United States v. Eugene R. Frazier

BAZELON, Chief Judge

(dissenting):

I dissent from the decision of the court today because it seems to me manifestly in error, but I am also concerned about the circumstances under which this decision has been rendered.

I

At issue in this case is the admissibility of certain statements made by Frazier during the course of police interrogation. It is undisputed that Frazier was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to the onset of the interrogation. And it is also agreed that he signed a written statement waiving the protection of those rights. But as soon as the interrogating officer attempted to take written notes on Frazier’s statements, Frazier refused to continue. However, when the officer ceased making contemporaneous notes, Frazier did make further statements. The confession at issue here was made during the latter period and involved a crime not discussed before the notetaking incident. The question in this case is whether, on the unusual facts presented, the government met its “heavy burden” of proving that the waiver was knowing and intelligent.

When the case first reached this court, a panel concluded that Frazier’s unwillingness to have his statements recorded in writing may have signalled a mistaken assumption on his part that only written statements could be used against him. Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969). We therefore remanded the case to the trial court to afford the government an opportunity to meet its burden of showing a knowing and intelligent waiver by demonstrating, for example, that Frazier had been admonished that “even an oral confession would be used against him and [that he] replied that he knew that but still did not want anything written down.” However, on remand, the police interrogator stated why he did not admonish Frazier:

“I didn’t want to start arguing with [appellant] as long as he was talking *900about hold-ups. . . . [H]e was telling me things about hold-ups that I didn’t know. I didn’t want to stop him. So, as soon as he said, ‘Don’t write,’ I stopped writing and pushed the pad away.”

Thus the interrogator, with commendable candor, made absolutely clear that because he was aware of the appellant’s misunderstanding he elected not to risk any clarification for fear appellant would stop talking. Moreover, it is of critical importance that the trial court’s findings did not indicate the court had even considered the significance of Frazier’s ban on notetaking. Accordingly, when the case returned to this court for the second time, we held that the government had not met its burden of proving that Frazier’s statements were the product of a knowing and intelligent waiver, and we held the statements inadmissible.1 It is that decision which has now béen overturned by the court en banc.

The purpose of the Miranda warnings is to convey information to the suspect. Plainly, one who is told something he does not understand is no better off than one who is told nothing at all. Without full understanding, the warnings are simply a “preliminary ritual.”2 The majority today concedes that Frazier may not have understood the warnings before he made his confession. But the court finds, nonetheless, that the government can meet its burden — and has met it here — by offering proof that the warnings have been given and by making “a showing — if the issue is raised — that the person warned was capable of understanding” the warnings. Majority opinion at 896 supra.

Of course, the problem posed by this case would not exist if the warnings were so clear that no one possessing even minimal intelligence could possibly misunderstand them. But capacity to understand the warnings does not by any means guarantee that they will actually be understood. The available empirical evidence clearly indicates that many, if not most, defendants do not understand the warnings,3 even where the defendants are intelligent and well educated.4 The likelihood of under*901standing is necessarily reduced where, as here, the 28-year old defendant has been afflicted with sickle cell anemia for many years and used narcotic drugs to mitigate his pain.5

That is not to say, however, that Miranda requires an inquiry in every case into the special capacity to understand the warnings. If that were the case, the government could validly contend that the panel decision “forces the police to become mind-readers and then blames them if they guess wrong.” In fact, the government’s contention rests on a complete misunderstanding of the panel opinion.

Miranda was designed as a prophylactic rule for the precise purpose of avoiding the morass into which the courts had previously slipped by attempting to judge, after the fact, — and from the inevitable swearing contest between the police and the accused as to what transpired6 — the precise subjective state of mind of every defendant whose confession was challenged as involuntary. In the usual case a written waiver obtained without coercion after a full and accurate explanation of the meaning of the rights and the consequences of waiving them is sufficient to meet the government’s burden regardless of any subsequent claim that the suspect did not understand what he was told. But where, at the time of the interrogation, the suspect says or does something sufficient to put a reasonable man on notice that the warnings may not have been understood even though a waiver was signed, the interrogation must stop until the matter has been clarified or all statements elicited thereafter will be inadmissible. The panel concluded that a reasonable police officer would have determined on the basis of Frazier’s objective behavior that he may not have grasped the meaning of the warnings. Far from requiring the police officer to read Frazier’s mind, our earlier decision required only that the officer clear up a possible misunderstanding that would have been apparent to any reasonable observer — as it was to the police interrogator here.

II

That the court should today carve out a highly damaging exception to a fundamental principle of Miranda is disquieting enough. But the court’s en banc decision here is disturbing in another regard. The panel decision in this case occasioned substantial, hostile comment in the news media. Plainly, widespread criticism of a decision is neither a cause for alarm nor a reason to insulate the decision from re-examination. What makes this case exceptional is that the *902nation’s highest law enforcement officer, the then Attorney General, saw fit to lash out publicly at the panel decision while the government’s petition for rehearing en banc was pending before the court.7 In a speech delivered to the National District Attorneys Association, the Attorney General singled it out as “Case No. 1” in his explanation of what he unfortunately sees as the “public’s los[s of] confidence in the ability of the courts to dispense justice.” I had understood that the Department of Justice’s professed policy was, wisely, to refrain from comment on pending cases and to make its argument in court.8 The Attorney General’s deviation from that sensible rule clearly endangers the integrity of the judicial process.

In an appeal from a contempt conviction of a defense counsel for his public comments on a pending case, Mr. Justice Frankfurter issued the following warning:

If the prosecutor in this case had felt hampered by some of the rulings of the trial judge, and had assailed the judge for such rulings at a mass meeting, and a conviction had followed, is it thinkable that this Court would have found that such conduct by the prosecutor was a constitutionally protected exercise of his freedom of speech, or, indeed, would have allowed the conviction to stand ?
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The delicate scales of justice ought not to be willfully agitated from without by any of the participants responsible for the fair conduct of the trial.9

Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III, concur in Part I of this dissent and in the panel’s majority opinion attached hereto as an appendix.

APPENDIX

Opinions issued February 24, 1971, and vacated on September 24, 1971, by the Court en banc:

Before BAZELON, Chief Judge, and ROBINSON, Circuit Judge, and NICHOLS,* Judge, United States Court of Claims.

BAZELON, Chief Judge:

The sole question before us is the admissibility of certain statements made by appellant Frazier to a police interrogator.1 In an earlier appeal,2 we found strong indications in the record that appellant did not “knowingly and intelligently” waive his constitutional privilege against self-incrimination, and consequently that his statements were inadmissible under Miranda v. Arizona.3 Appellant had initially agreed to speak to the police interrogator, but he refused to continue if the officer took written notes. This refusal, we said, “inveighs *903against intelligent waiver,” but we remanded for a hearing specifically to afford the Government an opportunity to present evidence that the waiver was valid. On remand, the District Judge found a valid waiver, but we disagree. We think it plain that the Government did not discharge the “heavy burden” imposed by Miranda of establishing that appellant knowingly and intelligently waived his fifth Amendment rights.

I

At the remand hearing the Government introduced evidence showing the following facts.4 Appellant was arrested about 4:15 on the afternoon of September 7, 1966, on a ■ warrant for the robbery of Mike’s Carry Out. Appellant was advised of his rights,5 and taken to the Robbery Squad office, arriving, after processing, at about 5:20 p. m.

Detective Sergeant Keahon read the Miranda warnings to appellant6 and gave him a copy of the warnings, which he read. The Sergeant then read to appellant a “Consent to Speak” form,7 which appellant read and signed at 5:30 p. m. Appellant, a man of at least low average mentality, told the officer that he understood his rights and that he did not want a lawyer. He was not distracted in any way while being given the warnings.

Sergeant Keahon then started to ask appellant about the Mike’s Carry Out robbery, but appellant interrupted him to admit a robbery and shooting at High’s Market. According to the Sergeant, appellant said he was admitting this crime in order to clear another person who had already been charged with it. The officer reached for a pad and pencil to transcribe the confession. Appellant, however, said: “Don’t write anything down. I will tell you about this but I don’t want you to write anything down.” Sergeant Keahon put down the pad and said nothing. Appellant continued his description of the High’s Market episode, touched briefly on another crime, and then, about five minutes after he had barred transcription of his statements, admitted the Meridian Market robbery, the crime which underlies this conviction. A little while later appellant re-enacted the High’s Market robbery for the benefit of sever*904al witnesses who were unable to identify him by sight. The questioning ended at about 7:30 p. m. when appellant said: “That’s it; that’s all I know and that’s all I am going to tell you.” Sergeant Keahon then asked appellant to write out a statement himself or to sign a typewritten summary of his confession. Appellant refused, saying: “No, I’m not going to sign anything.” He was then taken to his cell. Throughout the entire investigation appellant cooperated with the police and was treated with courtesy by them.

II

The trial court concluded that the Government carried its “heavy burden” of establishing that appellant validly waived his privilege against self-incrimination. Since that conclusion was based on the uncontroverted facts in the record, and not on an assessment of the credibility of witnesses, it is settled that we are in as good a position as the District Judge to determine the effect of that evidence.8 It is highly significant in this connection that the District Judge gave no express consideration to the effect of appellant’s refusal to permit his statements to be reduced to writing, despite our emphasis on the point in our prior opinion. In our view, the evidence introduced by the Government cannot support the conclusion that appellant knowingly and intelligently waived his Fifth Amendment rights.

Miranda teaches that after the warnings have been given, “the accused is entitled to the assistance of counsel before he is questioned and, in effect, that any confession he makes while in exclusive police custody prior to arraignment is presumptively inadmissible . . . . ”9 When the police continue to question a suspect in the absence of counsel a confession “can stand if, but only if, the accused affirmatively and under standingly waives his rights.”10 In order for a waiver to be effective, the accused must realize the consequences of his act — in particular he must understand that anything he says can and will be used against him in court. “It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege.”11 Furthermore, “a heavy burden rests on the government to demonstrate that the defendant *905knowingly and intelligently waived his privilege against self-incrimination.”12 A determination whether the accused made a valid waiver requires the court to examine “the particular facts and circumstances surrounding [the] case,”13

We said in the prior appeal that appellant’s ban on note-taking creates “[t]he strong implication that appellant thought his confession could not be used against him so long as nothing was committed to writing.”14 We said that this implication

might be overcome, for example, [by evidence that] Sergeant Keahon admonished [appellant] that even an oral confession would be used against him, and [that] appellant replied that he knew that but still did not want anything written down.15

But we added:16

Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand.

No such evidence was forthcoming. The record makes it crystal clear that the officers failed to correct appellant’s apparent misunderstanding — by explaining to him that an oral confession was as damaging as a written one — because they were afraid he would stop talking.17 Sergeant Keahon stated with commendable candor that

I didn’t want to start arguing with [appellant] as long as he was talking about hold-ups. . . . [H]e was telling me things about hold-ups that I didn’t know. I didn’t- want to stop him. So, as soon as he said, “Don’t write,” I stopped writing and pushed the pad away.

The Government says that it discharged its “heavy burden” by evidence that appellant was not interrogated in an oppressive manner nor subjected to physical or psychological coercion; and that he was given the warnings several times, said he understood them, and had sufficient mental capacity to understand them. Absent appellant’s ban on note-taking “[t]here [would indeed be] nothing in the surrounding circumstances peculiarly susceptible to the interpretation that appellant misapprehended what the officers said he was told.”18 But appellant attached a peculiar condition to his consent to speak, a condition that should have alerted the officers to the possibility of a misunderstanding. He may well have thought that the Government could make no use of an oral statement in court, and -there is no evidence that he was otherwise informed by the ' officers, by prior experience,19 by education, or otherwise.

The Government contends that appellant’s ban on note-taking does not necessarily mean that appellant failed to understand the consequences of an oral confession. Appellant, says the Government, “may have reasoned that if he ever decided to recant his decision to talk, he could . . . deny he said anything [,] and it would then be his word against that of the police [in court].”20 At best, however, this speculation fits the facts only as well as any number of conceivable explanations. For example, appellant might have thought that by barring transcription of *906his statements he could clear a friend who had been charged with a crime21 while at the same time preventing the police from using his confession against him. In any event, this sort of speculation cannot meet the Government’s burden — established by ruling case law as well as the law of this case as set down on the prior appeal — of rebutting with affirmative and convincing evidence the inference that appellant did not validly waive his Fifth Amendment privilege.22

Ill

The plain rule of Miranda requires us to reverse this conviction. The Supreme Court has often stated that a waiver of the right against self-incrimination is ineffective if there is any doubt that it was made with full understanding of the consequences.23 Since there is ample reason to doubt appellant’s understanding here, it was improper for the police officers to receive his statement, and error for the trial court to admit it.

It is not our role to question the plain teaching of Miranda. But were we to do so, we would be compelled to conclude that the Miranda rule reflects a principle fundamental to a democratic society. The Fifth Amendment protects all persons ; it ensures that no individual need incriminate himself “unless he chooses to speak in the unfettered exercise of his own will.”24 Miranda is designed to make that protection meaningful for the man who has neither the education, the experience, nor the counsel that would enable him to -make an informed decision. Far from being a mere technicality, it touches the heart of a system of justice that purports to treat all of its citizens equally under the law.

If we were to uphold this confession, then Miranda would indeed become “a preliminary ritual.” 25 For the forms of Miranda were satisfied here: the officer read the warnings, and the suspect purported to waive his rights. But Miranda requires more of the interrogating officers. It requires them not only to recite the warnings, but also to be certain before questioning the accused that he understands his rights, realizes the consequences of speaking, and intelligently and voluntarily waives his privilege of silence.26 Where the police officers are dealing with ill-educated and uncounselled suspects, they have a special obligation to be alert for signs of misunderstanding or confusion. Here the officers had ample reason to doubt that the accused understood the warnings. Yet they took no further steps— such as admonishing- appellant that even an oral confession would be used against him in court, or halting the questioning until a lawyer could be obtained — to bring the warnings home to him in terms he could clearly comprehend.

*907We recognize that we are vulnerable to the old criticism that criminals should not go free for the constable’s blunder.27 But the error involved in this case is no ordinary blunder. It is an egregious failure to observe a basic constitutional requirement. When we are ready to overlook errors of this type, we will have abandoned once and for all the effort to extend the same quality of justice to all persons, the ignorant as well as the educated, the poor as well as the rich.

Reversed.

. The panel opinion in this case is reproduced as an Appendix to this opinion.

. Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. The authors of an extensive field study of the implementation of Miranda in this jurisdiction concluded:

The ratings indicated that 15 per cent of the 85 “post-Miranda defendants” failed to understand the right to silence warning, 18 per cent failed to understand the warning of the right to presence of counsel, and 24 per cent failed to understand the warnings of the right to appointed counsel.

Medalie, Zeitz & Alexander, Custodial Interrogation in Our Nation’s Capital: The Attempt to Implement Miranda, 66 Mich.L.Rev. 1347, 1375 (1969). The authors also considered the possibility of methodological bias in their study. Their conclusion was that “if anything, our results underestimate the defendants’ rate of misunderstanding of the warnings.” Id. at 1374 n. 101. In another article based on the same data, different methods of analysis led to the same conclusion. Zeitz, Medalie & Alexander, Anomie, Powerlessness and Police Interrogation, 60 J.Crim.L.C. & P.S. 314 (1969); see Note, Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519 (1967).

. The Supreme Court recently reversed the perjury conviction of a well-known movie producer arising from his unresponsive and misleading answer to a question about Swiss bank accounts. Chief Justice Burger, writing for a unanimous Court, observed that:

[u]nder the pressures and tensions of interrogation, it is not uncommon for the most earnest of witnesses to give answers which are not entirely responsive. Sometimes a witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. Bronston v. United States, 410 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).

The Court went on to observe that where an interrogating lawyer is confronted with such a possible misunderstanding:

. . . the examiner’s awareness of unresponsiveness should lead . him to press another question or reframe his *901initial question with greater precision. Id.

The juxtaposition of that decision with this one might cause some confusion about the meaning of the principle “Equal justice under law”. If the courts recognize the “pressures and tensions” on a prominent and prosperous professional man who is undergoing interrogation, they should be at least as solicitous when the person under interrogation is a poorly educated and downtrodden individual such as Frazier. If courts are going to require interrogators to display precision and ' caution in questioning Samuel Bronston, as a predicate to a perjury conviction, we should be at least as demanding of those questioning Eugene Frazier, as a precondition to a waiver of his constitutional rights.

I recognize that the danger of misunderstanding arises in different contexts in the two eases. But just as Miranda prohibits a judge from speculating about the validity of a waiver, so Bronston prohibits a jury from “conjecture”. The central concern of both is the heavy responsibility imposed on the government when it seeks to use self-incriminatory information solicited from a defendant. The concern for the individual reflected in the Bronston opinion should be dispositive in this case as well.

. This information appeared in a report submitted to the district court by St. Elizabeths Hospital on Feb. 8, 1967.

. The Miranda rule leaves no room or occasion for choosing to believe either a defendant’s naked assertion that he did not understand the warnings, or the interrogator’s naked assertion that he believed the defendant had understood.

. I do not suggest that any judge of this court was moved by the Attorney General’s remark to vote for rehearing en tono or reversal on the merits. The vote for rehearing was completed on April 15, 1971, long before the Attorney General’s speech on June 9, 1971. The order granting rehearing en tone was issued after the speech, however, and the case has been under consideration by this court since then. We cannot expect that our knowledge that we did not bow to external pressure is known either to the appellant or to the public. Therefore, that we did not bow does not make any less substantial the damage to the public confidence in the integrity of our decision-making process.

. Since the Attorney General and his aides saw fit to refer to this case so critically and specifically, it must be presumed they were aware that the Department of Justice had filed a petition for rehearing that was still before the court.

. In re Sawyer, 360 U.S. 622, 666-667, 79 S.Ct. 1376, 1398, 3 L.Ed.2d 1473 (1959) (Frankfurter, J., dissenting).

Sitting by designation pursuant to Title 28, U.S.Code, Section 293(a).

. Appellant was convicted of robbing the Meridian Market, and sentenced to a term of 5 to 15 years, see D.C.Code § 22-2901.

. Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969).

. 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

. Appellant offered no evidence at the remand hearing. Appellant’s failure to testify may have been the result of confusion on the part of appellant and his counsel about the use that could be made of his testimony, although we had indicated on the prior appeal that the rules of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967), would protect appellant if he did take the stand, Frazier v. United States, supra note 2, 136 U.S.App.D.C. at 188 n. 36, 419 F.2d at 1169 n. 36.

After the Government rested its case, appellant’s counsel (not his counsel on appeal) said:

If we could limit the inquiry to what his mental condition was at the time of the alleged confession and not go into the elements of the confession or ele- ■ ments of the crime, I would place the defendant on the stand.

The court then gave its view of the probable scope of examination, concluding that even “if something does come out about [criminal activity], [it] would not be admissible in other cases anyway.” Defense counsel replied : “I am not prepared to accept that.” The colloquy continued and then, after conferring with appellant several times, defense counsel announced: “Your Honor, I have counseled with the defendant and he at this time does not desire to take the stand.”

. A police officer testified that when he gave appellant these warnings, appellant said: “You didn’t have to read it to me in the first place. I already know my rights.” Appellant had been given a copy of the warning form used by police, see note 6, infra, when he had been arrested in March 1966 for another offense, see note 19, infra.

. The Police Department Form 47 read to appellant is printed in Pettyjohn v. United States, 136 U.S.App.D.C. 69, 70 n. 3, 419 F.2d 651, 652 n. 3 (1969), cert. denied, 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676 (1970).

. The Police Department Form 54 which appellant read and signed is printed in Pettyjohn v. United States, supra note 6 at 71 n. 4, 419 F.2d at 653 n. 4.

. See, e. g., Judd v. United States, 89 U.S.App.D.C. 64, 67, 190 F.2d 649, 652 (1951) (“The real issue is whether the evidence offered by the Government, taken at full value, meets the required standard.”) ; Weed v. United States, 340 F.2d 827 (10th Cir. 1965). See also E. F. Drew & Co. v. Reinhard, 170 F.2d 679, 684 (2d Cir. 1948); Dollar v. Land, 87 U.S.App.D.C. 214, 217-218, 184 F.2d 245, 248-249, cert. denied, 340 U.S. 884, 71 S.Ct. 198, 95 L.Ed. 641 (1950); United States v. Ziemer, 291 F.2d 100, 103-105 (7th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 120, 7 L.Ed.2d 78 (1961) (Hastings, C. J., dissenting); Wabash Corp. v. Ross Electric Corp., 187 F.2d 577, 598-603 (2d Cir.), cert. denied, 342 U.S, 820, 72 S.Ct. 38, 96 L.Ed. 620 (1951) (Frank, J., concurring and dissenting). But of. e. g., Maxwell v. Stephens, 348 F.2d 325, 336 (8th Cir), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965).

. Frazier v. United States, supra note 2, 136 U.S.App.D.C. at 185, 419 F.2d at 1166. The Supreme Court said in Miranda, supra note 3 at 469 of 436 U.S., at 1625 of 86 S.Ct.:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensible to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights.

. Frazier v. United States, supra note 2, 136 U.S.App.D.C. at 185, 419 F.2d art 1166 (emphasis added).

. Miranda v. Arizona, supra note 3 at 469, of 436 U.S., at 1625 of 86 S.Ct.

. Id. at 475, 86 S.Ct. at 1628.

. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

. Frazier v. United States, supra note 2, 136 U.S.App.D.C. at 187, 419 F.2d at 1168.

. Id. at 188, 419 F.2d at 1169.

. Id.

. Compare United States v. Nielsen, 392 F.2d 849, 853 (7th Cir. 1968).

. Pettyjohn v. United States, supra note 6, 136 U.S.App.D.C. at 76, 419 F.2d at 658 (Robinson, J., concurring) (footnote omitted).

. That appellant had previously been arrested in March 1966 and made only an exculpatory statement does not demonstrate that he knew that an oral confession could be used against him in court.

. Brief for Appellee at 9-10 (footnote omitted). ,

. See page 893, supra.

. Appellant’s refusal to speak if the officer took notes distinguishes this case from Pettyjohn v. United States, supra note 6, and United States v. McNeil, 140 U.S.App.D.C. 3, 433 F.2d 1109 (1969). In Pettyjohn the only indication of misunderstanding was the appellant’s refusal to sign a typewritten statement after the confession had been made. The Pettyjohn court specifically distinguished that case from Frazier’s on this ground, 136 U.S.App.D.C. at 73, 419 F.2d at 655. Similarly in MeNeil the only indication of misunderstanding was the appellant’s refusal to sign a form acknowledging that he understood the warnings, again after the confession had been made. The inference from this refusal that McNeil had misunderstood the warnings was negated by appellant’s own testimony that he simply “wouldn’t sign nothing,” 140 U.S.App.D.C. at 7, 433 F.2d at 1113 n. 23.

. Miranda v. Arizona, supra note 3 at 475 of 436 U.S., 86 S.Ct. 1602, 16 L.Ed. 2d 694; cf. Blackburn v. Alabama, 361 U.S, 199, 208, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). See also Johnson v. Zerbst, supra note 13; Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

. Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).

. Miranda v. Arizona, supra note 3 at 476 of 436 U.S., 86 S.Ct. 1602.

. See Frazier v. United States, supra note 2, 136 U.S.App.D.C. at 185 n. 24, 419 F.2d at 1166 n. 24.

. See People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.). For an empirical study which concludes that the letter and spirit of Miranda are often violated in this jurisdiction, see Medalie, Zeitz & Alexander, Custodial Interrogation in Our Nation’s Capital: The Attempt to Implement Miranda, 66 Mich. L.Rev. 1347, 1394 (1968).