Miranda v. Arizona, and the Fascinating Science of False Confessions

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Matt: The first thing you really need to know about Miranda is that he was really what we call a career criminal. This is not a good person in the traditional sort of moral sense.

0:00:18 Jenessa: I have a right to an attorney. I have right to remain silent. You could invoke that at any time, and they would have to respect it. But the issue is whether they have to inform you of that.

0:00:35 Matt: Jenessa Seymour, before we begin, just a few things I'm required to tell you. You do have the right to remain silent throughout this podcast. Anything you say can and will be used against you in a court of law. You have the rights to talk to a lawyer and have him present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you any time before questioning. Do you understand your rights? Well,

0:00:52 Jenessa: Yes. Yes. And then I'm going to talk anyway because I'm not making good decisions.

0:01:03 Matt: I think if you exercised your right to remain silent, that wouldn't be very good content. That. Nobody wants that.

0:01:06 Jenessa: No, that's true. Yes, but if you are ever arrested or interrogated or talking to a cop, say yes and then shut up. Yeah,

0:01:19 Matt: That is pretty much the biggest lesson out of what we're going to be talking about today, which is, of course, Miranda v. Arizona, some of the most familiar legal language, I think, probably in the entire legal system for anybody who's ever watched TV or any movies about crime in America. Of course, Miranda v. Arizona is where we get the famous Miranda warnings. And the reason that you have to be Miranda -ized, that's actually what they call it. So we're gonna talk today, this is just gonna be part one, because there's so much to talk about with this case. We're going to come back later and talk about the aftermath and the case law that developed after it, and then talk about in practice how it kind of works out. But I want to talk today about the background in this case, which is super interesting, and how this got up to the Supreme Court, and how they decided and what happened. And then I want to hear from you about the science around all of this, because as we'll discuss, I don't think most people understood at the time, and certainly a lot of people don't understand now, how somebody might end up giving a false confession to a police officer.

0:02:14 Jenessa: It's kind of unintuitive, but the research makes it make a a lot of sense, unfortunately, how this could happen.

0:02:24 Matt: Interested to talk about it. All right. Well, we've got a lot to get to, so take a break and we'll come back and get started talking about Ernesto Miranda.

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0:02:36 Matt: We took on Brown a couple of weeks ago, but Miranda v. Arizona is another one of the big marquee Warren court cases. It's one of the ones that everybody's heard of. And even if they didn't know they've heard of it, they've heard of the Miranda Warnings. So knowing that we're taking on something that people know something about already, I wanted to try to bring in some different angles, talk a little bit more about the context, about the humanity, and of course about the science behind all of this. So I'd I'd actually read a book already. And I will say just for listeners, I do try to read an entire book every time we do one of these episodes, and I mostly succeed. It's a good excuse to go back and read books that I've read before or read new ones. This one is called Miranda, The Story of America's Right to Remain Silent. It is by Gary Stewart. And he was an Arizona lawyer who knew a lot of the players involved in this case, and he says he's presenting kind of an inside look at Miranda. It was a good read. I enjoyed it.

0:03:19 Jenessa: In case anybody's confused, Matt does not have time to be reading all these books, so that is miraculous.

0:03:24 Matt: I read very quickly. And one of my primary forms of entertainment is listening to books and playing video games. It's really important to pair those things properly. I don't know how much experience you have with either of those activities, but you got to find the right balance of like strategy video games that don't require too much of your brain and books that require a lot of your brand, but maybe easier games, you know, whatever it all works out. But I take a lot notes. I have a whole system and Casey never believes me, but I am actually intensively studying the books and have a separate computer where I'm typing in my notes as I play the game. I'm I have ADHD. Have we mentioned that? I think that's come up before.

0:03:58 Jenessa: I do the same thing.

0:04:00 Matt: I think we both do.

0:04:00 Jenessa: I actually studied for the bar while playing Breath of the Wild for like the fifth time, because if I tried to just listen and watch the lectures, I was just off in la-la land. But if I had this thing to do that occupied my hands and like a little bit of my brain, the rest of my brain could actually pay attention to a lecture. So, yeah.

0:04:05 Matt: Perfect. There you go. Sure. Yes. It was such a relief to realize that was just part of my method, just having that kind of brain engagement and just learning that there is an actual explanation based in science for why I need to do these things. Yeah, this week I was playing a lot of Anno 1800 at night while I was listening to books. Great game. Fantastic stuff. Okay. Anyway, so this book I did actually read with my eyes.

0:04:44 Jenessa: Of Of course.

0:04:44 Matt: I had read it before. Now I'm back and read it again. And I do think, by the way, it completely counts when you listen to a book and I will not hear anything else. We're not all visual learners. Some of us really enjoy having things taught to us through our ears. I assume most of the people listening to this show, I'm just going to assume from context that you enjoy listening to people explain things to you. So let's talk about Ernesto Miranda. First of all, the first thing you really need to know about Miranda is that he was really what we call a career criminal. This is not a good person in the traditional sort of moral sense. He did a lot of criminal activities starting in eighth grade. He had a long history of petty offenses, but also unfortunately sexual assault and burglary and robberies. He was 23 at the time he was arrested for the offense we're going to talk about, but he had already done serious time. He'd already done federal time. And this is back when you could steal a car, drive it across state lines and get a year of federal prison, right? I mean, he had done all kinds of juvenile time for different kinds of offenses. He had served in three or four states, I think by this point, by 23. So pretty impressive record. So this is not a story of a wrongfully convicted man. This is a story of a rightfully accused and rightfully charged man. But the question, of course, is how he got to the place where he was being put on trial and convicted and how much of his own words were used against him and why. Ernesto Miranda went on kind of a crime spree in 1962 and 1963, it seems like, but there were two women in particular, one in November of 1962 and the other on March 2nd, 1963. One was an attempted sexual assault with a robbery. The other was a more or less successful sexual assault with a robbery. He didn't get very much money out of either of them, but his MO was pretty similar of either trying to get into their cars or get them into his car. I'm not going to dwell on the details of the sexual assaults, but again, no question that he did these things. That's not the point of this case or what we're talking about. It is notable that the victim in the second case was 18 years old, had intellectual disabilities. The police initially didn't believe her, and she and her cousin went and did some research on their own and basically figured out which car it was that she had been kidnapped into. The police did take her seriously, and then he was arrested eight days later. They came in and they traced the car to his common -law wife, Twyla Hoffman, who's going to figure later into the story. Notably, for the purpose of today's conversation, they brought in both of the women. I think they did lineups a little different back then. They did the typical lineup thing where they're looking at four Latino men through glass and they couldn't see them. Both of the men said that they were pretty sure it was number one, which was him, but they couldn't be totally sure. They couldn't make a positive identification. So Miranda comes back into the interview room and he asked the detective Cooley, who has now become famous for this case, Carol Coole, even though I have to say, I think Carol Coolie was following standard police procedure in Arizona at the time, from everything I can see. I don't think he necessarily did anything wrong by the terms of the time of police procedure, but Cooly was asked by Miranda, how did I do? And he went, Coolee's like, yeah, not too good, Ernie. Attorney, didn't look good for you. And that was when Miranda decided he wanted to talk because he realized he'd been identified. So he was never informed of his right to counsel or his right to remain silent. And at the time, as we'll talk about, that wasn't something that anybody was required to tell him. All they had to do by local law was sign a standard form that just said the statement was made voluntarily with full knowledge of my legal rights. But of course, the argument can be made. How do you know your legal rights if nobody has told them to you?

0:07:58 Matt: He wasn't particularly well -educated. I don't think he knew what the Fifth or Sixth Amendment were. And his confession, it's interesting. His lawyer actually made the mistake of calling it a confession in his closing argument, which nobody had actually called it a profession yet. It was actually more of a statement. It was more to the kidnapping, but he didn't really confess to rape, which is what he was charged with. He insisted there was no force, and he made it sound like it might have been voluntarily, even though it clearly wasn't. But he also made oral confessions to two other robberies and attempted assaults. But Cooley didn't want to jeopardize the rape case he already had in front of him, so he didn't ask for formal written confessions. So that's going to come up later, but he got written confessions to the one case involving this woman who's least known to the record as Patricia Doe. And then something very unusual happened, at least by our standards. He was brought to the room with Patricia

0:07:58 Jenessa: Oh, no.

0:08:42 Matt: Face to face. And at that point, she heard him say, oh yeah, she's the one I was talking about. That was her. So he makes an idea of her before she has made a positive idea of him, which is terrible police procedure. And dann after that, she is like, oh yeah. Now that I've heard his voice and seen him up close, that is him. But of course, she'd just heard him say, right?

0:08:53 Jenessa: Right. Yeah.

0:09:01 Matt: So, I mean, again, I have no doubt and there's really no question that this is what happened and these were the people involved, but it's still bad police procedure. That was the point. He was arrested and booked. He had been in custody at that point, but he had never been told about his rights. He'd already spent two hours in the room with the cops talking and writing up a confession. So they had a signed confession by 1 .30 PM. He started the interrogation at 11 .30 AM. There were two separate cases for Miranda, and this is going going to be important as well. One was the robbery. And that woman we're going to call Barbara. That's what the book calls her. And the rapist, Patricia. And so the robbery trial was scheduled first because it happened earlier. And his attorney did a pretty good job. He was 73 years old. I read that his attorney actually had tried a total of 35 rape cases in his career, including Miranda, and actually gotten acquittals on 34 of them, which is quite a record. And it also says a lot about how we were dealing with sexual assault in the justice system, certainly then and now.

0:09:56 Matt: His attorney knew well enough to do a voir dire of Detective Cooley and get him to confirm on the stand that Miranda had never been told about his rights against self -incrimination or to an attorney. But he also, unfortunately, opened the door during the trial, unfortunately for his client. Counsel, during the robbery trial, asked, did you ever discuss rape in this particular case? And that allowed Cooley to talk about the other confession, not just about Patricia, but about the one that was on trial here, which was Barbara, the robbery, and about how the victim had talked him out of it, essentially, and made him feel bad, and he left. But it looked really really bad.

0:10:26 Jenessa: Right. Right. So normally the detective would not have been able to bring that up in the prosecution's case. But if your defense lawyer decides to bring stuff up, now it's open season. Oh boy.

0:10:41 Matt: Yeah, not the only mistake, unfortunately, made by this attorney, who I won't name for history, but he's named. But again, he seems like he's a pretty good lawyer. He seems like he was dedicated to Miranda, but He did make a number of strange mistakes like this. But this was bad, opening the door, because the jury suddenly hears that this is not just an attempted robbery, but an attempted sexual assault. And that's who they're looking at. So he was convicted pretty quickly. He actually testified at trial, which is never great, of course, but this is in the robbery case. And his defense attorney emphasized in closing that when two officers will take a Mexican boy into a room and interrogate and not tell him whether he has any rights at all. Do you think that's fair? And the DA responded to this in his closing by saying that counsel knows it is not necessary for them to tell him his rights. We have a good police force, and these men aren't jumping on poor innocent boys and forcing them to give confessions. It's interesting. I didn't realize until I reviewed this about how much the central issue in Miranda actually played into his trial. Because back then you couldn't file a motion to suppress based on failure to give Miranda warnings. We're talking about the original Miranda here, because there was no legal obligation for anybody to tell you. Now, if you asked for a lawyer, they had to stop it and give you one. That was pretty well established by Escobedo, as we'll talk about. But this was an argument that was made several places at different times during Miranda's different appeals. The government's opinion generally was that if you told people their rights, they would exercise them, and that would be bad and slow down the process, which is true. That is how it works.

0:11:59 Jenessa: Yeah, this is kind of strange because as you're saying it, normally the jury decides the fact questions. Did XYZ happen? Did you do this thing? But this like question of law, we would normally think of it as a legal question like did you have to be read these rights sixth amendment that would be for the judge it's strange to put this legal right in front of a jury but I guess the argument here would be that's not what they were doing they were sort of asking the jury to make a fact determination about whether the jury should consider the confession to be true true is that yeah yeah

0:12:40 Matt: And voluntary, right? If they tried to trick him into it or whatever, right. And, you know, you can still do that today, even if emotional suppress process denied on Miranda grounds, you can still put in front of the jury that maybe this wasn't a voluntary statement. They wouldn't give my client water until he said something or whatever. You can still make those arguments, but typically that's all going to be pretrial now for the most part. But at the time, as the DA correctly pointed out, there was no right to have anybody tell you anything about what your rights were. You're signing a piece of paper that says, I'm doing this in knowledge of my rights when nobody's actually told you what they are. And I think that's important. So he was convicted pretty quickly for the robbery charge and pretty quickly as well for the rape trial. Same attorney. Rape trial took about a day, basically. It didn't take much longer. But I will say that his attorney laid the groundwork pretty well by making objections in the right times, right places. And he even told the judge that the Supreme Court had required an attorney at the time of arrest, and that was his interpretation. That is not what the Supreme Court had found at that point, just that you had a right to an attorney if you asked for one. And this is going to be the central question is, how much do they need to tell you, and what are your rights at the point of arrest? These two trials were in 1964, and the Supreme Court had decided Gideon v. Wainwright, which we're definitely going to talk about later, in 1963, just the year before. So the whole idea of the right to appointed counsel, which is what Gideon, of course, is all about, was new. And the states were still trying to figure out how to implement it. The rights to an attorney when you ask for one, this stuff was developing very quickly. And as we'll see, this became sort of a package of cases the Supreme Court took up to try to narrow these things down and hammer out what all this meant. Because the case law at this point was pretty confusing. We'll get into it after we talk a little bit more about interrogations at false confessions. But as the Supreme Court notes in Miranda, they give so many different examples. Police interrogation could still be pretty brutal at the time that Miranda was arrested in the early 60s. Some places they were still doing physical torture and deprivation, occasionally beatings or leaving people alone without food or water. All the other things you'd associate with sort of interrogation and under the worst circumstances. There was nothing the way that we think of today in the justice system where you could just stop and say, I know I have a right to an attorney. I want an attorney now. Give me an attorney." Nobody would tell you that you could do that. And I can imagine that the people that needed to know it the most probably didn't know that. Miranda was not very well educated. One of the arguments the government actually made was that Miranda had been around the justice system so much. He's such a frequent flyer that he should have known, which is not a good argument. Yeah.

0:14:50 Jenessa: Wow. So this is saying if you did know I have a right to an attorney I have the right to remain silent you could invoke that at any time and they would have to respect it but the issue is whether they have to inform you of that that's the part that's not yet established.

0:15:07 Matt: Yep. As of the time of Miranda's trial, that is where we're at. We'll get a little bit more about the case law and what's going on, but I want to come back and talk about the psychology of interrogation and how we get to the point that people might make false confessions because it's something I've always wondered about. So let's come back and do that.

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0:16:49 Matt: So in the book I'm talking about here, and I used a number of sources for this episode, but I do want to give Gary Stewart credit for this book. He had a great paragraph here I want to pull out and share with you because it really sets up my question for you. In a very real sense, this is from his introduction, most Americans, certainly most white middle -class Americans, assumed that a suspect once in custody was most likely guilty and that police interrogation should continue in private, isolated from counsel until the suspect confessed. In general, police held this conviction as well and saw no wrong in concealing the fact that the suspect's confession would be used to incriminate him. Nor did they see any wrong in pandering to the suspect'S desire to confess. Scarcely anyone outside the realm of psychology believed that a man would confess to something he had not done. So that's what I wanted to ask you. What did the realm of psychology actually know as of 1964 when Miranda was tried? And why didn't everybody else? Because it's an interesting point here that nobody but people who were doing the research on this understood that it was possible to give a a false confession. That's just something I've always known my whole life.

0:17:49 Jenessa: So it's interesting how the research has developed on this over the years. And we have become more and more confident of this, especially in a lot of research in the 90s with more sophisticated designs became extremely confident of this data, but we were starting to see, as early as the 60s, research on false memory and how interrogation and certain strategies of presenting information could really make people believe things in a very deep way. I think what people will probably find intuitive is the idea idea that under a lot of pressure, you might lie and say, I did it. So certainly like, you know, the most extreme torture, right? I'll say anything to make this stop. And knowing that you are lying, I am saying I did It. I know completely that I did not do It. That's what we would call a compliant compliant false confession.

0:18:58 Jenessa: So you are just trying to get a deal.

0:18:58 Matt: That was the main concern with waterboarding, from what I remember after 9 -11, was that even people who were all about torturing people were like, well, you're never going to get them to say anything real. They're just going to say, because waterboarding is one of the most unpleasant things you can do to somebody, they're just kind of wanting to stop after a couple of seconds. So that makes a lot of sense.

0:19:17 Jenessa: Yeah, so certainly I think your average person can understand why depriving somebody of food and water and sleep or physically hurting them, yeah, they're going to do whatever they got to do to stop it. What I think is less intuitive and really fits with what you're talking about that people would have been very permissive about this. The idea that under certain conditions, you could get what's called internalization, an actual belief that they're guilty after this extended type of interrogation. And also with that confabulation, where somebody adds details to a story that corroborates their their guilt and makes it look even worse. So how could this have happened to someone? There's a study that looked at this that I think this design will make it clear to people how this could happen, but it's very laboratory. We'll get into some more real world stuff. What they did was they brought people in and they said, okay, I'm going to read you some words and you're going to type them on the computer and we're testing your reaction and your, you know, ability to focus. Of course that's BS. And they let them know, hey, uh, you know, we got really old equipment here. There's this one button. Do not hit it. It's going to crash the computer. And one group, they're going to read the words really slowly. You have plenty of time to type. You can clearly see what you're doing. And one -group it's pretty fast. You got to go quick, quick, quick and you're moving as quick as you can. And you could make a mistake. Steak. After a little while, the computer's going to crash and the experimenter is going to go, oh my God, what did you do? I told you not to hit that. And they send you out into the waiting room and there's this other participant.

0:21:05 Jenessa: It's not, it's somebody who works with the researcher. And they're going to say, what happened? I thought you're, I was super early. I thought you were not done. And their going to ask them, you know, what happen and later record what they said. And then the experimental will come out and say, I'm going to get in so much trouble for before this computer crashing. Please, can you just sign this saying that you did it, that it's your fault?

0:21:05 Matt: And

0:21:31 Jenessa: So, of course, right?

0:21:30 Matt: It's so innocent. That's not murder. It's computer murder.

0:21:36 Jenessa: In this slow condition where it's really obvious you did not hit the button, 35 % of people are going to sign the confession. Because honestly, they're just doing you a favor. They're not going to get in trouble. They'RE just like, yeah, whatever. I'll say I did it. Screw it. Who cares? None of them are going going to show this internalization. In the fast condition where you could have hypothetically done it, 65 % when the other participant says what happened, they're going to say, I hit a button, I crashed the computer. They told me that there's this button and you could crash the computer and I must have hit it. 35 % will confabulately add

0:22:20 Matt: Mean,

0:22:20 Jenessa: Details to, yeah, yeah, you know, I reached over for the A key and that's right next to the button they told me not to hit. And that's when I hit it. And they will start to show in this conversation that they actually believe it 100 % in the fast condition, sign the confession. So we have that 35 % who are like, I didn't do it, but I'll help you out. And the other 65 % going, I did it. Oh no, I I did it. So that looks like kind of what we're looking for here.

0:22:54 Matt: The sadists who designed these studies, that seems like a whole other episode. You've told me about so many of these where they just lie to you and they make up these weird conditions where you're being forced to lie. It is just, yeah.

0:23:06 Jenessa: Social psych research is a whole other beast. Some of these that we've talked about are post -development of the institutional review boards and some of them are not. This all fits with when we look at DNA exoneration stats in the US. Using DNA for conviction is a little, it can be iffy, you know, oh, what are the odds that this is somebody else's DNA of a match?

0:23:32 Matt: Sure.

0:23:32 Jenessa: But the exoneration is very clear. This is not your DNA. That is much more obvious. When we look at people who've been exonerated, they were convicted, and then they get later exonerate based on DNA evidence. 71 % were convicted based on an eyewitness identification. 28 % had confessed. This This is 351 people exonerated based on DNA since 1986, and on average, they have served 14 years before that exoneration. Yeah.

0:24:04 Matt: A third of the people who are later exonerated by DNA, this is in one study, had confessed to the crime that they know they didn't commit.

0:24:12 Jenessa: So how is this happening? That lab experiment where we're seeing people kind of seem to internalize, we now have a lot of research that backs up how that could be happening, that it really does seem to to be a thing that happens in the real world where you begin to internalize these memories. People will probably be familiar with false memory research. It started with the early research being, let me just see, I'll give you a list of words to memorize and see if there's a key word I'm gonna try to get you to falsely report, and it worked. And then I'm going to try to, I will show you these videos and there's a stop sign and in the questions I'll ask you, was there a yield sign? And you'll say yes, because you misremember. And you could brush a lot of that away as like, oh, people are just complying with blah, blah, bah. So the research that really brought this all together, Elizabeth Loftus is really famous for a lot when we locked down our conceptualization of this. She looked at specifically false autobiographical memories your remembrance of your own history one of the studies they brought people in and they said I I need um some relatives who knew you very well so most likely your parents but you know it could be anybody who's known you as a kid and I'm going to call them and i're going to get some stories from your childhood and they do and they get four like what's some stories that like that you you're confident they'd remember this. You know, maybe you like took them to the zoo the further 10th birthday or like whatever, something that sticks out. And then there's a fifth one that's made up where they got lost in the mall and they check with the relatives. Did that happen? Can you confirm like this? This did not happen. And they're going to bring the participants in and they're gonna say, I'm going to tell you some memories. Your relatives told me this happened when you were a kid. Tell me about it. And They tell them the four memories and, you know, tell me about this. This in their randomized order, of course. And then they say, okay, and you know, your uncle tells us about the time they were watching you and you got lost in the mall. Can you tell me about that? Most people in the beginning say, I don't remember that. It doesn't sound familiar. And then they're going to say, OK, well, you know. Come back next week and we're going to ask you about these again. And like, think about it. See what you remember. And the next week, lots of people, 25 % report, oh yeah, I do remember that now. Now that you mention it,

0:26:52 Jenessa: That's really familiar actually. Now, that I had some time to think about it, to dwell on it,

0:26:54 Matt: And I had a week to think about it. Yeah. Yeah,

0:26:58 Jenessa: And a significant portion start adding details. Yeah, I stopped because there was a pet store. I remember I was looking at the puppies and they kept walking and that's what happened. And then and they found me. When they tell you, okay, debriefing, ending the study, one of those stories was made up. Can you tell me which one? Of the people who reported, yes, I remember getting lost in the mall, 20 % couldn't even guess which one was the fake memory. So here's five. One of them is false. Which one is it? They're not able to figure it out. They are so confident these are are all real memories. It's vivid in their mind. There's one example where somebody was so sure it happened, they called their parents and were like, come on, that totally happened, right?

0:27:49 Matt: Wow.

0:27:49 Jenessa: And they're like, no, no. Definitely that didn't happen. I told the experimenters it didn't happen before the study. You could imagine, well, maybe it did and nobody remembers. That's a common thing. They have replicated this study with being hospitalized, spilling punch on a bride at at a wedding, evacuating a grocery store because the sprinklers turned on, being left in a car and you pull the emergency brake and the car rolls away and hits something. Things that like, we are so confident your relatives are not accidentally forgetting this happened and you should, we would think, be so sure that didn't happen because that's such a big thing and it works every time. Time.

0:28:31 Jenessa: If you say, I'm going to like ruminate on this, think about it, a significant portion of people, and this is not like predicted by personality or anything, we're all kind of susceptible to this. What happened? Memory is not recollection the way we think of it. You're not going through a little file folder and looking for a memory and pulling out the file, and there's like a nice little videotape of what happened. Memory is a reconstructive process. You reactivate areas of the brain that were active during the memory and try to kind of put it back together. And when you do that, there's this really vulnerable moment where it can get altered altered or recreated. So when I say, hey, do you remember that time when? You might remember the thing, or you might remember just the time I told you about it, the time you were envisioning it. So think about when they pull them in and they say, Hey, look at this lineup. Do you remember this person? I'm not sure. Do the lineup again. Do You remember that person? Well, well, do I remember them from the crime or do I remember them for the last time I saw their face in here? That memory can get mixed up so easily.

0:29:55 Matt: Right. And that's why so many of the cases, as I understand it, that have been exonerated by DNA were eyewitness cases, where they pretty much the only thing they had was somebody who was like, Like that, I'm sure I saw Jenessa Seymour that day, but they'd actually not actually seen your face until the lineup. Or you just looked like somebody else.

0:30:09 Jenessa: It's really common that once they show you the person in a lineup, in a book of mugshots, something like that, they go home and they think about it and the more they think of that face and what happened, that memory process of pulling them both up and trying to see if they go together, the memory becomes vulnerable to editing, and you edit them together.

0:30:37 Jenessa: And there's a really famous case where a guy was exonerated, and the woman who was the victim, they actually now, the two of them talk a lot about changing the system to try to prevent this from happening again. They work together on exoneration cases, and she has talked a lot about to this day, when she tries to recall what happened that night, that crime, she petrifies his face. She cannot picture the guy who actually did it, who has since been convicted. And it's just so vivid and so real. So think about it. They've got you in there, and there's pressure pressure pressure and you're scared and cops are allowed to lie to you and they say oh we know you did it we know what happened and they start telling you all the evidence they know they have you were here you did this and you as just this imagining visual creature just can't help it and you start to imagine the things and the second time they repeat it an hour later and then another hour later and then a half hour later. I can't tell if I'm recalling a thing that happened or when I visualized it an hour ago. It all starts blending together, and I'm stressed out, and I'm confused, and freaking hungry. And it's really easy to create this false memory where we have people exonerated crystal clear. They did not do it. Even sometimes some other person has since been clearly convicted for this, they still themselves have a memory of doing it because they were put in this pressure situation.

0:32:25 Jenessa: Really, it's understandable from that perspective of that research. I know it's so hard to imagine how could my memories, the more vivid they are, how could they possibly be false? But it's just not how our brains work. They are so susceptible to this oh

0:32:41 Matt: Sure. Sure. I have actually done a little on this and I actually was involved in a project that involved Elizabeth Loftus at some point. I guess we haven't talked about this, but I know. I actually, it's so funny that as you're telling this story, I was like, hold on. I remember this now because I worked directly with Elizabeth Loeftus. That is not a false memory.

0:32:47 Jenessa: Wow that's so

0:32:58 Matt: But one thing that I learned in the course of that was about gun blindness, where if somebody is pointing a weapon at you, you will not remember their face. You'll remember the gun, which makes total sense. Your brain is going into complete overload, like you are fight or flight, right? Why are you paying attention to the details of if the guy has a mustache or whatever, right, it's just not going to happen. But my question, I guess, is so it makes sense as to the person on the other side of the gun. But what about the person pointing the gun? Now, how does how does somebody come to believe that they did something or they participated in a crime when they didn't?

0:32:57 Jenessa: Cool yeah can imagine that witness right we pull you in we show you the the lineup and yada yada so we have that that high pressure confession situation we have the I the cop I'm gonna tell you all these facts about what happened here you were in this place I know you were In this place and you had this gun and you pointed it at this person and that's how we know because she's an eyewitness and she identified and they could be lying about all this she identified you and blah blah blah and if you are visualizing that especially in this high stress situation you are imagining that in your head the first time you might say no what are you talking about that's crazy that's made up nonsense a couple hours later when it's like remember that thing I told you, and it's in your brain, calling that back up, that visual memory of what you imagined when they were saying this could become indistinguishable from a memory of a thing that really happened the more you visualize it.

0:34:29 Matt: That makes total sense. And also, considering the possibility, and again, I think it might be harder. I don't own a gun. I've never pointed a gun at anybody. But if you did own agun and you knew that you had actually done other crimes, and they're like, well, this woman puts you here three months ago, I don' know, maybe that was one, right? I mean, that's much easier to imagine, that somebody who is actually a career criminal like Ernesto Miranda. Now, that' not what happened in Miranda, I'm sure of it.

0:34:50 Matt: But you could see how it could. But you think about a situation like Brandon Dassey and the Making a Murderer situation, right, of this kid with intellectual disabilities who is basically convinced by the police that he witnessed this whole thing or that he participated in it. I actually think Stephen Avery is totally guilty of the crime, but I think Dassey got a bad break, obviously. Hmm.

0:35:09 Jenessa: There's a lot of data on this too that kids and people with intellectual disabilities, there's certain certain other groups as well. They are more prone to this in general. They're more prone to this kind of pressure. And some of that can come from, unfortunately, I think we, if I'm remembering correctly, we saw this exactly in his example, the, oh, well, you couldn't have done it. You're not smart enough to do that. And that kind of like bullying that somebody has been subjected to their whole life, the reaction could be like, yes, I am. I could done it, as soon as you're visualizing how you could have done it you have a visual memory of the visualizing. How do you distinguish that from a visual memory of a thing that really happened? When you call back up a thing you pictured before it's really hard to tell them apart. So yeah, kids, people with intellectual disabilities, people mit a brain injury, older adults can all be even even more susceptible to this happening. And certainly, like you're saying, you know, somebody who presumably they don't pick people up randomly, right? If it was somebody who had been near that street corner, how easy it is to picture that street corner. And at first, I'm picturing it where I was standing. And there wasn't this other person there. But now I'm imagining where they could have been if this were real, but

0:36:35 Jenessa: They weren't. And then the second time, they are? They are? They were? No, maybe.

0:36:40 Matt: No, no. And enough synapses fire, right? And the connections get made. That's my understanding, right? And so, but you're making me think that, you know, right now, as we're recording this, we're right around the anniversary of 9 -11. It's about, you know—we're around that time, and 24 years later. And I saw an amazing study a while back where they were asking people every few years, where were you on 9 -1?

0:36:58 Jenessa: Mm hmm.

0:36:58 Matt: And their stories would just change radically. And I was actually talking to Casey about this the other night, because I was on the West Coast that day, and so it was 6 a .m., And I was asleep. My roommates knocked on the door and said, you're going to want to get up. And I don't remember exactly at what point I came into the events, right? Because they were showing those clips over and over and ever again all day. I don'T think I saw any of it live. But I don' t remember anymore. I just know where I was that morning, but I don''t have that exact memory, right, of like, so it''s just, you know, something that important that everybody should know where they were when it happened.

0:37:29 Matt: The Kennedy assassination for older people, right. Something you would think that you couldn''t possibly forget, like everything''s so malleable.

0:37:35 Jenessa: Yep Loftus has also studied that I believe it's called a flashbulb memory. They are exceptionally vivid and they do tend to be tied to cultural events because it's like a shared event that you might talk about a lot with other people. And certainly for our generation 9/11 is one of them. I was a kid living very near Manhattan. So that was huge for our community. And people have a strong sense that not only is it very vivid, but that it is extremely accurate compared to other memories. It's extremely detailed. And in fact, what these studies are finding is, yes, people will report significantly more details with these memories than they do with other memories, but it's not actually more accurate than other memories. It is still prone to having inaccuracies. So that means all these details you think you remember, some of them aren't true, no matter how vivid it is. And it's really upsetting and undermining of our experiences. But the emotional experience is it is what it is, it's still very real. And there and some of these details are extremely accurate.

0:38:48 Jenessa: The Innocence Project made some recommendations about this, where at the time I researched this, it had been adopted by 25 states, not New York. I hope this has changed since then. It was their recommendations for eyewitness identification. Number one, the officer administering the test should not know who in the lineup is the suspect. So it's so easy to just truly accidentally signal who you think. Like, certainly on purpose you could do it too, right? But accidentally you could signal who you think they should say.

0:39:13 Matt: Yeah oh sure yeah subtle little things yeah

0:39:26 Jenessa: Lineup composition should include fillers, these other people you don't think are the suspect, who look like the eyewitness description. I can't believe I have to say that. But if the eyewitness says it was a white male, tall, skinny, you should probably not put like a short, chubby, black female in this lineup. Up that's not going to help anybody they should also not just look like the description but also look like The Suspect because that needs to balance out and never include the same person

0:39:25 Matt: Sure mm -huh right

0:39:58 Jenessa: Twice as soon as you show even the filler twice I remember seeing that face and it will be so easy to I have seen that face twice I think I saw them at the crime and here and not I saw saw them here twice. So easy to mix that up. The third one, um, witnesses should be instructed the suspect may not be in this lineup and you should do a couple of lineups where the suspect isn't there. If they feel that the suspect is in the lineup, they're going to pick somebody because they think they're there. You know, if you tell them it might not be anyone, they feel way more free to say, no, it's none of them. I don't recognize anybody here and feel that that's an appropriate response. The fourth one is not just ask them who, but ask their confidence immediately after identification. And you don't get to change that later. I identified you at this point. And if I had to rate it on a scale of one to five, three, man, I'm not super sure. We don't get to say later, I'm even more confident. You're looking at their face right now and that's their freaking face. And you don't gets to think harder about it. And then all of a sudden, you know more what their face looks like. That's not how memory works. And the fifth one is video and audio record the identification so that we know if these standards were in fact followed. A lot of this could help on the witness side to prevent these problems. On the interrogation side to prevent the false confession, a lot of these same things could be applied, honestly. Ideally, you just have a lawyer and you just shut your mouth.

0:41:50 Jenessa: But if you don't, if for some reason somebody is willing to talk, making sure that you are not feeding them details and then a half hour or an hour later being like, remember that? Do you remember that thing I told you? Yeah, they're going to remember it for sure. And it's because you said it, not because it necessarily happened.

0:42:05 Matt: Sure sure that makes total sense and like you said with kids I mean there's all that stuff during the satanic panic when kids would come up with and some some of them involved hypnosis frankly which really complicated things but still even Even short of that, you had kids telling these wild stories because adults would mention details that the kids feel like they need to incorporate. Or you've got a person where the cops are being super nice to them, and nobody's ever really been this nice to him before, and they're just sort of leading them down through the story. Anyway, so we could talk about this all day, but we should go on to talk about how this fits into the public's understanding and how Miranda came down. So let's take a break and come back and talk about the actual case of Miranda v. Arizona.

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0:44:18 Matt: So we talked about the Miranda confession already. And there wasn't anything too egregious about it. His attorney essentially acknowledged to the Supreme Court that it was more or less voluntary. It wasn't coerced, but that he just didn't know his rights. And that if he'd known his rights, he wouldn't have said anything and didn't help. Before Miranda, there was a very confusing series of cases that most recently had ended with Escobedo v. Illinois. And Escobedo was trying very hard to clarify some of this stuff, but it really kind of made it more confusing. It made it harder for the states to follow this. They'd applied the Sixth Amendment through the Fourteenth Amendment to the states. Escobedo involves somebody who repeatedly asked for his right to counsel, but there wasn't really a right to counsel that attached before you're charged with something at that point. So he, again and again, he's like, I'd like to talk to an attorney. I think it was three or four times during the interrogation, they wouldn't let him. And the Supreme Court said at the point at which it turns from general questions into, we are narrowing this down to you, and we now believe you committed this crime. You definitely have a right to a lawyer. And they sort of outlined sort of the circumstances under which that would happen, but it was not very well put together. And They understood, pretty well, that it needed to be clarified. And civil rights advocates understood that there was a big opportunity here to broaden the scope and to create something new. And so when we talk about Miranda, we're actually talking about a package of cases, as just with Brown, right? They would do this at the time where they would have arguments for three days straight on a series of cases that all involved the same kind of core issues playing out in different jurisdictions in different ways. We're not going to talk too much about those cases, but those include Vignera v. New York, Westover v. U.S. and Stewart v. California, all similar issues with confessions in which people were not told about their rights against self -incrimination and their right to an attorney. The focus for a lot of this stuff was on the right to attorney, but as we'll see, it started to turn into more talk about Fifth Amendment self - incrimination as well. So the ACLU had been looking for a good case, and Miranda's attorneys believed that this was the one. John P. Frank was a great civil rights activist and advocate. He had four degrees, He wrote 11 books, and he taught. The author, actually, of the book that I read had taken his constitutional law class, had very nice things to say about him.

0:46:18 Matt: He was essentially more than a reformist. I found a quote here from a lecture he gave in UC Berkeley in 1981. He said, I propose unabashedly and without humor that your university, with the support of all the power in your state, seriously mount and launch a program for the reform of practically everything in the system of justice. The challenge may seem great to the point of absurd, but it is not too much for a needy country to ask of this great university. It's quite a thing. Frank was was just very well known to be not just a great lawyer, but a great guy, just always ready to help. Janet Napolitano, the governor of Arizona, had known him and wrote a very nice note actually in front of this book talking about him. John P. Frank sees this opportunity and he has his law partner, John Flynn, argue. So you've got this dream team here of Frank doing the writing, Flynn doing the argument. Flynn apparently was a very talented appellate advocate and very good at just kind of being in the moment and being very conversational with the justices. And so So they're taking a much bolder stance than had previously been considered in this. It kind of came out, even during our argument, because they hadn't briefed it quite the way that it came out. The question on appeal was whether statements obtained from an individual who is subjected to custodial police interrogation are admissible against him in a criminal trial, and whether procedures which assure the individual is accorded his privilege under the Fifth Amendment to the Constitution and not to be compelled to incriminate himself are necessary. Necessary. So at this point, we're separating the idea of the Sixth Amendment right to counsel and the Fifth Amendment right against self -incrimination.

0:47:43 Matt: This is building on Escobedo, which again, provided some factors to determine the voluntariness, but it was confusing. They understood that. So they joined up all these cases, argued it for two days, and there was seven hours of argument, 700 pages of briefing, 10 lawyers. Yeah, this is how they used to do it. They don't do this like anymore. I also point out that the Miranda had essentially a pro se informer paparis cert petition, one of the most famous cert petitions along with Gideon's. And this is back when the Supreme Court, if you can imagine this, would take cert petitions from pro se prisoners when they would actually consider. I mean, that's how we got Gideons, that's why we got Miranda. And that's got the attention of the ACLU and they decided to take it up and they worked with Flynn at

0:48:18 Jenessa: So you're saying Miranda also was pro se initially wow so his his lawyer in the trial court was bringing up some of these issues but then was gone by the time we got to the supreme

0:48:23 Matt: First. Yeah, yeah, yeah. And did represent him in the state appeal, but then he has this chance to go to the Supreme Court and yeah, just lightning hits. And This Case makes it to the supreme court. And you can image all of the bad interrogations that are going on around the country and all of the disadvantaged people, people who don't have educations, don't have access to counsel, don t have a way to pay for a lawyer, certainly, you know, maybe don t even know how to contact the ACLU to try to get this going or wouldn t think that their case was important enough or in any way could get up there. And it s kind of a fluke that Miranda was the case that got there because, you now, it was a fairly straightforward confession. It wasn t a false confession at all.

0:48:35 Jenessa: Court wow

0:49:05 Matt: We end up with Miranda v. Arizona. And in the course of this oral argument, Justice Potter Stewart just kind of asks, as Flynn is wrapping up, if he believes that there is a Fifth Amendment right right to counsel.

0:49:04 Jenessa: Hmm

0:49:16 Matt: And the author Stewart here calls that the spark that ignited the firestorm of Miranda, because suddenly they realized that they could bring this very direct claim that within the privilege against self -incrimination is also a right to council, that you have a right to have an attorney at your side so you don't incriminate yourself. Because in Escobedo, the defendant thought he was exculpating himself because he was saying, basically, I just kind of helped. But of course, he was inculpating him for felony murder.

0:49:15 Jenessa: Huh

0:49:40 Matt: And a lawyer would know that and wouldn't let you continue to tell the story without talking to an attorney. Attorney. So this stuff really matters. And the general thrust of this is that what good is a right to counsel? What good is the right against self -incrimination if we can just have the police get this all out of you? Obviously, at the time, this was very unpopular. This decision was extremely controversial. And there were police chiefs and DAs everywhere saying that this was going to bring down the rule of law. Actually, Truman Capote testified to Congress the year year after Miranda, that he believed that The Killer Isn't in Cold Blood, his most famous book, would have gotten away with it if they'd been Mirandized,

0:49:39 Jenessa: Oh no right

0:50:18 Matt: Which kind of sucks to him. One thing I really want to keep talking about in these cases, and we're talking about the Warren Court, is the time and place and the moment, because we so accept Miranda now. It's so much a part of our pop culture that, of course, when you're arrested, they're going to tell you they have the right to these things. But we have the most powerful right against self -incrimination in the world.

0:50:39 Matt: There's no other country that does it the way we do it, where you just tell somebody straight up front, you don't have to talk to us. And in the dissent, Miranda, Justice Clark wrote that this is essentially, this isn't really a constitutional rule. We're just making this up, which is one of the big criticisms of Miranda. Such a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient, he said. Essentially that we are building in this thing that's going to destroy the entire system by allowing people to just shut up.

0:51:05 Jenessa: That's so strange to me this thought that like if god forbid you know you have a right to not confess without a lawyer around somehow all these people are going to stop confessing without a lawyer around and that's bad like do you hear yourself it's it's I guess yeah like you're saying we're taking it for granted now but it's one thing to say granting a new right to counsel counsel would be one thing, but they already had a right to counsel. It's literally just letting them know. People still blab anyway and think they're going to get themselves out of it without a lawyer, unfortunately.

0:51:51 Matt: Sure. And in Escobedo, they're basically saying you have a pretrial right to counsel if you ask for it. But they didn't really lock it down as a constitutional right. Harlan, White, and Stewart, in their dissent, were thinking that there's a better way to do this. This is not constitutional. We're making up a rule. And this really was kind of the height of the Supreme Court kind of, I'm not going to say legislating, but from the bench, because that's the criticism. I think that it's okay for them to do that. I don't think it's a good thing. I mean, it's not a good I think it is okay to say here is a gap in the system. Here's how you fill that gap by giving people these four rights. Now, they didn'T write the Miranda rights out the way that I just read them to you at the beginning. I was reading off an old card, one of the classic old Miranda Rights cards. They didn't tell the police exactly how they'd do it, but they did kind of list them in an order that made sense because when you work through those rights, it does make sense that you start with, you don't have to talk to me, and then you work up to, but you also can talk to an attorney. If you can't find an attorney, we'll get one for you, right? Just the way it's presented makes sense. This one was so important to Justice Warren that he read 60 pages from the bench.

0:52:45 Matt: He read the whole thing. Yeah, it's quite a read. But the dissents, we're looking at more of a to tell the circumstances test, which is we're going to talk about the next time we talk about Miranda, was what Congress really wanted to do, where you can kind of take a bigger look at the whole picture and don't just have a black and white thing of where the right's given or where the right is not given. Personally, I think it's just easier to have a bright line test of, did you actually stop and give them these rights? Did they know the rights at the time they gave them up? Because you have to waive them to proceed. I think that makes sense.

0:53:10 Jenessa: Had a professor once who taught my electronic discovery class, and he had worked for the police department for a long time as an attorney. And it's funny how, how, you know, there's always this question in these court cases about like, were they allowed to do this without a warrant? Were they allowed to do This Without Miranda? And he would always end with like, hey, and you know what, if, if they had just gotten a warrant, we never would have had this court case. Because when in doubt, you can always get a warrant. You can always read Miranda rights.

0:53:47 Jenessa: If it would have been admissible without Miranda, it would Have been admissable with Miranda if it would have been okay without a warrant it also would have been okay with a warrant like just call me and tell me what you're doing and I'll tell you to call the judge and get a warrant because just always do it it's not that hard to just when in doubt read the Miranda rights when not in doubt we read the rights just just do it

0:54:02 Matt: It's not that hard. Right? Well, I don't know if you remember this. We're goingto talk about it next time, just to preview this, Carmen Ortiz, the U.S. attorney in Massachusetts, after the Boston bombing, gave a press conference in which she said, we will not be Mirandizing this suspect when he wakes up because we think this is too important.

0:54:25 Jenessa: Oh god I remember that

0:54:26 Matt: So weird. Like, why would you say that in public? It's such a strange thing to say. And we'll talk about that when we talk more about how it all played out. But I just want to read the holding very quickly, just so we're all agreed on what that is. Briefly stated is this, colon, the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant, unless it demonstrates the use of procedural safeguards effective to secure the privilege against self -incrimination. By custodial interrogation, we mean questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. So this was a bombshell. This is huge. And also the idea that anytime if he wishes to consult with an attorney, that is a guaranteed right, and you have to stop questioning him, andyou have to let him talk to an attorney. Building in sort of a Fifth Amendment right to counsel in a way that hadn't been before, this wasa major turning point in American criminal criminal justice, and one of the biggest decisions of the Warren court, which is why we're talking about it. And we'll talk next time more about its legacy. But I did want to tell you about what happened to Ernesto Miranda. This is the kind of case where people would assume, oh, well, he got released on a technicality because, you know, whatever. No, he was not released. He was still in prison after he won this case because he was still convicted of robbery. It was the rape case that was overturned. And they had not challenged this and not appealed it to Supreme Court on the robbery case. So he's still serving a good amount of time on the rivalry case. But his attorney managed to get a new trial on the robbery as well. So he was retried for rape in 1967. And remember at the trial for the rape trial, it was pretty much the victim's testimony and his confession that combined to get him a pretty quick conviction for rape. So here's retried without his confession or his testimony. He also tried to testify at trial. The unfortunate thing for the victim in this case was that because her identification was also the product of his confession,

0:54:29 Jenessa: Gross oh

0:56:07 Matt: They couldn't use it because they'd brought him in to have this exchange with her after he'd already confessed. So they couldn't have her say on the stand that she was able to positively identify him, which had to be pretty frustrating. But the big twist in this was that it was his ex who showed up and testified against him and said, actually, completely independently. Three days later, he told me not only about the confession, but he told my that he did it.

0:56:20 Jenessa: Well that'll do it he

0:56:28 Matt: Yeah, you can see how maybe your ex would end up testifying under the circumstances. Also, just to make it even weirder, Ernesto Miranda was not the smartest guy. This was his common law spouse. So the lawyer tried to argue that marital privilege would apply, but the judge properly, I think, found that it only applies to statutory marriage, not common law marriage. We don't have common law marriages in Massachusetts. I don't really think about it, but that makes sense. Twyla Hoffman, his ex, said that Miranda had asked her to go visit the victim and say, if you will drop the charges, I will marry you, which is, yes, the victim, yes. Yeah, I know. Because, yeah, not the smartest approach to turn two women against you that much. I mean, I mean, one is obviously very much against you. Yeah.

0:56:54 Jenessa: Would marry her or the victim what the why would she want wow all right well yeah good lord oh no

0:57:13 Matt: So his lawyers tried to argue that, because this confession was a surprise, and they tried to argue this was the fruit of the poisonous tree because he had only confessed to her when he's telling the story about how he confessed to the police, and he wouldn't have independently confessed to Her, which kind of makes sense, but the Arizona Supreme Court did not agree. So he stood convicted. Same with the robbery retrial. I thought what was really interesting about the robbery pretrial, I think this might have actually been the case for both. The judge didn't think he was going to get a fair trial because everybody at that point in that moment knew who Ernesto Miranda was.

0:57:40 Matt: He was that famous, especially around Arizona. So they gave him a false name, Jose Gomez, throughout the trial, which I've never heard of doing before. Yeah, using a pseudonym at trial. So the victim testified in the robbery case, but his statements obviously weren't used. And the interrogation, same thing with the interrogational encounter where they brought her into an ID, also not used. But he was immediately convicted on her testimony alone, because it was pretty compelling about the robbery and attempted rape. So Miranda was was finally paroled. And again, this is different times, but he was serving, I think, 20 to 30 at this point. He was paroling in 1972 after having been convicted in 1964. It's pretty good. Paroled in his fifth attempt, and right before the Arizona Supreme Court had rejected his final appeals. And he basically, for the rest of his short life, he was a drifter. And one way that he made money was selling autographed Miranda cards, which I'd kind of want one, honestly. I want a framed autographed Miranda card. It's not quite like murder memorabilia, so I feel a little better about it. He wasn't a great guy, but he sold them for $1 .50 each, which was pretty good back then. But then the big Hollywood kind of twist here is that, again, rough life. This guy had a very rough life and he spent time in a lot of seedy places. He was in kind of a seedy bar and he was stabbed to death in a bar at the age of, I think, 34. And they, of course, gathered up everybody in them in the bar and told them you have the right to remain silent. Anything you say can and will be used against you.

0:58:28 Jenessa: Oh my god oh yuck oh no huh

0:59:09 Matt: Yeah. And so the actual murderer invoked his Miranda rights, but the accomplice did not. So the details on what happened after Miranda's murder, and there's no question he was murdered in that bar, and we know the two people involved, kind of hard to find. And the author has a pretty good account of the whole thing. Now, according to Gary Stewart, he says that essentially both men were Mirandized and they both chose to waive their rights to some degree. One of them ended up disappearing, Perez, and the other, Rodriguez. Eyewitnesses said that Rodriguez had handed Perez the knife and that he'd been involved in this fight. He denied all that and they didn't have enough information to hold him on and they had to release him after 48 hours. So he was never charged either. But it's speculated that the actual killer made it to Mexico and was never seen again.

0:59:52 Matt: Ernesto Miranda died at 34 in the environment that he'd spent his entire life in, pretty much, in just sort of the criminal underworld at a seedy bar in Arizona. It's interesting, though, to think that the people who killed him, who definitely killed him were all told of their right to remain silent and the right to counsel. We still were able to piece together what happened, but I can't say after reading about it that it definitively kept justice from happening. That's not necessarily how Miranda's death was never actually brought to justice, but it's just an interesting little detail that that's how things ended for him. Sure.

1:00:21 Jenessa: It's really a perfect example on the one hand they pick this case that in order to get a nice clean ruling none of this confusing stuff we've had in the past this confession appears to be voluntary you know we're not going to get some oh well if you coerce it stuff stuff it is nice and straightforward where we don't have this issue of an involuntary confession mucking it up of oh well are we making this right in case of an voluntary confession or are we making this right for everybody no it's crystal clear nice straightforward case and because it was so straightforward. They send the case back and he's still found guilty anyway.

1:01:11 Jenessa: Because if you can build the case without a coerced, without a false confession, without a confession that violates somebody's rights, then you're good to go. If you need, if the only way to get this person convicted is by getting them to confess under false pretenses without a lawyer, your case is pretty freaking weak it's so easy to look at this and look at somebody who is later convicted so we can easily say guilty and just say oh so this just protects guilty people but obviously look at these exonerations and you can see it is there to protect everybody not that there's anything wrong with protecting guilty people too like you have civil rights regardless, but it protects everybody. It protects you and me. If, God forbid, we got pulled in for something we didn't do, you need this. And it needs to be there for everybody because if you only give it to people you presume are innocent, then you're not going to give it to anybody because they're not gonna be there in the first place. Hmm.

1:02:21 Matt: That's right, these rights are for all of us, and that includes petty criminals. That includes people that are just unable to conform to the law as we know it and conduct as we're supposed to all follow it, like people like Ernesto Miranda. Inevitably, that is how it's going to work, and it has to apply the same way to everybody. That is the only way that it works. Works. So when people say, well, rules like this protect criminals, yeah, they do. They also protect people who didn't do anything at all. And so I think it's so important to talk about this. I'm proud to live in a country where this is still the law, where police have to tell you this. The British, for example, and we'll probably talk about THIS next time, but they adopted something like this, but it took a while.

1:03:00 Matt: The British are the reason that we wrote this stuff into the Constitution, because all the stuff they did to us. And certainly the Warren Court era decisions that establish so many great civil rights and criminal defense rights, we're very much trying to follow the spirit of these amendments to the Constitution, the Bill of Rights that were supposed to protect us all this way. So it's a great case, interesting to talk about, and really the height of the Warren court seeing a problem, identifying a way that it could fix that problem, and creating a lasting legacy of protection in criminal proceedings. So there we go. Sure.

1:03:33 Jenessa: I think that's so important. And you made the point earlier of this, like, oh, are they just creating a right? No, you had a right to a lawyer. You had a right to remain silent. And these rights mean nothing if you don't get to exercise them in practice. So, once again, love it when the court is not just looking at the textualist originalist, like, oh, what does this say that you get? But the actual practical reality if we want to make it mean anything. We have to do certain things that go a little beyond the text. Sorry, everybody. God forbid that in Brown we say you can't be segregated, even though that word didn't show up in the Constitution.

1:04:21 Jenessa: It's really the same principle here, and it's very liberating compared to what we're seeing today.

1:04:28 Matt: And very inspiring. So good stuff. We'll come back. And another time, I'm not sure if it's gonna be next time, but another time soon, we're going to talk more about Miranda and how it all played out. And there's been so many, many years of case law that have followed and how it works today in practice. I want to talk to find more about that. So we'll come back on that, but we'll be coming back with more of this series. I'm really having a good time here talking to you about all these cases that, you know, some of them I knew about, some of them I didn't, but all great cases with great holdings. We will be back with More of this and of course, Rapid Response on Friday, and vapid response to the worst things we could find every Wednesday. So we'll see you then.

1:05:39 Matt: This book I did actually read with my eyes.