The Constitution Moved into the Police Station

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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.
PROGRAM SPONSORS:
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MIRANDA WARNINGS: HELPING TO
ENSURE EVERYONE KNOWS THEIR
CONSTITUTIONAL RIGHTS
By Susanne Gustin
Utah State Bar Commissioner and
criminal defense lawyer
L
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
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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 seventhgrade 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.
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.
Law Day | 05.01.2016 | 3
4 | 05.01.2016 | Law Day
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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
T
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.
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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 801-3288891 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.
RUN TO SUPPORT
CONSTITUTIONAL RIGHTS
T
he 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 familyfriendly event at andjusticeforall.org/
law-day-5k-run-walk.
6 | 05.01.2016 | Law Day
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GET TO KNOW
SALT LAKE COUNTY DISTRICT ATTORNEY SIM GILL
BY MINNA WANG
Sim Gill
Salt Lake County District Attorney
S
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
S
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
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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 reasonable
threat to public or officer safety.
2. The questioning must be
limited and focused on
eliminating the safety threat.
3. The suspect’s statements
are 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 safetyrelated 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 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.
8 | 05.01.2016 | Law Day
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GET TO KNOW
RON YENGICH
BY MINNA WANG
Ron Yengich
Criminal Defense Lawyer
A
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
COURTESY OF THE AMERICAN BAR ASSOCIATION
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
10 | 05.01.2016 | Law Day
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GET TO KNOW
PAUL CASSELL
BY MINNA WANG
Paul Cassell
Professor of Criminal Law
P
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
Law Day Awards
"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.”
Law Day | 05.01.2016 | 11
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ERNESTO MIRANDA: CRIME AND PUNISHMENT
BY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR
E
rnesto 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
Ernesto Miranda, #1, in police lineup. Source: University of Texas
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
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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.
12 | 05.01.2016 | Law Day
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GET TO KNOW
MIKE BROWN
BY MINNA WANG
Mike Brown
Salt Lake City Interim
Police Chief
S
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.’
T
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
T
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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14 | 05.01.2016 | Law Day
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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
“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
I
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
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GET TO KNOW
KEN WALLENTINE
BY MINNA WANG
Ken Wallentine
Criminal Justice Lawyer
T
o understand Ken Wallentine’s
interest 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.
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
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
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.”
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