The James Madison Legacy Project

November 6, 2017

The Fifth and Sixth Amendments

By Millie Aulbur, Director of Citizenship Education, The Missouri Bar

1. The second half of this presentation is going to focus on mostly the Fifth Amendment.

2. Like the 4th Amendment, there are so many places we could go with this, but because it was the 50th anniversary of the Miranda case and because almost all court cases about the 5th Amendment deal with it, we will stay there for our short time together.

3. Let’s talk about Miranda. Ernesto Miranda was a poor man living in Phoenix, Arizona, in 1963. Miranda was arrested after a crime victim identified him in a police lineup. Miranda was charged with rape and kidnapping and interrogated for two hours while in police custody. The police officers questioning him did not inform him of his Fifth Amendment right against self-incrimination, or of his Sixth Amendment right to the assistance of an attorney. As a result of the interrogation, he confessed in writing to the crimes with which he was

1 charged. His written statement also included an acknowledgement that he was aware of his right against self-incrimination. During his trial, the prosecution used his confession to obtain a conviction, and he was sentenced to 20 to 30 years in prison on each count. Miranda's defense attorney appealed to the Arizona Supreme Court. His attorney argued that his confession should have been excluded from trial because he had not been informed of his rights, nor had an attorney been present during his interrogation. The police officers involved admitted that they had not given Miranda any explanation of his rights. They argued, however, that because Miranda had been convicted of a crime in the past, he must have been aware of his rights. The Arizona Supreme Court denied his appeal and upheld his conviction. 4. Where do we get these rights? We have to look at the 5th and 6th Amendments and the Gideon Supreme Court case. 5. Let’s look at the 5th Amendment.

6. Refresh them about the exclusionary rule.

2 7. We are going to spend very little time with the 6th Amendment. Not as contentious as the 4th or 5th Amendment. Lots of litigation over if someone received effective assistance of counsel. Very seldom successful. 8. Speedy trial—let’s talk about Pat Joyce’s case.

9. Jury trial—anyone ever serve on a jury?

10. Know criminal charges. Unthinkable, isn’t it, but the Framers of the Constitution are coming from the place of being hauled into court and not knowing why.

11. Right to confront witnesses. Mob cases. Child abuse cases.

12. Back to the 5th. Also bring up that a lot of cases dealing with the 5th Amendment are about the voluntary nature of a confession. Time, age, size of the room, time without food and drink have all been looked at. Again, the Court does not want to handcuff the police and it always

3 comes back to this balance between individual rights and public safety. Police officers and highway patrolman get extensive training in how to operate constitutionally but, like all of us, there are times when they have to act very quickly and we not want them to be a spot where they have to stop and say, “How does this mesh with the constitution?” 13. What is custody? That is a controversy. Extremely subjective.

14. Dickerson. What was so interesting about this case was that Justice Rehnquist when he was not chief justice dissented in a lot of cases dealing with Miranda rights and made it clear that he did not think Miranda had sufficient constitutional underpinnings. Most court watchers were convinced he would work hard to overturn Miranda with the Dickerson Case. Instead, Rehnquist wrote the opinion upholding the Miranda rights and he said that Miranda had become an important part of the our legal landscape and let it stand. Jeffery Toobin, who has written a lot about the court and who is on CNN a lot, wrote that he felt that Rehnquist, when he was

4 in the minority on the court, felt free to pursue his philosophical views, but as chief felt it necessary to really consider if overturning Miranda was a good idea.

15. Seibert case. What do you think? The cop admitting that this is why he did this leaves me totally perplexed. The court in deciding the case really wrestled with this idea of looking at the officer’s motivation. Deviates from the general proposition to look at what a reasonable person would think. I am not saying the right conclusion was not reached, just a little scary where the court went.

16. Brewer v. Williams

6th Amendment