The Constitution Moved into the Police...

Sunday, May 1, 2016

LAW DAY 2016The Constitution Moved into the Police Station:The 50th Anniversary of the Miranda Warnings.

ABOUT LAW DAY 2016The Constitution provides each of us

with important protections. Fifty years ago in Miranda v. Arizona, the U.S. Supreme Court determined that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege” to remain silent.

In this Law Day Special Edition sponsored by the Utah State Bar, read about the progression of our rights — from those based upon the Sixth Amendment, which provides that “the accused shall…have the Assistance of Counsel for his defense” to post-Miranda developments.

The Utah State Bar was established in 1931 and regulates the practice of law under the authority of the Utah Supreme Court. The 11,500 lawyers of the Bar serve the public and legal profession with excellence, civility, and integrity. They envision a just legal system that is understood, valued and accessible to all.

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In a recent issue of Court Review, The Journal of the American Judges Association, there is a discussion of some of the problems with the Miranda warnings: Research data have identified more than 1,000 unique variations, varying in length by more than 500 words, with reading levels that range from third grade to post-college.

One general misassumption is rooted in the notion that nearly all Americans have a working knowledge of the Miranda warnings.

Residents of the United States are constantly bombarded with snippets of stereotyped Miranda recitations via countless police dramas and various outlets of the public media.

This basic myth, “everyone knows their Miranda warnings,” appears to be strikingly pervasive across our communities. However, this view is

simply unwarranted. When a cross-section of the community (e.g., juror pools) was surveyed anonymously, roughly one third (35%) conceded they had little or no Miranda knowledge.

Many arrestees may perceive Miranda warnings as inconsequential formalities and pay very little attention to their content. Investigating officers may also communicate this message — either directly or indirectly. As an example of the latter, advisements may be delivered in a “mechanical, bureaucratic manner so as to trivialize their potential

MIRANDA WARNINGS: HELPING TO ENSURE EVERYONE KNOWS THEIR CONSTITUTIONAL RIGHTS

Law Day, held annually on May 1, is a national day established by a Joint Resolution of

Congress in 1961 to celebrate the rule of law. This year, the focus of Law Day is on the Miranda warnings law enforcement officers are required

to give to suspects in police custody before interrogating them.

Few U.S. Supreme Court cases are better known or more often cited than Miranda v. Arizona, which was decided in 1966. The iconic warning, crafted as a result of the Miranda decision, is repeated in countless movies and television shows. When we hear the beginning of the Miranda warnings, many of us can recite the rest by heart because the words are engrained in our minds, much like the lyrics to a favorite song.

The Sixth Amendment to the United States Constitution states that “the accused shall…have the Assistance of Counsel for his defense.” In 1966, the United States Supreme Court determined in Miranda v. Arizona, that “the right to have counsel present at [an] interrogation is indispensable to the protection of the Fifth Amendment privilege” to remain silent in the face of police questioning. Hence, the Court requires the police to inform people of

the right to counsel during custodial police questioning.

Fifty years after Miranda. There still remains a lot of work to be done to ensure that all individuals are aware of their rights to remain silent and to request the presence of counsel during a police interrogation.

Most people know that they have the right to remain silent when questioned by law enforcement. However, studies suggest that a third of people believe that their silence can be used against them at trial as evidence of guilt. Twenty percent of prospective jurors have this same belief. This is generally not true under the court decisions interpreting Miranda.

There is also a big difference between hearing and understanding one’s rights. Thus, part of the requirement of Miranda is that the police obtain a voluntary, knowing and intelligent waiver of the rights discussed in the warning prior to proceeding with interrogations.

By Susanne Gustin Utah State Bar Commissioner and

criminal defense lawyer

Miranda warnings have been clocked at speeds exceeding 200 words per minute, and warnings are not always accurate. Many are written at a grade level significantly above the suspect’s reading level. With typical Miranda warnings from 125 to 175 words, most people — even college undergraduates—don’t retain more than 50% of what they hear. There is also the issue of giving Miranda warnings to suspects whose primary language is not English.

On Law Day 2016, let’s celebrate this landmark decision and work to ensure that all are aware of the important constitutional rights guaranteed by Miranda v. Arizona.

MIRANDA RIGHTS & WRONGS:MATTERS OF JUSTICEBY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR

Miranda booking photo

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significance and minimize their effectiveness.” Alternatively, warnings may be presented with rapid-fire delivery, precluding any meaningful comprehension. Canadian research on audio-recorded warnings administered to actual arrestees has clocked average speeds exceeding 200 words per minute. Besides the virtual incomprehensibility of such breakneck speeds, the warnings were frequently marred by omissions and inaccuracies. A mere notification of rights cannot be equated with the education of one’s rights.

It makes no sense — legal or otherwise — to expect a typical arrestee with a sixth- or seventh-grade reading level to comprehend a Miranda advisement written at a college-graduate reading level. Furthermore, research has convincingly demonstrated that lengthy oral warnings cannot be comprehended.

With typical Miranda warnings — ranging from 125 to 175 words — oral comprehension typically fails to reach 50%, even when administered to college undergraduates.

A third and final fundamental misconception is that Miranda warnings go beyond conveying knowledge to help in rectifying Miranda misconceptions. For instance, 20% of prospective jurors, 26% of undergraduates and 31% of defendants wrongly believe that silence will be used as incriminating evidence.

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Visit the Bar’s website to see about qualifi cation requirements.


The Utah State Bar is proud to participate in Law Day 2016.

This year’s theme – Miranda: More Than Words – helps us understand the great strides

that our nation has made toward improving access to our criminal justice system. But Miranda’s guarantee of an attorney in criminal proceedings brings into clear focus the work that remains to be done to improve access to justice in our own civil justice system.

Miranda warnings include one constitutional right that is commonly misunderstood: “If you cannot afford an attorney, one will be provided for you.” This right exists only in the criminal justice system and a few other proceedings. The civil justice system, which most Americans will access at some point in their lives to resolve housing, employment, family and

other issues, provides no such right to an attorney if you cannot afford one.

The Utah State Bar and our courts are working diligently to address this issue. The Bar’s Futures Commission issued a report last year that identified many ways Utah lawyers can broaden their ability to provide legal services for all Utahns. The Bar also created the Affordable Attorneys for All (AAA) Task Force to improve access to justice in our civil legal system. The AAA Task Force and our courts are examining all aspects of how lawyers and non-lawyers provide access to justice, including modifications to licensure rules, use of new

technology, availability of cost-effective à la carte legal services and programs to assist unrepresented parties to utilize court-approved litigation forms. The ultimate aim is to grow a legal service marketplace that is inclusive of individuals of every economic status yet is sustainable for lawyers.

Chief among these efforts is a program the Bar and the Utah Supreme Court are working on to craft a new kind of legal professional, called a Licensed Paralegal Practitioner, to provide market-based, supply-side solutions to the unmet needs of civil litigants. Currently, a steering committee is determining how best to permit paralegal practitioners to provide legal services in select areas of family law, residential eviction and debt collection matters. This program relies heavily on recommendations made by the American Bar Association Task Force on the Future of Legal Education and the ABA Commission on the Future of Legal Services, both of which endorse the objective of licensing persons other than lawyers to deliver limited legal services. Though much work remains, this new initiative will make great strides toward improving access to justice in civil legal proceedings.

The Bar is further poised to roll out a new on-line attorney directory that will allow clients searching for

legal representation in a civil setting to efficiently locate lawyers in their area of need who practice in their communities and speak their language. Clients will be able to determine which lawyers are able to provide cost-effective à la carte legal services, investigate legal fees from a variety of practitioners then select and contact the lawyer who best fits their circumstances. Lawyers will be able to customize their on-line profiles to reach out to clients and grow their own practices in an easy, interactive, user-friendly on-line platform.

The Bar has also launched a new legal clinic, Courthouse Steps, offering document review for domestic cases. The clinic runs every first Thursday of the month at the Bar (645 South 200 East) from 6pm-8pm. Courthouse Steps provides clients the opportunity to purchase à la carte legal assistance with document preparation from attorneys at an affordable price — a $100 fee for a one hour consultation.

In addition to these new initiatives, the Utah State Bar Pro Bono Commission and Modest Means Lawyer Referral Program continue to address access to justice by expanding their ability to serve the poor and those of modest means with the help of volunteer attorneys.

By Robert RiceUtah State Bar President-

Elect and lawyer with Ray Quinney & Nebeker

‘WE MUST BE FAIR. WHEN PEOPLE GET IN TROUBLE THEY NEED HELP. SO GOOD PEOPLE HELP, AND WE HAVE JUSTICE AND FAIRNESS.’

CONTINUED ON PAGE 5

The above statement and accompanying art are from five-year-old Aubrey Reichert, who received the 3rd place grade school Art & the Law award.


The Miranda warning about the right to an attorney, even if you can’t afford one, isn’t

applicable in civil cases. This is where “AND JUSTICE FOR ALL” steps in. Through the generous support of the community, AJFA serves over 31,000 victims of domestic violence, the poor and disabled Utahns each and every year. You can support these efforts by participating in the Law Day Run held at the S.J. Quinney School of Law on May 14. Register for the family-friendly event at andjusticeforall.org/law-day-5k-run-walk.

RUN TO SUPPORT CONSTITUTIONAL RIGHTS

The Pro Bono Commission was created for the purpose of improving access to justice by providing legal services to those with an income of less than 125% of the Federal Poverty Guidelines. In 2015, Utah State Bar Pro Bono Commission programs and clinics helped more than 2,400 Utahns. This includes full representation cases, Signature Projects (calendars and specific legal needs served by law firms and the courts), the Tuesday Night Bar clinic, the Debtor’s Clinic and the Senior Center Legal Clinics. These services are provided free of charge to individuals who qualify, and anyone can attend the clinics. Individuals interested in pro bono legal services can contact Utah Legal Services at 801-328-8891 or 800-662-4245 for more information about qualifications and services. Search for legal clinics at www.utcourts.gov for additional information regarding statewide pro bono services.

The Bar’s Modest Means Lawyer Referral Program provides affordable legal assistance to people who make from 125% to 300% of the Federal Poverty Guidelines (up to $72,900 for a family of four). The discounted hourly rates are determined by the financial circumstances of the individual clients. The Modest Means Lawyer Referral is a valuable resource for individuals who do not qualify for pro bono legal services.

The Utah State Bar is proud of the many success stories arising out of Utah lawyers’ contributions to the Pro Bono Commission and the Modest Means Program. When, for example, Mariska Byers did

not qualify for a pro bono attorney, she contacted the Modest Means Lawyer Referral Program. The Bar referred her to attorney Ben Lawrence. “He treated me just like any other client,” said Byers, “and he helped me achieve a fair outcome at a cost I could afford.” Visit www.utahbar.org to see if you or a loved one qualifys for discounted rates.

The Affordable Attorneys for All Task Force is also encouraging nonprofit law firms to provide a similar role in providing affordable services and applauds the efforts of Open Legal Services, Nonprofit Legal Services of Utah and Choice Legal Services. These law firms and their innovative and dedicated attorneys are bringing meaningful, market-based reforms to the way in which legal services are delivered in Utah.

Access to justice in our civil justice system is not guaranteed. It is only through hard work that we can create a legal system that works for everyone. I want to extend the most heartfelt gratitude to the attorneys of the Utah State Bar who donate their time to the Bar’s and the Court’s efforts to improve access to justice in our state. You are incredible professionals who embody the notion of ethical service to all, no matter their station in life. You save families from eviction, help heal broken homes, procure needed benefits and by your actions show our community that a lawyer’s duty is always to justice. We are on our way to creating a better legal system for our state, and we appreciate everyone who is helping to make that happen.



Since Miranda v. Arizona was decided in 1966, the Miranda warnings

have become ingrained in the national conscience as an essential component of police procedure, so much so that the United States Supreme Court has recognized only one exception to the warning requirement. This exception, known as the public safety exception, allows police officers to intentionally delay giving Miranda warnings while interrogating a suspect who is in custody where concerns for public or officer safety outweigh the need for police to strictly follow Miranda. In recent years, federal and local law enforcement officials across the country have increasingly faced the daunting task of investigating

both threatened and completed terrorist activity and mass shootings. Such acts raise new and challenging issues for police, who must quickly identify and eliminate threats to public safety while preserving and upholding a suspect’s constitutional rights. To that end, state and federal courts have extended the public safety exception’s application to the questioning of terrorism suspects. While these cases highlight the exception’s importance in terrorism investigations, they have also raised questions as to its proper scope and limits.

Origin of the Public Safety Exception The Court first recognized the public safety exception in the

1984 case, New York v. Quarles, which arose from the arrest of a rape suspect in a grocery store. The officers had information that the suspect was armed but, upon frisking the suspect, found the suspect was wearing an empty holster. Believing that the gun could be somewhere in the store, an officer asked the suspect, “where’s the gun?” The suspect gestured toward a dairy case and said, “the gun is over there.” Police retrieved the gun and placed the suspect under arrest. The Court held that the officer was not required to give Miranda warnings to a suspect before asking where the gun was located because while the gun was still at large, it

SALT LAKE COUNTY DISTRICT ATTORNEY SIM GILL BY MINNA WANG

Salt Lake County District Attorney Sim Gill discovered his fascination with public

policy early on in life in India, where he grew up. “The best education I ever had in political perspective was the level of corruption, the level of poverty, and

the lack of public policy I saw in the country I was born in,” he says. “I saw what it does to the rule of law and how it affects the community, the society, and the people.” Within the American Dream, Gill recognizes a deep sense of public service, which is what motivated him to become a public prosecutor. His 20 years as a prosecutor have brought him to his current position, managing the largest municipal prosecutor office as well as the largest district attorney’s office in the state. Gill approximates that between the two offices, the collective criminal justice footprint is probably between 50% and 60% of all the criminal prosecutions in Utah. “My day-to-day is incredibly diverse,” he says. “For example, I can have meetings in the morning with my administrative staff, discuss HR personnel issues and then meet with the mayor to address a legal issue. Then I’ll be a part of a homicide screening or go down to

the community and talk about some legal issue.” Gill’s experiences in Utah’s government offices have instilled a strong confidence in his work and its mission. He sees his job as one that provides a resolution or a measure of justice to those who are often in crisis or in need, giving them a measure of satisfaction in what may be one of the most critical moments of their lives. “I like the public institution aspect of what we do. We’re doing a service and through that service, we engage and reaffirm the value and ideal of our civil society,” he says. “Our fairness, our notion of quality and our notion of public trust and integrity are all intertwined in our institutional fidelity. ” Gill sees the Miranda warnings as an essential component of this institutional fidelity, as well as a channel for individual rights. The gathering of information revolves around the moment that law

enforcement or state authority comes in contact with a citizen. As soon as that horizon is breached, the questioning has to occur in a setting that doesn’t burden the overwhelmed citizen, so that what they discuss does not become involuntary or coerced. It’s at that moment that Miranda enters the conversation and, in Gill’s eyes, levels the playing field between the individual and the state. “Institutions are made to serve the individual and the citizen. What Miranda really does is it focuses on our notion of legitimacy. Miranda and this broader notion of legitimacy allows us to continue to challenge institutions as a power,” he says. “When we talk about the challenges we’re facing now, such as law enforcement and political alienation, they all revolve around the notion of fair play. Isn’t it amazing that Miranda actually helps the criminal justice system ensure that?”

Sim GillSalt Lake County District Attorney

GET TO KNOW

CURRENT STATE OF MIRANDA: PUBLIC SAFETY EXCEPTION & TERRORISM INVESTIGATION

By Kathleen Abke Attorney with Strong & Hanni

CONTINUED ON PAGE 7


SALT LAKE COUNTY DISTRICT ATTORNEY SIM GILL presented a danger to the public. The Court held that under the public safety exception to Miranda, when officers ask focused questions necessary to secure their own safety or the safety of the public, they do not need to provide the warnings required by Miranda. From Quarles emerged three essential factors that must be present in order for the public safety exception to apply:

1. The presence of a reasonablethreat to public or officer safety. 2. The questioning must belimited and focused on eliminating the safety threat. 3. The suspect’s statementsare made voluntarily and not as a product of improper police interrogation tactics.

Public Safety Exception in Terrorism Investigations U.S. v. Khalil involved police questioning of two suspects in connection with an apartment raid. The NYPD had received information that the suspects

had bombs in their apartment that they were planning to detonate in a public bus terminal or subway station. During the raid, the officers uncovered a bag containing pipe bombs, one of which appeared to be activated. Without first giving Miranda warnings, police questioned one of the suspects as to how many bombs there were, the number of switches on each bomb, how the bombs could be disarmed and whether the bombs had any timers, as well as whether the suspect intended to kill himself in the bombs’ explosion. The Second Circuit determined that the public safety exception applied to the suspect’s statements made in response to these questions because the questions were clearly directed toward efforts to disarm the explosives. The court disagreed with the suspect’s argument that the question concerning his plan to detonate the bombs in a suicide bombing was unrelated to public safety, concluding that the suspect’s “vision” for his survival

after the explosion was relevant to the bomb’s stability and, thus, public and officer safety. A Michigan district court also applied the public safety exception to statements made to federal agents by Umar Farouk Abdulmutallab, the so-called “underwear bomber,” while he was in custody at the hospital and without having received Miranda warnings. Abdulmutallab was asked details of his travel plans, the explosive device, his plans for the attack and the identity of his associates who might share his jihadist views. The court found that these questions were designed to elicit information about other potential attackers and potentially imminent attacks and that the agents limited their questioning to less than one hour, at which time they had enough information to address the threat to public safety. Following the 2013 Boston Marathon bombing, the FBI interrogated Dzhokhar Tsarnaev for sixteen hours over the course of two days while he

was in the hospital without Mirandizing him. The court never addressed the question of whether Tsarnaev’s statements made in response to this extensive questioning fell within the public safety exception because prosecutors chose not to introduce these statements as evidence at trial. However, the circumstances of this case have provoked debate as to what properly constitutes “narrow and focused” public safety-related questioning in similar investigations. Miranda was decided decades before terrorism became an everyday concern for Americans and before law enforcement officials routinely investigated terrorism. The scope of the public safety exception has been greatly expanded beyond Quarles, particularly in the context of terrorism investigations. Time will tell whether the U.S. Supreme Court will ultimately address the outer contours of this exception in this evolving area of the law.


In 2015, Utah Governor Gary Herbert signed into law sentencing and corrections legislation that employs research-driven policies to deliver a greater public safety return. The state’s Commission on Criminal and Juvenile Justice, an inter-branch group of state and local offi cials, developed the legislation with technical assistance from The Pew Charitable Trusts as part of the Justice Reinvestment Initiative, a public-private partnership. The reforms are expected to eliminate almost all projected prison growth over 20 years, save more than $500 million, and redirect nearly $14 million into evidence-based strategies to reduce recidivism.


GET TO KNOW

We are here to helpUtah State Courts

The Self-Help Center is a free service for everyone. We provide information about legal rights and responsibilities, and help people resolve legal problems on their own.

n Information about the law and court processes

n Court forms and help completing them

n Court case information

n Contacts for mediation services, pro bono or low-cost legal services, legal aid programs, free legal clinics, and lawyer referral

n Resources provided by law libraries and government agencies

For more information, go to

www.utcourts.gov/selfhelp/contact/ Or call 888-683-0009

RON YENGICH BY MINNA WANG

As a criminal defense lawyer of 41 years, Ron Yengich has seen a great deal. He

began his career as a law clerk and then as a lawyer in the Salt Lake Legal Defenders Association. Yengich has been everything from a professor at Westminster to an author of The Law is an Ass: A Collection of Quotations about the Law and Lawyers. He’s been named one of the best lawyers in America

multiple times and was honored last year as the Utah State Bar Lawyer of the Year. In his years of criminal law, Yengich has never swayed from what first attracted him to the field. “When I was in law school, I found criminal defense to be the most fascinating course, and in my opinion, it is where we are able to do the most for individuals who, like all of us, make mistakes —some of them in a criminal nature,” he says. “The most rewarding part of my job is helping people get through the morass of the criminal justice system and process.” The ability to recognize each client as an individual rather than just a statistic is one of Yengich’s greatest assets. “My fear is that we will continue to erode the rights of individual defendants, and that there will be a less hands-on involvement of lawyers with their clients, and that the courts will continue to distance themselves

from dealing with individual defendants as people,” he says.It is this focus on individual rights that drives Yengich’s strong support of Miranda. The most commonly discussed issue with Miranda is in the context of people waiving their right to counsel or their right against self-incrimination, but many of us don’t realize that we all have the right to tell a police officer we don’t want to talk if we are under investigation. “I believe that the Miranda case, and the cases that interpret our rights against self-incrimination and a right to counsel, reinforce the idea that we are all presumed innocent in the eyes of the law, “says Yengich. “They reinforce that we have a right in a country such as the United States, and a state such as Utah, to, in a sense, impose on the government the necessity that they show our guilt before we are placed in a position to ever answer any charges.”

A quickly advancing technological world with social media and online comments has shown us that anyone can have an opinion on anything, but often the news stories or articles we base our opinions on are misinformed. In Yengich’s eyes, the Miranda rights are important because they can prevent instances where things people say are taken out of context and therefore prevent the convictions of innocent people. “One of the greatest examples of this recently is the case of the Duke lacrosse team, where Duke University not only fired the coach, but suspended the players and eliminated the men's lacrosse team on the basis of what turned out to be false allegations,” he says. “Lives were ruined simply because we jumped to the conclusion that people are guilty before they are proven of the same. We've always got to be careful of that. ”

Ron YengichCriminal Defense Lawyer

“A constitution is framed for ages to come, and designed to approach immortality as nearly as human institutions can approach it." Chief Justice Marshall, Cohens v. Virginia, (1821)


POST-MIRANDA U.S. SUPREME COURT DECISIONS

Greenwald v. Wisconsin, 1968: Greenwald was arrested for burglary, he was interrogated by police, and, during that process, was denied food, sleep and medication, and his assertion that he was “entitled” to a lawyer was ignored. The Court ruled that his confession was not voluntary, based on the “totality of the circumstances” surrounding it.

Oregon v. Mathiason, 1977: A police officer suspected Mathiason of burglary and asked him to the station for questioning. Mathiason came freely, spoke with the officer, and was not arrested at the time. He was arrested later and a trial court used evidence obtained during the questioning to convict him. The Court ruled that the admission of evidence was constitutional. Miranda, the Court ruled, only required law enforcement officials to recite a suspect’s rights when the suspect had been “deprived of his freedom of action in any significant way.” The Court determined that in this case there was “no indication that the questioning took place in a context where respondent’s freedom to depart was restricted in any way.” Even if the police coercively pressured Mathiason during the interview, he came to the police station freely and was free to leave at any time. Therefore, Miranda rights did not apply.

Rhode Island v. Innis, 1980: During a conversation in the police car on the way to the police station for questioning, Innis led authorities to a weapon used in a robbery. Prior to the conversation taking place, Innis had received a Miranda warning and he asked for a lawyer. The Court considered whether or not the conversation in the police car violated Innis’s rights. The Court ruled that Miranda safeguards applied to “questioning or its functional equivalent,” or “any words or actions on the part of the police that [they] should know are reasonably likely to elicit an incriminating response from the subject.” Innis’s conversation with police did not qualify as “questioning” under this definition, the Court ruled.

New York v. Quarles, 1984: Please see the Current State of Miranda article on page 6.

Dickerson v. United States, 2000: The Court struck down a law passed by Congress in 1968 designed to overturn the Miranda ruling. “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” wrote Chief Justice William Rehnquist. “[It] announced a constitutional rule that Congress may not supersede legislatively.”

Maryland v. Shatzer, 2010: The Court ruled that police may reopen questioning of a suspect who has asked for counsel if there has been a 14-day break, or longer, between incidents of questioning and police custody. Thus, the suspect must reassert the right to counsel during the second questioning incident, as it constitutes a new incident. The Court justified this period by noting that 14 days “provide plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel and to shake off any residual coercive effects of his prior custody.”

Howes v. Fields, 2011: The Court held that investigators do not have to read Miranda rights to inmates during jailhouse interrogations about crimes unrelated to their current reasons for incarceration. “Imprisonment alone,” the Court ruled, “is not enough to create a custodial situation within the meaning of Miranda.”

Salinas v. Texas, 2013: Salinas was convicted of murder and claimed that the prosecution’s use of his silence during police questioning, as an indicator of deception, violated his Fifth Amendment rights. The Court held that a witness generally must expressly invoke the Fifth Amendment privilege against self-incrimination in order to benefit from it. In other words, Fifth Amendment protections do not extend to individuals who simply choose to stay silent during police questioning.

Thanks to the American Bar Association Division for Public Education for content in this article and throughout the Law Day Special Edition.

Miranda Rights, Sheila Hernandez Arts & the Law Middle School Third Place

COURTESY OF THE AMERICAN BAR ASSOCIATION


GET TO KNOW

PAUL CASSELLBY MINNA WANG

Paul Cassell’s law career began in 1984 when he graduated from Stanford

Law School as president of the Stanford Law Review. From there, he clerked for then-judge Antonin Scalia and then for Warren Burger, the chief justice of the United States Supreme Court. Later, in late 2007, Cassell resigned his position as a district court judge for the District of Utah to teach full time in the University of Utah

S. J. Quinney College of Law. As a professor, he truly enjoys teaching his students. “One of the reasons I left my judgeship to come back to the University of Utah is that there was always a very engaged and interested student population in criminal law issues,” Cassell says. “Naturally there are always at least two sides — maybe three or four more sides — to every question that comes up and students can address every one of those. I find it really interesting to address challenges that we face whenever we look at how to structure a criminal justice system.” In addition to teaching criminal law, criminal procedure, and crime victim rights at the U, Cassell is also the author of a number of publications — many surrounding the Miranda decision. Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement (Standford Law Review, 1998) is the title of his most well-read and most-cited articles. Cassell’s view on the Miranda decision is contrary to that of many of his peers’. “In my view, the Miranda decision is outdated and there are

a lot of things we can do to reform it,” Cassell says. “In particular, my proposal is that we should videotape police interrogations of suspects. But at the the same time, as we’re doing it, we should relax some of the rules that make it difficult for law enforcement officers to question suspects. Right now, if someone lawyers up, that can cut off police questioning automatically in custody—no matter how limited or how reasonable the questioning is.” Since the Miranda decision came down in 1966, the basic framework of the rules has stayed the same. In June, the 50th anniversary of the Miranda case will come and go and there will have been very few alterations to the original doctrine. Cassell’s Stanford Law Review article, co-authored by Professor Richard Fowles at the U, posits that the crime clearance rate in the United States drastically dropped with the timing of the Miranda case, all according to FBI data. In other words, roughly up to 130,000 additional violent crimes could be cleared every year without the Miranda rules restricting law enforcement. “The Miranda decision has

petrified the law’s pre-trial interrogation process. There has been very little reform work done and I think we can make some changes to it,” Cassell says. “The law should not only protect the innocent suspect more effectively but at the same time also help protect society's interest in obtaining and incriminating statements from guilty suspects.”In his eyes, the legacy of Miranda is, unfortunately, a mixed one. The victims of unsolved crimes are more often than not racial or socioeconomic minorities — those who are in the weakest position to defend themselves against crime. “We owe it to these victims of crime to think about alternatives to Miranda, to try and find ways in which we can protect suspects against abuse while they are being questioned,” says Cassell. “But at the same time, it’s important to give law enforcement officers an opportunity to obtain information from suspects that are willing to provide it. I’m hopeful that in the next fifty years there’ll be an effort to come up with a more reasonable set of regulations for interrogation.”

Paul CassellProfessor of Criminal Law

Law Day Awards Pro Bono Publico Recognizing people providing donated legal services to those most in need. Law Firm: Strindberg & Scholnick Young Lawyer: Sue Crismon Student: Adam Saxby

Young Lawyers Division Young Lawyers of the Year: Kat Judd Kate Conyers Liberty Bell: Angie Leedy

Scott M. Matheson Awards Law-related youth education: Thomas Richard Davis

See details at lawday.utahbar.org

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Justice Sutherland, Powell v. Alabama, (1932)


ERNESTO MIRANDA: CRIME AND PUNISHMENTBY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR

Ernesto Miranda was suspected of rape and robbery in Phoenix

in 1963. At a lineup, the rape and robbery victims could not positively identify Miranda. After the lineup, Miranda asked Detective Carroll Cooley, “How did I do?” Cooley replied, “Not too good, Ernie.” Miranda asked, “They identified me then?” Cooley said, “Yes, Ernie, they did.” Miranda replied, “Well, I guess I better tell you about it then.” Later that day, Miranda completed a written confession on a form that included the words “…with full knowledge of my legal rights, understanding any statement can be used against me.” During his interrogation, the police did not employ physical force, threats, or promises. This may have contributed to the U.S. Supreme Court taking his case on appeal, helping

to separate those excessive actions from the core need for suspects to understand constitutional rights. After Miranda’s conviction was overturned by the U.S. Supreme Court due to the inadmissibility of his confession to the police, the State of Arizona retried him. The judge and prosecutor

thought Miranda would not be convicted without a confession. Unfortunately for Miranda, the prosecutor was able to introduce a second confession he made to his girlfriend, while he was in jail, three days after confessing to the police. The admission of the second confession was

appealed to the Arizona Supreme Court, but the argument was dismissed: “…Mrs. Hoffman was in no way representing the police…there was a sufficient ‘break in the stream of events’ between the confession to the police and the confession to Mrs. Hoffman to justify the court in admitting this testimony.” Miranda received the same sentence he received at his overturned trial, 20-30 years in prison. Ernesto Miranda’s parole applications were rejected four times, but he was released on his fifth attempt. While released, he sold autographed preprinted Miranda warning cards

in downtown Phoenix for $1.50 each. He was able to collect a few following multiple misdemeanor arrests. He violated parole and was sent back for another five and a half years. A month after his last release, Miranda was stabbed in a barroom fight. Two suspects were immediately apprehended; both waived their Miranda rights, and both were released. By the next day, additional evidence implicated one of the suspects, but he was never found again. Thanks to Gary L. Stuart and his book, Miranda: The Story of America’s Right to Remain Silent.

Ernesto Miranda, #1, in police lineup. Source: University of Texas

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GET TO KNOW

MIKE BROWNBY MINNA WANG

Since June 2015, Mike Brown has been the Interim Police Chief of the Salt Lake City

Police Department. A second-generation law enforcement member, he is currently attending the FBI National Executives Institute and has worked prolifically

with the public through working groups. “I love working with the great individuals in the SLCPD, some of the bravest and finest,” Brown says. “I’ve had the opportunity to start a couple of working groups that involve concerned citizens and those who desire to work with us to make changes, and it’s been great to get to know them and work with them.” Over his 25-year career with the department, including a position as a deputy chief and overseeing the Special Operations Bureau, Brown has seen a change in how officers work due to advanced technology.“In the past, officers spent their time involved in the activities of their beat. They walked the streets, talked to the people, and participated in daily life,” he says. “Then we focused on the advancement of technology—how it’s helped us track what we have done, as well as when, where, and why. As a result, we now have cutting-edge technology that helps us predict crime. Our use of CompStat and local analytics

have ushered in a new wave of intelligence-led, predictive policing.” Much like how new software tools have helped other industries save time, Brown looks forward to the time that officers will be able to return to their roots of community-supported policing. “As we return to the human aspect of policing, we will have a presence within the communities, displacing crime and connecting with citizens,” Brown explains. “I want to use our time to build bridges of friendship, open-mindedness, and acceptance rather than walls of distrust and misunderstanding.” One future application he sees is the use of body cameras to capture Miranda warnings and suspect statements, potentially to the degree that camera feeds will be live-streamed to departments and even the public. The idea of a live stream captures Brown’s belief that the legacy of the Miranda decision is one of transparency and scrutinizing the way our communities are policed.

“Everyone has the right to due process and transparency. This is one of the major things that unify police departments around the country – we all have to respect the rights of the accused. Our duty is not to pass judgment and our desire to solve crime shall not overshadow individual rights,” he says. Brown can still recount his days as a brand new officer on the job, reading the words verbatim off the card he carried in his pocket. He sees the Miranda warnings as the great equalizer, leveling the playing field between the state and individual, as well as giving a gentle reminder to the people of their basic constitutional rights. “Because of Hollywood, it has become ingrained within American culture and the public regularly expects the police to advise people of their rights,” says Brown. “I think it’s good that citizens know their rights and afford the judicial system the opportunity to function on everyone’s behalf. Miranda reflects the American desire to balance the power of the state with the need to protect individual liberties.”

Mike BrownSalt Lake City Interim

Police Chief

The above statement is from second-grader Conrad Reichert

accompanying his grade school first-place Art & the Law award-winning The Birds of Right, pictured here. Conrad’s five-year-old sister also won an award; see her art and statement (article heading) on page 4. Conrad and Aubrey’s

mom, Julie, said that the family (including dad, Ethan, and three other siblings) had not talked about Miranda before the contest, but that their discussion was “good for all of us.” When asked about what they talked about over dinner with the kids, Julie said “all sorts of things.” We can only imagine!

‘We need rules to help us so everyone is treated fairly. Miranda shows people what to do if they are in trouble so they have help and a fair chance.’

The Art & the Law competition is sponsored by the Salt Lake County Bar.


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Utah State Bar®

Lawyers working for justice.

The U.S. Supreme Court addresses the problems

with the coercive police interrogation of 50-plus years ago extensively in Miranda. Below are excerpts from Miranda (see all 3,370 words on interrogation at lawday.utahbar.org).

1. It is not admissible todo a great right by doing a little wrong. . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means.

2. Not only does the use ofthe third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, 'It is a short-cut, and makes the police lazy and unenterprising.' Or, as another official quoted remarked: 'If you use your fists, you are not so likely to use your wits.'

3. This Court has recognizedthat coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.

The ACLU filed an amicus curiae (friend of the court) brief in Miranda v. Arizona, and it was the single brief, amicus curie or otherwise, which anticipated the Court’s final direction by calling for a “marriage of the Fifth Amendment and Sixth Amendment

right to counsel.” The Court relied on the ACLU brief for much of Miranda about coercive police interrogation, including the below direct quotes from the opinion. The opinion departed from the ultimate recommendation of the ACLU brief: the presence of a lawyer at every stage of detention — not just a warning about the right to have one.

The opinion recounts recommended tactics from various police interrogation manuals:

• The subject shouldbe deprived of every psychological advantage.

• Where emotional appealsand tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence.

• He must interrogatesteadily and without relent, leaving the subject no prospect of surcease.

• He should interrogatefor a spell of several hours, pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated.

• In a serious case, theinterrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion.

COERCIVE POLICE INTERROGATION

Lucy Johnson’s, 2nd Place Middle School Art & the Law artwork consisting of many small photos from police shooting incidents combined to depict a peaceful arrest.

• In the event that thesubject wishes to speak to a relative or an attorney, the following advice is tendered: "The interrogator should respond by suggesting that the subject first tell the truth to the interrogator

himself, rather than get anyone else involved in the matter.

• To obtain a confession, theinterrogator must "patiently maneuver himself or his quarry into a position from

which the desired objective may be attained."

• When normal proceduresfail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice.


You have the right to remain silent.” “You have the right to an

attorney.” “Do you understand these rights as they have been read to you?” These are among the so-called “Miranda rights” the U.S. Supreme Court required the police, in Miranda v. Arizona, to say when taking a criminal suspect into custody.

These rights are now engrained in our consciousness even if we have never been arrested — the product of countless repetitions in movies and television shows. Some defend the Miranda requirement as essential to protecting uninformed criminal suspects, especially during the potentially frightening period after they are arrested and before they have consulted an attorney, from coerced and potentially unreliable confessions, and to ensuring other safeguards granted by the U.S. Constitution. Others question whether Miranda is constitutionally necessary or even helpful to our criminal justice system, as opposed to other means of ensuring the reliability of confessions and the absence of

coercion, tricks and other unfair police interrogation tactics. Regardless of who is correct in that debate (which is not in my particular field of legal expertise), I believe Miranda suggests an equally important lesson about our right to know, and our responsibility to understand, our constitutional rights. Why is it that we need to rely on a law enforcement official to communicate our rights at the time of arrest? True, being taken into police custody can be frightening, intimidating, and unfamiliar or unexpected, especially to a first-time arrestee, which can cause stress even to those who are familiar with their constitutional rights. The underlying assumption, however, is that Americans are so sufficiently unfamiliar with their rights that they need these important reminders. Unfortunately, survey research bears out this assumption. Most, but not all, Americans do understand the basic source of their rights. According to a 2011 report by the Annenberg Center for Public Policy, 78% of Americans know that the Bill of Rights comprise the first ten amendments to the U.S. Constitution. On the other hand, last year on Constitution Day (September 17, 2015), the same organization released survey data showing that 34% of Americans incorrectly believe that the Bill of Rights includes the right to own your own home, and one in ten Americans incorrectly believed that it includes the right to own a pet! On a more serious note, only 69% knew that the Bill of Rights protects us against “unreasonable searches and seizures,” and 81% that it includes the right to peacefully assemble. Although those are reasonably high numbers as surveys go,

shouldn’t all Americans know and understand the most basic constitutional rights that protect us against government abuse, and that ensure our basic liberties? Perhaps more disturbing were data from the same survey indicating how little Americans know about the structure of our government and the legal means of protecting our constitutionally guaranteed rights. Only 31% of all Americans, for example, could name all three branches of the U.S. government. (12% knew two branches, 24% knew only one branch, and a whopping 34% knew none of them.) When asked what happens when the U.S. Supreme Court issues a 5 to 4 ruling in a case, just more than half knew that the resulting majority decision becomes the law of the land. Others believed the issue would then be sent to Congress for a decision or sent back to the lower courts to decide the case, and other people had no idea what would happen next. At the University of Utah’s S.J. Quinney College of Law, our job is necessarily to teach the law and critical thinking and other lawyering skills to our law students, including a sophisticated understanding

of constitutional law so they can adequately represent their clients and serve the interests of justice. But the disturbing survey results discussed above show that education about the rule of law in the United States, and most fundamentally about the basic constitutional rights that protect us all, is essential throughout our educational system. The College of Law also serves the community by sponsoring a “Kids’ Court” program for elementary school children, and a “Teaching Law in High School” program, both of which are taught by our law students under faculty and other professional supervision. Those programs, however, reach only a fraction of Utah schoolchildren, and none of the many adults who may not have learned about our basic rights in school, or who have forgotten those basic civics lessons. The broader lesson of the Miranda case, then, is about the importance of the right to know our constitutional rights, and the responsibility of our government — through our schools, our legal system, and otherwise — to make sure that all Americans understand them.

MIRANDA AND THE RIGHT (AND RESPONSIBILITY) TO KNOW YOUR RIGHTS

“

By Robert W. Adler Utah State Bar Commissioner and Jefferson B. and Rita E. Fordham Presidential Dean at the University of Utah S.J. Quinney College of Law


In the decades prior to Miranda v. Arizona (1966), the U.S. Supreme Court recognized many constitutional rights based on

the Sixth Amendment’s right to counsel at trial. With Miranda, the Court recognized a new right to counsel based on the Fifth Amendment’s right to not incriminate yourself: if you had the right to not incriminate yourself at trial, you lost that right if you inadvertently incriminated yourself at the police station, evidence of which could be introduced at trial. Let’s take a look at this evolution. In 1932 in Powell v. Alabama (1932), the Court reversed an Alabama conviction in which four men stood trial six days after indictment. The court concluded: “In a capital case, where the defendant is unable to employ counsel…it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law...” Thirty-one years later, in Gideon v. Wainwright (1963), the Court decided that:

The Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of ‘liberty,’ just as for deprival of ‘life,’ and there cannot constitutionally be a difference in the quality of the process based merely upon a supposed

difference in the sanction involved.

Next year, in Escobedo v. Illinois (1964), the right to counsel guaranteed by the Sixth Amendment was stretched from the trial court to the station house. The Court determined that statements made by a suspect in police custody who had been refused an opportunity to consult with his counsel and who had not been warned of his constitutional right to keep silent, could not be used against him at trial. Escobedo holds that a defendant must be afforded his right to counsel as soon as “…the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” A year later in People v. Dorado (1965), the California Supreme Court explored the question of when that right to counsel is triggered: “The right to counsel matures at this critical accusatory stage; the right does not originate in the accused’s assertion of it.” It

concluded that “defendant’s confession could not properly be introduced into evidence because…the authorities had not effectively…informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence established that he had waived these rights.” That same year, the U.S. Supreme Court granted writ of certiorari to Ernest Miranda's petition, and those of four related cases from the approximately 150 cases involving Escobedo issues which it had received during the previous 18 months. Attorney John Frank based his petition and his brief for Ernest Miranda on the Sixth Amendment:

The day is here to recognize the full meaning of the Sixth Amendment…if a defendant cannot waive counsel unwittingly in one part of the conviction procedure, he should not be able to waive it at another. As a matter of practicality in law enforcement, we cannot know the precise effects of giving counsel at the beginning as the law does at the end; but we can know that there is not the faintest sense in deliberately establishing an elaborate and costly system of counsel — to take effect just after it is

too late to matter.

John Frank’s partner, John Flynn, gave the oral argument. Flynn had a sense that Miranda's case was about compulsory self-incrimination — a Fifth Amendment case — and had practiced how he would address this issue. The opportunity arose less than 15 minutes into the oral argument when Justice Stewart asked Flynn: “What do you think is the result of the adversary process coming into being when this focusing takes place? What follows from that? Is there, then, a right to a lawyer?”

Flynn replied,

I think that the man at that time has the right to exercise, if he knows, and under the present state of the law in Arizona, if he is rich enough, and if he’s educated enough to assert his Fifth Amendment right, and if he recognizes that he has a Fifth Amendment right to request counsel. But I simply say that at that stage of the proceeding, under the facts and circumstances in Miranda of a man of limited education, of a man who certainly is mentally abnormal who is certainly an indigent, that when that

adversary process came into being that the police, at the very least, had an obligation to extend to this man not only his clear Fifth Amendment right, but to accord to

him the right of counsel.

A few minutes later, Justice Stewart said, “I think it’s first important to define what those rights are — what his rights under the constitution are at that point. He can’t be advised of rights unless somebody knows what those rights are.” Flynn replied, “Precisely my point. And the only person that can adequately advise a person like Ernesto Miranda is a lawyer.” Concluding his discussion with Justice Stewart, Flynn said, “Well, I simply mean that when it becomes an adversary proceeding, at the very least, a person in Ernest Miranda’s position needs the benefit of counsel, and unless he is afforded that right of counsel he simply has, in essence, no Fifth or Sixth Amendment right, and there is no due process of law being afforded to a man in Ernest Miranda’s position.” Shortly thereafter — fifty years ago this year — the U.S. Supreme Court codified the concept of a Fifth Amendment right to counsel in its Miranda opinion:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege

under the system we delineate today.

MIRANDA V. ARIZONA: A NEWLY-RECOGNIZED FIFTH AMENDMENT RIGHT TO COUNSELBY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR

Ernesto Miranda with his lawyer John FlynnSource: University of Texas


GET TO KNOW

KEN WALLENTINEBY MINNA WANG

To understand Ken Wallentine’sinterest in criminal justice, you have to go all the way back to

the Civil War. “My great-great-great-grandfather was appointed as the deputy of the United States Marshall by Ulysses S.

Grant after the Civil War,” Wallentine says. “We have a long tradition of public service in my family, and I was raised to believe that there was great nobility in public service and great nobility in criminal justice.” In his career, Wallentine has done it all. He has been a practicing attorney, an administrative judge, a law professor, and a prosecutor. “If you ask my mother about her son, she’d say, ‘Oh, my son the lawyer,’ but I would say I’m a cop,” Wallentine laughs. “For the most part, I’m a police officer and I work as an investigator in the office of the attorney general.” In the attorney general’s office, Wallentine directs the training center, which includes everything from formal classroom training to virtual reality simulations. In the latter, officers and police recruits experience situations virtually that help them understand the legal principles involved in their day-to-day situations and walk them through the thought process.

“For example, if officers are

responding to a domestic violence report and they walk up to the front door and hear arguing, do they go in? Why do they make the choice that they do? What gives them the legal ability to go into that home without a warrant, without consent, and without invitation?” he explains. Although Wallentine’s interest in public service are genetic, his passions are wholly his own. The most rewarding part of his job is seeing the officers he trains grasp the importance of a cop’s role as the frontline defense for the Constitution. In his travels, he has seen countries where police are feared as agents of the state, which has helped him appreciate the role of American police officers as agents of the people. “For me, criminal justice is more than a trade. It’s a strong, strong code that leads to the belief that we can make the world a better place,” Wallentine says. “Right now, even in my 35th year, I’m all about making my community better by teaching

police officers in a very active way how to serve the public and at the same time respect and protect constitutional rights.” In his career of criminal justice, Wallentine has made his fair share of arrests—“hundreds, if not thousands,” in his words. To him, the importance of the Miranda rights lies in their ability to be juries and judges (and society at large) that confessions are reliable. “The Miranda decision really forms a framework for a prosecutor to convince judges and juries that someone’s admission or confession is truly voluntary,” says Wallentine. “When the jury hears that a police officer provided the Miranda warnings to a defendant, it gives juries confidence that the process of interrogation was just and fair. Because of this, they can place greater weight on the defendant’s confession.”

Ken WallentineCriminal Justice Lawyer

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