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In a separate concurrence in part, dissent in part, Justice Tom C. Clark argued that the Warren Court went "too far too fast". Instead, Justice Clark would use the "totality of the circumstances" test enunciated by Justice Goldberg in Haynes v. Washington. Under this test, the court would: consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary. Harlan's dissent [edit]

In dissent, Justice John Marshall Harlan II wrote that "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities." Harlan closed his remarks by quoting former Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added." White's dissent [edit]

Justice Byron White took issue with the court announcing a new constitutional right when it had no "factual and textual bases" in the constitution or previous opinions of the court for the rule announced in the opinion. He stated: "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment." Nor did Justice White believe it had any basis in English common law. White further warned...
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