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Ruling 20 Years Old : Miranda Whittled at but Intact

Times Staff Writer

According to Ernesto Miranda, the Phoenix police detectives who interrogated him as a rape suspect in March, 1963, told him: “You better tell us . . . or we’re going to throw the book at you.”

The policemen denied using threats to gain Miranda’s subsequent confession--but that made no difference when the 23-year-old ex-convict’s case finally reached the Supreme Court. Miranda had not been warned of his right to silence and to counsel and that anything he said could be used against him, the justices said, and thus his statements could not be used at trial.

The decision on June 13, 1966, in an opinion by Chief Justice Earl Warren, broadly expanded constitutional protections against self-incrimination and ordered sweeping new restrictions on police questioning of suspects in custody. And, although the Miranda decision has been attacked since then by critics and limited in application by the high court under Chief Justice Warren E. Burger, the heart of the ruling remains intact.

Reflected on TV

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Its requirements are followed throughout the nation: As viewers of television crime shows well know, police officers now read suspects their “Miranda rights” routinely before they undergo any questioning.

Legal experts generally agree that the Miranda decision, which became one of the best known in this country’s legal history, has proved to be neither a disaster for law enforcement nor an impenetrable shield for defendants. Unquestionably, fewer suspects now are willing to talk to police officers after being informed of their rights--but surprising numbers still do, authorities say.

Nonetheless, 20 years after it was rendered, the debate over the Miranda decision goes on--and seems to be intensifying in the face of renewed attacks by its critics.

‘Infamous Decision’

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Atty. Gen. Edwin Meese III has assailed Miranda as “an infamous decision,” and the Justice Department now is considering an attempt to get the ruling overturned by the Supreme Court. Such an attack on Miranda could be made directly by the Reagan Administration in a federal case, or indirectly through a “friend of the court” brief by the government in support of state authorities challenging the ruling.

“If there is a case that emerges that provides the opportunity for a head-on challenge to Miranda, we will have to make a decision at that time,” said Terry Eastland, the department’s director of public affairs. “My own guess is that we’d probably take it on.”

On a wide front, prosecutors and other critics assert that Miranda requirements have needlessly impeded the task of law enforcement. Criminal investigation is not a game requiring rules that place suspects and police on equal footing, they say; and, as long as there is no coercion during an interrogation, a voluntary confession should be admissible--warning or not.

“Miranda has had an enormous impact in redefining the relationship between the criminal suspect and the government,” according to Gerald M. Caplan, a law professor at George Washington University and former federal prosecutor. “It tips the balance. The government loses the advantage--and that makes a difference in uncounted cases.

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“The system is designed to discourage suspects from being remorseful or penitent or making restitution,” Caplan said.

Studies made in the wake of the Miranda decision have provided considerable data but have by no means resolved the debate over the depth of its impact. For example, one widely noted 1967 study of cases in Pittsburgh showed that, although there was a 31% decline in confessions immediately after Miranda, the overall conviction rate remained about the same. That led the authors of the study to conclude that Miranda “has not impaired significantly the ability of law enforcement agencies to apprehend and convict the criminal.”

Unpursued Cases Cited

But critics say that such data does not fully assess Miranda’s effects. There are many instances, they say, in which a case cannot be pursued because a Miranda violation prevented prosecutors from using a suspect’s admissions--the only conclusive evidence they had.

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Moreover, they point out, doubts about the legality of a confession may place the prosecution in a far weaker position during the plea-bargaining process--by which the vast majority of criminal prosecutions are resolved--and may force authorities to agree to a plea to a lesser offense than the one charged.

And a Miranda violation is likeliest to occur in the most serious cases, when police officers are pressing hard to solve murders and other violent crimes, authorities say.

“Police investigate these cases much more intensely,” Los Angeles County Assistant District Atty. Curtis Livesay says. “They may really lean on people they apprehend when they’re trying to solve a tough, high-profile case.”

Basic Legal Protection

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On the other side of the debate, its defenders see the Miranda ruling as providing basic legal protections to persons who otherwise might not be aware of their rights. They deny that the decision has significantly hindered police in pursuing criminals--and they say that Miranda could be expanded without harming the criminal justice system.

“Miranda has helped ensure that constitutional rights are not violated,” Charles S. Simms, national staff counsel for the American Civil Liberties Union, maintains. “There’s no question there is much less coercive questioning and compelled self-incrimination than there was before. That is precisely the objection Ed Meese has to it: Miranda has worked.”

Yale Kamisar, professor of law at the University of Michigan and an authority on police interrogations, contends that Miranda actually was a compromise decision. Although the Supreme Court mandated warnings by policemen, it rejected the idea that a suspect could not waive his rights until he had talked to a lawyer--a rule that would have effectively prevented most police interrogations.

“Miranda has not turned out to be the overpowering, handcuffing-the-police ruling some people expected it to be,” Kamisar says. “It’s turned out to be a good deal tamer than expected.”

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Statements Still Given

To be sure, for many suspects, warnings that statements can and will be used against them have proved no impediment to interrogation. A post-Miranda survey in the District of Columbia showed, for example, that 40% of a group of 260 defendants had given statements to police.

Authorities say that, despite Miranda, some defendants still want to confess to relieve their consciences. Others agree to talk in an effort to find out how much police know. And still others seem to like to boast of their criminality.

Kamisar said warnings often do not have much impact on suspects because it is the police who are doing the warning. “That’s like asking the fox to advise the chicken of his rights,” he added.

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Indeed, warnings can be mumbled or delivered deceptively in a manner suggesting that they are a mere technicality. When feasible, Kamisar says, police officers should be required to tape-record the warning process to demonstrate that the suspect made a knowing and voluntary waiver of his rights.

Use of Magistrate Urged

Defense lawyer Alex Landon of San Diego, president of California Attorneys for Criminal Justice, said it would be preferable--and far more effective--for suspects to receive their warnings from a magistrate or an attorney.

“They ought to come from someone in a more detached position,” he said. “A law enforcement officer has a decided interest in obtaining an admission.”

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The Miranda decision was issued by a Supreme Court greatly sensitive to the rights of defendants and deeply worried about unfairness in the criminal justice system.

In 1963, in the Gideon vs. Wainwright decision, the court required states to provide counsel to indigent defendants on trial for serious crimes. A year later, in Escobedo vs. Illinois, the court said that suspects in police custody had a right to counsel. Then, in 1966, the court issued Miranda vs. Arizona, holding by a vote of 5 to 4 that the Fifth Amendment required warnings before valid statements could be taken by police.

‘Good Cop-Bad Cop’

The justices said that, although police brutality and violence were “undoubtedly the exception now . . . they are sufficiently widespread to be the object of concern.” They cited police manuals suggesting psychological tactics that officers could use on suspects--such as the “good cop-bad cop” routine in which “friendly” and “unfriendly” officers take turns in the questioning, hoping a suspect eventually will confess to the “friendly” interrogator.

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The court concluded that holding a suspect incommunicado was inherently coercive--and it laid down strict rules to meet the problem:

--Suspects in custody must be informed clearly that they have a right to silence and that anything they say can be used against them in court.

--If they wish, they must be allowed to consult with counsel before questioning and to have a lawyer present during interrogation.

--They must be told that, if they cannot afford a lawyer, one will be appointed for them.

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Narrowing the Decision

Three years after the Miranda ruling, Warren retired and was replaced by Burger. In the ensuing years, the makeup of the court changed substantially--and, as it did, the Burger Court began to narrow the ruling’s scope.

In 1971, the court held that voluntary statements of a defendant not properly told of his rights could still be used to impeach his credibility if he risked testifying at trial.

Another decision permitted authorities to use an otherwise inadmissible statement as a “lead” to find a prosecution witness. And another said that there was no need to give witnesses a warning before they testify before a grand jury, even though they might eventually be prosecuted.

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More recently, the court held in 1984 that, when public safety is at stake, policemen may question a suspect about the whereabouts of weapons before they read him his Miranda rights--and statements he makes may be used against him.

Last year, it held that the initial failure by police officers to give a warning does not preclude authorities from using statements obtained later after a properly given warning. And, in March, the court said that the Miranda rule is not violated when a suspect who has waived his rights is not informed by police that a lawyer wants to talk to him before he is interrogated.

But other decisions by the Burger court have served to extend the reach of Miranda. The court said in 1980 that policemen must refrain from psychological ploys to elicit incriminating statements from a suspect in custody who has refused to talk. And, in 1981, the justices said questioning must stop--and can be reinitiated only by a suspect--after the suspect has invoked his right to counsel.

Voiding of Ruling Unlikely

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The Burger court often has appeared uneasy over the wisdom of the Miranda decision--but it has indicated several times that it is unlikely to overturn the ruling.

Burger wrote in 1980 that he would “neither overrule Miranda, disparage it nor extend it at this late date.” And Justice Sandra Day O’Connor, joined by other court conservatives, wrote in the March case that Miranda “strikes the proper balance” between legitimate law enforcement needs and protection of the defendant’s constitutional privilege against self-incrimination.

After the landmark 1966 decision, Ernesto Miranda himself was retried, convicted and sent back to prison. Later, he was paroled and at one time became a celebrity of sorts, occasionally selling to souvenir hunters autographed copies of the small cards police carry to inform suspects of their Miranda rights.

In 1976, in a dispute over a card game in Phoenix, Miranda was stabbed to death. A suspect was taken into custody, read his Miranda rights, questioned and then released. Later, more evidence emerged and a warrant was issued for his arrest. A spokesman for the police department says the suspect is still at large.

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