Utah Law Day 2016 by Utah Media Group

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Sunday, May 1, 2016

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

ABOUT LAW DAY 2016 The 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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MIRANDA WARNINGS: HELPING TO ENSURE EVERYONE KNOWS THEIR CONSTITUTIONAL RIGHTS BY SUSANNE GUSTIN

By Susanne Gustin

Utah State Bar Commissioner and criminal defense lawyer

aw 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.

Miranda booking photo

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 JUSTICE BY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR

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 CONTINUED ON PAGE 3

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signifi cance and minimize CONTINUED FROM PAGE 2 their effectiveness.” Alternatively, beeffectiveness.” presented significance andwarnings minimizemay their with Alternatively, rapid-fire delivery, precluding warnings may be any presented meaningful comprehension. Canadian with rapid-fire delivery, precluding anyresearch onmeaningful audio-recorded warnings administered to comprehension. Canadian research actual arrestees has clocked average speeds on audio-recorded warnings administered to exceeding 200 words per minute. Besides actual arrestees has clocked average speedsthe virtual incomprehensibility of such breakneck exceeding 200 words per minute. Besides the speeds, warnings were frequently marred by virtualthe incomprehensibility of such breakneck omissions andwarnings inaccuracies. speeds, the were frequently marred by A mere notifi of rights cannot be omissions and cation inaccuracies. equated withnotification the education of one’s rights. A mere of rights cannot be It makes no the sense — legal of orone’s otherwise equated with education rights.— to expectItamakes typicalnoarrestee with a sixthor seventhsense — legal or otherwise — to grade reading levelarrestee to comprehend a Miranda expect a typical with a sixthor seventhadvisement written college-graduate reading grade reading levelattoa comprehend a Miranda level. Furthermore, has convincingly advisement writtenresearch at a college-graduate reading demonstrated that lengthy oralhas warnings cannot level. Furthermore, research convincingly that lengthy oral warnings cannot bedemonstrated comprehended. beWith comprehended. typical Miranda warnings — ranging Withtotypical Miranda — ranging from 125 175 words — warnings oral comprehension from 125 words — even oral comprehension typically failstoto175 reach 50%, when typically fails reach undergraduates. 50%, even when administered totocollege administered to college undergraduates. A third and final fundamental A third and final fundamental misconception is that Miranda warnings is thatknowledge Miranda warnings gomisconception beyond conveying to help go beyond conveying knowledge to help in rectifying Miranda misconceptions. For in rectifying Miranda misconceptions. Forof instance, 20% of prospective jurors, 26% instance, 20% of prospective jurors, 26% of undergraduates and 31% of defendants wrongly undergraduates and 31% of defendants wrongly believe that silence will be used as incriminating believe that silence will be used as incriminating evidence. evidence.

Do you have a legal problem? Not sure you can afford a lawyer? Now there is affordable legal help for people with modest incomes. The Modest Means Lawyer Referral program helps people with modest incomes and assets get legal help in Utah at discounted rates, helping to realize the Utah State Bar’s vision of a just legal system that is understood, valued, and accessible to all. The program is available to people who make too much to receive pro bono assistance, but up to $72,500 for a family of four. Depending on their financial situation, qualifying participants will be referred to a lawyer who charges up to $50 or $75 an hour — $25 application fee includes 1st half hour. Visit the Bar’s website to see about qualiﬁcation requirements.

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‘WE MUST BE FAIR. WHEN PEOPLE GET IN TROUBLE THEY NEED HELP. SO GOOD PEOPLE HELP, AND WE HAVE JUSTICE AND FAIRNESS.’ The above statement and accompanying art are from five-year-old Aubrey Reichert, who received the 3rd place grade school Art & the Law award.

By Robert Rice Utah State Bar PresidentElect and lawyer with Ray Quinney & Nebeker

he 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 online 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. CONTINUED ON PAGE 5

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The Pro Bono The Pro was Bono Commission created for Commission created for the purpose of was improving the purpose of improving access to justice by access to legal justice by to providing services providing legal services to those with an income of less those with an income of than 125% of the Federal less than 125% of the Federal Poverty Guidelines. In Poverty Guidelines. 2015, Utah State Bar In Pro 2015, Utah State Bar Pro Bono Commission programs Bono Commission programs and clinics helped more and clinics helped more than 2,400 Utahns. This than 2,400 Utahns. This includes full representation includes full representation cases, Signature Projects cases, Signature Projects (calendars and specific (calendars and specific legal needs served by law legal needs served by law firms and the courts), the firms and the courts), the Tuesday Night Bar clinic, Tuesday Night Bar clinic, the Debtor’s Clinic and the Debtor’s Clinic and the theSenior SeniorCenter CenterLegal Legal Clinics. These Clinics. Theseservices servicesare are provided providedfree freeofofcharge chargetoto individuals individualswho whoqualify, qualify, and anyone can and anyone canattend attend the theclinics. clinics.Individuals Individuals interested interestedininpro probono bonolegal legal services can contact services can contactUtah Utah Legal LegalServices Servicesatat801-328801-3288891 or 8891 or800-662-4245 800-662-4245for for more moreinformation informationabout about qualifications qualificationsand andservices. services. Search Searchforforlegal legalclinics clinics atatwww.utcourts.gov www.utcourts.govfor for additional additionalinformation information regarding regardingstatewide statewidepro pro bono bonoservices. services. The TheBar’s Bar’sModest ModestMeans Means Lawyer Referral Lawyer ReferralProgram Program provides providesaffordable affordablelegal legal assistance to assistance topeople peoplewho who make makefrom from125% 125%toto300% 300% ofofthe theFederal FederalPoverty Poverty Guidelines Guidelines(up (uptoto$72,900 $72,900 forfora family of a family offour). four).The The discounted discountedhourly hourlyrates rates arearedetermined determinedbybythe the financial financialcircumstances circumstancesofof the theindividual individualclients. clients.The The Modest ModestMeans MeansLawyer Lawyer Referral Referralis isa avaluable valuable resourceforforindividuals individualswho who resource notqualify qualifyforforpro probono bono dodonot legalservices. services. legal TheUtah UtahState StateBar Barisis The proudofofthe themany manysuccess success proud storiesarising arisingout outofofUtah Utah stories lawyers’contributions contributionstoto lawyers’ thePro ProBono BonoCommission Commission the and the Modest Means and the Modest Means Program. When, Program. When, forfor example,Mariska MariskaByers Byersdid did example,

not qualify for a pro bono not qualify a pro bono attorney, she for contacted attorney, she contacted the Modest Means Lawyer the Modest MeansThe Lawyer Referral Program. Bar Referral Program. The referred her to attorney Bar Ben referred her totreated attorneymeBen Lawrence. “He Lawrence. me just like any“He othertreated client,” just like any other client,” said Byers, “and he helped said Byers,a“and he helpedat me achieve fair outcome me achieve a fair outcome a cost I could afford.” Visit at a cost I could afford.” www.utahbar.org to seeVisit if www.utahbar.org see if you or a loved one to qualifys you or a loved one qualifys for discounted rates. for discounted rates. The Affordable Attorneys The Affordable Attorneys for All Task Force is also for All Task Force is also encouraging nonprofit law encouraging nonprofit law firms to provide a similar firms to provide a similar role in providing affordable role in providing affordable services and applauds services and applauds the efforts of Open Legal the efforts of Open Legal Services, Services,Nonprofit NonprofitLegal Legal Services of Services ofUtah Utahand andChoice Choice Legal LegalServices. Services.These Theselaw law firms firmsand andtheir theirinnovative innovative and anddedicated dedicatedattorneys attorneys are bringing are bringingmeaningful, meaningful, market-based market-basedreforms reformstotothe the way in which legal way in which legalservices services are aredelivered deliveredininUtah. Utah. Access Accesstotojustice justiceinin our ourcivil civiljustice justicesystem systemisis not guaranteed. It not guaranteed. Itisisonly only through throughhard hardwork workthat thatwe we can cancreate createa alegal legalsystem system that thatworks worksfor foreveryone. everyone.I I want to extend the want to extend themost most heartfelt heartfeltgratitude gratitudetotothe the attorneys attorneysofofthe theUtah UtahState State Bar Barwho whodonate donatetheir theirtime time totothe theBar’s Bar’sand andthe theCourt’s Court’s efforts to improve efforts to improveaccess access totojustice justiceininour ourstate. state.You You are incredible professionals are incredible professionals who whoembody embodythe thenotion notion ofofethical service ethical servicetotoall, all, nonomatter mattertheir theirstation stationinin life. life.You Yousave savefamilies familiesfrom from eviction, eviction,help helpheal healbroken broken homes, homes,procure procureneeded needed benefits benefitsand andbybyyour youractions actions show showour ourcommunity communitythat that a alawyer’s lawyer’sduty dutyisisalways alwaystoto justice.We Weare areon onour ourway way justice. creatinga abetter betterlegal legal totocreating systemfor forour ourstate, state,and andwe we system appreciateeveryone everyonewho who appreciate helpingtotomake makethat that isishelping happen. happen.

RUN RUN TO TO SUPPORT SUPPORT CONSTITUTIONAL CONSTITUTIONAL RIGHTS RIGHTS

he Miranda warning about he Miranda warning about the right to an attorney, even the right to an attorney, even if you can’t afford one, isn’t if you can’t aﬀord one, isn’t applicable in civil cases. This is where applicable in civilFOR cases.ALL” This steps is where “AND JUSTICE in. “AND JUSTICE FOR ALL” in. Through the generous supportsteps of the Through the generous support of the community, AJFA serves over 31,000 community, AJFA serves over 31,000 victims of domestic violence, the poor victims of domestic violence, the poor and disabled Utahns each and every and disabled Utahns each and every year. You can support these efforts by year. You can support these eﬀorts by participating in the Law Day Run held participating in the Law Day Run held at the S.J. Quinney School of Law at the S.J. Quinney School of Law on May 14. Register for the familyon May 14. Register for the familyfriendly event at andjusticeforall.org/ friendly event at andjusticeforall.org/ law-day-5k-run-walk. law-day-5k-run-walk.

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GET TO KNOW

SALT LAKE COUNTY DISTRICT ATTORNEY SIM GILL

BY MINNA WANG

Sim Gill Salt Lake County District Attorney

alt 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?”

CURRENT STATE OF MIRANDA: PUBLIC SAFETY EXCEPTION & TERRORISM INVESTIGATION

BY KATHLEEN ABKE

By Kathleen Abke Attorney with Strong & Hanni

ince 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 CONTINUED ON PAGE 7

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had had bombs bombs in in their their apartment apartment that they were that they were planning planning to to presented presentedaadanger dangerto to the the public. public. detonate detonate in in aa public public bus bus terminal terminal The or TheCourt Courtheld heldthat that under under or subway subway station. station. During During the the the raid, thepublic publicsafety safetyexception exception to to raid, the the officers officers uncovered uncovered aa bag bag Miranda containing Miranda,,when whenofficers officers ask ask containing pipe pipe bombs, bombs, one one of of focused which focusedquestions questionsnecessary necessary to to which appeared appeared to to be be activated. activated. secure their own safety Without first giving secure their own safety or or the the Without first giving Miranda Miranda safety warnings, safetyof ofthe thepublic, public, they they do do not not warnings, police police questioned questioned one one need to provide the warnings of need to provide the warnings of the the suspects suspects as as to to how how many many required bombs requiredby byMiranda Miranda.. bombs there there were, were, the the number number From Quarles of From Quarlesemerged emerged three three of switches switches on on each each bomb, bomb, how how essential the essentialfactors factorsthat that must must be be the bombs bombs could could be be disarmed disarmed present and presentin inorder orderfor for the the public public and whether whether the the bombs bombs had had any any safety exception to apply: timers, safety exception to apply: timers, as as well well as as whether whether the the 1.1.The Thepresence presenceof of aa reasonable reasonable suspect suspect intended intended to to kill kill himself himself in in threat to public or threat to public or officer officer safety. safety. the the bombs’ bombs’ explosion. explosion. 2.2.The The Thequestioning questioning must must be be The Second Second Circuit Circuit limited and focused determined limited and focused on on determined that that the the public public safety safety eliminating exception eliminatingthe thesafety safety threat. threat. exception applied applied to to the the suspect’s suspect’s 3.3.The statements Thesuspect’s suspect’sstatements statements statements made made in in response response are made voluntarily to are made voluntarily and and not not to these these questions questions because because the the asasaaproduct productof ofimproper improper police police questions questions were were clearly clearly directed directed interrogation toward interrogationtactics. tactics. toward efforts efforts to to disarm disarm the the explosives. explosives. The The court court disagreed Public PublicSafety SafetyException Exception in in with with the the suspect’s suspect’s argument argument that Terrorism Investigations Terrorism Investigations the the question question concerning concerning his U.S. U.S.v.v.Khalil Khalilinvolved involved police police plan plan to to detonate detonate the the bombs in a questioning questioningof oftwo twosuspects suspects in in suicide suicide bombing bombing was was unrelated to connection connectionwith withan an apartment apartment public public safety, safety, concluding concluding that the raid. raid.The TheNYPD NYPDhad had received received suspect’s suspect’s “vision” “vision” for for his survival information informationthat thatthe the suspects suspects CONTINUED FROM PAGE 6 CONTINUED FROM PAGE 6

after was relevant relevant after the the explosion explosion was to the bomb’s stability and, thus, to the bomb’s stability and, thus, public and officer safety. public and oﬃcer safety. A district court court A Michigan Michigan district also applied the public safety also applied the public safety exception to statements made to to exception to statements made federal agents by Umar Farouk federal agents by Umar Farouk Abdulmutallab, the so-called so-called Abdulmutallab, the “underwear bomber,” while he he “underwear bomber,” while was at the the hospital hospital and and was in in custody custody at without received Miranda Miranda without having having received warnings. was warnings. Abdulmutallab Abdulmutallab was asked of his his travel travel plans, plans, asked details details of the device, his his plans plans the explosive explosive device, for and the the identity identity of of for the the attack attack and his who might might share share his associates associates who his views. The The court court his jihadist jihadist views. found these questions questions were were found that that these designed elicit information information designed to to elicit about potential attackers attackers about other other potential and imminent attacks attacks and potentially potentially imminent and agents limited limited their their and that that the the agents questioning to less less than than one one hour, hour, questioning to at they had had enough enough at which which time time they 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 in the the hospital hospital without without was Mirandizing him. The court Mirandizing him. The court never addressed the question of never addressed the question of whether Tsarnaev’s statements whether Tsarnaev’s statements made in in response response to to this this made extensive questioning fell within within extensive questioning fell the public safety exception the public safety exception because prosecutors prosecutors chose chose not not because to introduce these statements to introduce these statements as evidence evidence at at trial. trial. However, However, as the circumstances circumstances of of this this case case the have provoked provoked debate debate as as to to what what have properly constitutes constitutes “narrow “narrow properly and focused” focused” public public safetysafetyand related questioning questioning in in similar similar related investigations. investigations. Miranda Miranda was was decided decided decades decades before terrorism terrorism became became an an before everyday concern concern for for Americans Americans everyday and before before law law enforcement enforcement and officials routinely routinely investigated investigated oﬃcials terrorism. The The scope scope of of the the terrorism. public safety safety exception exception has has been been public greatly expanded expanded beyond beyond Quarles Quarles,, greatly particularly in in the the context context of of particularly terrorism investigations. investigations. Time Time terrorism will tell tell whether whether the the U.S. U.S. will Supreme Court Court will will ultimately ultimately Supreme address the the outer outer contours contours of of this this address exception in in this this evolving evolving area area of of exception the law. law. the

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 ofﬁcials, 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.

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RON YENGICH

BY MINNA WANG

Ron Yengich Criminal Defense Lawyer

s 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. ”

Utah State Courts

We are here to help 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.

“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)

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

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POST-MIRANDA U.S. SUPREME COURT DECISIONS POSTMIRANDA U.S. SUPREME COURT DECISIONS

COURTESY OF THE AMERICAN BAR ASSOCIATION

Greenwald v. Wisconsin, 1968: Greenwald arrested for1968: burglary, Greenwaldwas v. Wisconsin, he wasGreenwald interrogated by police, and, during was arrested for burglary, thatheprocess, was denied food, sleep and was interrogated by police, and, during medication, and his assertion that he that process, was denied food, sleepwas and “entitled” to a lawyer ignored. The medication, and hiswas assertion that he was Court ruled that confession was not “entitled” to ahis lawyer was ignored. The voluntary, basedthat on the “totality ofwas the not Court ruled his confession circumstances” surrounding it. voluntary, based on the “totality of the circumstances” surrounding it. Oregon v. Mathiason, 1977: AOregon police officer suspected Mathiason of v. Mathiason, 1977: A police officer suspected Mathiason burglary and asked him to the station for of burglary and asked him to the station for questioning. Mathiason came freely, spoke freely,atspoke withquestioning. the officer, Mathiason and was notcame arrested and waslater notand arrested the with time.the Heofficer, was arrested a trialat theused time.evidence He was obtained arrested later andthe a trial court during court used obtained questioning toevidence convict him. The during Court the questioning to convictofhim. The Court ruled that the admission evidence was ruled that the admission of evidence was constitutional. Miranda, the Court ruled, constitutional. Miranda , the Court ruled, only required law enforcement officials to only required rights law enforcement officials to recite a suspect’s when the suspect recite a suspect’s rights when the suspect had been “deprived of his freedom of had been “deprived of his freedom of action in any significant way.” The Court action in any significant way.” The Court determined that in this case there was “no determined in this case there indication that that the questioning took was place“no indication that the questioning took in a context where respondent’s freedomplace to in awas context whereinrespondent’s freedom depart restricted any way.” Even if to depart was restricted in any way.” Even if the police coercively pressured Mathiason the police coercively pressured Mathiason during the interview, he came to the during the interview, he came to the police station freely and was free to leave police station freely and was free to leave at any time. Therefore, Miranda rights diddid at any time. Therefore, Miranda rights not not apply. apply.

Dickerson v. United States, 2000: Dickerson The Court v.struck down a law passed United States, 2000: by Congress in 1968 designed to The Court struck down a lawoverturn passed thebyMiranda “Miranda Congressruling. in 1968 designedhas to become overturn embedded in routine practice to the the Miranda ruling. police “Miranda has become point where the warnings have become embedded in routine police practice to the part of our national culture,”have wrote Chief point where the warnings become Justice William Rehnquist. “[It]wrote announced part of our national culture,” Chief a constitutional that Congress may not Justice Williamrule Rehnquist. “[It] announced supersede legislatively.” a constitutional rule that Congress may not supersede legislatively.” Maryland v. Shatzer, 2010: Shatzer, Maryland The Courtv.ruled that 2010: police may reopen The Court thatwho police reopen questioning of aruled suspect hasmay asked of a suspect who has asked forquestioning counsel if there has been a 14-day for counsel if there has been a 14-day break, or longer, between incidents of break, or longer, between incidents questioning and police custody. Thus,ofthe questioning and police Thus, the suspect must reassert the custody. right to counsel suspect reassert the rightincident, to counsel during themust second questioning as during the second questioning it constitutes a new incident. Theincident, Court as it constitutes a newbyincident. The 14 Court justified this period noting that days justified this period by noting that 14 days “provide plenty of time for the suspect plenty oftotime the suspect to “provide get reacclimated his for normal life, to to get reacclimated to his normal life,toto consult with friends and counsel and consult with friends and counsel and shake off any residual coercive effects oftohis shake off any residual coercive effects of his prior custody.” prior custody.” Howes v. Fields, 2011: Howes v. Fields, 2011: The Court held that investigators do The Court held that investigators do not have to read Miranda rights to inmates not have to read Miranda rights to inmates during jailhouse interrogations about during jailhouse interrogations about crimes unrelated crimes unrelatedtototheir theircurrent currentreasons reasons forfor incarceration. “Imprisonment incarceration. “Imprisonmentalone,” alone,” thethe Court ruled, Court ruled,“is“isnot notenough enoughtotocreate createa a custodial situation within the meaning custodial situation within the meaningofof Miranda .” .” Miranda

Rhode Island v. Innis, 1980: Rhode Island v. Innis, 1980: During a conversation in the police During a conversation in the police car on the way to the police station forfor car on the way to the police station questioning, Innis led authorities to a a Salinas v. v. Texas, questioning, Innis led authorities to Salinas Texas,2013: 2013: weapon used in a robbery. Prior to the Salinas was weapon used in a robbery. Prior to the Salinas wasconvicted convictedofofmurder murderand and conversation taking place, Innis had claimed that the prosecution’s conversation taking place, Innis had claimed that the prosecution’suse useofofhis his received a Miranda during warning andand he he asked received a Miranda silence duringpolice policequestioning, questioning,asasanan warning asked silence ofof deception, for aforlawyer. TheThe Court considered whether indicator deception,violated violatedhis hisFifth Fifth a lawyer. Court considered whether indicator Amendment rights. or not the the conversation in the police carcar Amendment rights.The TheCourt Courtheld heldthat that or not conversation in the police generally violated Innis’s rights. TheThe Court ruled that a witness generallymust mustexpressly expresslyinvoke invoke violated Innis’s rights. Court ruled that a witness Fifth Amendment Miranda safeguards applied to “questioning Amendmentprivilege privilegeagainst against Fifth Miranda safeguards applied to “questioning thethe or its equivalent,” or “any words self-incriminationininorder ordertotobenefit beneﬁtfrom from or functional its functional equivalent,” or “any words self-incrimination it. it. InIn other words, or actions on the partpart of the police that other words,Fifth FifthAmendment Amendment or actions on the of the police that protections notextend extendtotoindividuals individuals [they] should know reasonably likely dodonot [they] should know are are reasonably likely to to protections who simply choosetotostay staysilent silentduring during an incriminating response from simply choose elicitelicit an incriminating response from thethe who police questioning. subject.” Innis’s conversation with police police questioning. subject.” Innis’s conversation with police qualify as “questioning” under did did not not qualify as “questioning” under thisthis deﬁnition, Court ruled. Thanks AmericanBar BarAssociation Association Thanks definition, the the Court ruled. totothetheAmerican Division PublicEducation Educationfor forcontent content Division forforPublic New York v. Quarles, 1984: in this article and throughout the Law Day New York v. Quarles, 1984: in this article and throughout the Law Day Please see the Special Edition. Current State of Miranda Please see the Current State of Miranda Special Edition. article on page article on page 6. 6.

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GET TO KNOW

PAUL CASSELL

BY MINNA WANG

Paul Cassell Professor of Criminal Law

aul 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

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"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)

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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.”

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ERNESTO MIRANDA: CRIME AND PUNISHMENT

BY BYSEAN SEANTOOMEY, TOOMEY,UTAH UTAHSTATE STATEBAR BARCOMMUNICATIONS COMMUNICATIONSDIRECTOR DIRECTOR

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

Ernesto ErnestoMiranda, Miranda,#1, #1,ininpolice policelineup. lineup.Source: Source:University UniversityofofTexas Texas

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

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

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

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

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GET TO KNOW

MIKE BROWN

BY MINNA WANG

Mike Brown

Salt Lake City Interim Police Chief

ince June 2015, Mike Brown has been the Interim Police Chief of the Salt Lake City Police Department. A secondgeneration 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 communitysupported 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, openmindedness, 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.”

‘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.’

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

Law Day | 05.01.2016 | 13

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COERCIVE POLICE INTERROGATION

he 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 to do 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 of the 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.'

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 should be deprived of every psychological advantage. • Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. • He must interrogate steadily and without relent, leaving the subject no prospect of surcease.

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

• He should interrogate for 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.

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

• In a serious case, the interrogation 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.

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 the subject 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

which the desired objective may be attained."

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

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

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

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MIRANDA AND THE RIGHT (AND RESPONSIBILITY) TO KNOW YOUR RIGHTS BY ROBERT W. ADLER

Robert W. Adler

Utah State Bar Commissioner

“Y

ou 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.

Law Day | 05.01.2016 | 15

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

n 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

Ernesto Miranda with his lawyer John Flynn Source: University of Texas

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.

16 | 05.01.2016 | Law Day 16 | 05.01.2016 | Law Day

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GET TO KNOW GET TO KNOW

KEN KENWALLENTINE WALLENTINE

BY MINNA WANG BY MINNA WANG

Ken Wallentine Mike Brown Criminal Justice Lawyer

Salt Lake City Interim Police Chief o understand Ken Wallentine’s o understand Ken justice, Wallentine’s interest in criminal you interest in criminal justice, you have to go all the way back to have to go all the way back to the Civil War. the Civil War. “My great-great-great-grandfather “My great-great-great-grandfather was appointed as the deputy of the was appointed as the deputy of the United States Marshall by Ulysses S. United States Marshall by Ulysses S.

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

Grant after the Civil War,” Wallentine Grant after theaCivil Wallentine says. “We have longWar,” tradition of says. “We haveinamy long tradition public service family, andof I was publictoservice my there family,was andgreat I was raised believeinthat raised toinbelieve thereand wasgreat great nobility publicthat service nobilityinincriminal public service and great nobility justice.” criminal justice.”has nobility In his in career, Wallentine has doneInithis all.career, He hasWallentine been a practicing done it all. has been a practicing attorney, an He administrative judge, a law attorney, an law professor, andadministrative a prosecutor. judge, “If youaask professor, a prosecutor. “If you my motherand about her son, she’d say,ask my mother her son, say, ‘Oh, my sonabout the lawyer,’ butshe’d I would ‘Oh, son the lawyer,’ but I would say I’mmy a cop,” Wallentine laughs. “For saymost I’m apart, cop,”I’m Wallentine laughs.and “ForI the a police officer the most I’m a police officer work as anpart, investigator in the officeand of I work as an investigator in the office of the attorney general.” the attorney general.” In the attorney general’s office, In the attorney general’s office, Wallentine directs the training center, Wallentine directs the training which includes everything fromcenter, formal which includes everything formal classroom training to virtualfrom reality classroom training to virtual reality simulations. In the latter, officers and simulations. the latter, situations officers and police recruitsInexperience police recruits experience situations virtually that help them understand virtually that help them understand the legal principles involved in their the legal principles involved in their day-to-day situations and walk them day-to-day situations and walk them through the thought process. through the thought process. “For example, if officers are “For example, if officers are

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

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