Crime and Punishment in American History - Lawrence M. Friedman [191]
But most of the states rejected the “exclusionary rule,” and let in tainted evidence. Search and seizure was a particularly salient issue during Prohibition. As late as 1949, in Wolf v. Colorado,20 the Supreme Court agreed that the states were free to ignore Weeks. But eleven years later, the Warren court swept Wolf away in the landmark case of Mapp v. Ohio (1961).21 This was a particularly striking example of “incorporation.” Three Cleveland police officers had burst into the house of Dolly Mapp. They searched a dresser, a chest of drawers, a closet, some suitcases; they poked through all the rooms until they found some “obscene materials.” They had no proper search warrant. In its decision, the Supreme Court firmly asserted its power to control and discipline the squabbling, disagreeing state courts. It made the “exclusionary rule” absolutely binding on the states, replacing all state rules to the contrary. Anything else would be an “ignoble shortcut to conviction,” liable to “destroy the entire system of constitutional restraints” and open up the courts to “brutish means of coercing evidence.”
In Griffin v. California (1965), the question was, did the prosecution have the right to make something of the fact that the defendant kept silent?22 Since 1893, the answer had been no in federal court; such comments undermined the privilege against self-incrimination.23 The states were split on the question. California allowed judge and prosecutor to comment, if they wished, on defendant’s silence; indeed, this rule was enshrined in the California Constitution (Article I, section 13). Griffin had been tried for murdering a woman. He was with the women the night she died. Well, said the prosecutor, in that case he should know “how the blood got on the bottom of the concrete steps.... He would know how her wig got off.... If anybody would know, this defendant would know. Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.” The Supreme Court reversed the conviction (and death penalty). The federal no became a national no.
Another in this line of notable cases was Miranda v. Arizona, decided in 1966.24 Ernest Miranda, the defendant, had been arrested for rape and questioned by the police. After less than two hours of interrogation, Miranda confessed. The detectives and police claimed at his trial that they had made no promises and used no force. On appeal, the Supreme Court reversed Miranda’s conviction. In his opinion, Chief Justice Warren quoted liberally from police manuals, which described various tricks of the trade, ways to get defendants to confess. For example, fake winesses may identify defendant in a lineup as a man who had committed “different offenses”; when this happens, the prisoner may “become desperate and confess to the offense under investigation in order to escape from the false accusations.”
Clearly, police procedures of the day did not meet Earl Warren’s standards of fairness. The Constitution gives criminal defendants the right to stand mute. In Warren’s view, that right would be a very empty vessel, if police could use these tricks and coercive practices, as was their habit. The Court reached out for a rule, a principle, to put flesh on the bones of the Fifth Amendment right. They came up with what is now called the “Miranda warning.” If a person is “held for interrogation,” he has to be “clearly informed” of his rights: the right to be silent and the “right to consult with a lawyer and to have the lawyer with him during interrogation.”bx
Gideon v. Wainwright may be the most famous of all the Warren Court cases on the rights of the accused.26 Here the Supreme Court held that the states, at their own expense, had to provide a lawyer to help in the defense of anyone accused of a serious crime, if the defendant could not afford to pay. Clarence Gideon was a classic poor defendant: a shiftless loner, a loser, constantly in trouble, a man without