"Playing God": 5 to 4 (the Supreme Court and the police).

• Author: Inbau, Fred E.
• Position: Originally published in Journal of Criminal Law and Criminology, vol. 57, p. 377, 1966 - Reprint

(THE SUPREME COURT AND THE POLICE)(*)

Over the past several years, whenever the Supreme Court of the United States rendered a decision that imposed a new restriction upon the police, many persons were heard to say: "If only the police, prosecuting attorneys, the organized bar, the state courts, or the legislatures had taken the initiative and done something about the situation there would have been no need for the Court to step in." To some of us this always seemed to be a naive [sic] explanation of the motivation of a majority of the Justices.

Recent developments have established, to my satisfaction, the fact that the Court's majority has been determined all along to do its own policing of the police regardless of what any other group or any other branch of government might do by way of attempting to solve the law enforcement problems about which the Court has been so concerned. The Court's one man majority was going to continue to "play God". And "play God" it did in its June, 1966 decision in Miranda v. Arizona (384 U.S. 436).

For the past several years an American Law Institute committee, composed of lawyers, law teachers, and judges, with divergent viewpoints upon the subject, has devoted a tremendous amount of time and effort toward the formulation of a proposed tentative legislative code prescribing interrogation procedures for the police to follow. These endeavors of the American Law Institute began a year before the Court's 5 to 4 decision of June, 1964 in Escobedo v. Illinois (378 U.S. 478), and the tentative draft of the Committee's proposed code had been printed and disseminated at least three months before the Miranda decision.

As the Institute's committee was working on its project, so was a comparably composed American Bar Association Committee on Minimum Standards of Criminal Justice. One of its subcommittees had been assigned to deal specifically with the police interrogation problem and to make recommendations, and it was working closely with the Institute's committee toward that end. Its existence and activities were also known to the Court long before the Miranda decision.

The President's Commission on Law Enforcement and the Administration of Criminal Justice was also deeply engaged in a study of many aspects of criminal investigation that inevitably would have produced facts and figures helpful to a full consideration of the interrogation-confession problem. And other studies were under way, such as those by the...