Jenkins v. Delaware/Dissent Harlan

Mr. Justice HARLAN, dissenting.

As one who has never agreed with the Miranda case but nonetheless felt bound by it, I now find myself in the uncomfortable position of having to dissent from a holding which actually serves to curtail the impact of that decision.

I feel compelled to dissent because I consider that the new 'retroactivity' ruling which the Court makes today is indefensible. Were I free to do so, I would hold that this petitioner is entitled to the benefits of Miranda, this case being before us on direct review and being one which had not become final prior to the decision of Miranda. See my dissenting opinion in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). But since as to the retroactivity issue I am also bound by Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), I must judge that issue within the confines of Johnson, which does not appear to have been overruled by what was done in Desist v. United States, supra.

In the Johnson case we held that the 'guidelines' of Miranda should apply to all 'persons whose trials had not begun as of June 13, 1966,' 384 U.S., at 734, 86 S.Ct., at 1781, the date on which Miranda was handed down. Today, however, the Court holds that Miranda does not apply to persons whose retrials have commenced after that date, if the original trial had begun before Miranda was decided. I find it quite impossible to discern in the rationale of Johnson any solid basis for the distinction now drawn.

The Court states that the retroactivity rule adopted in Johnson was 'an effort to extend the protection of Miranda to as many defendants as was consistent with society's legitimate concern that convictions already validly obtained not be needlessly aborted.' Ante, at 219. I too believe that a desire not to interfere with trials which were concluded or already under way at the time of Miranda lay at the core of what was done in Johnson. See 384 U.S., at 732-3 5, 86 S.Ct., at 1780-1782. But that rationale would seem to require application of Miranda to subsequent retrials, rather than the contrary result mandated by the Court. When a defendant has had his pre-Miranda conviction set aside on other than Miranda grounds and is being retried, there is by hypothesis no 'conviction * *  * validly obtained' which might be 'needlessly aborted' by application of the Miranda standards. There is no ongoing trial in which the prosecution's strategy might have been premised on pre-Miranda confession rules.

I am also left wholly unpersuaded by the Court's statement that application of Miranda to retrials would impose an intolerable 'evidentiary burden' on prosecutors, for the Court ignores the fact that Miranda will impose a very similar burden whenever a defendant's first trial has for one reason or another been substantially delayed and its commencement carried beyond the Johnson cut-off date.

Apart from the two propositions just discussed, the Court offers nothing in justification of its trial-retrial distinction beyond the general observation that the retroactivity 'technique' necessarily entails 'incongruities' which must be tolerated because of 'the impetus the technique provides for the implementation of long overdue reforms, which otherwise could not be practicably effected.' Ante, at 218. But surely it is incumbent upon this Court to endeavor to keep such incongruities to a minimum. This in my opinion can only be done by turning our backs on the AD HOC approach that has so far characterized our decisions in the retroactivity field and proceeding to administer the doctrine on principle. See my dissenting opinion in Desist, supra. What is done today leads me again, see ibid., to urge that the time has come for us to take a fresh look at the whole problem of retroactivity.

I would reverse the judgment of the Supreme Court of Delaware. It would be less than frank were I not to say that I cast this vote with reluctance, feeling as I do about the unsoundness of Miranda.