Post-Miranda Retrials Of Pre-Miranda Defendants

Washington and Lee Law Review Volume 25 | Issue 1 Article 12 Spring 3-1-1968 Post-Miranda Retrials Of Pre-Miranda Defendants Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Criminal Procedure Commons, and the Fourteenth Amendment Commons Recommended Citation Post-Miranda Retrials Of Pre-Miranda Defendants, 25 Wash. & Lee L. Rev. 108 (1968), https://scholarlycommons.law.wlu.edu/wlulr/vol25/iss1/12 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . 1O8 WASHINGTON AND LEE LAW REVIEW [Vol. XXV is merely a contractual right giving the optionee the possibility of acquiring an interest in the land, but creating no interest in the land. 28 The contract theory seemingly begs the question as the lessee already has an interest in the land, the leasehold estate, and the option to purchase is merely a portion of that leasehold estate. Another covenant sometimes included within a lease is the option to renew. The unexercised option to renew a lease is compensable in 29 eminent domain as part of the damage done to the leasehold estate. If an unexercised option to renew a lease is considered an essential portion of the leasehold estate and compensable, with stronger reason, an unexercised option to purchase contained in a lease should be compensable. J. D. HUMPHRIES, III POST-MIRANDA RETRIALS OF PRE-MIRANDA DEFENDANTS State courts are divided on the question of the application of the principles announced in Miranda v. Arizona' to retrials of defendants convicted before the Miranda decision, but who have since won re2 versals. The United States Supreme Court in Johnson v. New Jersey held that the Miranda rules apply "only to cases in which the trial began after" 3 June 13, 1966, the date of the Miranda decision. An2sCity of Ashland v. Kittle, 347 S.W.2d 522 (Ky. 1961); Cornell-Andrews Smelt- ing Co. v. Boston & P.R.R., 2o9 Mass. 298, 95 N.E. 887 (1911); Phillips Petroleum Co. v. City of Omaha, 171 Neb. 457, io6 N.W.2d 727 (ig6o); In re Water Front, 246 N.Y. 1, 157 N.E. 911 (1927). "United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. 425,031 Square Feet of Land, 187 F.2d 798 (3d Cir. 1951); United States v. Certain Parcels of Land, 55 F. Supp. 257 (D. Md. 1944); United States v. Certain Land, 214 F. Supp. 148 (M.D. Ala. 1963); United States v. 70.39 Acres of Land, 164 F. Supp. 451 (SAD. Cal. 1958); State ex rel. Morrison v. Carlson, 83 Ariz. 363, 321 P.2d 1025 (1958); Canterbury Realty Co. v. Ives, 153 Conn. 377, 216 A.2d 426 (1966); Department of Pub. Works & Bldg. v. Bohne, 415 Ill. 253, 113 N.E.2d 319 (1953); City of Ashland v. Kittle, 347 S.W.2d 522 (Ky. 1961); Veirs v. State Rds. Comm'n, 217 Md. 545, 143 A.2d 613 (1958); Land Clearance for Redevelopment Corp. v. Doernhoefer, 389 S.W.2d 780 (Mo. 1965); New Jersey Highway Authority v. J.&F. Holding Co., 40 N.J. Super. 309, 123 A.2d 25 (1956); In re Port of New York Northern Pa. R.R. v. Davis & Leeds, 26 Pa. 238 (1856). Authority, 2 N.Y.2d 296, 14o N.E.2d 740, 159 N.Y.S.2d 825 (1957); 1384 U.S. 436 (1966). 2384 U.S. 719 (1966). 'Id. at 721. Johnson was decided on June 2o, 1966, one week after the Miranda decision. 1968] CASE COMMENTS ticipating a problem with strict prospective application, Johnson also stated that these principles would not apply to cases still on appeal as of June 13, 1966.4 It is not clear whether the Court overlooked or saw no problem as to the application of the new rules to retrials, but the Johnson opinion is silent on the point. Several courts have been, and no doubt others will be, confronted with the problem of the application of Miranda to retrials. Although the majority now applies Miranda to retrials, 5 recent decisions indicate that the question 6 is not settled. In .two recent decisions, three days apart, the highest courts of New Jersey and California reached contrary results. In People v. Doherty,7 the California Supreme Court held that Miranda would apply to determine the admissibility at retrial of statements made by the defendant. However, State v. Viglianos refused to apply Miranda principles on the second retrial of a defendant who had twice successfully challenged convictions for the murder of his mother. The defendant in Vigliano was convicted of murder in May, 1963, but on appeal the decision was reversed because of improper instructions on the defense of insanity. On retrial, the defendant was again convicted of murder, and on appeal the lower court was again reversed because of procedural error. The New Jersey Supreme Court said that on retrial the lower court should not apply Miranda 'to prevent either the oral or written statements elicited from the defendant, under rules prevailing in 1963, from being admitted into evidence. The minority courts base their decisions on an interpretation of various words in the Johnson opinion as relating to retrial situations. In denying application of Miranda to retrials, courts read "trial be"Id. at 733. 5Gibson v. United States, 363 F.2d 146 (5th Cir. 1966); State v. Brock, iol Ariz. 168, 416 P.2d 6oi (1966); People v. Doherty, 59 Cal. Rptr. 857, 429 P.2d 177 (1967); State v. Ruiz, 49 Hawaii 504, 421 P.2d 305 (1966); State v. McCarther, 197 Kan. 279, 416 P.2d 290 (1966); Creech v. Commonwealth, 412 S.W.2d 245 (Ky. 1967); State v. Shoffner, 31 Wis. 2d 412, 143 N.W.2d 458 (1966). Ojenkins v. State, 230 A.2d 262 (Del. 1967); People v. Worley, 227 N.E.2d 746 (Ill. 1967); State v. Vigliano, 5o NJ. 51, 232 A.2d 129 (1967); Commonwealth v. Brady, 1 Ciui. L. REP. 2304 (Crawford County Ct. Pa. Aug. 30, 1967). Note the conflicting decisions in the State of New York. People v. Sayers, 2 CRIM. L. REP. 2222 (App. Div. N.Y. Dec. 20, 1967) (applies Miranda to retrials); People v. La Belle, 53 Misc. 2d 111, 277 N.Y.S.2d 847 (Rensselaer County Ct. 1967) (denies application of Miranda to retrials). 759 Cal. Rptr. 857, 429 P.2d 177 (1967). 85o N.J. 51, 232 A.2d 129 (1967). 11o WASHINGTON AND LEE LAW REVIEW [Vol. XXV gan" 9 together with the words "cases commenced"' 10 to mean that Johnson referred only to trials or cases in which the first step was taken after June 13, 1966.11 These courts adopt the view that a retrial is a continuation of the appellate process and thus simply an extension of an old case. 12 Since Johnson denied application of the new rules to cases pending appeal at the time of the Miranda decision, it is said to be illogical to apply the extended protection of Miranda merely because the appeal was successful. 13 Using the continuation approach of looking at a retrial, courts in interpreting the words of Johnson that future defendants will benefit from Miranda 4 conclu (...truncated)