justice Stewart as totality of the circumstances where you have to take into account the education of the accused, the qualities of the accused, his knowledge, his experience, and all the rest.

Potter Stewart:

Well that’s not the — totality of the circumstances, isn’t a rule.

A rule is that coerced confessions are inadmissible and you look at the evidence to see whether the confession was coerced and that’s I suggest that at least as workable if not much more constitutionally supportable than trying to chase this will of the west of finding out when there had been a focus.

William A. Norris:

Well Mr. Justice —

Potter Stewart:

And that — and that would be the issue in the — if your proposal should be accepted, is it not?

William A. Norris:

That is — that is true but I think that that is a more meaningful guideline than the test to voluntariness or involuntariness and I think that that it will be a more meaningful guideline to the police.

The practical effect of such view as I say will be to discourage secret police interrogation.

And I believe the core of the problem is the incompatibility of the process of detaining an accused purpose — person for the purpose of secret interrogations.

I think that process is totally incompatible with the safeguard of our accusatorial adversary system.

And if you permit the police to engage in this process, it’s so easy to circumvent all of those safeguards.

It becomes a mockery why the police — the representatives of the states here have argued in effect, we must have the right to interrogate while if we don’t interrogate them there, we certainly can’t interrogate them in the court room in the absence of counsel.

Well I should say not and they shouldn’t be permitted to so easily circumvent the safeguards.

John M. Harlan:

I wonder the simplest rule on that basis to be to adopt the English rule that no statement by the police can be used in evidence —

William A. Norris:

Mr. Justice Harlan, that maybe the simplest rule but I do believe —

John M. Harlan:

English here — those are the two broad differences between I think between what’s been argued here for two days and what has exemplified by the difference in English practice and our practice.

They’re veering away a little from it now and we’re being asked to go the route that they’re veering away from.

William A. Norris:

Well I believe that the California Supreme Court is trying to go down a sensible path somewhere between those two positions, Mr. Justice Harlan and perhaps that’s the route we should take for the moment because the California Supreme Court is making a case by case determination.

And in some circumstances where there is a spontaneous confession to the police where there’s a — an effort to — to explain some circumstances, California Supreme Court is just saying fine that those confessions or admissions are —

Abe Fortas:

Mr. Norris, that’s exactly where I’m having little difficulty in understanding your position and it may be that I am responsible for interrupting you so often.

But as I get it from this point what you have said, you do not believe that the State’s obliged to furnish counsel immediately upon arrest.

William A. Norris:

That’s correct.

I think that is not a (Voice Overlap).

Abe Fortas:

Do you believe that if after an arrest, the police begin an interrogation,

but then at that stage, in order for the statements of the person in custody to be admissible, he asked to be furnished with the counsel?

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

That is my position.

Yes, Mr. Justice Fortas.

Abe Fortas:

In every case — but now you told us just a second ago that if the — if the person in custody volunteers and then that’s admissible even if he doesn’t have counsel.

William A. Norris:

I would qualify my response along that line.

I think the police must engage in this process of interrogation.

I think the police must engage as they did in this case in a little adversary proceeding where they’re trying to extract from him a confession.

I think that there is nothing to protect an accused against compulsion from him — within himself.

If he is walking back to his cell with the guard, he might say something that would just volunteer something.

So —

Abe Fortas:

You’re going to have to help me a little more.

Suppose the man is arrested.

He’s not furnished with counsel.

Then the police say something to him along these lines, they say, “Well, did you do it?”

And he says, “Yes, I did.”

Nothing more happens than that except that he is in custody.

Now by giving you that sort of simple illustration, I’d like to see if I can clarify your position.

William A. Norris:

Yes.

I would want to know more facts in — in the Cutter case I believe it was decided by the California Supreme Court.

The fellow called up and said, “Gee, I just tried to kill someone and I’m going to be on a given corner, come and get me.”

And they arrived and he said, “Here’s the knife I’ve used.”

Abe Fortas:

Well that was before arrest, but take the same thing after arrest.

William A. Norris:

I’m going to get into the police car.

He was in the police car and they said, “What really happened back there?”

And he said — he told them, gave them a detailed statement and then they interrogated him again at the police station, a more formal interrogation. The California Supreme Court held that the confession in the police car was admissible because the police hadn’t yet engaged in the adversary process.

I —

Abe Fortas:

And you agree with that?

William A. Norris:

I think I — I think that’s a — that’s a meaningful line, yes.

Abe Fortas:

What about — suppose he had not telephoned then and then not in fact confessed at that time.

Suppose they’d picked him up on the in front of the house or the place where the crime was committed, put him in the police car and then he had just volunteered these statements?

William A. Norris:

Just volunteered the statements? I think they’re admissible, just as they would be admissible if he volunteered them to the guard after he left the courtroom indeed and didn’t have his lawyer with him.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Abe Fortas:

I suppose the police picked him up, put him in the police car and then said, “Did you do it, Joe?”

And then he said, yes.

How about that?

William A. Norris:

It’s a hardline Mr. Justice Fortas.

Abe Fortas:

I’m not trying to get you to answer the questions for that purpose.

I am trying to get as specifically as I can for my own benefit that what your position is.

William A. Norris:

We were focusing on what I call the hard question and that I think is the hard case.

Abe Fortas:

Unhappily we have the hard question.

William A. Norris:

And you have the hard question or it’d be very easy to draw the line at trial but Powell said no.

Sometime in advance of trial and indeed White and Hamilton said that it would be as early as arraignment and Messiah held that it didn’t even have to be part of the formal judicial proceeding, that the adversary system was operating and I think that you can’t draw the line so formally and that’s hard.

Potter Stewart:

Beside — beside excuse me.

I beg your pardon —

William A. Norris:

Yes sir, excuse me.

Potter Stewart:

Well are you answering Mr. Justice Fortas’ question?

I’m sorry, I didn’t mean to interrupt you.

William A. Norris:

I just wanted to say that it would be easier to – simpler to draw the line at one of these cut-off points but I don’t think it would be meaningful because you would so easily permit the police to circumvent all of the safeguards of our society.

Abe Fortas:

Well then you are sort of a totality of circumstances man or sort of a sub-totality of sub-circumstances.

William A. Norris:

In the sense that the line will be hard to drop but it doesn’t get into all of the factors and the tough factors that turn on the particular individual.

That’s what the police are doing and what — what the process that they’re engaged in which becomes the important process.

Yes.

Excuse me, Mr. Justice Stewart.

Potter Stewart:

[Inaudible]

William A. Norris:

I’m sorry.

Well —

Tom C. Clark:

Well, [Inaudible] standpoint.

William A. Norris:

Well I think the only practical effect of the rule that I think is the Escobedo rule would be to —

Tom C. Clark:

[Inaudible]

William A. Norris:

Yes.

The only practical consequence as I believe Mr. Justice Clark, would be to put an end to the practice of interrogating persons accused of crime in a police station in secret without the advice of counsel and I think that practice should be discouraged.

Tom C. Clark:

Well if that is in a rural area, I think it come down [Inaudible] lawyer in the whole county.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

Well, I think the avenue open to the police is not to interrogate him but to take him before a magistrate at the earliest possible time.

I believe it is incompatible with our system to give the police the power to take a man and hold him in secret and interrogate him.

Tom C. Clark:

What would you say about a warning of interrogating a lawyer [Inaudible]

William A. Norris:

That would come to a question of waiver Mr. Justice Clark.

I think for one man, a warning might be effective.

For another man, an experienced criminal lawyer, a warning might be unnecessary.

Still for another man who really isn’t incapable of making a judgment even with a warning, a warning may not be enough.

I think that’s a factor to take into account in determining whether he has made the knowledgeable and intelligent waiver of this (Voice Overlap) —

Tom C. Clark:

I’m not taking into account [Inaudible]

William A. Norris:

In my view, that would not be enough.

That would not be enough.

Tom C. Clark:

How much further would you have to go?

William A. Norris:

Well because I — my experience with this is in the District Court and I have watched Judge Hall for example interrogate indigents about their rights and it’s very tough to waive your right to counsel before Judge Hall and I think it should be.

I think that you have to have evidence of a — that that man knew what he was doing.

You can’t force upon him a right to counsel.

You can’t force upon him any of his constitutional rights, but that’s a — that’s a — that is a hard question and that is a totality of the circumstances question it seems to me.

Tom C. Clark:

Those who put it [Inaudible]

William A. Norris:

Yes, excuse me.

Tom C. Clark:

[Inaudible]

William A. Norris:

Well —

Tom C. Clark:

And that the same circumstances occur.

William A. Norris:

Then I think, you may have — you have essentially the same question.

It’s a question of waiver and it may not be —

Tom C. Clark:

[Inaudible]

William A. Norris:

Well that’s why I would prefer to keep away from the Fifth Amendment because I think it ought to be as under White against Maryland.

It just ought to be whether he had the protection of counsel in making the judgment about whether —

Tom C. Clark:

But, sir, take California’s statistics.

27.5% of those people who have picked up an investigative purposes [inaudible]. Apparently, I thought it would be a reason for that, then that means to say that they were [Inaudible]

William A. Norris:

No, Mr. Justice Clark, I would simply require the police to take him before — take him before a magistrate forthwith.

Tom C. Clark:

Without questioning him at all?

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William A. Norris:

Without question, that is correct.

Tom C. Clark:

Then the entire counsel [Inaudible]

William A. Norris:

Well that’s — that’s a judgment for the — for the individual to make if he feels that he can give a good explanation why he’s not guilty.

I should think he could do that pretty easy.

Tom C. Clark:

To get back to the very thing I asked him, [Inaudible] counsel, wouldn’t that be a matter of judgment and for them they went all assuming with the normal person.

William A. Norris:

I think that’s right and as I say, there’s no way to keep a man from volunteering a statement.

Tom C. Clark:

I was trying to part with counsel and that they just had [Inaudible] then he has made a judgment.

William A. Norris:

Alright, and that — that may be a fair position but I think it should turn on whether he’s made the kind of waiver of constitutional rights that this Court requires in order to be effective and that very well maybe the practical result.

Earl Warren:

Wouldn’t the question of whether or not there was a waiver depend to some extent at least upon on the kind of warning that he was given.

Let’s take two extremes.

Let’s take one where a District Attorney has been arrested for crime and the police said to him now, “Mr. so and so, you — you know what your constitutional rights are.

You know you don’t have to testify and so forth, that would be one situation.

On the other hand, if you take a poor illiterate fellow who couldn’t read nor write and who had no friends available or family available and they just went to him and said, “You know what your constitutional rights are.

You don’t have to testify and if you do, we can use against you and so forth.”

That in the exact words that they — that they spoke to the District Attorney.

There might be a great difference there, might there not, as to whether there was a waiver if the man after that said answered the questions when they started speaking to him.

William A. Norris:

I would agree with that Mr. Chief Justice and that’s why I believe that you can’t automatically tell from the words of the warning.

I think you have to take into account the qualities and the capacity and the education of the accused person himself.

Tom C. Clark:

[Inaudible]

William A. Norris:

Well on the — I’m not quite sure.

I’m never quite sure what that means, Mr. Justice Clark.

I must admit but it — excuse me.

Hugo L. Black:

[Inaudible] on waiver.

William A. Norris:

On waiver, what I — it does mean certainly that you have to take into account the age, the experience etcetera of the accused, and if that is what is meant by totality of circumstances, yes that must be taken into account.

On the question of waiver, not however on the question as to whether we have effectively reached the accusatorial stage which is just another way of saving — saying that we have reached the point where the person stands accused of a crime by the forces of the State and that’s I believe — the time I believe when he’s entitled to all of his constitutional rights including his right to counsel at anytime that the State proceeds against him in an adversary way.

I have argued as an alternative ground that the judgment should be affirmed because the confession was elicited during a period of illegal detention and I will just state that point because I really think these two arguments tend to run together in terms of their practical effect.

The fact is that Roy Stewart was held for 116 hours before being taken before a magistrate as were four others and we don’t know the realms upon which they were arrested.

We do have a rather remarkable line in the record.

The sergeant testified that the other four were released, including Stewart’s wife following his confession on the fifth day because there was no evidence to connect them with any crime.

Our view is that under the California law, they must be taken before a magistrate without unnecessary delay.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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William A. Norris:

The State argues a 48-hour maximum in terms to permit a 116 hours.

I think that is — that you can’t possibly reach that conclusion under California law.

Without unnecessary delay means without unnecessary delay and they must explain why he was held all day Friday when the courts were opened then all day Saturday, all day Sunday, all day Monday when the courts were open and they finally got their confession out of them on Tuesday morning and took him before a magistrate that afternoon.

Our position is that the State must establish reasonable ground rules to authorize police to arrest persons and to hold them for a reasonable period until they can get them before a magistrate.

A valid purpose of such a statute may not in our view be to hold him for the purpose of interrogation.

Now if the State — if the police do not operate pursuant to these ground rules, then the police are operating beyond the law and that we submit is clearly a deprivation of liberty without any process of law much less due process of law and we think therefore that applying Wong Sun the exclusionary rule of McNabb that this confession obtained during a period of illegal detention must be excluded.

Earl Warren:

What community was this arrest made?

William A. Norris:

In downtown Los Angeles —

Earl Warren:

Downtown Los Angeles.

William A. Norris:

In the Watts area, Mr. Chief Justice in the area of the Watts.

Earl Warren:

It’s only the — adjourning of two three minutes you have it (Voice Overlap) —

William A. Norris:

Thank you Mr. Chief Justice.

I would like to conclude by pointing out that there are issues remaining and since one of the — this is — we do not conceive the voluntariness of this confession.

The voluntariness was challenged at trial, instructions were given.

It appears that the requirements of Jackson against Denno were not satisfied.

The California Supreme Court expressly reserved that question for a retrial.

I wanted to point that out.

There is also a question under Griffin against California since the prosecutor commented on his failure to testify on some of the counts.

And in conclusion I would like to say that we must make a choice it seems to me between the adversary accusatorial system or the inquisitorial system and I think those who argue against Escobedo are caught between them.

I think we must recognize that this practice of secret police interrogation why they conducted a little pretrial procedure here against Roy Stewart complete with tape recorders which they turned on at their convenience, complete with an accusing witness, complete with a statement that the handwriting expert testified that — or had stated that he had signed the checks.

They tried him in the back room of the police station and held him as long as they needed to, to get finally get the confession.

And when he did confess, he confessed to a simple act of purse snatching.

He was very careful to avoid in his confession saying that he had anything to do with any of the other crimes.

He confessed that he ran up and he took a purse and he said, he was asked whether he kicked her and he said, “I’m not sure, she fell I think and well apparently she hit her head and there was no evidence that this was an intentional beating.

He didn’t know the consequences of the felony murder doctrine.

He certainly did need a lawyer at that time.

What he confessed to was a single act but he didn’t understand were the legal consequences.

Thank you, Mr. Chief Justice.

Earl Warren:

Mr. Ringer, you may proceed with your argument.

Gordon Ringer:

Thank you, Mr. Chief Justice.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

I would like to begin by making one preliminary point which has no relevance whatever to the case, I think, but it was injected by Mr. Norris, neither the crimes nor the arrest of Mr. Stewart occurred in the Watts area, so I don’t think we find in this case the emotional aura that is associated with that subject.

This was some six miles north of Watts. Secondly, I think we should bear in mind that when the officers arrived at Mr. Stewart’s house, they found a house full of stolen goods which were not limited to the exhibits which were introduced in evidence at this trial.

It’s been conceded by Mr. Norris that Stewart was arrested on probable cause and it’s quite clear from the record that Lillian Lara was arrested on probable cause at the very moment.

Now it’s true that the record as to the other three men is totally indeterminate as to — from the existence of probable cause although they were in a house which is full of stolen goods but this would seem to follow the record being indeterminate precisely because it was Stewart who was on trial and not these other people.

And so there was no occasion to go into the – no occasion, to go into the other circumstances involving them.

Out of this 116 hours delay before the taking of Mr. Stewart, before the magistrate, we’ve already pointed out the total time of interrogation, consumed was less than three hours, according to the testimony of the investigating officers, all of the other persons involved were questioned about these exhibits as well as the other exhibits that were found in the house.

The ultimate question in this and I think in any case involving the introduction and evidence of a confession or incriminating statement of the accused is whether it was coerced.

I mentioned at the opening argument there was an issue at trial with coercion which was strictly limited to a claim that the officers have promised to release Lillian in return for his confession after he confessed and that she was released and that this was rebutted.

The other claims that have been made by Mr. Norris, I think, are as follows.

That fundamentally, that this man was — this man made a confession which should not have been received in evidence against him because the right to counsel attached even upon arrest.

We have already stated our views as to the Escobedo decision.

We understand of course that there is a conflict in opinion among the various jurisdictions as to the meaning and scope of Escobedo.

We suggest, however, that our interpretation of it, that it’s a totality of the circumstances case is the proper and the correct one.

The next point I’d like to bring out is this.

That the — this case differs from the other four that were before this Court, in that in each of the other cases, when the police arrested a man they arrested him because of a certain specific crime and any statement that was taken was about a certain specific crime that they arrested him for.

The officers went here having prob — went to his house having probable cause, they believe that he committed at least a forgery of the Whales check.

They discovered all of this other property which led and envisioned the thought of his possible implication in the series of other brutal crimes, including murder.

Had they not questioned him, there would have been no way to bring home to him or to anyone else in the world these crimes and the police would have been required simply to do this to take the exhibits which were found, return them to the victims and to say, we think or we have a suspicion that your act was murdered by this gentleman, that you were beaten by this gentleman, and that would an end of the case.

There would be a certain social cause, a considerable social cause.

You’re dealing in this type of case was an unwitnessed homicide where there are no fingerprints, no technical leads, no magnetic evidence, no electronic evidence, no scientific evidence of any kind and there are certain kinds of crimes which can only be solved by asking questions.

I’m not suggesting that whatever rule that Your Honors will adopt will be one for unwitnessed crimes and another for witnessed crimes, but I’m suggesting that in determining whether Stewart’s conviction was properly obtained and whether Stewart’s confession was properly received in evidence that these factors should be taken into account.

As for the emphasis of Mr. Norris upon the secrecy of the interrogation, I think we can take the word secrecy too far.

This man was in jail.

There’s no question about it and he wasn’t invited by seven armed officers.

He was arrested and taken into jail.

But there’s no — nothing in the record and no claim made here that he was not allowed to see anybody he wanted to see.

In fact, he wanted to see Lillian Lara, his girlfriend or his wife, whatever you want to call her.

He wanted to, he asked to and he did.

And he even claimed that she came to see him a second time which the officers denied having occurred.

There was we submit on the facts of this case no compulsion in the constitutional sense whether we look at it from the point of view of coercion or from the point of view of — of the point of view of the — of the point of view of Fifth Amendment.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

With respect to the state statute, we submit that the statute was complied within this case, was complied within this case and to hold it was not would be to take a rather giant leap.

The argument is based on Wong Sun versus the United States and this is — I would suppose a — a rather muted, a rather muted argument under McNabb and Mallory.

The Mallory rule is, I think, is generally recognized, is a rule arising under the supra Missouri jurisdiction of this Court.

It’s never been suggested in any opinion in this Court that it’s a rule of constitutional dimension.

So you — in order to apply it to the States, you would have to take pretty giant step and then of course, it’s a decision for you as to make.

It’s for mine perhaps to contravene and say it should not be done for Mr. Norris to urge, that’s your decision.

It’s a pretty giant step to take.

Abe Fortas:

Mr. Ringer —

Gordon Ringer:

Yes.

Abe Fortas:

Is there any point prior to the signature of the written confession at which you think the Right to Counsel would attach?

Gordon Ringer:

In this case?

Abe Fortas:

Well in this case generally.

Gordon Ringer:

Well —

Abe Fortas:

You got to say in this case but it didn’t — what are your general observations?

Gordon Ringer:

Well my view is that there is no generalized Sixth Amendment’s right to counsel.

There was a denial of assistance of counsel in Escobedo because the State did affirmatively deny him counsel.

Abe Fortas:

Well is there a point prior to the signature of the written confession in which your warning should be given?

I’m talking about all of this of course as bearing upon the admissibility of the confession.

Gordon Ringer:

What I’m — what I wish to say in reply to your question, I hope you will not construe as a sort of getting away from it.

What I say is in determining the inadmissibility of this confession whether or not a warning was given as a factor among the totality of the circumstances.

This is a test proposed by the — proposed by the Solicitor General in his brief.

But I do not mean to concede or to suggest that that would be the dispositive factor.

It would simply be a factor in determining voluntariness because the ultimate test is one of (Voice Overlap).

Abe Fortas:

Voluntariness of what?

Gordon Ringer:

Of the statements —

Abe Fortas:

In short, what I’d like to do —

Gordon Ringer:

The voluntariness of a statement made by the — of a statement made by a person to the arresting or investigating officer.

Abe Fortas:

I’m asking your help.

I’m trying to refine these concepts a bit.

The statements are voluntary let us assume or not involuntary let us assume in the sense that the arrested person was not beaten and he was not mistreated or subject to any psychological torture —

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

Correct.

Abe Fortas:

-– at all, but he was there and he was being interrogated and he did not have counsel —

Gordon Ringer:

That is true.

Abe Fortas:

Now is it your position that only if involuntariness of the confession in the sense that there be there psychological or physical maltreatment that that’s the only kind of — that those are the only circumstances that would make a confession involuntary for the relevant purposes.

Gordon Ringer:

Well there are — may I meditate on that for a moment.

The typical indeed the only cases of the coerced confession that we’re familiar with in the records of this Court or in the records of our own courts are cases in which the police did something whether physically or psychologically which under the traditional concept of due process broke this man’s will or whatever other formulation maybe chosen to use in a particular case and what I’m suggesting is that certainly the absence of a warning or the absence of counsel would not standing alone render a confession involuntary in the classic sense, but I think it would depend upon the particular facts of the case.

Abe Fortas:

I know, but what I’m trying to get at is this.

In your view is the totality of circumstances merely a new way or a special way of saying the — of asserting the coerced confession rule?

In other words when you say that the rule ought to be totality of circumstances, are you saying anything more than that a confession ought to be admitted unless it is a coerced confession in the traditional sense.

Do we get anywhere by saying totality of circumstances —

Gordon Ringer:

Well totality —

Abe Fortas:

Since we’ve already submitted to the old coerced confession —

Gordon Ringer:

Totality of circumstances is a catch phrase which means that the Court looks at all of the facts.

And I suppose you can attach too much significance to the particular use of a catch phrase.

But what I wish to say is simply that the usual test of the coerced confession, the usual test of admissibility is one of coercion and that unless you can say before some specific statement is made either in this case or in some other case, the Sixth Amendment right to counsel is specifically attached then the test does remain one of voluntariness in the traditional sense.

Abe Fortas:

Well I’m a bit afraid that what we’re — the issue as personally drawn it seems to me maybe one between the exclusion of admissions on the ground of physical or psychological pressure punishment in the traditional sense.

Or the asserted presence of pressure or coercion, or whatever one might want to call it, which flows from the very fact of the arrest, in the absence of counsel and I’m afraid that perhaps that — perhaps when you say the rule ought to be a totality of circumstances rule that advances much beyond a fact that it is a reassertion of the traditional coerced question rule.

Gordon Ringer:

Well it’s not this of the rule which is propounded in the Solicitor’s brief in which I am suggesting you.

It’s not necessarily in advance and whether — whether there should be an advance or a stand — certainly no one claims there should be retreat, but the question is whether there should be an advance or whether the rule is compendiously formulated there is the proper one.

Abe Fortas:

Now well all I’m trying to do is to clarify my own mind with your help whether the issue really may not be one of the — except the pre Escobedo rule in the cases where there’s no specific request for counsel or whether Escobedo has some implications that carry the problem beyond the pre-Escobedo rule of coerced confessions.

Gordon Ringer:

Well if it please the Court, I can’t deny that there are men of great honor and integrity, men in my Court who believe it does have implications and there is of course, a difference of opinion as to what implications it has.

But we do regard the Escobedo case as having said what it meant and meant what it said.

Whether we do regard the rule contended for by Mr. Norris as an extension and if you believe it should be extended, you sit here as a court to extend it if the question is whether it should be.

Earl Warren:

Well Mr. Ringer, isn’t there in this rather classical case as to what can happen to people when they’re just brought in for investigation and interrogated?

In this case as I understand it, the police went to the home of this man and there happened to be some neighbors or visitors there in the home at the time.

They found some stolen goods in his house and they put everybody in the house in jail and they held him there for five days.

Gordon Ringer:

Yes, they did.

Earl Warren:

Just a moment, let me finish please, held him there for five days until one of them confessed and that being Stewart.

Gordon Ringer:

That’s correct.

Earl Warren:

And then when he confessed and only when he confessed did they release the other five who spent five long days and nights in jail because of your interpretation, that under our Constitution, the police have the right to arrest people and hold them on suspicion perhaps and hold them until they get ready to let them go.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Gordon Ringer:

Well if Your Honor please, as I endeavor to point out, Stewart and Lillian were arrested on probable cause and as to the others we have an indeterminate record.

Earl Warren:

I beg your pardon.

Gordon Ringer:

We have an indeterminate record as to the other three people.

I can’t make any assertion one way or another.

What grounds of suspicion of these three people the officers had when they went there or got when they talked to these people or did whatever they did at the premises.

You see, I don’t know the answers to those questions.

Earl Warren:

I understood that we tried the theory, they didn’t seem they have no knowledge of these other people, didn’t even know they were to be there or anything else.

They just knew that this fellow had passed a check belong to a woman who is killed.

Gordon Ringer:

As that may well be true Your Honor, I’m simply in no position to affirm or deny because I don’t know and the record doesn’t tell us.

Earl Warren:

Yes.

Gordon Ringer:

I would assume that case — California had an exclusionary —

Earl Warren:

But wouldn’t you think that the police have any right to do that if the facts were as I stated, that they went there to be — to get this man because he had passed that check and then they arrested everybody in the house and kept them in jail for five days for investigation.

Gordon Ringer:

If Your Honor please, I believe as you believe, as we all believe that an arrest must be based on probable cause.

Earl Warren:

Yes.

Gordon Ringer:

The last time I was here three years ago in Kerr California that was the precise question before the Court, the principle of which everyone agreed upon.

All I say is that California had the exclusionary rule or at least diversion of the exclusionary rule which is quite similar to that rule many years before Kerr and before Mapp and before Kerr.

The record does not show anything other than that they were there and that this house was full of property.

And I can draw no presumption one way or the other as to that because the issue was not explored at trial.

This was the trial of Stewart and the trial whatever the investigation did the trial focused on him to the exclusion of the others except as counsel for either side might have chosen to bring out those of the facts which they wished to.

And so I can’t — I can accept the principle but I have no way of prejudging or post judging the facts.

Earl Warren:

Very well.

Gordon Ringer:

I believe that my time is expired but I wish to say one word.

Earl Warren:

You may.

Gordon Ringer:

This case is unprecedented.

It is unprecedented because this is the first time that this Court has consented at the request of the State to review a judgment of reversal in a state criminal case involving questions other than statutory of constitutional construction.

It’s not normally the practice of counsel who thank the Court for taking over the case.

But this is the first time that’s been done to my knowledge in 200 years and I should — I should thank the Court for hearing our side and contemplating the position which we advanced.

Earl Warren:

Well before calling the next case, I would like to thank counsel for — on both sides for having presented very strongly arguments in all of these cases and I would like particularly to express our appreciation to those who took these cases as charity cases or were assigned to them by the courts below.

Mr. Norris, I know you were appointed by this Court because of indigency of this man and we are very grateful to you for assuming that obligation, it’s a public service in our opinion.

Mr. Fawcett, I don’t know whether Mr. Fawcett is still here or not but he was appointed by the Court of Appeals in Number 761 and we thank him also and Mr. Earle was appointed through the Legal Aid Society which we asked to argue the case and our thanks go to him.

Audio Transcription for Oral Argument – March 01, 1966 in Miranda v. Arizona

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Earl Warren:

I’m sure that Mr. Frank and Mr. Flynn in 759 also were doing this as a work of charity and I’d like to express our appreciation to all of them and of course, our appreciation to those who represent the interests of the states.

It’s been a good job and of course have been of very much help.

Thank you, gentlemen.