CREATORS
August 26, 2025
The 1960s were turbulent. The nation was in the midst of two
wars. First, the Cold War with the Soviet Union and later the Vietnam War.
Former President John F. Kennedy was assassinated in 1963, Martin Luther King
was killed in 1968 as well as President Kennedy's brother, and presidential
candidate Robert F. Kennedy. There was racial unrest and anti-war protests. The
tumult of the 1960s changed America forever.
During the 1960s, the U.S. Supreme Court also experienced a
tumultuous evolution. Starting in 1961, the U.S. Supreme Court made a series of
decisions regarding the rights of criminal defendants that still reverberate
today. Starting with the decision of Mapp v. Ohio, the court issued four
decisions that continue to be analyzed, interpreted and adjusted more than 60
years later.
Dollree Mapp refused to let the police enter her house
without a warrant. The police returned several hours later with a document
purported to be a warrant — it was not. They entered her home, found some
illicit material and arrested her. She unsuccessfully challenged the evidence
at trial. On appeal, the Supreme Court found in her favor and extended the
"exclusionary rule" to state prosecutions.
The exclusionary rule prohibits the police from using
evidence illegally obtained. The rule is the primary impetus behind
improvements in police training and the general protection of individual
constitutional rights.
Ironically, the late Justice Antonin Scalia cited
"increasing professionalism of police" as a reason for the
exclusionary rule's obsolescence.
Scalia's argument didn't make sense then and doesn't make
sense today. Without the exclusionary rule, an individual's constitutional
rights would be ignored. Law enforcement training would turn on a dime. Without
constitutional guardrails, police would turn a blind eye to individual rights
with impunity.
In 1963, the court decided Gideon v. Wainwright. The
landmark decision held that state criminal courts must provide counsel to
defendants in criminal cases without cost if they cannot afford an attorney.
Although most states were already providing free legal counsel to defendants
facing a charge that could result in a prison sentence, Florida and a handful
of other southern states were not.
Two years later, the court decided Miranda v. Arizona and
incorporated Gideon into the decision. The decision requires the police to
inform a suspect who is in custody that he has the right to remain silent and
the right to an attorney.
Although the Miranda warnings are etched in nearly
everyone's consciousness, the decision is still evolving. Little more than a
decade ago, a murder suspect in Texas who answered questions for almost an hour
was then asked about some incriminating evidence. The suspect stopped talking.
The police made notes of his conduct once he stopped
talking. According to the Supreme Court, the suspect "(l)ooked down at the
floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap,
(and) began to tighten up."
That conduct was used at his trial as evidence that he was
hiding his guilt. The Supreme Court found that silence is not enough to invoke
the right to remain silent.
Finally, in 1968, the Supreme Court decided Terry v. Ohio.
The court found that it was not an illegal search and seizure if a police
officer with "reasonable suspicion" — more than just a hunch — stops
a suspect on the street, asks her to identify herself and pats her down for a
weapon.
As the U.S. Supreme Court has moved right, these landmark
decisions are being tested. Without constitutional guardrails, police could
turn a blind eye to individual rights with impunity.
The right to remain silent; the exclusion of illegally
obtained evidence; limits on stopping individuals without adequate suspicion;
exemplify the integrity of our criminal justice system — even strong evidence
of guilt cannot be used if police violated the Constitution to get that
evidence.
The 1960s continue to have an impact on the Supreme Court
and, more importantly, on the fundamental rights of those accused of a crime.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner's Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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