Miranda, Brown, Dickerson, and the Fifth Amendment

Miranda warning
Miranda Warning
Very few people do not know about Miranda warnings. How did self-incrimination get here?

Another Friday night pizza night. Each week, I end up making pizza since we moved to Kentucky. It is the best option. I recommend a few things: (1) put olive oil, honey, and salt into your dough, (2) use fresh mozzarella and some white and yellow cheddar cheese with Parmesan, oregano, and basil tossed in, and (3) prebake your crust for a few minutes.

My Country – Brown v. Mississippi and Miranda v. Arizona

Justice Douglas concludes his walk through the Fifth Amendment with an examination of what he calls “The Third Degree.” He begins by discussing that one reason for the self-incrimination provisions of the Fifth Amendment was the history of the treatment of suspects. He focused on how every person has a breaking point, regardless of guilt, through torturous means.

Although An Almanac of Liberty precedes the decision in Miranda v. Arizona, the concept of “The Third Degree” plays through the decision as well. But instead of worrying about the breaking point, Chief Justice Warren focused on police procedures to ensure that the Third Degree could never be reached.

Brown v. Mississippi, 297 US 278

On February 17, 1936, the Supreme Court overturned the murder convictions of three black tenant farmers. The police obtained one confession by handing the accused from a tree and beating him and the other two by laying the victims across chairs and whipping them with a strap and buckle until they bled. According the the court record, in response to the inquiry as to how severely he was whipped, the deputy stated, “Not too much for a negro; not as much as I would have done if it were left to me.”

The state supreme court did not overturn their convictions because “immunity from self-incrimination was no essential to due process of the law.” Chief Justice Charles Evan Hughes disagreed. He stated that a state can regulate its courts’s procedures unless “it offends some principles of justice so rooted in the traditions and conscience of out people as to be ranked as fundamental.” In fact, that freedom was limited by the requirement of due process. “The rack and torture chamber may not be substituted for the witness stand.”

In conclusion, Chief Justice Hughes wrote in regards to the Fifth Amendment holding, “It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.”

Miranda v. Arizona, 384 U.S. 436

We have all heard Miranda warnings by watching TV. They became an every day occurrence on TNT through Law and Order reruns. But the decision in Miranda v. Arizona began in the same place as many of the arguments we currently have regarding policing. Ernesto Miranda was not innocent. He had repeatedly tried to rape a young woman in Phoenix and on his third attempt, he succeeded. However, the Court needed to ask did Miranda, a horrible rapist, have a right to know his rights. And if so, did the police have an obligation to tell him? (Justice for All: Earl Warren and the Nation He Made, Jim Newton, pgs.464-470)

In his preliminary notes, Chief Justice Earl Warren clearly wanted to lay out rules for the police. As a former prosecutor and governor, he had used misconduct to his advantage. But as a Supreme Court just, he grew increasingly unsympathetic to the rough police tactics. He scribbled the rights we have come to know early:

  • remain silent,
  • consult with a lawyer,
  • have a lawyer provided if you cannot afford one

Later, Warren added the last bit: anything you said may be used as evidence.

However, one of his closest colleagues, Justice William Brennan felt the opinion was too rigid a solution. He argued the opinion failed to leave room for the state legislatures or Congress to devise alternative procedures. But after discussing and arguing with the Chief, Brennan withdrew a preliminary concurrence that left open those options. The Chief felt the need for clear guidelines.

Miranda warning

A Workable Doctrine

Tailored by the voice of a Governor instead of the Chief Justice of the Supreme Court, the Miranda warnings became household terms. Warren and Brennan worked to ensure that the Court balanced legitimate law enforcement needs against the protections of the Bill of Rights. (Justice Brennan: Liberal Champion, Seth Stern and Steven Wermier, pgs. 237-241)

To build this doctrine, Chief Justice Warren also hearkened back to many of the individuals Douglas has mentioned prior in An Almanac of Liberty.

Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637…The oath would have bound him to answer to all questions posed to him on any subject. He resisted the oath and declaimed the proceedings, stating: “Another fundamental right I then contended for was that no man’s conscience ought to be racked by oaths imposed to answer to questions concerning himself in matters criminal, or pretended to be so.”

The Miranda Dissenters

But the opinion had four votes against it.

Justice Clark wrote in dissent.

The police agencies — all the way from municipal and state forces to the federal bureaus — are responsible for law enforcement and public safety in this country.” He felt that the majority opinion belittled their work. In other words, no reasons presented in this opinion would lead him to completely change police procedures. “In this way, we would not be acting in the dark, nor, in one full sweep, changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society.

Justice White’s dissent looked to history. He argued that the privilege against self-incrimination during an in-custody interrogation had no significant support in the history of the privilege or in the language of the Fifth Amendment. He believed that the privilege only pertained to a witness stand or courtroom.

However, both of these dissents performed as singles. Justice Harlan took a full swing.

Justice Harlan’s Dissent

Harlan saw no traditional “indicia of coercion” in this present case. But moreover, he focused on the rise in crime and stood against judicial activism. His argument stemmed around the idea that social costs of crime are too great to call the new rules anything but a hazardous experiment.

Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances.

In the end, Justice Harlan believed that if legislatures wanted to take these tactics, they can debate them. He felt the creation of the Miranda warnings by fell outside the scope of the Constitution.

[N]othing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities.

He concluded by quoting Justice Jackson.

This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.

Initial Reactions to Miranda

North Carolina Senator Sam Erwin, a Democrat who defended Jim Crow laws and segregation disliked the decision. He argued, “[e]nough has been done for those who murder and rape and rob. It is time to do something for those who do not wish to be murdered or raped or robbed.” However, Erwin later became a noted liberal lion on other civil liberty issues such as his opposition to “no knock” search laws,  invasions of privacy,  prayer in public schools, and an exclusionary rules about illegally seized evidence. He also became famous as the chairman of the Watergate hearings.

Additionally, the justices also got letters questioning their opinion. Justice Black received a letter from Raymond J. Messner. Messner argued that the court had become removed from reality. He feared that the Russians would take over the country if the Court continued to tie the hands of law enforcement. He finished by asking the Justice, “Would you like to be a police officer under the laws that you are handing down in recent years?”

Justice Brennan also received a letter from prosecutor Ralph Berry. He wrote as a member of the ACLU. He argued that the Court could not possibly have any practical idea of what law enforcement does. “You decision will do nothing but permit rapists, persons molesting minor children, murderers, robbers and burglars to have an opportunity to escape any punishment for their crimes.” He then placed any victims of crimes that result from this opinion at the majority opinion’s feet.

The Future of Miranda

Justice Brennan sat on the court for over twenty years after Miranda and felt like he watched the decision fall apart. In 1971, Earl Warren’s replacement, Chief Justice Warren Burger wrote an opinion affirming that prosecutors could use evidence police obtained before issuing a Miranda warning to impeach the credibility of the suspect. In other words, if  suspects took the witness stand to defend themselves, the prosecutors could use their words against them as proof that they are lying or to hurt their credibility. Brennan felt that this decision was monstrous as courts aided and abetted law-breaking officers. Much of Brennan’s distaste for the cracks in Miranda fell to the hands of Justice William Rehnquist.

Dickerson v. United States, 530 U.S. 428

However, in 2000, Chief Justice William Rehnquist penned the majority opinion, Dickerson v. United States, that cemented Miranda into the 21st century.

Congress enacted 18 U. S. C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.

Another reason why Chief Justice Rehnquist upheld Miranda: stare decisis, or precedence. “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented – harshly.

And so, to justify today’s agreed-upon result, the Court must adopt a significant new, if not entirely comprehensible, principle of constitutional law. As the Court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” As I shall discuss in some detail, the only thing that can possibly mean in the context of this case is that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful “prophylactic” restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist.

What Justice Scalia tried to say in too many words was: it was wrong then, it’s wrong now, and just because it announced a rule doesn’t make it right.


We continue to debate police tactics, how to treat a suspect, and what safety means. Our new President continues to tell us that we live in a crime riddled country. And in some instances, we do. However, I do not agree with Justices White and Scalia that the Fifth Amendment does not stand privilege against self-incrimination for in-person interrogations. Look back to the Brown decision. Police officers beat and tortured three men as suspects. They took away their rights to not incriminate themselves and they confessed under horrible conditions. Chief Justice Hughes looked at that treatment and argued that Fifth Amendment does not stand for that.

But Miranda continues to have its detractors. Justice Scalia hated it. And we will learn what the man appointed to his seat thinks about it in due time. Yet, having this national standard of rules designed to provide an individual with their rights simplifies the system. What would keep that fine line between the Fifth Amendment and solid police work?

I understand the logic with Justice Scalia’s reasoning. Miranda warnings do not come directly from the Constitution. Chief Justice Warren wrote them. He came up with them by looking at police procedural guides and other sources. He codified them as law. And the Supreme Court has continued to stand with those rights we all know from Law and Order. My judicial temperance does not disagree with that notion. I have never been an originalist and never would be. Law, like life, adapts. But at its core, human decency steps in.

In the end, I have to agree with Chief Justice Warren

[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.

Daily Briefing

  • Robert Harward did not want the job as National Security Adviser after watching the Trump press conference. Now others can say no.
  • I used to say that I wanted to feel content. I hate that I used to say that.
  • 277 graduate students received emails saying they got accepted to Columbia University. But they didn’t.
  • A college course on bullshit. I called that most of my classes.
  • If the administration tries to shape PBS, I will take back my funding. But I suppose that is what they want, so maybe I keep paying.
  • More lies from the Trump administration. Just make the economic data better.
  • Paul Ryan does not care about poor people. Paul Ryan may not be a person himself. His health care plans helps the healthy and the rich. Anyone who may be sick, good luck. Very Christ like.
  • This interview with Mark Sanford just proves Mark Sanford is a weird guy.
  • Yeah, I hope you did not like the environment because he sure does not. Pruitt will try to ruin most of the beautiful land we have so his friends make a profit.
  • Who needs to teach science and facts? Not the Trump administration. They changed the EPA’s Energy for Kids page!
  • This horrific story from Des Plaines continues to prove why we need self-driving cars. People are reckless and four people are dead. Why? Because one of them decided to go 100 miles per hour on Northwest Highway.
  • National Guard to get immigrants? Sure. Is it clear? No. Will it happen? Who knows?
  • At least some priests continue to stand for what Jesus stood for. Of course, Republicans cannot.

Daily Distraction

Over our lunch break, Brian and I went for a run. Otherwise, I used every free second of my day reviewing Supreme Court cases. I have the luxury of owning several book about the Warren Court and its justices. So, I recommend buying books at Half Price Books on topics you enjoy. During my college years, I loved to write papers. I would get dozens of books through interlibrary loan and stack them up high. With piles of note cards, I would write down page references and copy lines. When I began to write, I took those cards out of the books, cited accurately, and came to a conclusion. I enjoy studying and finding sources. I love to expand what I know and find educated people who wrote much better lines that I ever could.

Find things you enjoy and read about them. Take notes. Expand what you think or know. I just wrote more words about Miranda than I ever have. Very few people will ever find this article. But I learned more about the Fifth Amendment in the last few days than I did in law school. It feels good.

One Sentence Story

Somehow he must have become scared of the recycling bin.


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