You have the right to remain silent. And the FBI’s J. Edgar Hoover to thank for it.
Fifty years ago this coming Monday — June 13, 1966 — the Supreme Court held in Miranda v. Arizona that the Constitution’s Fifth Amendment, which establishes the right against self-incrimination, also requires police to advise custodial interrogation subjects that they need not answer questions or make statements. A brief filed by the American Civil Liberties Union is rightly credited with supplying the 5-to-4 majority with much of its intellectual ammunition. But Chief Justice Earl Warren’s majority opinion leaned just as heavily on a submission from the FBI, then as now not the most likely of ACLU allies. Virtually alone among law enforcement authorities, Hoover and the FBI argued that warning suspects of their rights was constitutionally sound and advisable and, in fact, had long been bureau practice. The court was impressed; Warren reprinted the FBI’s entire four-page note in his 35-page opinion.
The decision also compelled investigators to inform potential suspects of their right to an attorney and noted that prosecutors should bear a “heavy burden” if they wished to use statements taken without a lawyer present. Miranda has survived attempted tucks, tapers, tweaks and head-on challenges — the late justice Antonin Scalia called Miranda a “milestone of judicial overreaching” in a 2000 decision that failed to overturn it — and after a half-century remains the standard for U.S. law enforcement. Meanwhile, the warning has entered our language as a staple of popular culture and, occasionally, a punch line. Describing his own arrest after a scuffle outside a bar, comedian Ron White once noted, “I had the right to remain silent, but not the ability.”
The decision, which landed in the midst of a national uptick in crime, was wildly unpopular at the time. State and local law enforcement agencies believed that Miranda meant criminal suspects would never again confess to crimes. Hoover knew otherwise. Since at least the mid-1940s, he had required FBI agents to advise suspects of their privilege to remain silent and to have an attorney present during any questioning. The goal, Hoover argued in a 1952 Iowa Law Review article, was to balance the “basic civil liberties of the individual” with the need to “protect the security of the nation.” And there was one more thing: The FBI’s long experience with its proto-Miranda warning had taught that, warning or no, suspects were going to talk.
The brief the agency filed in support of the warnings didn’t square with Hoover’s robust image as a scourge of civil libertarians. He had built that reputation over the previous decades, systematically tracking and compiling data on German Americans, agitators for civil rights, communists and their fellow travelers, real and illusory. In 1947, when President Harry Truman created a “loyalty board” to root out communists in federal jobs, the FBI took the lead in what became hundreds of thousands of security investigations. Ultimately, fewer than 300 workers were dismissed.
But during oral argument in the Miranda case, Justice Abe Fortas asked the federal government’s lawyer for more detail on FBI interrogation practices. Hoover’s written answer to the court was prompt and specific. “Both suspects and persons under arrest” were given warnings “at the very outset of the interview,” he wrote. They could consult with counsel of their choice “or anyone else with whom [they] wish to speak,” could have “free counsel” if they were “unable to pay” and could consult with counsel by telephone, if more convenient. Interviews were terminated promptly if counsel was requested. If an interview subject was “indecisive” about requesting counsel, or when there was a question as to whether he had waived counsel, Hoover wrote, the decision to proceed was “left to the judgment of the interviewing Agent.”
In December 1944, for example, William “Wilhelm” Colepaugh, a would-be German saboteur who turned himself in in New York, was read his rights by seemingly friendly FBI counterintelligence specialist Robert Lamphere. After confessing anyway, Colepaugh was encouraged to read, correct and initial his statement (the Nazi operative’s death sentence was later commuted).
For the court’s slim majority, the FBI provided vital cover. Warren, writing the majority opinion, noted that “over the years the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement” while advising suspects and arrestees that they had a right to not make a statement and to consult an attorney, and that any statement could be used against them in court.
Warren cited the bureau’s methods, including how and under what circumstances agents gave the warning (“at the very outset of the interview”) and what happened if a subject requested a lawyer (“the interview is terminated”).
“The practice of the FBI can readily be emulated by state and local enforcement agencies,” Warren concluded.
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Fairness, though, wasn’t Hoover’s sole motivation. He had no love for local law enforcement officers, who, he believed, were easily bought and often subject to direct control of local politicians. And beating confessions out of skells? As much as they may have deserved it, their confessions were unreliable and, perhaps worse, too easy. Psychology backed up by forensic science, that was the way to go.
For Hoover, developing a policy for carrying out constitutionally acceptable interviews was part and parcel of his vision for “professionalizing” U.S. law enforcement, led by the FBI. His Iowa Law Review article groups the FBI warning with innovations such as “up-to-date crime detection methods” designed to prevent “poor quality law enforcement” and “abuses of civil liberties.” The well-trained officer, he argues, will find “no need to stoop to dishonorable methods” of interrogation such as “brute strength and sadistic cruelty to bring [about] a confession.” Instead, the G-man (he was always a man back then) was expected to rely on “scientific” crime-fighting, enabled by a state-of-the-art FBI lab and the world’s largest fingerprint file, both Hoover initiatives.
Besides, with years of experience, the FBI already knew what local cops would soon discover — criminal suspects talk, even when they’ve been advised not to.
In a law review article written the year after Miranda was decided, Sheldon H. Elsen and Arthur Rosett, former assistant U.S. attorneys in New York’s Southern District, noted that federal suspects infrequently asserted their rights to silence or to counsel.
“What a suspect is going to ask himself most urgently at the police station is: ‘How do I get out of this mess and avoid looking guilty?’ ” they wrote in the Columbia Law Review. “The above questions will generally overshadow the decision to insist on silence or counsel.”
That inclination continues. Every year since 2000, for instance, about 90 percent of federal defendants have pleaded guilty, according to annual reports from the Administrative Office of the U.S. Courts. It’s not known what percentage of the guilty pleas were prompted by confessions, but my years of reporting on law enforcement suggest that “a lot” is a fair estimate.
Miranda’s practical meaning has continued to be spelled out in dozens of cases over the decades since. (The court has heard no related cases during the current term, though, and it has none docketed so far for the next term.) What defines custodial interrogation, when a warning must be given and what specific language constitutes a waiver of the Miranda right are just some of the questions that lower courts and the Supreme Court have worked out. In 2010, for instance, a murder suspect in Michigan was found not to have invoked his right to silence simply by remaining silent during most of a three-hour interview.
One mystery endures: Why isn’t the contribution made by Hoover and the FBI better known? My informal survey of about a dozen bureau employees and alumni, ranging in age from the early 30s to the late 50s, turned up only one who’d heard the story. And that was John Fox, the FBI’s able in-house historian.
I put it down to this: When Hoover is alluded to at all these days at the bureau, it’s as something of a dark family secret. The thinking seems to be: “He’s ancient history, and a bad history at that. The FBI has moved on.”
Hoover no doubt deserves the opprobrium; he worked hard enough to earn it. But I can’t help chuckling about the veteran FBI counterintelligence investigator whom I met at a party and attempted to draw out on Hoover. I didn’t have to wait long for an answer.
“If that bastard walked in here now, I’d put the cuffs on him,” the man said loudly.
Yes, of course. And then you’d read him his Miranda rights.