A Step Too Far or Not Far Enough?

Nathan, Joanne, and our guests discuss the backlash against Miranda – on the right and the left. The Supreme Court decision heard in this segment comes from Oyez.



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Blue Hand by Ketsa

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JOANNE: But while Miranda settled seamlessly into pop culture, it was a controversial legal decision almost from the start. Many viewed Miranda as protection for the guilty at the expense of police. Carol Cooley certainly feels that way.

CARROLL COOLEY: Well, it was a very bad decision, I should say, for police work, because much of what police do is gather information and seek the truth. And if you tell somebody he doesn’t have to talk to you, and then you tell him, listen, you have right to an attorney, if you can’t afford one, we will provide you one. Well, attorneys tell their clients, don’t talk to the police.

And so, if a person is being questioned and he’s told these mornings, he’d be somewhat a fool to not take advantage and to answer those questions.

JOANNE: He gave an example of a case where he felt that mirandizing a suspect may have allowed a guilty man to get away with a crime. That crime was the murder of Ernesto Miranda himself. Miranda was stabbed to death in a bar fight in Phoenix in 1976.


CARROLL COOLEY: There was a fight between he and two other Hispanic males over a card game there at the bar. That was the biggest mistake of his life. It was his life. He was stabbed twice, once in the stomach and through the heart. And he died on that dirty floor.

JOANNE: Two men were questioned in the case. One was eventually charged. But the other suspect disappeared after the police questioned him. Cooley feels that the second man escaped, in part, because he was mirandized and police couldn’t get enough information to keep him in custody.

CARROLL COOLEY: The one thing you should know, though, that the guy that stabbed him to death was questioned. He was given his rights and questioned. But we didn’t have a case on him, and he walked away and he’s still gone– he’s still out in the wind.


NATHAN: But there were also plenty of critics who felt that Miranda didn’t go far enough.

RISA GOLUBOFF: Absolutely. So critics from the right who thought this was an infringement of police professionalism and overreaching by the courts over the police, which was true for much of what the Warren Court did, that it was perceived to be the court being too activist. But from the left, it certainly seemed to many– I think to fewer at the time, but more over time, that by providing, say, you know, you just have to say that people have these rights– and they’re called Miranda rights now– that people have these rights doesn’t really help them very much.

It creates a formal rule. And then, once everybody accepts the rule, suddenly you say you have these rights, and then if you talk to me it’s all fair game. And then, what do people do? They still talk. So it’s a formal advance, but does it really protect defendants in the end, or suspects in the end? Does it really actually meaningfully change the relationship between the suspect and the officer.

NATHAN: Eventually, the legal controversies surrounding the Miranda decision and Miranda, the pop culture icon would meet in a court case called Dickerson versus the United States.

MALE SPEAKER: The question before the court today asks whether Congress has the authority to legislatively overrule and reverse this court’s decision in Miranda. The key to this question turns on whether the requirements of Miranda are constitutionally based, and therefore immune–

RON STEINER: Is the requirement that the police go through these very precise details in cautioning somebody, is that constitutionally required, or is that just a good idea? And if you don’t do that, it’s still possible claim that the testimony was voluntary. And so, the question of Miranda’s constitutional pedigree was squarely at issue in Dickerson, in a case that, in a way that, it had never been before.

NATHAN: But it’s not that easy to get rid of my guess is.

RON STEINER: In the decision for the court written by Chief Justice Rehnquist–

JUSTICE WILLIAM REHNQUIST: I have the opinion of the court to announce in number 995525, Dickerson against the United States. You have the right to remain silent, anything you say can be used against–

RON STEINER: He acknowledged that a lot of people don’t think the details of Miranda stand up. He acknowledged that if he had to do it himself beginning from zero– ground zero– that he probably wouldn’t hand down the requirements as they were handed down. But then he went on to say, unfortunately, maybe we’re not writing on a blank slate.

JUSTICE WILLIAM REHNQUIST: These four warnings that echo through police stations and on television screens in the 34 years since we decided in the case of Miranda versus Arizona–

RON STEINER: And in particular, we’re writing a decision about Miranda and what voluntariness means in the midst of a popular culture where everybody knows the Miranda Warning, he says. And everybody expects that when they’re being now subject to what the courts would call custodial interrogation, when they’re under arrest and being asked potentially incriminating questions, they think they’re supposed to have been given a Miranda Warning.

JUSTICE WILLIAM REHNQUIST: Whether or not we would agree with Miranda’s reasoning and it’s resulting rule, were we are addressing the issue in the first instance. Miranda has become embedded in routine police practices to the point where the warnings have become part of our national culture.

RON STEINER: And we can’t pretend that that’s not happening. And so if we take the Miranda Warning away, we’ll confuse people. We’ll unsettle all these expectations that people have, and that’s a problem. And so, the court relied on the sort of basic common law concept of precedent. We call it stare decisi in Latin, where the previous decision stands, not because we agree with it necessarily, but because it would be too socially disruptive to try and reverse it.

NATHAN: Make life imitate art in effect.

RON STEINER: Yeah, in a really interesting, yeah. The popular culture– the court acknowledges that the national culture expects it. They didn’t say it, but we all know that it comes from Jack Webb and Adam 12 and the various police procedurals over the years. You can’t take it away without confusing people. And so, I guess we’re going to have to leave it in place says the court.

NATHAN: But it’s also not the end of the story. You and your researchers made a pretty striking observation, that during the 1980s you take a show like Hill Street Blues and just in the way that arrests on that show were being portrayed, you found that three out of four the arrests– over 75% of the arrests– on Hill Street Blues included some element of the Miranda rights being read as part of the broadcast. Fast forward to the ’90s and early 2000s, a show like NYPD Blue, and over 80% of the arrests on the show do not have any Miranda rights involved at all. Again, this is from your own research with your team.

Now, this is an amazing development, because it’s demonstrating that the popular culture is shifting the way in which Miranda, as part of a script, enters the discussion as a plot device is leaving our popular culture. Is there any sense that that may have an impact in what the future of Miranda rights may be going forward?

RON STEINER: I think that’s exactly the right question. So the fact that we don’t see Miranda anymore as much as we used to is important. Because if Dickerson is serious– if the court is serious and it’s saying Miranda was, perhaps, a flawed decision, but we’re going to live with it because it’s so ingrained in people’s mind through TV, and then TV stops showing it, if that’s true, then what happens when people haven’t seen it so much on TV? What’s the next step in that analysis?

So we didn’t do a study to find out how aware are people today of Miranda. Yeah, I can recite Miranda, more or less. I don’t know if my kids can cite Miranda. As a matter of fact, I tested them, and they can’t. They get–


Into, you know, you have the right to remain silent, and then they become silent. It stops at that point. That’s all they know.

NATHAN: Yeah. I’m of the generation of the Law and Order blackout, as well. So it really does stop after those first two sentences.

RON STEINER: Yeah, yeah. And there was even– we did our study based on TV shows, and one of the students who did the research with me pointed out in the more recent movie, 21 Jump Street, it becomes a plot joke that these young cops, they themselves can’t recite Miranda, that they haven’t seen enough shows where the whole Miranda Warning is given, that they don’t actually know it themselves.

DEPUTY CHIEF HARDY: Do you even know the Miranda rights?


DEPUTY CHIEF HARDY: Let’s hear them then.

JENKO: It’s– look, it obviously starts with, you have the right to remain silent– I know you’ve heard this before. And then, it I think it sounds something like, you have the right to remain an attorney.

DEPUTY CHIEF HARDY: Did you say, that you have the right to be an attorney?

SCHMIDT: You do have the right to be an attorney if you want to.

NATHAN: But what would you say the legacy is of Miranda given its permutations both through the courts and through popular culture?

RON STEINER: I think Miranda is, of course, a big part of the Warren Court era rethinking of criminal procedure and the rights of criminal suspects. And that’s something that I think we, perhaps, maybe take for granted today. We forget how bad it had gotten. Because there were no national constitutional standards, judges and prosecutors, who in many cases are actually elected representatives, have this overwhelming desire to get convictions, right? Get the bad guy.

And if nobody stops them from going too far, they go too far. And the courts saw that. And the Supreme Court said, unfortunately, the only way we’re going to get law and order in the police departments and in the criminal prosecutions is if we tell the police, look, if you invade somebody’s privacy and search them illegally, that evidence is useless. So don’t do it.

If you intimidate somebody into a confession that they didn’t want to make, that confession is useless. It’s not going to be used in court, so there’s no point doing it. If you want your convictions to stand up, do it the right way.


NATHAN: Ron Steiner is a professor of law at Chapman University and co-author of the Rise and Fall of Miranda Warnings in Popular Culture.

JOANNE: Earlier, we heard from Carol Cooley, a retired captain with the Phoenix Police Department. We also heard from Risa Golubuff, Dean of the University of Virginia School of Law and author of Vagrant Nation– Police Power, Constitutional Change, and the Making of the 1960s.


NATHAN: That’s going to do it for us today, but you have the right to keep the conversation going online. Let us know what you thought of the episode, or ask us your questions about history. You’ll find us at backstoryradio.org, or send an email to backstory@virginia.edu. Were also on Facebook, Tumblr, and Twitter @backstoryradio. Whatever you do, don’t be a stranger.

JOANNE: This episode of BackStory was produced by David Stenhouse, Nina Earnest, Emily Gadek, and Ramona Martinez. Jamal Millner is our technical director, Diana Williams is our digital editor, and Joey Thompson is our researcher. Additional help came from Angelique [? Visash, ?] Sequoia Carrillo, [? Corian ?] Thomas, Courtney [? Spania ?] and Aaron Teeling. Our theme song was written by Nick Thorburn. Other music in this episode came from Ketsa, Podington bear, and Jahzzar. Special thanks this week to the Phoenix Police Museum, Professor Lucas Powe at the University of Texas, and KUCI in Irvine. And as always, thanks to the Johns Hopkins Studios in Baltimore.

NATHAN: BackStory is produced at Virginia Humanities. Major support is provided by an anonymous donor, the National Endowment for the Humanities, the provost’s office at the University of Virginia, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

MALE SPEAKER: Brian Balogh is Professor of history at the University of Virginia. Ed Ayers is Professor of the humanities and President Emeritus of the University of Richmond. Joanne Freeman is Professor of history and American studies at Yale University. Nathan Connolly is the Herbert Baxter Adams Associate Professor of History at the Johns Hopkins University. BackStory was created by Andrew Windham for Virginia humanities.

NATHAN: Do you understand these credits as I’ve read them to you?

JOANNE: Yeah, but I want a lawyer.