Case Name: MIRANDA V. ARIZONA 384 U.S. 436
NO. 759. ARGUED FEBRUARY 28-MARCH 1, 1966. - DECIDED JUNE 13, 1966.* -
98 ARIZ. 18, 401 P.2D 721; 15 N.Y.2D 970, 207 N.E.2D 527; 16 N.Y.2D
614, 209 N.E.2D 110; 342 F.2D 684, REVERSED; 62 CAL. 2D 571, 400 P.2D
97, AFFIRMED.
*TOGETHER WITH NO. 760, VIGNERA V. NEW YORK, ON CERTIORARI TO THE
COURT OF APPEALS OF NEW YORK AND NO. 761, WESTOVER V. UNITED STATES, ON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT,
BOTH ARGUED FEBRUARY 28-MARCH 1, 1966; AND NO. 584, CALIFORNIA V.
STEWART, ON CERTIORARI TO THE SUPREME COURT OF CALIFORNIA, ARGUED
FEBRUARY 28-MARCH 2, 1966.
IN EACH OF THESE CASES THE DEFENDANT WHILE IN POLICE CUSTODY WAS
QUESTIONED BY POLICE OFFICERS, DETECTIVES, OR A PROSECUTING ATTORNEY IN
A ROOM IN WHICH HE WAS CUT OFF FROM THE OUTSIDE WORLD. NONE OF THE
DEFENDANTS WAS GIVEN A FULL AND EFFECTIVE WARNING OF HIS RIGHTS AT THE
OUTSET OF THE INTERROGATION PROCESS. IN ALL FOUR CASES THE QUESTIONING
ELICITED ORAL ADMISSIONS, AND IN THREE OF THEM SIGNED STATEMENTS AS
WELL, WHICH WERE ADMITTED AT THEIR TRIALS. ALL DEFENDANTS WERE
CONVICTED AND ALL CONVICTIONS, EXCEPT IN NO. 584, WERE AFFIRMED ON
APPEAL. HELD:
1. THE PROSECUTION MAY NOT USE STATEMENTS, WHETHER EXCULPATORY OR
INCULPATORY, STEMMING FROM QUESTIONING INITIATED BY LAW ENFORCEMENT
OFFICERS AFTER A PERSON HAS BEEN TAKEN INTO CUSTODY OR OTHERWISE
DEPRIVED OF HIS FREEDOM OF ACTION IN ANY SIGNIFICANT WAY, UNLESS IT
DEMONSTRATES THE USE OF PROCEDURAL SAFEGUARDS EFFECTIVE TO SECURE THE
FIFTH AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION. PP. 444-491.
(A) THE ATMOSPHERE AND ENVIRONMENT OF INCOMMUNICADO INTERROGATION AS
IT EXISTS TODAY IS INHERENTLY INTIMIDATING AND WORKS TO UNDERMINE THE
PRIVILEGE AGAINST SELF-INCRIMINATION. UNLESS ADEQUATE PREVENTIVE
MEASURES ARE TAKEN TO DISPEL THE COMPULSION INHERENT IN CUSTODIAL
SURROUNDINGS, NO STATEMENT OBTAINED FROM THE DEFENDANT CAN TRULY BE THE
PRODUCT OF HIS FREE CHOICE. PP. 445-458.
(B) THE PRIVILEGE AGAINST SELF-INCRIMINATION, WHICH HAS HAD A LONG
AND EXPANSIVE HISTORICAL DEVELOPMENT, IS THE ESSENTIAL MAINSTAY OF OUR
ADVERSARY SYSTEM AND GUARANTEES TO THE INDIVIDUAL THE "RIGHT TO REMAIN
SILENT UNLESS HE CHOOSES TO SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN
WILL," DURING A PERIOD OF CUSTODIAL INTERROGATION AS WELL AS IN THE
COURTS OR DURING THE COURSE OF OTHER OFFICIAL INVESTIGATIONS. PP. 458
465.
(C) THE DECISION IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, STRESSED THE
NEED FOR PROTECTIVE DEVICES TO MAKE THE PROCESS OF POLICE INTERROGATION
CONFORM TO THE DICTATES OF THE PRIVILEGE. PP. 465-466.
(D) IN THE ABSENCE OF OTHER EFFECTIVE MEASURES THE FOLLOWING
PROCEDURES TO SAFEGUARD THE FIFTH AMENDMENT PRIVILEGE MUST BE OBSERVED:
THE PERSON IN CUSTODY MUST, PRIOR TO INTERROGATION, BE CLEARLY
INFORMED THAT HE HAS THE RIGHT TO REMAIN SILENT, AND THAT ANYTHING HE
SAYS WILL BE USED AGAINST HIM IN COURT; HE MUST BE CLEARLY INFORMED
THAT HE HAS THE RIGHT TO CONSULT WITH A LAWYER AND TO HAVE THE LAWYER
WITH HIM DURING INTERROGATION, AND THAT, IF HE IS INDIGENT, A LAWYER
WILL BE APPOINTED TO REPRESENT HIM. PP. 467-473.
(E) IF THE INDIVIDUAL INDICATES, PRIOR TO OR DURING QUESTIONING,
THAT HE WISHES TO REMAIN SILENT, THE INTERROGATION MUST CEASE; IF HE
STATES THAT HE WANTS AN ATTORNEY, THE QUESTIONING MUST CEASE UNTIL AN
ATTORNEY IS PRESENT. PP. 473-474.
(F) WHERE AN INTERROGATION IS CONDUCTED WITHOUT THE PRESENCE OF AN
ATTORNEY AND A STATEMENT IS TAKEN, A HEAVY BURDEN RESTS ON THE
GOVERNMENT TO DEMONSTRATE THAT THE DEFENDANT KNOWINGLY AND
INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL. P. 475.
(G) WHERE THE INDIVIDUAL ANSWERS SOME QUESTIONS DURING IN-CUSTODY
INTERROGATION HE WAS NOT WAIVED HIS PRIVILEGE AND MAY INVOKE HIS RIGHT
TO REMAIN SILENT THEREAFTER. PP. 475-476.
(H) THE WARNINGS REQUIRED AND THE WAIVER NEEDED ARE, IN THE ABSENCE
OF A FULLY EFFECTIVE EQUIVALENT, PREREQUISITES TO THE ADMISSIBILITY OF
ANY STATEMENT, INCULPATORY OR EXCULPATORY, MADE BY A DEFENDANT. PP.
476-477.
2. THE LIMITATIONS ON THE INTERROGATION PROCESS REQUIRED FOR THE
PROTECTION OF THE INDIVIDUAL'S CONSTITUTIONAL RIGHTS SHOULD NOT CAUSE
AN UNDUE INTERFERENCE WITH A PROPER SYSTEM OF LAW ENFORCEMENT, AS
DEMONSTRATED BY THE PROCEDURES OF THE FBI AND THE SAFEGUARDS AFFORDED
IN OTHER JURISDICTIONS. PP. 479-491.
3. IN EACH OF THESE CASES THE STATEMENTS WERE OBTAINED UNDER
CIRCUMSTANCES THAT DID NOT MEET CONSTITUTIONAL STANDARDS FOR PROTECTION
OF THE PRIVILEGE AGAINST SELF-INCRIMINATION. PP. 491-499.
MIRANDA V. ARIZONA.
CERTIORARI TO THE SUPREME COURT OF ARIZONA.
MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.
THE CASES BEFORE US RAISE QUESTIONS WHICH GO TO THE ROOTS OF OUR
CONCEPTS OF AMERICAN CRIMINAL JURISPRUDENCE: THE RESTRAINTS SOCIETY
MUST OBSERVE CONSISTENT WITH THE FEDERAL CONSTITUTION IN PROSECUTING
INDIVIDUALS FOR CRIME. MORE SPECIFICALLY, WE DEAL WITH THE
ADMISSIBILITY OF STATEMENTS OBTAINED FROM AN INDIVIDUAL WHO IS
SUBJECTED TO CUSTODIAL POLICE INTERROGATION AND THE NECESSITY FOR
PROCEDURES WHICH ASSURE THAT THE INDIVIDUAL IS ACCORDED HIS PRIVILEGE
UNDER THE FIFTH AMENDMENT TO THE CONSTITUTION NOT TO BE COMPELLED TO
INCRIMINATE HIMSELF.
WE DEALT WITH CERTAIN PHASES OF THIS PROBLEM RECENTLY IN ESCOBEDO V.
ILLINOIS, 378 U.S. 478 (1964). THERE, AS IN THE FOUR CASES BEFORE US,
LAW ENFORCEMENT OFFICIALS TOOK THE DEFENDANT INTO CUSTODY AND
INTERROGATED HIM IN A POLICE STATION FOR THE PURPOSE OF OBTAINING A
CONFESSION. THE POLICE DID NOT EFFECTIVELY ADVISE HIM OF HIS RIGHT TO
REMAIN SILENT OR OF HIS RIGHT TO CONSULT WITH HIS ATTORNEY. RATHER,
THEY CONFRONTED HIM WITH AN ALLEGED ACCOMPLICE WHO ACCUSED HIM OF
HAVING PERPETRATED A MURDER. WHEN THE DEFENDANT DENIED THE ACCUSATION
AND SAID "I DIDN'T SHOOT MANUEL, YOU DID IT," THEY HANDCUFFED HIM AND
TOOK HIM TO AN INTERROGATION ROOM. THERE, WHILE HANDCUFFED AND
STANDING, HE WAS QUESTIONED FOR FOUR HOURS UNTIL HE CONFESSED. DURING
THIS INTERROGATION, THE POLICE DENIED HIS REQUEST TO SPEAK TO HIS
ATTORNEY, AND THEY PREVENTED HIS RETAINED ATTORNEY, WHO HAD COME TO THE
POLICE STATION, FROM CONSULTING WITH HIM. AT HIS TRIAL, THE STATE,
OVER HIS OBJECTION, INTRODUCED THE CONFESSION AGAINST HIM. WE HELD
THAT THE STATEMENTS THUS MADE WERE CONSTITUTIONALLY INADMISSIBLE.
THIS CASE HAS BEEN THE SUBJECT OF JUDICIAL INTERPRETATION AND
SPIRITED LEGAL DEBATE SINCE IT WAS DECIDED TWO YEARS AGO. BOTH STATE
AND FEDERAL COURTS, IN ASSESSING ITS IMPLICATIONS, HAVE ARRIVED AT
VARYING CONCLUSIONS. (FN1) A WEALTH OF SCHOLARLY MATERIAL HAS BEEN
WRITTEN TRACING ITS RAMIFICATIONS AND UNDERPINNINGS. (FN2) POLICE AND
PROSECUTOR HAVE SPECULATED ON ITS RANGE AND DESIRABILITY. (FN3) WE
GRANTED CERTIORARI IN THESE CASES, 382 U.S. 924, 925, 937, IN ORDER
FURTHER TO EXPLORE SOME FACETS OF THE PROBLEMS, THUS EXPOSED, OF
APPLYING THE PRIVILEGE AGAINST SELF-INCRIMINATION TO IN-CUSTODY
INTERROGATION, AND TO GIVE CONCRETE CONSTITUTIONAL GUIDELINES FOR LAW
ENFORCEMENT AGENCIES AND COURTS TO FOLLOW.
WE START HERE, AS WE DID IN ESCOBEDO, WITH THE PREMISE THAT OUR
HOLDING IS NOT AN INNOVATION IN OUR JURISPRUDENCE, BUT IS AN
APPLICATION OF PRINCIPLES LONG RECOGNIZED AND APPLIED IN OTHER
SETTINGS. WE HAVE UNDERTAKEN A THOROUGH RE-EXAMINATION OF THE ESCOBEDO
DECISION AND THE PRINCIPLES IT ANNOUNCED, AND WE REAFFIRM IT. THAT CASE
WAS BUT AN EXPLICATION OF BASIC RIGHTS THAT ARE ENSHRINED IN OUR
CONSTITUTION - THAT "NO PERSON ... SHALL BE COMPELLED IN ANY CRIMINAL
CASE TO BE A WITNESS AGAINST HIMSELF," AND THAT "THE ACCUSED SHALL ...
HAVE THE ASSISTANCE OF COUNSEL" - RIGHTS WHICH WERE PUT IN JEOPARDY IN
THAT CASE THROUGH OFFICIAL OVERBEARING. THESE PRECIOUS RIGHTS WERE
FIXED IN OUR CONSTITUTION ONLY AFTER CENTURIES OF PERSECUTION AND
STRUGGLE. AND IN THE WORDS OF CHIEF JUSTICE MARSHALL, THEY WERE
SECURED "FOR AGES TO COME, AND ... DESIGNED TO APPROACH IMMORTALITY
AS NEARLY AS HUMAN INSTITUTIONS CAN APPROACH IT," COHENS V. VIRGINIA, 6
WHEAT. 264, 387 (1821).
OVER 70 YEARS AGO, OUR PREDECESSORS ON THIS COURT ELOQUENTLY STATED:
"THE MAXIM NEMO TENETUR SEIPSUM ACCUSARE HAD ITS ORIGIN IN A PROTEST
AGAINST THE INQUISITORIAL AND MANIFESTLY UNJUST METHODS OF
INTERROGATING ACCUSED PERSONS, WHICH HAVE LONG OBTAINED IN THE
CONTINENTAL SYSTEM, AND, UNTIL THE EXPULSION OF THE STUARTS FROM THE
BRITISH THRONE IN 1688, AND THE ERECTION OF ADDITIONAL BARRIERS FOR THE
PROTECTION OF THE PEOPLE AGAINST THE EXERCISE OF ARBITRARY POWER, WERE
NOT UNCOMMON EVEN IN ENGLAND. WHILE THE ADMISSIONS OR CONFESSIONS OF
THE PRISONER, WHEN VOLUNTARILY AND FREELY MADE, HAVE ALWAYS RANKED HIGH
IN THE SCALE OF INCRIMINATING EVIDENCE, IF AN ACCUSED PERSON BE ASKED
TO EXPLAIN HIS APPARENT CONNECTION WITH A CRIME UNDER INVESTIGATION,
THE EASE WITH WHICH THE QUESTIONS PUT TO HIM MAY ASSUME AN
INQUISITORIAL CHARACTER, THE TEMPTATION TO PRESS THE WITNESS UNDULY, TO
BROWBEAT HIM IF HE BE TIMID OR RELUCTANT, TO PUSH HIM INTO A CORNER,
AND TO ENTRAP HIM INTO FATAL CONTRADICTIONS, WHICH IS SO PAINFULLY
EVIDENT IN MANY OF THE EARLIER STATE TRIALS, NOTABLY IN THOSE OF SIR
NICHOLAS THROCKMORTON, AND UDAL, THE PURITAN MINISTER, MADE THE SYSTEM
SO ODIOUS AS TO GIVE RISE TO A DEMAND FOR ITS TOTAL ABOLITION. THE
CHANGE IN THE ENGLISH CRIMINAL PROCEDURE IN THAT PARTICULAR SEEMS TO BE
FOUNDED UPON NO STATUTE AND NO JUDICIAL OPINION, BUT UPON A GENERAL AND
SILENT ACQUIESCENCE OF THE COURTS IN A POPULAR DEMAND. BUT, HOWEVER
ADOPTED, IT HAS BECOME FIRMLY EMBEDDED IN ENGLISH, AS WELL AS IN
AMERICAN JURISPRUDENCE. SO DEEPLY DID THE INIQUITIES OF THE ANCIENT
SYSTEM IMPRESS THEMSELVES UPON THE MINDS OF THE AMERICAN COLONISTS THAT
THE STATES, WITH ONE ACCORD, MADE A DENIAL OF THE RIGHT TO QUESTION AN
ACCUSED PERSON A PART OF THEIR FUNDAMENTAL LAW, SO THAT A MAXIM, WHICH
IN ENGLAND WAS A MERE RULE OF EVIDENCE, BECAME CLOTHED IN THIS COUNTRY
WITH THE IMPREGNABILITY OF A CONSTITUTIONAL ENACTMENT." BROWN V.
WALKER, 161 U.S. 591, 596-597 (1896).
IN STATING THE OBLIGATION OF THE JUDICIARY TO APPLY THESE
CONSTITUTIONAL RIGHTS, THIS COURT DECLARED IN WEEMS V. UNITED STATES,
217 U.S. 349, 373 (1910):
" ... OUR CONTEMPLATION CANNOT BE ONLY OF WHAT HAS BEEN BUT OF WHAT
MAY BE. UNDER ANY OTHER RULE A CONSTITUTION WOULD INDEED BE AS EASY OF
APPLICATION AS IT WOULD BE DEFICIENT IN EFFICACY AND POWER. ITS
GENERAL PRINCIPLES WOULD HAVE LITTLE VALUE AND BE CONVERTED BY
PRECEDENT INTO IMPOTENT AND LIFELESS FORMULAS. RIGHTS DECLARED IN
WORDS MIGHT BE LOST IN REALITY. AND THIS HAS BEEN RECOGNIZED. THE
MEANING AND VITALITY OF THE CONSTITUTION HAVE DEVELOPED AGAINST NARROW
AND RESTRICTIVE CONSTRUCTION."
THIS WAS THE SPIRIT IN WHICH WE DELINEATED, IN MEANINGFUL LANGUAGE,
THE MANNER IN WHICH THE CONSTITUTIONAL RIGHTS OF THE INDIVIDUAL COULD
BE ENFORCED AGAINST OVERZEALOUS POLICE PRACTICES. IT WAS NECESSARY IN
ESCOBEDO, AS HERE, TO INSURE THAT WHAT WAS PROCLAIMED IN THE
CONSTITUTION HAD NOT BECOME BUT A "FORM OF WORDS," SILVERTHORNE LUMBER
CO. V. UNITED STATES, 251 U.S. 385, 392 (1920), IN THE HANDS OF
GOVERNMENT OFFICIALS. AND IT IS IN THIS SPIRIT, CONSISTENT WITH OUR
ROLE AS JUDGES, THAT WE ADHERE TO THE PRINCIPLES OF ESCOBEDO TODAY.
OUR HOLDING WILL BE SPELLED OUT WITH SOME SPECIFICITY IN THE PAGES
WHICH FOLLOW BUT BRIEFLY STATED IT IS THIS: THE PROSECUTION MAY NOT
USE STATEMENTS, WHETHER EXCULPATORY OR INCULPATORY, STEMMING FROM
CUSTODIAL INTERROGATION OF THE DEFENDANT UNLESS IT DEMONSTRATES THE USE
OF PROCEDURAL SAFEGUARDS EFFECTIVE TO SECURE THE PRIVILEGE AGAINST SELF
INCRIMINATION. BY CUSTODIAL INTERROGATION, WE MEAN QUESTIONING
INITIATED BY LAW ENFORCEMENT OFFICERS AFTER A PERSON HAS BEEN TAKEN
INTO CUSTODY OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY. (FN4) AS FOR THE PROCEDURAL SAFEGUARDS TO BE
EMPLOYED, UNLESS OTHER FULLY EFFECTIVE MEANS ARE DEVISED TO INFORM
ACCUSED PERSONS OF THEIR RIGHT OF SILENCE AND TO ASSURE A CONTINUOUS
OPPORTUNITY TO EXERCISE IT, THE FOLLOWING MEASURES ARE REQUIRED. PRIOR
TO ANY QUESTIONING, THE PERSON MUST BE WARNED THAT HE HAS A RIGHT TO
REMAIN SILENT, THAT ANY STATEMENT HE DOES MAKE MAY BE USED AS EVIDENCE
AGAINST HIM, AND THAT HE HAS A RIGHT TO THE PRESENCE OF AN ATTORNEY,
EITHER RETAINED OR APPOINTED. THE DEFENDANT MAY WAIVE EFFECTUATION OF
THESE RIGHTS, PROVIDED THE WAIVER IS MADE VOLUNTARILY, KNOWINGLY AND
INTELLIGENTLY. IF, HOWEVER, HE INDICATES IN ANY MANNER AT ANY STAGE OF
THE PROCESS THAT HE WISHES TO CONSULT WITH AN ATTORNEY BEFORE SPEAKING
THERE CAN BE NO QUESTIONING. LIKEWISE, IF THE INDIVIDUAL IS ALONE AND
INDICATES IN ANY MANNER THAT HE DOES NOT WISH TO BE INTERROGATED, THE
POLICE MAY NOT QUESTION HIM. THE MERE FACT THAT HE MAY HAVE ANSWERED
SOME QUESTIONS OR VOLUNTEERED SOME STATEMENTS ON HIS OWN DOES NOT
DEPRIVE HIM OF THE RIGHT TO REFRAIN FROM ANSWERING ANY FURTHER
INQUIRIES UNTIL HE HAS CONSULTED WITH AN ATTORNEY AND THEREAFTER
CONSENTS TO BE QUESTIONED.
I.
THE CONSTITUTIONAL ISSUE WE DECIDE IN EACH OF THESE CASES IS THE
ADMISSIBILITY OF STATEMENTS OBTAINED FROM A DEFENDANT QUESTIONED WHILE
IN CUSTODY OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY. IN EACH, THE DEFENDANT WAS QUESTIONED BY POLICE
OFFICERS, DETECTIVES, OR A PROSECUTING ATTORNEY IN A ROOM IN WHICH HE
WAS CUT OFF FROM THE OUTSIDE WORLD. IN NONE OF THESE CASES WAS THE
DEFENDANT GIVEN A FULL AND EFFECTIVE WARNING OF HIS RIGHTS AT THE
OUTSET OF THE INTERROGATION PROCESS. IN ALL THE CASES, THE QUESTIONING
ELICITED ORAL ADMISSIONS, AND IN THREE OF THEM, SIGNED STATEMENTS AS
WELL WHICH WERE ADMITTED AT THEIR TRIALS. THEY ALL THUS SHARED SALIENT
FEATURES - INCOMMUNICADO INTERROGATION OF INDIVIDUALS IN A POLICE
DOMINATED ATMOSPHERE, RESULTING IN SELF-INCRIMINATING STATEMENTS
WITHOUT FULL WARNINGS OF CONSTITUTIONAL RIGHTS.
AN UNDERSTANDING OF THE NATURE AND SETTING OF THIS IN-CUSTODY
INTERROGATION IS ESSENTIAL TO OUR DECISIONS TODAY. THE DIFFICULTY IN
DEPICTING WHAT TRANSPIRES AT SUCH INTERROGATIONS STEMS FROM THE FACT
THAT IN THIS COUNTRY THEY HAVE LARGELY TAKEN PLACE INCOMMUNICADO. FROM
EXTENSIVE FACTUAL STUDIES UNDERTAKEN IN THE EARLY 1930'S, INCLUDING THE
FAMOUS WICKERSHAM REPORT TO CONGRESS BY A PRESIDENTIAL COMMISSION, IT
IS CLEAR THAT POLICE VIOLENCE AND THE "THIRD DEGREE" FLOURISHED AT THAT
TIME. (FN5) IN A SERIES OF CASES DECIDED BY THIS COURT LONG AFTER
THESE STUDIES, THE POLICE RESORTED TO PHYSICAL BRUTALITY - BEATING,
HANGING, WHIPPING - AND TO SUSTAINED AND PROTRACTED QUESTIONING
INCOMMUNICADO IN ORDER TO EXTORT CONFESSIONS. (FN6) THE COMMISSION ON
CIVIL RIGHTS IN 1961 FOUND MUCH EVIDENCE TO INDICATE THAT "SOME
POLICEMEN STILL RESORT TO PHYSICAL FORCE TO OBTAIN CONFESSIONS," 1961
COMM'N ON CIVIL RIGHTS REP., JUSTICE, PT. 5, 17. THE USE OF PHYSICAL
BRUTALITY AND VIOLENCE IS NOT, UNFORTUNATELY, RELEGATED TO THE PAST OR
TO ANY PART OF THE COUNTRY. ONLY RECENTLY IN KINGS COUNTY, NEW YORK,
THE POLICE BRUTALLY BEAT, KICKED AND PLACED LIGHTED CIGARETTE BUTTS ON
THE BACK OF A POTENTIAL WITNESS UNDER INTERROGATION FOR THE PURPOSE OF
SECURING A STATEMENT INCRIMINATING A THIRD PARTY. PEOPLE V. PORTELLI,
15 N.Y.2D 235, 205 N.E.2D 857, 257 N.Y.S.2D 931 (1965). (FN7)
THE EXAMPLES GIVEN ABOVE ARE UNDOUBTEDLY THE EXCEPTION NOW, BUT THEY
ARE SUFFICIENTLY WIDESPREAD TO BE THE OBJECT OF CONCERN. UNLESS A
PROPER LIMITATION UPON CUSTODIAL INTERROGATION IS ACHIEVED - SUCH AS
THESE DECISIONS WILL ADVANCE - THERE CAN BE NO ASSURANCE THAT PRACTICES
OF THIS NATURE WILL BE ERADICATED IN THE FORESEEABLE FUTURE. THE
CONCLUSION OF THE WICKERSHAM COMMISSION REPORT, MADE OVER 30 YEARS AGO,
IS STILL PERTINENT:
"TO THE CONTENTION THAT THE THIRD DEGREE IS NECESSARY TO GET THE
FACTS, THE REPORTERS APTLY REPLY IN THE LANGUAGE OF THE PRESENT LORD
CHANCELLOR OF ENGLAND (LORD SANKEY): 'IT IS NOT ADMISSIBLE TO DO A
GREAT RIGHT BY DOING A LITTLE WRONG ... . IT IS NOT SUFFICIENT TO
DO JUSTICE BY OBTAINING A PROPER RESULT BY IRREGULAR OR IMPROPER
MEANS.' NOT ONLY DOES THE USE OF THE THIRD DEGREE INVOLVE A FLAGRANT
VIOLATION OF LAW BY THE OFFICERS OF THE LAW, BUT IT INVOLVES ALSO THE
DANGERS OF FALSE CONFESSIONS, AND IT TENDS TO MAKE POLICE AND
PROSECUTORS LESS ZEALOUS IN THE SEARCH FOR OBJECTIVE EVIDENCE. AS THE
NEW YORK PROSECUTOR QUOTED IN THE REPORT SAID, 'IT IS A SHORT CUT AND
MAKES THE POLICE LAZY AND UNENTERPRISING.' OR, AS ANOTHER OFFICIAL
QUOTED REMARKED: 'IF YOU USE YOUR FISTS, YOU ARE NOT SO LIKELY TO USE
YOUR WITS.' WE AGREE WITH THE CONCLUSION EXPRESSED IN THE REPORT, THAT
'THE THIRD DEGREE BRUTALIZES THE POLICE, HARDENS THE PRISONER AGAINST
SOCIETY, AND LOWERS THE ESTEEM IN WHICH THE ADMINISTRATION OF JUSTICE
IS HELD BY THE PUBLIC.'" IV NATIONAL COMMISSION ON LAW OBSERVANCE AND
ENFORCEMENT, REPORT ON LAWLESSNESS IN LAW ENFORCEMENT 5 (1931).
AGAIN WE STRESS THAT THE MODERN PRACTICE OF IN-CUSTODY INTERROGATION
IS PSYCHOLOGICALLY RATHER THAN PHYSICALLY ORIENTED. AS WE HAVE STATED
BEFORE, "SINCE CHAMBERS V. FLORIDA, 309 U.S. 227, THIS COURT HAS
RECOGNIZED THAT COERCION CAN BE MENTAL AS WELL AS PHYSICAL, AND THAT
THE BLOOD OF THE ACCUSED IS NOT THE ONLY HALLMARK OF AN
UNCONSTITUTIONAL INQUISITION." BLACKBURN V. ALABAMA, 361 U.S. 199, 206
(1960). INTERROGATION STILL TAKES PLACE IN PRIVACY. PRIVACY RESULTS
IN SECRECY AND THIS IN TURN RESULTS IN A GAP IN OUR KNOWLEDGE AS TO
WHAT IN FACT GOES ON IN THE INTERROGATION ROOMS. A VALUABLE SOURCE OF
INFORMATION ABOUT PRESENT POLICE PRACTICES, HOWEVER, MAY BE FOUND IN
VARIOUS POLICE MANUALS AND TEXTS WHICH DOCUMENT PROCEDURES EMPLOYED
WITH SUCCESS IN THE PAST, AND WHICH RECOMMEND VARIOUS OTHER EFFECTIVE
TACTICS. (FN8) THESE TEXTS ARE USED BY LAW ENFORCEMENT AGENCIES
THEMSELVES AS GUIDES. (FN9) IT SHOULD BE NOTED THAT THESE TEXTS
PROFESSEDLY PRESENT THE MOST ENLIGHTENED AND EFFECTIVE MEANS PRESENTLY
USED TO OBTAIN STATEMENTS THROUGH CUSTODIAL INTERROGATION. BY
CONSIDERING THESE TEXTS AND OTHER DATA, IT IS POSSIBLE TO DESCRIBE
PROCEDURES OBSERVED AND NOTED AROUND THE COUNTRY. THE OFFICERS ARE
TOLD BY THE MANUALS THAT THE "PRINCIPAL PSYCHOLOGICAL FACTOR
CONTRIBUTING TO A SUCCESSFUL INTERROGATION IS PRIVACY - BEING ALONE
WITH THE PERSON UNDER INTERROGATION." (FN10) THE EFFICACY OF THIS
TACTIC HAS BEEN EXPLAINED AS FOLLOWS: "IF AT ALL PRACTICABLE, THE
INTERROGATION SHOULD TAKE PLACE IN THE INVESTIGATOR'S OFFICE OR AT
LEAST IN A ROOM OF HIS OWN CHOICE. THE SUBJECT SHOULD BE DEPRIVED OF
EVERY PSYCHOLOGICAL ADVANTAGE. IN HIS OWN HOME HE MAY BE CONFIDENT,
INDIGNANT, OR RECALCITRANT. HE IS MORE KEENLY AWARE OF HIS RIGHTS AND
MORE RELUCTANT TO TELL OF HIS INDISCRETIONS OR CRIMINAL BEHAVIOR WITHIN
THE WALLS OF HIS HOME. MOREOVER HIS FAMILY AND OTHER FRIENDS ARE
NEARBY, THEIR PRESENCE LENDING MORAL SUPPORT. IN HIS OWN OFFICE, THE
INVESTIGATOR POSSESSES ALL THE ADVANTAGES. THE ATMOSPHERE SUGGESTS THE
INVINCIBILITY OF THE FORCES OF THE LAW." (FN11)
TO HIGHLIGHT THE ISOLATION AND UNFAMILIAR SURROUNDINGS, THE MANUALS
INSTRUCT THE POLICE TO DISPLAY AN AIR OF CONFIDENCE IN THE SUSPECT'S
GUILT AND FROM OUTWARD APPEARANCE TO MAINTAIN ONLY AN INTEREST IN
CONFIRMING CERTAIN DETAILS. THE GUILT OF THE SUBJECT IS TO BE POSITED
AS A FACT. THE INTERROGATOR SHOULD DIRECT HIS COMMENTS TOWARD THE
REASONS WHY THE SUBJECT COMMITTED THE ACT, RATHER THAN COURT FAILURE BY
ASKING THE SUBJECT WHETHER HE DID IT. LIKE OTHER MEN, PERHAPS THE
SUBJECT HAS HAD A BAD FAMILY LIFE, HAD AN UNHAPPY CHILDHOOD, HAD TOO
MUCH TO DRINK, HAD AN UNREQUITED DESIRE FOR WOMEN. THE OFFICERS ARE
INSTRUCTED TO MINIMIZE THE MORAL SERIOUSNESS OF THE OFFENSE, (FN12) TO
CAST BLAME ON THE VICTIM OR ON SOCIETY. (FN13) THESE TACTICS ARE
DESIGNED TO PUT THE SUBJECT IN A PSYCHOLOGICAL STATE WHERE HIS STORY IS
BUT AN ELABORATION OF WHAT THE POLICE PURPORT TO KNOW ALREADY - THAT HE
IS GUILTY. EXPLANATIONS TO THE CONTRARY ARE DISMISSED AND
DISCOURAGED.
THE TEXTS THUS STRESS THAT THE MAJOR QUALITIES AN INTERROGATOR SHOULD
POSSESS ARE PATIENCE AND PERSERVERANCE. ONE WRITER DESCRIBES THE
EFFICACY OF THESE CHARACTERISTICS IN THIS MANNER:
"IN THE PRECEDING PARAGRAPHS EMPHASIS HAS BEEN PLACED ON KINDNESS AND
STRATAGEMS. THE INVESTIGATOR WILL, HOWEVER, ENCOUNTER MANY SITUATIONS
WHERE THE SHEER WEIGHT OF HIS PERSONALITY WILL BE THE DECIDING FACTOR.
WHERE EMOTIONAL APPEALS AND TRICKS ARE EMPLOYED TO NO AVAIL, HE MUST
RELY ON AN OPPRESSIVE ATMOSPHERE OF DOGGED PERSISTENCE. HE MUST
INTERROGATE STEADILY AND WITHOUT RELENT, LEAVING THE SUBJECT NO
PROSPECT OF SURCEASE. HE MUST DOMINATE HIS SUBJECT AND OVERWHELM HIM
WITH HIS INEXORABLE WILL TO OBTAIN THE TRUTH. HE SHOULD INTERROGATE
FOR A SPELL OF SEVERAL HOURS PAUSING ONLY FOR THE SUBJECT'S NECESSITIES
IN ACKNOWLEDGMENT OF THE NEED TO AVOID A CHARGE OF DURESS THAT CAN BE
TECHNICALLY SUBSTANTIATED. IN A SERIOUS CASE, THE INTERROGATION MAY
CONTINUE FOR DAYS, WITH THE REQUIRED INTERVALS FOR FOOD AND SLEEP, BUT
WITH NO RESPITE FROM THE ATMOSPHERE OF DOMINATION. IT IS POSSIBLE IN
THIS WAY TO INDUCE THE SUBJECT TO TALK WITHOUT RESORTING TO DURESS OR
COERCION. THE METHOD SHOULD BE USED ONLY WHEN THE GUILT OF THE SUBJECT
APPEARS HIGHLY PROBABLE." (FN14)
THE MANUALS SUGGEST THAT THE SUSPECT BE OFFERED LEGAL EXCUSES FOR HIS
ACTIONS IN ORDER TO OBTAIN AN INITIAL ADMISSION OF GUILT. WHERE THERE
IS A SUSPECTED REVENGE-KILLING, FOR EXAMPLE, THE INTERROGATOR MAY SAY:
"JOE, YOU PROBABLY DIDN'T GO OUT LOOKING FOR THIS FELLOW WITH THE
PURPOSE OF SHOOTING HIM. MY GUESS IS, HOWEVER, THAT YOU EXPECTED
SOMETHING FROM HIM AND THAT'S WHY YOU CARRIED A GUN - FOR YOUR OWN
PROTECTION. YOU KNEW HIM FOR WHAT HE WAS, NO GOOD. THEN WHEN YOU MET
HIM HE PROBABLY STARTED USING FOUL, ABUSIVE LANGUAGE AND HE GAVE SOME
INDICATION THAT HE WAS ABOUT TO PULL A GUN ON YOU, AND THAT'S WHEN YOU
HAD TO ACT TO SAVE YOUR OWN LIFE. THAT'S ABOUT IT, ISN'T IT, JOE?"
(FN15)
HAVING THEN OBTAINED THE ADMISSION OF SHOOTING, THE INTERROGATOR IS
ADVISED TO REFER TO CIRCUMSTANTIAL EVIDENCE WHICH NEGATES THE SELF
DEFENSE EXPLANATION. THIS SHOULD ENABLE HIM TO SECURE THE ENTIRE
STORY. ONE TEXT NOTES THAT "EVEN IF HE FAILS TO DO SO, THE
INCONSISTENCY BETWEEN THE SUBJECT'S ORIGINAL DENIAL OF THE SHOOTING AND
HIS PRESENT ADMISSION OF AT LEAST DOING THE SHOOTING WILL SERVE TO
DEPRIVE HIM OF A SELF-DEFENSE 'OUT' AT THE TIME OF TRIAL." (FN16)
WHEN THE TECHNIQUES DESCRIBED ABOVE PROVE UNAVAILING, THE TEXTS
RECOMMEND THEY BE ALTERNATED WITH A SHOW OF SOME HOSTILITY. ONE PLOY
OFTEN USED HAS BEEN TERMED THE "FRIENDLY-UNFRIENDLY" OR THE "MUTT AND
JEFF" ACT:
" ... IN THIS TECHNIQUE, TWO AGENTS ARE EMPLOYED. MUTT, THE
RELENTLESS INVESTIGATOR, WHO KNOWS THE SUBJECT IS GUILTY AND IS NOT
GOING TO WASTE ANY TIME. HE'S SENT A DOZEN MEN AWAY FOR THIS CRIME AND
HE'S GOING TO SEND THE SUBJECT AWAY FOR THE FULL TERM. JEFF, ON THE
OTHER HAND, IS OBVIOUSLY A KINDHEARTED MAN. HE HAS A FAMILY HIMSELF.
HE HAS A BROTHER WHO WAS INVOLVED IN A LITTLE SCRAPE LIKE THIS. HE
DISAPPROVES OF MUTT AND HIS TACTICS AND WILL ARRANGE TO GET HIM OFF THE
CASE IF THE SUBJECT WILL COOPERATE. HE CAN'T HOLD MUTT OFF FOR LONG.
THE SUBJECT WOULD BE WISE TO MAKE A QUICK DECISION. THE TECHNIQUE IS
APPLIED BY HAVING BOTH INVESTIGATORS PRESENT WHILE MUTT ACTS OUT HIS
ROLE. JEFF MAY STAND BY QUIETLY AND DEMURE AT SOME OF MUTT'S TACTICS.
WHEN JEFF MAKES HIS PLEA FOR COOPERATION, MUTT IS NOT PRESENT IN THE
ROOM." (FN17)
THE INTERROGATORS SOMETIMES ARE INSTRUCTED TO INDUCE A CONFESSION OUT
OF TRICKERY. THE TECHNIQUE HERE IS QUITE EFFECTIVE IN CRIMES WHICH
REQUIRE IDENTIFICATION OR WHICH RUN IN SERIES. IN THE IDENTIFICATION
SITUATION, THE INTERROGATOR MAY TAKE A BREAK IN HIS QUESTIONING TO
PLACE THE SUBJECT AMONG A GROUP OF MEN IN A LINE-UP. "THE WITNESS OR
COMPLAINANT (PREVIOUSLY COACHED, IF NECESSARY) STUDIES THE LINE-UP AND
CONFIDENTLY POINTS OUT THE SUBJECT AS THE GUILTY PARTY." (FN18) THEN
THE QUESTIONING RESUMES "AS THOUGH THERE WERE NOW NO DOUBT ABOUT THE
GUILT OF THE SUBJECT." A VARIATION ON THIS TECHNIQUE IS CALLED THE
"REVERSE LINE-UP":
"THE ACCUSED IS PLACED IN A LINE-UP, BUT THIS TIME HE IS IDENTIFIED
BY SEVERAL FICTITIOUS WITNESSES OR VICTIMS WHO ASSOCIATED HIM WITH
DIFFERENT OFFENSES. IT IS EXPECTED THAT THE SUBJECT WILL BECOME
DESPERATE AND CONFESS TO THE OFFENSE UNDER INVESTIGATION IN ORDER TO
ESCAPE FROM THE FALSE ACCUSATIONS." (FN19)
THE MANUALS ALSO CONTAIN INSTRUCTIONS FOR POLICE ON HOW TO HANDLE THE
INDIVIDUAL WHO REFUSES TO DISCUSS THE MATTER ENTIRELY, OR WHO ASKS FOR
AN ATTORNEY OR RELATIVES. THE EXAMINER IS TO CONCEDE HIM THE RIGHT TO
REMAIN SILENT. "THIS USUALLY HAS A VERY UNDERMINING EFFECT. FIRST OF
ALL, HE IS DISAPPOINTED IN HIS EXPECTATION OF AN UNFAVORABLE REACTION
ON THE PART OF THE INTERROGATOR. SECONDLY, A CONCESSION OF THIS RIGHT
TO REMAIN SILENT IMPRESSES THE SUBJECT WITH THE APPARENT FAIRNESS OF
HIS INTERROGATOR." (FN20) AFTER THIS PSYCHOLOGICAL CONDITIONING,
HOWEVER, THE OFFICER IS TOLD TO POINT OUT THE INCRIMINATING
SIGNIFICANCE OF THE SUSPECT'S REFUSAL TO TALK:
"JOE, YOU HAVE A RIGHT TO REMAIN SILENT. THAT'S YOUR PRIVILEGE AND
I'M THE LAST PERSON IN THE WORLD WHO'LL TRY TO TAKE IT AWAY FROM YOU.
IF THAT'S THE WAY YOU WANT TO LEAVE THIS, O.K. BUT LET ME ASK YOU
THIS. SUPPOSE YOU WERE IN MY SHOES AND I WERE IN YOURS AND YOU CALLED
ME IN TO ASK ME ABOUT THIS AND I TOLD YOU, 'I DON'T WANT TO ANSWER ANY
OF YOUR QUESTIONS.' YOU'D THINK I HAD SOMETHING TO HIDE, AND YOU'D
PROBABLY BE RIGHT IN THINKING THAT. THAT'S EXACTLY WHAT I'LL HAVE TO
THINK ABOUT YOU, AND SO WILL EVERYBODY ELSE. SO LET'S SIT HERE AND
TALK THIS WHOLE THING OVER." (FN21)
FEW WILL PERSIST IN THEIR INITIAL REFUSAL TO TALK, IT IS SAID, IF
THIS MONOLOGUE IS EMPLOYED CORRECTLY.
IN THE EVENT THAT THE SUBJECT WISHES TO SPEAK TO A RELATIVE OR AN
ATTORNEY, THE FOLLOWING ADVICE IS TENDERED:
"THE INTERROGATOR SHOULD RESPOND BY SUGGESTING THAT THE SUBJECT FIRST
TELL THE TRUTH TO THE INTERROGATOR HIMSELF RATHER THAN GET ANYONE ELSE
INVOLVED IN THE MATTER. IF THE REQUEST IS FOR AN ATTORNEY, THE
INTERROGATOR MAY SUGGEST THAT THE SUBJECT SAVE HIMSELF OR HIS FAMILY
THE EXPENSE OF ANY SUCH PROFESSIONAL SERVICE, PARTICULARLY IF HE IS
INNOCENT OF THE OFFENSE UNDER INVESTIGATION. THE INTERROGATOR MAY ALSO
ADD, 'JOE, I'M ONLY LOOKING FOR THE TRUTH, AND IF YOU'RE TELLING THE
TRUTH, THAT'S IT. YOU CAN HANDLE THIS BY YOURSELF.'" (FN22)
FROM THESE REPRESENTATIVE SAMPLES OF INTERROGATION TECHNIQUES, THE
SETTING PRESCRIBED BY THE MANUALS AND OBSERVED IN PRACTICE BECOMES
CLEAR. IN ESSENCE, IT IS THIS: TO BE ALONE WITH THE SUBJECT IS
ESSENTIAL TO PREVENT DISTRACTION AND TO DEPRIVE HIM OF ANY OUTSIDE
SUPPORT. THE AURA OF CONFIDENCE IN HIS GUILT UNDERMINES HIS WILL TO
RESIST. HE MERELY CONFIRMS THE PRECONCEIVED STORY THE POLICE SEEK TO
HAVE HIM DESCRIBE. PATIENCE AND PERSISTENCE, AT TIMES RELENTLESS
QUESTIONING, ARE EMPLOYED. TO OBTAIN A CONFESSION, THE INTERROGATOR
MUST "PATIENTLY MANEUVER HIMSELF OR HIS QUARRY INTO A POSITION FROM
WHICH THE DESIRED OBJECTIVE MAY BE ATTAINED." (FN23) WHEN NORMAL
PROCEDURES FAIL TO PRODUCE THE NEEDED RESULT, THE POLICE MAY RESORT TO
DECEPTIVE STRATEGEMS SUCH AS GIVING FALSE LEGAL ADVICE. IT IS
IMPORTANT TO KEEP THE SUBJECT OFF BALANCE, FOR EXAMPLE, BY TRADING ON
HIS INSECURITY ABOUT HIMSELF OR HIS SURROUNDINGS. THE POLICE THEN
PERSUADE, TRICK, OR CAJOLE HIM OUT OF EXERCISING HIS CONSTITUTIONAL
RIGHTS.
EVEN WITHOUT EMPLOYING BRUTALITY, THE "THIRD DEGREE" OR THE SPECIFIC
STRATEGEMS DESCRIBED ABOVE, THE VERY FACT OF CUSTODIAL INTERROGATION
EXACTS A HEAVY TOLL ON INDIVIDUAL LIBERTY AND TRADES ON THE WEAKNESS OF
INDIVIDUALS. (FN24) THIS FACT MAY BE ILLUSTRATED SIMPLY BY REFERRING
TO THREE CONFESSION CASES DECIDED BY THIS COURT IN THE TERM IMMEDIATELY
PRECEDING OUR ESCOBEDO DECISION. IN TOWNSEND V. SAIN, 372 U.S. 293
(1963), THE DEFENDANT WAS A 19-YEAR-OLD HEROIN ADDICT, DESCRIBED AS A
"NEAR MENTAL DEFECTIVE," ID., AT 307-310. THE DEFENDANT IN LYNUMN V.
ILLINOIS, 372 U.S. 528 (1963), WAS A WOMAN WHO CONFESSED TO THE
ARRESTING OFFICER AFTER BEING IMPORTUNED TO "COOPERATE" IN ORDER TO
PREVENT HER CHILDREN FROM BEING TAKEN BY RELIEF AUTHORITIES. THIS
COURT AS IN THOSE CASES REVERSED THE CONVICTION OF A DEFENDANT IN
HAYNES V. WASHINGTON, 373 U.S. 503 (1963), WHOSE PERSISTENT REQUEST
DURING HIS INTERROGATION WAS TO PHONE HIS WIFE OR ATTORNEY. (FN25) IN
OTHER SETTINGS, THESE INDIVIDUALS MIGHT HAVE EXERCISED THEIR
CONSTITUTIONAL RIGHTS. IN THE INCOMMUNICADO POLICE-DOMINATED
ATMOSPHERE, THEY SUCCOMBED.
IN THE CASES BEFORE US TODAY, GIVEN THIS BACKGROUND, WE CONCERN
OURSELVES PRIMARILY WITH THIS INTERROGATION ATMOSPHERE AND THE EVILS IT
CAN BRING. IN NO. 759, MIRANDA V. ARIZONA, THE POLICE ARRESTED THE
DEFENDANT AND TOOK HIM TO A SPECIAL INTERROGATION ROOM WHERE THEY
SECURED A CONFESSION. IN NO. 760, VIGNERA V. NEW YORK, THE DEFENDANT
MADE ORAL ADMISSIONS TO THE POLICE AFTER INTERROGATION IN THE AFTERNOON
AND THEN SIGNED AN INCULPATORY STATEMENT UPON BEING QUESTIONED BY AN
ASSISTANT DISTRICT ATTORNEY LATER THE SAME EVENING. IN NO. 761,
WESTOVER V. UNITED STATES, THE DEFENDANT WAS HANDED OVER TO THE FEDERAL
BUREAU OF INVESTIGATION BY LOCAL AUTHORITIES AFTER THEY HAD DETAINED
AND INTERROGATED HIM FOR A LENGTHY PERIOD, BOTH AT NIGHT AND THE
FOLLOWING MORNING. AFTER SOME TWO HOURS OF QUESTIONING, THE FEDERAL
OFFICERS HAD OBTAINED SIGNED STATEMENTS FROM THE DEFENDANT. LASTLY, IN
NO. 584, CALIFORNIA V. STEWART, THE LOCAL POLICE HELD THE DEFENDANT
FIVE DAYS IN THE STATION AND INTERROGATED HIM ON NINE SEPARATE
OCCASIONS BEFORE THEY SECURED HIS INCULPATORY STATEMENT.
IN THESE CASES, WE MIGHT NOT FIND THE DEFENDANT'S STATEMENTS TO HAVE
BEEN INVOLUNTARY IN TRADITIONAL TERMS. OUR CONCERN FOR ADEQUATE
SAFEGUARDS TO PROTECT PRECIOUS FIFTH AMENDMENT RIGHTS IS, OF COURSE,
NOT LESSENED IN THE SLIGHTEST. IN EACH OF THE CASES, THE DEFENDANT WAS
THRUST INTO AN UNFAMILIAR ATMOSPHERE AND RUN THROUGH MENACING POLICE
INTERROGATION PROCEDURES. THE POTENTIALITY FOR COMPULSION IS
FORCEFULLY APPARENT, FOR EXAMPLE, IN MIRANDA, WHERE THE INDIGENT
MEXICAN DEFENDANT WAS A SERIOUSLY DISTURBED INDIVIDUAL WITH PRONOUNCED
SEXUAL FANTASIES, AND IN STEWART, IN WHICH THE DEFENDANT WAS AN
INDIGENT LOS ANGELES NEGRO WHO HAD DROPPED OUT OF SCHOOL IN THE SIXTH
GRADE. TO BE SURE, THE RECORDS DO NOT EVINCE OVERT PHYSICAL COERCION
OR PATENT PSYCHOLOGICAL PLOYS. THE FACT REMAINS THAT IN NONE OF THESE
CASES DID THE OFFICERS UNDERTAKE TO AFFORD APPROPRIATE SAFEGUARDS AT
THE OUTSET OF THE INTERROGATION TO INSURE THAT THE STATEMENTS WERE
TRULY THE PRODUCT OF FREE CHOICE.
IT IS OBVIOUS THAT SUCH AN INTERROGATION ENVIRONMENT IS CREATED FOR
NO PURPOSE OTHER THAN TO SUBJUGATE THE INDIVIDUAL TO THE WILL OF HIS
EXAMINER. THIS ATMOSPHERE CARRIES ITS OWN BADGE OF INTIMIDATION. TO
BE SURE, THIS IS NOT PHYSICAL INTIMIDATION, BUT IT IS EQUALLY
DESTRUCTIVE OF HUMAN DIGNITY. (FN26) THE CURRENT PRACTICE OF
INCOMMUNICADO INTERROGATION IS AT ODDS WITH ONE OF OUR NATION'S MOST
CHERISHED PRINCIPLES - THAT THE INDIVIDUAL MAY NOT BE COMPELLED TO
INCRIMINATE HIMSELF. UNLESS ADEQUATE PROTECTIVE DEVICES ARE EMPLOYED
TO DISPEL THE COMPULSION INHERENT IN CUSTODIAL SURROUNDINGS, NO
STATEMENT OBTAINED FROM THE DEFENDANT CAN TRULY BE THE PRODUCT OF HIS
FREE CHOICE. FROM THE FOREGOING, WE CAN READILY PERCEIVE AN INTIMATE
CONNECTION BETWEEN THE PRIVILEGE AGAINST SELF-INCRIMINATION AND POLICE
CUSTODIAL QUESTIONING. IT IS FITTING TO TURN TO HISTORY AND PRECEDENT
UNDERLYING THE SELF-INCRIMINATION CLAUSE TO DETERMINE ITS APPLICABILITY
IN THIS SITUATION.
II.
WE SOMETIMES FORGET HOW LONG IT HAS TAKEN TO ESTABLISH THE PRIVILEGE
AGAINST SELF-INCRIMINATION, THE SOURCES FROM WHICH IT CAME AND THE
FERVOR WITH WHICH IT WAS DEFENDED. ITS ROOTS GO BACK INTO ANCIENT
TIMES. (FN27) PERHAPS THE CRITICAL HISTORICAL EVENT SHEDDING LIGHT ON
ITS ORIGINS AND EVOLUTION WAS THE TRIAL OF ONE JOHN LILBURN, A VOCAL
ANTI-STUART LEVELLER, WHO WAS MADE TO TAKE THE STAR CHAMBER OATH IN
1637. THE OATH WOULD HAVE BOUND HIM TO ANSWER TO ALL QUESTIONS POSED
TO HIM ON ANY SUBJECT. THE TRIAL OF JOHN LILBURN AND JOHN WHARTON, 3
HOW. ST. TR. 1315 (1637). HE RESISTED THE OATH AND DECLAIMED THE
PROCEEDINGS, STATING:
"ANOTHER FUNDAMENTAL RIGHT I THEN CONTENDED FOR, WAS, THAT NO MAN'S
CONSCIENCE OUGHT TO BE RACKED BY OATHS IMPOSED, TO ANSWER TO QUESTIONS
CONCERNING HIMSELF IN MATTERS CRIMINAL, OR PRETENDED TO BE SO." HALLER
& DAVIES, THE LEVELLER TRACTS 1647-1653, P. 454 (1944).
ON ACCOUNT OF THE LILBURN TRIAL, PARLIAMENT ABOLISHED THE
INQUISITORIAL COURT OF STAR CHAMBER AND WENT FURTHER IN GIVING HIM
GENEROUS REPARATION. THE LOFTY PRINCIPLES TO WHICH LILBURN HAD
APPEALED DURING HIS TRIAL GAINED POPULAR ACCEPTANCE IN ENGLAND. (FN28)
THESE SENTIMENTS WORKED THEIR WAY OVER TO THE COLONIES AND WERE
IMPLANTED AFTER GREAT STRUGGLE INTO THE BILL OF RIGHTS. (FN29) THOSE
WHO FRAMED OUR CONSTITUTION AND THE BILL OF RIGHTS WERE EVER AWARE OF
SUBTLE ENCROACHMENTS ON INDIVIDUAL LIBERTY. THEY KNEW THAT
"ILLEGITIMATE AND UNCONSTITUTIONAL PRACTICES GET THEIR FIRST FOOTING
... BY SILENT APPROACHES AND SLIGHT DEVIATIONS FROM LEGAL MODES OF
PROCEDURE." BOYD V. UNITED STATES, 116 U.S. 616, 635 (1886). THE
PRIVILEGE WAS ELEVATED TO CONSTITUTIONAL STATUS AND HAS ALWAYS BEEN "AS
BROAD AS THE MISCHIEF AGAINST WHICH IT SEEKS TO GUARD." COUNSELMAN V.
HITCHCOCK, 142 U.S. 547, 562 (1892). WE CANNOT DEPART FROM THIS NOBLE
HERITAGE.
THUS WE MAY VIEW THE HISTORICAL DEVELOPMENT OF THE PRIVILEGE AS ONE
WHICH GROPED FOR THE PROPER SCOPE OF GOVERNMENTAL POWER OVER THE
CITIZEN. AS A "NOBLE PRINCIPLE OFTEN TRANSCENDS ITS ORIGINS," THE
PRIVILEGE HAS COME RIGHTFULLY TO BE RECOGNIZED IN PART AS AN
INDIVIDUAL'S SUBSTANTIVE RIGHT, A "RIGHT TO A PRIVATE ENCLAVE WHERE HE
MAY LEAD A PRIVATE LIFE. THAT RIGHT IS THE HALLMARK OF OUR
DEMOCRACY." UNITED STATES V. GRUNEWALD, 233 F.2D 556, 579, 581-582
(FRANK, J., DISSENTING), REV'D 353 U.S. 391 (1957). WE HAVE RECENTLY
NOTED THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION - THE ESSENTIAL
MAINSTAY OF OUR ADVERSARY SYSTEM - IS FOUNDED ON A COMPLEX OF VALUES,
MURPHY V. WATERFRONT COMM'N, 378 U.S. 52, 55-57, N. 5 (1964); TEHAN V.
SHOTT, 382 U.S. 406, 414-415, N. 12 (1966). ALL THESE POLICIES POINT
TO ONE OVERRIDING THOUGHT: THE CONSTITUTIONAL FOUNDATION UNDERLYING
THE PRIVILEGE IS THE RESPECT A GOVERNMENT - STATE OR FEDERAL - MUST
ACCORD TO THE DIGNITY AND INTEGRITY OF ITS CITIZENS. TO MAINTAIN A
"FAIR STATE-INDIVIDUAL BALANCE," TO REQUIRE THE GOVERNMENT "TO SHOULDER
THE ENTIRE LOAD," 8 WIGMORE, EVIDENCE 317 (MCNAUGHTON REV. 1961), TO
RESPECT THE INVIOLABILITY OF THE HUMAN PERSONALITY, OUR ACCUSATORY
SYSTEM OF CRIMINAL JUSTICE DEMANDS THAT THE GOVERNMENT SEEKING TO
PUNISH AN INDIVIDUAL PRODUCE THE EVIDENCE AGAINST HIM BY ITS OWN
INDEPENDENT LABORS, RATHER THAN BY THE CRUEL, SIMPLE EXPEDIENT OF
COMPELLING IT FROM HIS OWN MOUTH. CHAMBERS V. FLORIDA, 309 U.S. 227,
235-238 (1940). IN SUM, THE PRIVILEGE IS FULFILLED ONLY WHEN THE
PERSON IS GUARANTEED THE RIGHT "TO REMAIN SILENT UNLESS HE CHOOSES TO
SPEAK IN THE UNFETTERED EXERCISE OF HIS OWN WILL." MALLOY V. HOGAN,
378 U.S. 1, 8 (1964).
THE QUESTION IN THESE CASES IS WHETHER THE PRIVILEGE IS FULLY
APPLICABLE DURING A PERIOD OF CUSTODIAL INTERROGATION. IN THIS COURT,
THE PRIVILEGE HAS CONSISTENTLY BEEN ACCORDED A LIBERAL CONSTRUCTION.
ALBERTSON V. SACB, 382 U.S. 70, 81 (1965); HOFFMAN V. UNITED STATES,
341 U.S. 479, 486 (1951); ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 72-73
(1920); COUNSELMAN V. HITCHOCK, 142 U.S. 547, 562 (1892). WE ARE
SATISFIED THAT ALL THE PRINCIPLES ENBODIED IN THE PRIVILEGE APPLY TO
INFORMAL COMPULSION EXERTED BY LAW-ENFORCEMENT OFFICERS DURING IN
CUSTODY QUESTIONING. AN INDIVIDUAL SWEPT FROM FAMILIAR SURROUNDINGS
INTO POLICE CUSTODY, SURROUNDED BY ANTAGONISTIC FORCES, AND SUBJECTED
TO THE TECHNIQUES OF PERSUASION DESCRIBED ABOVE CANNOT BE OTHERWISE
THAN UNDER COMPULSION TO SPEAK. AS A PRACTICAL MATTER, THE COMPULSION
TO SPEAK IN THE ISOLATED SETTING OF THE POLICE STATION MAY WELL BE
GREATER THAN IN COURTS OR OTHER OFFICIAL INVESTIGATIONS, WHERE THERE
ARE OFTEN IMPARTIAL OBSERVERS TO GUARD AGAINST INTIMIDATION OR
TRICKERY. (FN30)
THIS QUESTION, IN FACT, COULD HAVE BEEN TAKEN AS SETTLED IN FEDERAL
COURTS ALMOST 70 YEARS AGO, WHEN, IN BRAM V. UNITED STATES, 168 U.S.
532, 542 (1897), THIS COURT HELD:
"IN CRIMINAL TRIALS, IN THE COURTS OF THE UNITED STATES, WHEREVER A
QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT BECAUSE NOT
VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH
AMENDMENT ... COMMANDING THAT NO PERSON 'SHALL BE COMPELLED IN ANY
CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF.'"
IN BRAM, THE COURT REVIEWED THE BRITISH AND AMERICAN HISTORY AND CASE
LAW AND SET DOWN THE FIFTH AMENDMENT STANDARD FOR COMPULSION WHICH WE
IMPLEMENT TODAY:
"MUCH OF THE CONFUSION WHICH HAS RESULTED FROM THE EFFORT TO DEDUCE
FROM THE ADJUDGED CASES WHAT WOULD BE A SUFFICIENT QUANTUM OF PROOF TO
SHOW THAT A CONFESSION WAS OR WAS NOT VOLUNTARY, HAS ARISEN FROM A
MISCONCEPTION OF THE SUBJECT TO WHICH THE PROOF MUST ADDRESS ITSELF.
THE RULE IS NOT THAT IN ORDER TO RENDER A STATEMENT ADMISSIBLE THE
PROOF MUST BE ADEQUATE TO ESTABLISH THAT THE PARTICULAR COMMUNICATIONS
CONTAINED IN A STATEMENT WERE VOLUNTARILY MADE, BUT IT MUST BE
SUFFICIENT TO ESTABLISH THAT THE MAKING OF THE STATEMENT WAS VOLUNTARY;
THAT IS TO SAY, THAT FROM THE CAUSES, WHICH THE LAW TREATS AS LEGALLY
SUFFICIENT TO ENGENDER IN THE MIND OF THE ACCUSED HOPE OR FEAR IN
RESPECT TO THE CRIME CHARGED, THE ACCUSED WAS NOT INVOLUNTARILY
IMPELLED TO MAKE A STATEMENT, WHEN BUT FOR THE IMPROPER INFLUENCES HE
WOULD HAVE REMAINED SILENT ... ." 168 U.S., AT 549. AND SEE, ID.,
AT 542.
THE COURT HAS ADHERED TO THIS REASONING. IN 1924, MR. JUSTICE
BRANDEIS WROTE FOR A UNANIMOUS COURT IN REVERSING A CONVICTION RESTING
ON A COMPELLED CONFESSION, WAN V. UNITED STATES, 266 U.S. 1. HE
STATED:
"IN THE FEDERAL COURTS, THE REQUISITE OF VOLUNTARINESS IS NOT
SATISFIED BY ESTABLISHING MERELY THAT THE CONFESSION WAS NOT INDUCED BY
A PROMISE OR A THREAT. A CONFESSION IS VOLUNTARY IN LAW IF, AND ONLY
IF, IT WAS, IN FACT, VOLUNTARILY MADE. A CONFESSION MAY HAVE BEEN
GIVEN VOLUNTARILY, ALTHOUGH IT WAS MADE TO POLICE OFFICERS, WHILE IN
CUSTODY, AND IN ANSWER TO AN EXAMINATION CONDUCTED BY THEM. BUT A
CONFESSION OBTAINED BY COMPULSION MUST BE EXCLUDED WHATEVER MAY HAVE
BEEN THE CHARACTER OF THE COMPULSION, AND WHETHER THE COMPULSION WAS
APPLIED IN A JUDICIAL PROCEEDING OR OTHERWISE. BRAM V. UNITED STATES,
168 U.S. 532." 266 U.S., AT 14-15.
IN ADDITION TO THE EXPANSIVE HISTORICAL DEVELOPMENT OF THE PRIVILEGE
AND THE SOUND POLICIES WHICH HAVE NURTURED ITS EVOLUTION, JUDICIAL
PRECEDENT THUS CLEARLY ESTABLISHES ITS APPLICATION TO INCOMMUNICADO
INTERROGATION. IN FACT, THE GOVERNMENT CONCEDES THIS POINT AS WELL
ESTABLISHED IN NO. 761, WESTOVER V. UNITED STATES, STATING: "WE HAVE
NO DOUBT ... THAT IT IS POSSIBLE FOR A SUSPECT'S FIFTH AMENDMENT
RIGHT TO BE VIOLATED DURING IN-CUSTODY QUESTIONING BY A LAW-ENFORCEMENT
OFFICER." (FN31)
BECAUSE OF THE ADOPTION BY CONGRESS OF RULE 5(A) OF THE FEDERAL RULES
OF CRIMINAL PROCEDURE, AND THIS COURT'S EFFECTUATION OF THAT RULE IN
MCNABB V. UNITED STATES, 318 U.S. 332 (1943), AND MALLORY V. UNITED
STATES, 354 U.S. 449 (1957), WE HAVE HAD LITTLE OCCASION IN THE PAST
QUARTER CENTURY TO REACH THE CONSTITUTIONAL ISSUES IN DEALING WITH
FEDERAL INTERROGATIONS. THESE SUPERVISORY RULES, REQUIRING PRODUCTION
OF AN ARRESTED PERSON BEFORE A COMMISSIONER "WITHOUT UNNECESSARY DELAY"
AND EXCLUDING EVIDENCE OBTAINED IN DEFAULT OF THAT STATUTORY
OBLIGATION, WERE NONETHELESS RESPONSIVE TO THE SAME CONSIDERATIONS OF
FIFTH AMENDMENT POLICY THAT UNAVOIDABLY FACE US NOW AS TO THE STATES.
IN MCNABB, 318 U.S., AT 343-344, AND IN MALLORY, 354 U.S., AT 445-456,
WE RECOGNIZED BOTH THE DANGERS OF INTERROGATION AND THE APPROPRIATENESS
OF PROPHYLAXIS STEMMING FROM THE VERY FACT OF INTERROGATION ITSELF.
(FN32)
OUR DECISION IN MALLOY V. HOGAN, 378 U.S. 1 (1964), NECESSITATES AN
EXAMINATION OF THE SCOPE OF THE PRIVILEGE IN STATE CASES AS WELL. IN
MALLOY, WE SQUARELY HELD THE PRIVILEGE APPLICABLE TO THE STATES, AND
HELD THAT THE SUBSTANTIVE STANDARDS UNDERLYING THE PRIVILEGE APPLIED
WITH FULL FORCE TO STATE COURT PROCEEDINGS. THERE, AS IN MURPHY V.
WATERFRONT COMM'N, 378 U.S. 52 (1964), AND GRIFFIN V. CALIFORNIA, 380
U.S. 609 (1965), WE APPLIED THE EXISTING FIFTH AMENDMENT STANDARDS TO
THE CASE BEFORE US. ASIDE FROM THE HOLDING ITSELF, THE REASONING IN
MALLOY MADE CLEAR WHAT HAD ALREADY BECOME APPARENT - THAT THE
SUBSTANTIVE AND PROCEDURAL SAFEGUARDS SURROUNDING ADMISSIBILITY OF
CONFESSIONS IN STATE CASES HAD BECOME EXCEEDINGLY EXACTING, REFLECTING
ALL THE POLICIES EMBEDDED IN THE PRIVILEGE, 378 U.S., AT 7-8. (FN33)
THE VOLUNTARINESS DOCTRINE IN THE STATE CASES, AS MALLOY INDICATES,
ENCOMPASSES ALL INTERROGATION PRACTICES WHICH ARE LIKELY TO EXERT SUCH
PRESSURE UPON AN INDIVIDUAL AS TO DISABLE HIM FROM MAKING A FREE AND
RATIONAL CHOICE. (FN34) THE IMPLICATIONS OF THIS PROPOSITION WERE
ELABORATED IN OUR DECISION IN ESCOBEDO V. ILLINOIS, 378 U.S. 478,
DECIDED ONE WEEK AFTER MALLOY APPLIED THE PRIVILEGE TO THE STATES.
OUR HOLDING THERE STRESSED THE FACT THAT THE POLICE HAD NOT ADVISED
THE DEFENDANT OF HIS CONSTITUTIONAL PRIVILEGE TO REMAIN SILENT AT THE
OUTSET OF THE INTERROGATION, AND WE DREW ATTENTION TO THAT FACT AT
SEVERAL POINTS IN THE DECISION, 378 U.S., AT 483, 485, 491. THIS WAS
NO ISOLATED FACTOR, BUT AN ESSENTIAL INGREDIENT IN OUR DECISION. THE
ENTIRE THRUST OF POLICE INTERROGATION THERE, AS IN ALL THE CASES TODAY,
WAS TO PUT THE DEFENDANT IN SUCH AN EMOTIONAL STATE AS TO IMPAIR HIS
CAPACITY FOR RATIONAL JUDGMENT. THE ABDICATION OF THE CONSTITUTIONAL
PRIVILEGE - THE CHOICE ON HIS PART TO SPEAK TO THE POLICE - WAS NOT
MADE KNOWINGLY OR COMPETENTLY BECAUSE OF THE FAILURE TO APPRISE HIM OF
HIS RIGHTS; THE COMPELLING ATMOSPHERE OF THE IN-CUSTODY INTERROGATION,
AND NOT AN INDEPENDENT DECISION ON HIS PART, CAUSED THE DEFENDANT TO
SPEAK.
A DIFFERENT PHASE OF THE ESCOBEDO DECISION WAS SIGNIFICANT IN ITS
ATTENTION TO THE ABSENCE OF COUNSEL DURING THE QUESTIONING. THERE, AS
IN THE CASES TODAY, WE SOUGHT A PROTECTIVE DEVICE TO DISPEL THE
COMPELLING ATMOSPHERE OF THE INTERROGATION. IN ESCOBEDO, HOWEVER, THE
POLICE DID NOT RELIEVE THE DEFENDANT OF THE ANXIETIES WHICH THEY HAD
CREATED IN THE INTERROGATION ROOMS. RATHER, THEY DENIED HIS REQUEST
FOR THE ASSISTANCE OF COUNSEL, 378 U.S., AT 481, 488, 491. (FN35)
THIS HEIGHTENED HIS DILEMMA, AND MADE HIS LATER STATEMENTS THE PRODUCT
OF THIS COMPULSION. CF. HAYNES V. WASHINGTON, 373 U.S. 503, 514
(1963). THE DENIAL OF THE DEFENDANT'S REQUEST FOR HIS ATTORNEY THUS
UNDERMINED HIS ABILITY TO EXERCISE THE PRIVILEGE - TO REMAIN SILENT IF
HE CHOSE OR TO SPEAK WITHOUT ANY INTIMIDATION, BLATANT OR SUBTLE. THE
PRESENCE OF COUNSEL, IN ALL THE CASES BEFORE US TODAY, WOULD BE THE
ADEQUATE PROTECTIVE DEVICE NECESSARY TO MAKE THE PROCESS OF POLICE
INTERROGATION CONFORM TO THE DICTATES OF THE PRIVILEGE. HIS PRESENCE
WOULD INSURE THAT STATEMENTS MADE IN THE GOVERNMENT-ESTABLISHED
ATMOSPHERE ARE NOT THE PRODUCT OF COMPULSION.
IT WAS IN THIS MANNER THAT ESCOBEDO EXPLICATED ANOTHER FACET OF THE
PRE-TRIAL PRIVILEGE, NOTED IN MANY OF THE COURT'S PRIOR DECISIONS: THE
PROTECTION OF RIGHTS AT TRIAL. (FN36) THAT COUNSEL IS PRESENT WHEN
STATEMENTS ARE TAKEN FROM AN INDIVIDUAL DURING INTERROGATION OBVIOUSLY
ENHANCES THE INTEGRITY OF THE FACT-FINDING PROCESSES IN COURT. THE
PRESENCE OF AN ATTORNEY, AND THE WARNINGS DELIVERED TO THE INDIVIDUAL,
ENABLE THE DEFENDANT UNDER OTHERWISE COMPELLING CIRCUMSTANCES TO TELL
HIS STORY WITHOUT FEAR, EFFECTIVELY, AND IN A WAY THAT ELIMINATES THE
EVILS IN THE INTERROGATION PROCESS. WITHOUT THE PROTECTIONS FLOWING
FROM ADEQUATE WARNINGS AND THE RIGHTS OF COUNSEL, "ALL THE CAREFUL
SAFEGUARDS ERECTED AROUND THE GIVING OF TESTIMONY, WHETHER BY AN
ACCUSED OR ANY OTHER WITNESS, WOULD BECOME EMPTY FORMALITIES IN A
PROCEDURE WHERE THE MOST COMPELLING POSSIBLE EVIDENCE OF GUILT, A
CONFESSION, WOULD HAVE ALREADY BEEN OBTAINED AT THE UNSUPERVISED
PLEASURE OF THE POLICE." MAPP V. OHIO, 367 U.S. 643, 685
(1961)(HARLAN, J., DISSENTING). CF. POINTER V. TEXAS, 380 U.S. 400
(1965).
III.
TODAY, THEN, THERE CAN BE NO DOUBT THAT THE FIFTH AMENDMENT PRIVILEGE
IS AVAILABLE OUTSIDE OF CRIMINAL COURT PROCEEDINGS AND SERVES TO
PROTECT PERSONS IN ALL SETTINGS IN WHICH THEIR FREEDOM OF ACTION IS
CURTAILED IN ANY SIGNIFICANT WAY FROM BEING COMPELLED TO INCRIMINATE
THEMSELVES. WE HAVE CONCLUDED THAT WITHOUT PROPER SAFEGUARDS THE
PROCESS OF IN-CUSTODY INTERROGATION OF PERSONS SUSPECTED OR ACCUSED OF
CRIME CONTAINS INHERENTLY COMPELLING PRESSURES WHICH WORK TO UNDERMINE
THE INDIVIDUAL'S WILL TO RESIST AND TO COMPEL HIM TO SPEAK WHERE HE
WOULD NOT OTHERWISE DO SO FREELY. IN ORDER TO COMBAT THESE PRESSURES
AND TO PERMIT A FULL OPPORTUNITY TO EXERCISE THE PRIVILEGE AGAINST SELF
INCRIMINATION, THE ACCUSED MUST BE ADEQUATELY AND EFFECTIVELY APPRISED
OF HIS RIGHTS AND THE EXERCISE OF THOSE RIGHTS MUST BE FULLY HONORED.
IT IS IMPOSSIBLE FOR US TO FORESEE THE POTENTIAL ALTERNATIVES FOR
PROTECTING THE PRIVILEGE WHICH MIGHT BE DEVISED BY CONGRESS OR THE
STATES IN THE EXERCISE OF THEIR CREATIVE RULE-MAKING CAPACITIES.
THEREFORE WE CANNOT SAY THAT THE CONSTITUTION NECESSARILY REQUIRES
ADHERENCE TO ANY PARTICULAR SOLUTION FOR THE INHERENT COMPULSIONS OF
THE INTERROGATION PROCESS AS IT IS PRESENTLY CONDUCTED. OUR DECISION
IN NO WAY CREATES A CONSTITUTIONAL STRAITJACKET WHICH WILL HANDICAP
SOUND EFFORTS AT REFORM, NOR IS IT INTENDED TO HAVE THIS EFFECT. WE
ENCOURAGE CONGRESS AND THE STATES TO CONTINUE THEIR LAUDABLE SEARCH FOR
INCREASINGLY EFFECTIVE WAYS OF PROTECTING THE RIGHTS OF THE INDIVIDUAL
WHILE PROMOTING EFFICIENT ENFORCEMENT OF OUR CRIMINAL LAWS. HOWEVER,
UNLESS WE ARE SHOWN OTHER PROCEDURES WHICH ARE AT LEAST AS EFFECTIVE IN
APPRISING ACCUSED PERSONS OF THEIR RIGHT TO SILENCE AND IN ASSURING A
CONTINUOUS OPPORTUNITY TO EXERCISE IT, THE FOLLOWING SAFEGUARDS MUST BE
OBSERVED.
AT THE OUTSET, IF A PERSON IN CUSTODY IS TO BE SUBJECTED TO
INTERROGATION, HE MUST FIRST BE INFORMED IN CLEAR AND UNEQUIVOCAL TERMS
THAT HE HAS THE RIGHT TO REMAIN SILENT. FOR THOSE UNAWARE OF THE
PRIVILEGE, THE WARNING IS NEEDED SIMPLY TO MAKE THEM AWARE OF IT - THE
THRESHOLD REQUIREMENT FOR AN INTELLIGENT DECISION AS TO ITS EXERCISE.
MORE IMPORTANT, SUCH A WARNING IS AN ABSOLUTE PREREQUISITE IN
OVERCOMING THE INHERENT PRESSURES OF THE INTERROGATION ATMOSPHERE. IT
IS NOT JUST THE SUBNORMAL OR WOEFULLY IGNORANT WHO SUCCUMB TO AN
INTERROGATOR'S IMPRECATIONS, WHETHER IMPLIED OR EXPRESSLY STATED, THAT
THE INTERROGATION WILL CONTINUE UNTIL A CONFESSION IS OBTAINED OR THAT
SILENCE IN THE FACE OF ACCUSATION IS ITSELF DAMNING AND WILL BODE ILL
WHEN PRESENTED TO A JURY. (FN37) FURTHER, THE WARNING WILL SHOW THE
INDIVIDUAL THAT HIS INTERROGATORS ARE PREPARED TO RECOGNIZE HIS
PRIVILEGE SHOULD HE CHOOSE TO EXERCISE IT.
THE FIFTH AMENDMENT PRIVILEGE IS SO FUNDAMENTAL TO OUR SYSTEM OF
CONSTITUTIONAL RULE AND THE EXPEDIENT OF GIVING AN ADEQUATE WARNING AS
TO THE AVAILABILITY OF THE PRIVILEGE SO SIMPLE, WE WILL NOT PAUSE TO
INQUIRE IN INDIVIDUAL CASES WHETHER THE DEFENDANT WAS AWARE OF HIS
RIGHTS WITHOUT A WARNING BEING GIVEN. ASSESSMENTS OF THE KNOWLEDGE THE
DEFENDANT POSSESSED, BASED ON INFORMATION AS TO HIS AGE, EDUCATION,
INTELLIGENCE, OR PRIOR CONTACT WITH AUTHORITIES, CAN NEVER BE MORE THAN
SPECULATION; (FN38) A WARNING IS A CLEARCUT FACT. MORE IMPORTANT,
WHATEVER THE BACKGROUND OF THE PERSON INTERROGATED, A WARNING AT THE
TIME OF THE INTERROGATION IS INDISPENSABLE TO OVERCOME ITS PRESSURES
AND TO INSURE THAT THE INDIVIDUAL KNOWS HE IS FREE TO EXERCISE THE
PRIVILEGE AT THAT POINT IN TIME.
THE WARNING OF THE RIGHT TO REMAIN SILENT MUST BE ACCOMPANIED BY THE
EXPLANATION THAT ANYTHING SAID CAN AND WILL BE USED AGAINST THE
INDIVIDUAL IN COURT. THIS WARNING IS NEEDED IN ORDER TO MAKE HIM AWARE
NOT ONLY OF THE PRIVILEGE, BUT ALSO OF THE CONSEQUENCES OF FORGOING IT.
IT IS ONLY THROUGH AN AWARENESS OF THESE CONSEQUENCES THAT THERE CAN
BE ANY ASSURANCE OF REAL UNDERSTANDING AND INTELLIGENT EXERCISE OF THE
PRIVILEGE. MOREOVER, THIS WARNING MAY SERVE TO MAKE THE INDIVIDUAL
MORE ACUTELY AWARE THAT HE IS FACED WITH A PHASE OF THE ADVERSARY
SYSTEM - THAT HE IS NOT IN THE PRESENCE OF PERSONS ACTING SOLELY IN HIS
INTEREST.
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 INDISPENSABLE 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. A MERE WARNING GIVEN BY THE INTERROGATORS
IS NOT ALONE SUFFICIENT TO ACCOMPLISH THAT END. PROSECUTORS THEMSELVES
CLAIM THAT THE ADMONISHMENT OF THE RIGHT TO REMAIN SILENT WITHOUT MORE
"WILL BENEFIT ONLY THE RECIDIVIST AND THE PROFESSIONAL." BRIEF FOR THE
NATIONAL DISTRICT ATTORNEYS ASSOCIATION AS AMICUS CURIAE, P. 14. EVEN
PRELIMINARY ADVICE GIVEN TO THE ACCUSED BY HIS OWN ATTORNEY CAN BE
SWIFTLY OVERCOME BY THE SECRET INTERROGATION PROCESS. CF. ESCOBEDO V.
ILLINOIS, 378 U.S. 478, 485, N. 5. THUS, THE NEED FOR COUNSEL TO
PROTECT THE FIFTH AMENDMENT PRIVILEGE COMPREHENDS NOT MERELY A RIGHT TO
CONSULT WITH COUNSEL PRIOR TO QUESTIONING, BUT ALSO TO HAVE COUNSEL
PRESENT DURING ANY QUESTIONING IF THE DEFENDANT SO DESIRES.
THE PRESENCE OF COUNSEL AT THE INTERROGATION MAY SERVE SEVERAL
SIGNIFICANT SUBSIDIARY FUNCTIONS AS WELL. IF THE ACCUSED DECIDES TO
TALK TO HIS INTERROGATORS, THE ASSISTANCE OF COUNSEL CAN MITIGATE THE
DANGERS OF UNTRUSTWORTHINESS. WITH A LAWYER PRESENT THE LIKELIHOOD
THAT THE POLICE WILL PRACTICE COERCION IS REDUCED, AND IF COERCION IS
NEVERTHELESS EXERCISED THE LAWYER CAN TESTIFY TO IT IN COURT. THE
PRESENCE OF A LAWYER CAN ALSO HELP TO GUARANTEE THAT THE ACCUSED GIVES
A FULLY ACCURATE STATEMENT TO THE POLICE AND THAT THE STATEMENT IS
RIGHTLY REPORTED BY THE PROSECUTION AT TRIAL. SEE CROOKER V.
CALIFORNIA, 357 U.S. 433, 443-448 (1958)(DOUGLAS, J., DISSENTING).
AN INDIVIDUAL NEED NOT MAKE A PRE-INTERROGATION REQUEST FOR A
LAWYER. WHILE SUCH REQUEST AFFIRMATIVELY SECURES HIS RIGHT TO HAVE
ONE, HIS FAILURE TO ASK FOR A LAWYER DOES NOT CONSTITUTE A WAIVER. NO
EFFECTIVE WAIVER OF THE RIGHT TO COUNSEL DURING INTERROGATION CAN BE
RECOGNIZED UNLESS SPECIFICALLY MADE AFTER THE WARNINGS WE HERE
DELINEATE HAVE BEEN GIVEN. THE ACCUSED WHO DOES NOT KNOW HIS RIGHTS
AND THEREFORE DOES NOT MAKE A REQUEST MAY BE THE PERSON WHO MOST NEEDS
COUNSEL. AS THE CALIFORNIA SUPREME COURT HAS APTLY PUT IT:
"FINALLY, WE MUST RECOGNIZE THAT THE IMPOSITION OF THE REQUIREMENT
FOR THE REQUEST WOULD DISCRIMINATE AGAINST THE DEFENDANT WHO DOES NOT
KNOW HIS RIGHTS. THE DEFENDANT WHO DOES NOT ASK FOR COUNSEL IS THE
VERY DEFENDANT WHO MOST NEEDS COUNSEL. WE CANNOT PENALIZE A DEFENDANT
WHO, NOT UNDERSTANDING HIS CONSTITUTIONAL RIGHTS, DOES NOT MAKE THE
FORMAL REQUEST AND BY SUCH FAILURE DEMONSTRATES HIS HELPLESSNESS. TO
REQUIRE THE REQUEST WOULD BE TO FAVOR THE DEFENDANT WHOSE
SOPHISTICATION OR STATUS HAD FORTUITOUSLY PROMPTED HIM TO MAKE IT."
PEOPLE V. DORADO, 62 CAL. 2D 338, 351, 398 P.2D 361, 369-370, 42 CAL.
RPTR. 169, 177-178 (1965)(TOBRINER, J.).
IN CARNLEY V. COCHRAN, 369 U.S. 506, 513 (1962), WE STATED: "IT IS
SETTLED THAT WHERE THE ASSISTANCE OF COUNSEL IS A CONSTITUTIONAL
REQUISITE, THE RIGHT TO BE FURNISHED COUNSEL DOES NOT DEPEND ON A
REQUEST." THIS PROPOSITION APPLIES WITH EQUAL FORCE IN THE CONTEXT OF
PROVIDING COUNSEL TO PROTECT AN ACCUSED'S FIFTH AMENDMENT PRIVILEGE IN
THE FACE OF INTERROGATION. (FN39) ALTHOUGH THE ROLE OF COUNSEL AT
TRIAL DIFFERS FROM THE ROLE DURING INTERROGATION, THE DIFFERENCES ARE
NOT RELEVANT TO THE QUESTION WHETHER A REQUEST IS A PREREQUISITE.
ACCORDINGLY WE HOLD THAT AN INDIVIDUAL HELD FOR INTERROGATION MUST BE
CLEARLY INFORMED THAT HE HAS THE RIGHT TO CONSULT WITH A LAWYER AND TO
HAVE THE LAWYER WITH HIM DURING INTERROGATION UNDER THE SYSTEM FOR
PROTECTING THE PRIVILEGE WE DELINEATE TODAY. AS WITH THE WARNINGS OF
THE RIGHT TO REMAIN SILENT AND THAT ANYTHING STATED CAN BE USED IN
EVIDENCE AGAINST HIM, THIS WARNING IS AN ABSOLUTE PREREQUISITE TO
INTERROGATION. NO AMOUNT OF CIRCUMSTANTIAL EVIDENCE THAT THE PERSON
MAY HAVE BEEN AWARE OF THIS RIGHT WILL SUFFICE TO STAND IN ITS STEAD.
ONLY THROUGH SUCH A WARNING IS THERE ASCERTAINABLE ASSURANCE THAT THE
ACCUSED WAS AWARE OF THIS RIGHT.
IF AN INDIVIDUAL INDICATES THAT HE WISHES THE ASSISTANCE OF COUNSEL
BEFORE ANY INTERROGATION OCCURS, THE AUTHORITIES CANNOT RATIONALLY
IGNORE OR DENY HIS REQUEST ON THE BASIS THAT THE INDIVIDUAL DOES NOT
HAVE OR CANNOT AFFORD A RETAINED ATTORNEY. THE FINANCIAL ABILITY OF
THE INDIVIDUAL HAS NO RELATIONSHIP TO THE SCOPE OF THE RIGHTS INVOLVED
HERE. THE PRIVILEGE AGAINST SELF-INCRIMINATION SECURED BY THE
CONSTITUTION APPLIES TO ALL INDIVIDUALS. THE NEED FOR COUNSEL IN ORDER
TO PROTECT THE PRIVILEGE EXISTS FOR THE INDIGENT AS WELL AS THE
AFFLUENT. IN FACT, WERE WE TO LIMIT THESE CONSTITUTIONAL RIGHTS TO
THOSE WHO CAN RETAIN AN ATTORNEY, OUR DECISIONS TODAY WOULD BE OF
LITTLE SIGNIFICANCE. THE CASES BEFORE US AS WELL AS THE VAST MAJORITY
OF CONFESSION CASES WITH WHICH WE HAVE DEALT IN THE PAST INVOLVE THOSE
UNABLE TO RETAIN COUNSEL. (FN40) WHILE AUTHORITIES ARE NOT REQUIRED
TO RELIEVE THE ACCUSED OF HIS POVERTY, THEY HAVE THE OBLIGATION NOT TO
TAKE ADVANTAGE OF INDIGENCE IN THE ADMINISTRATION OF JUSTICE. (FN41)
DENIAL OF COUNSEL TO THE INDIGENT AT THE TIME OF INTERROGATION WHILE
ALLOWING AN ATTORNEY TO THOSE WHO CAN AFFORD ONE WOULD BE NO MORE
SUPPORTABLE BY REASON OR LOGIC THAN THE SIMILAR SITUATION AT TRIAL AND
ON APPEAL STRUCK DOWN IN GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), AND
DOUGLAS V. CALIFORNIA, 372 U.S. 353 (1963).
IN ORDER FULLY TO APPRISE A PERSON INTERROGATED OF THE EXTENT OF HIS
RIGHTS UNDER THIS SYSTEM THEN, IT IS NECESSARY TO WARN HIM NOT ONLY
THAT HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY, BUT ALSO THAT IF HE
IS INDIGENT A LAWYER WILL BE APPOINTED TO REPRESENT HIM. WITHOUT THIS
ADDITIONAL WARNING, THE ADMONITION OF THE RIGHT TO CONSULT WITH COUNSEL
WOULD OFTEN BE UNDERSTOOD AS MEANING ONLY THAT HE CAN CONSULT WITH A
LAWYER IF HE HAS ONE OR HAS THE FUNDS TO OBTAIN ONE. THE WARNING OF A
RIGHT TO COUNSEL WOULD BE HOLLOW IF NOT COUCHED IN TERMS THAT WOULD
CONVEY TO THE INDIGENT - THE PERSON MOST OFTEN SUBJECTED TO
INTERROGATION - THE KNOWLEDGE THAT HE TOO HAS A RIGHT TO HAVE COUNSEL
PRESENT. (FN42) AS WITH THE WARNINGS OF THE RIGHT TO REMAIN SILENT
AND OF THE GENERAL RIGHT TO COUNSEL, ONLY BY EFFECTIVE AND EXPRESS
EXPLANATION TO THE INDIGENT OF THIS RIGHT CAN THERE BE ASSURANCE THAT
HE WAS TRULY IN A POSITION TO EXERCISE IT. (FN43)
ONCE WARNINGS HAVE BEEN GIVEN, THE SUBSEQUENT PROCEDURE IS CLEAR. IF
THE INDIVIDUAL INDICATES IN ANY MANNER, AT ANY TIME PRIOR TO OR DURING
QUESTIONING, THAT HE WISHES TO REMAIN SILENT, THE INTERROGATION MUST
CEASE. (FN44) AT THIS POINT HE HAS SHOWN THAT HE INTENDS TO EXERCISE
HIS FIFTH AMENDMENT PRIVILEGE; ANY STATEMENT TAKEN AFTER THE PERSON
INVOKES HIS PRIVILEGE CANNOT BE OTHER THAN THE PRODUCT OF COMPULSION,
SUBTLE OR OTHERWISE. WITHOUT THE RIGHT TO CUT OFF QUESTIONING, THE
SETTING OF IN-CUSTODY INTERROGATION OPERATES ON THE INDIVIDUAL TO
OVERCOME FREE CHOICE IN PRODUCING A STATEMENT AFTER THE PRIVILEGE HAS
BEEN ONCE INVOKED. IF THE INDIVIDUAL STATES THAT HE WANTS AN ATTORNEY,
THE INTERROGATION MUST CEASE UNTIL AN ATTORNEY IS PRESENT. AT THAT
TIME, THE INDIVIDUAL MUST HAVE AN OPPORTUNITY TO CONFER WITH THE
ATTORNEY AND TO HAVE HIM PRESENT DURING ANY SUBSEQUENT QUESTIONING. IF
THE INDIVIDUAL CANNOT OBTAIN AN ATTORNEY AND HE INDICATES THAT HE WANTS
ONE BEFORE SPEAKING TO POLICE, THEY MUST RESPECT HIS DECISION TO REMAIN
SILENT.
THIS DOES NOT MEAN, AS SOME HAVE SUGGESTED, THAT EACH POLICE STATION
MUST HAVE A "STATION HOUSE LAWYER" PRESENT AT ALL TIMES TO ADVISE
PRISONERS. IT DOES MEAN, HOWEVER, THAT IF POLICE PROPOSE TO
INTERROGATE A PERSON THEY MUST MAKE KNOWN TO HIM THAT HE IS ENTITLED TO
A LAWYER AND THAT IF HE CANNOT AFFORD ONE, A LAWYER WILL BE PROVIDED
FOR HIM PRIOR TO ANY INTERROGATION. IF AUTHORITIES CONCLUDE THAT THEY
WILL NOT PROVIDE COUNSEL DURING A REASONABLE PERIOD OF TIME IN WHICH
INVESTIGATION IN THE FIELD IS CARRIED OUT, THEY MAY REFRAIN FROM DOING
SO WITHOUT VIOLATING THE PERSON'S FIFTH AMENDMENT PRIVILEGE SO LONG AS
THEY DO NOT QUESTION HIM DURING THAT TIME.
IF THE INTERROGATION CONTINUES WITHOUT THE PRESENCE OF AN ATTORNEY
AND A STATEMENT IS TAKEN, A HEAVY BURDEN RESTS ON THE GOVERNMENT TO
DEMONSTRATE THAT THE DEFENDANT KNOWINGLY AND INTELLIGENTLY WAIVED HIS
PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO RETAINED OR
APPOINTED COUNSEL. ESCOBEDO V. ILLINOIS, 378 U.S. 478, 490, N. 14.
THIS COURT HAS ALWAYS SET HIGH STANDARDS OF PROOF FOR THE WAIVER OF
CONSTITUTIONAL RIGHTS, JOHNSON V. ZERBST, 304 U.S. 458 (1938), AND WE
RE-ASSERT THESE STANDARDS AS APPLIED TO IN-CUSTODY INTERROGATION.
SINCE THE STATE IS RESPONSIBLE FOR ESTABLISHING THE ISOLATED
CIRCUMSTANCES UNDER WHICH THE INTERROGATION TAKES PLACE AND HAS THE
ONLY MEANS OF MAKING AVAILABLE CORROBORATED EVIDENCE OF WARNINGS GIVEN
DURING INCOMMUNICADO INTERROGATION, THE BURDEN IS RIGHTLY ON ITS
SHOULDERS.
AN EXPRESS STATEMENT THAT THE INDIVIDUAL IS WILLING TO MAKE A
STATEMENT AND DOES NOT WANT AN ATTORNEY FOLLOWED CLOSELY BY A STATEMENT
COULD CONSTITUTE A WAIVER. BUT A VALID WAIVER WILL NOT BE PRESUMED
SIMPLY FROM THE SILENCE OF THE ACCUSED AFTER WARNINGS ARE GIVEN OR
SIMPLY FROM THE FACT THAT A CONFESSION WAS IN FACT EVENTUALLY
OBTAINED. A STATEMENT WE MADE IN CARNLEY V. COCHRAN, 369 U.S. 506, 516
(1962), IS APPLICABLE HERE:
"PRESUMING WAIVER FROM A SILENT RECORD IS IMPERMISSIBLE. THE RECORD
MUST SHOW, OR THERE MUST BE AN ALLEGATION AND EVIDENCE WHICH SHOW, THAT
AN ACCUSED WAS OFFERED COUNSEL BUT INTELLIGENTLY AND UNDERSTANDINGLY
REJECTED THE OFFER. ANYTHING LESS IS NOT A WAIVER."
SEE ALSO GLASSER V. UNITED STATES, 315 U.S. 60 (1942). MOREOVER,
WHERE IN-CUSTODY INTERROGATION IS INVOLVED, THERE IS NO ROOM FOR THE
CONTENTION THAT THE PRIVILEGE IS WAIVED IF THE INDIVIDUAL ANSWERS SOME
QUESTIONS OR GIVES SOME INFORMATION ON HIS OWN PRIOR TO INVOKING HIS
RIGHT TO REMAIN SILENT WHEN INTERROGATED. (FN45) WHATEVER THE
TESTIMONY OF THE AUTHORITIES AS TO WAIVER OF RIGHTS BY AN ACCUSED, THE
FACT OF LENGTHY INTERROGATION OR INCOMMUNICADO INCARCERATION BEFORE A
STATEMENT IS MADE IS STRONG EVIDENCE THAT THE ACCUSED DID NOT VALIDLY
WAIVE HIS RIGHTS. IN THESE CIRCUMSTANCES THE FACT THAT THE INDIVIDUAL
EVENTUALLY MADE A STATEMENT IS CONSISTENT WITH THE CONCLUSION THAT THE
COMPELLING INFLUENCE OF THE INTERROGATION FINALLY FORCED HIM TO DO SO.
IT IS INCONSISTENT WITH ANY NOTION OF A VOLUNTARY RELINQUISHMENT OF THE
PRIVILEGE. MOREOVER, ANY EVIDENCE THAT THE ACCUSED WAS THREATENED,
TRICKED, OR CAJOLED INTO A WAIVER WILL, OF COURSE, SHOW THAT THE
DEFENDANT DID NOT VOLUNTARILY WAIVE HIS PRIVILEGE. THE REQUIREMENT OF
WARNINGS AND WAIVER OF RIGHTS IS A FUNDAMENTAL WITH RESPECT TO THE
FIFTH AMENDMENT PRIVILEGE AND NOT SIMPLY A PRELIMINARY RITUAL TO
EXISTING METHODS OF INTERROGATION.
THE WARNINGS REQUIRED AND THE WAIVER NECESSARY IN ACCORDANCE WITH OUR
OPINION TODAY ARE, IN THE ABSENCE OF A FULLY EFFECTIVE EQUIVALENT,
PREREQUISITES TO THE ADMISSIBILITY OF ANY STATEMENT MADE BY A
DEFENDANT. NO DISTINCTION CAN BE DRAWN BETWEEN STATEMENTS WHICH ARE
DIRECT CONFESSIONS AND STATEMENTS WHICH AMOUNT TO "ADMISSIONS" OF PART
OR ALL OF AN OFFENSE. THE PRIVILEGE AGAINST SELF-INCRIMINATION
PROTECTS THE INDIVIDUAL FROM BEING COMPELLED TO INCRIMINATE HIMSELF IN
ANY MANNER; IT DOES NOT DISTINGUISH DEGREES OF INCRIMINATION.
SIMILARLY, FOR PRECISELY THE SAME REASON, NO DISTINCTION MAY BE DRAWN
BETWEEN INCULPATORY STATEMENTS AND STATEMENTS ALLEGED TO BE MERELY
"EXCULPATORY." IF A STATEMENT MADE WERE IN FACT TRULY EXCULPATORY IT
WOULD, OF COURSE, NEVER BE USED BY THE PROSECUTION. IN FACT,
STATEMENTS MERELY INTENDED TO BE EXCULPATORY BY THE DEFENDANT ARE OFTEN
USED TO IMPEACH HIS TESTIMONY AT TRIAL OR TO DEMONSTRATE UNTRUTHS IN
THE STATEMENTS GIVEN UNDER INTERROGATION AND THUS TO PROVE GUILT BY
IMPLICATION. THESE STATEMENTS ARE INCRIMINATING IN ANY MEANINGFUL
SENSE OF THE WORD AND MAY NOT BE USED WITHOUT THE FULL WARNINGS AND
EFFECTIVE WAIVER REQUIRED FOR ANY OTHER STATEMENT. IN ESCOBEDO ITSELF,
THE DEFENDANT FULLY INTENDED HIS ACCUSATION OF ANOTHER AS THE SLAYER TO
BE EXCULPATORY AS TO HIMSELF.
THE PRINCIPLES ANNOUNCED TODAY DEAL WITH THE PROTECTION WHICH MUST BE
GIVEN TO THE PRIVILEGE AGAINST SELF-INCRIMINATION WHEN THE INDIVIDUAL
IS FIRST SUBJECTED TO POLICE INTERROGATION WHILE IN CUSTODY AT THE
STATION OR OTHERWISE DEPRIVED OF HIS FREEDOM OF ACTION IN ANY
SIGNIFICANT WAY. IT IS AT THIS POINT THAT OUR ADVERSARY SYSTEM OF
CRIMINAL PROCEEDINGS COMMENCES, DISTINGUISHING ITSELF AT THE OUTSET
FROM THE INQUISITORIAL SYSTEM RECOGNIZED IN SOME COUNTRIES. UNDER THE
SYSTEM OF WARNINGS WE DELINEATE TODAY OR UNDER ANY OTHER SYSTEM WHICH
MAY BE DEVISED AND FOUND EFFECTIVE, THE SAFEGUARDS TO BE ERECTED ABOUT
THE PRIVILEGE MUST COME INTO PLAY AT THIS POINT.
OUR DECISION IS NOT INTENDED TO HAMPER THE TRADITIONAL FUNCTION OF
POLICE OFFICERS IN INVESTIGATING CRIME. SEE ESCOBEDO V. ILLINOIS, 378
U.S. 478, 492. WHEN AN INDIVIDUAL IS IN CUSTODY ON PROBABLE CAUSE, THE
POLICE MAY, OF COURSE, SEEK OUT EVIDENCE IN THE FIELD TO BE USED AT
TRIAL AGAINST HIM. SUCH INVESTIGATION MAY INCLUDE INQUIRY OF PERSONS
NOT UNDER RESTRAINT. GENERAL ON-THE-SCENE QUESTIONING AS TO FACTS
SURROUNDING A CRIME OR OTHER GENERAL QUESTIONING OF CITIZENS IN THE
FACT-FINDING PROCESS IS NOT AFFECTED BY OUR HOLDING. IT IS AN ACT OF
RESPONSIBLE CITIZENSHIP FOR INDIVIDUALS TO GIVE WHATEVER INFORMATION
THEY MAY HAVE TO AID IN LAW ENFORCEMENT. IN SUCH SITUATIONS THE
COMPELLING ATMOSPHERE INHERENT IN THE PROCESS OF IN-CUSTODY
INTERROGATION IS NOT NECESSARILY PRESENT. (FN46)
IN DEALING WITH STATEMENTS OBTAINED THROUGH INTERROGATION, WE DO NOT
PURPORT TO FIND ALL CONFESSIONS INADMISSIBLE. CONFESSIONS REMAIN A
PROPER ELEMENT IN LAW ENFORCEMENT. ANY STATEMENT GIVEN FREELY AND
VOLUNTARILY WITHOUT ANY COMPELLING INFLUENCES IS, OF COURSE, ADMISSIBLE
IN EVIDENCE. THE FUNDAMENTAL IMPORT OF THE PRIVILEGE WHILE AN
INDIVIDUAL IS IN CUSTODY IS NOT WHETHER HE IS ALLOWED TO TALK TO THE
POLICE WITHOUT THE BENEFIT OF WARNINGS AND COUNSEL, BUT WHETHER HE CAN
BE INTERROGATED. THERE IS NO REQUIREMENT THAT POLICE STOP A PERSON WHO
ENTERS A POLICE STATION AND STATES THAT HE WISHES TO CONFESS TO A
CRIME, (FN47) OR A PERSON WHO CALLS THE POLICE TO OFFER A CONFESSION
OR ANY OTHER STATEMENT HE DESIRES TO MAKE. VOLUNTEERED STATEMENTS OF
ANY KIND ARE NOT BARRED BY THE FIFTH AMENDMENT AND THEIR ADMISSIBILITY
IS NOT AFFECTED BY OUR HOLDING TODAY.
TO SUMMARIZE, WE HOLD THAT WHEN AN INDIVIDUAL IS TAKEN INTO CUSTODY
OR OTHERWISE DEPRIVED OF HIS FREEDOM BY THE AUTHORITIES IN ANY
SIGNIFICANT WAY AND IS SUBJECTED TO QUESTIONING, THE PRIVILEGE AGAINST
SELF-INCRIMINATION IS JEOPARDIZED. PROCEDURAL SAFEGUARDS MUST BE
EMPLOYED TO PROTECT THE PRIVILEGE, AND UNLESS OTHER FULLY EFFECTIVE
MEANS ARE ADOPTED TO NOTIFY THE PERSON OF HIS RIGHT OF SILENCE AND TO
ASSURE THAT THE EXERCISE OF THE RIGHT WILL BE SCRUPULOUSLY HONORED, THE
FOLLOWING MEASURES ARE REQUIRED. HE MUST BE WARNED PRIOR TO ANY
QUESTIONING THAT HE HAS THE RIGHT TO REMAIN SILENT, THAT ANYTHING HE
SAYS CAN BE USED AGAINST HIM IN A COURT OF LAW, THAT HE HAS THE RIGHT
TO THE PRESENCE OF AN ATTORNEY, AND THAT IF HE CANNOT AFFORD AN
ATTORNEY ONE WILL BE APPOINTED FOR HIM PRIOR TO ANY QUESTIONING IF HE
SO DESIRES. OPPORTUNITY TO EXERCISE THESE RIGHTS MUST BE AFFORDED TO
HIM THROUGHOUT THE INTERROGATION. AFTER SUCH WARNINGS HAVE BEEN GIVEN,
AND SUCH OPPORTUNITY AFFORDED HIM, THE INDIVIDUAL MAY KNOWINGLY AND
INTELLIGENTLY WAIVE THESE RIGHTS AND AGREE TO ANSWER QUESTIONS OR MAKE
A STATEMENT. BUT UNLESS AND UNTIL SUCH WARNINGS AND WAIVER ARE
DEMONSTRATED BY THE PROSECUTION AT TRIAL, NO EVIDENCE OBTAINED AS A
RESULT OF INTERROGATION CAN BE USED AGAINST HIM. (FN48)
IV.
A RECURRENT ARGUMENT MADE IN THESE CASES IS THAT SOCIETY'S NEED FOR
INTERROGATION OUTWEIGHS THE PRIVILEGE. THIS ARGUMENT IS NOT UNFAMILIAR
TO THIS COURT. SEE, E.G., CHAMBERS V. FLORIDA, 309 U.S. 227, 240-241
(1940). THE WHOLE THRUST OF OUR FOREGOING DISCUSSION DEMONSTRATES THAT
THE CONSTITUTION HAS PRESCRIBED THE RIGHTS OF THE INDIVIDUAL WHEN
CONFRONTED WITH THE POWER OF GOVERNMENT WHEN IT PROVIDED IN THE FIFTH
AMENDMENT THAT AN INDIVIDUAL CANNOT BE COMPELLED TO BE A WITNESS
AGAINST HIMSELF. THAT RIGHT CANNOT BE ABRIDGED. AS MR. JUSTICE
BRANDEIS ONCE OBSERVED:
"DECENCY, SECURITY AND LIBERTY ALIKE DEMAND THAT GOVERNMENT OFFICIALS
SHALL BE SUBJECTED TO THE SAME RULES OF CONDUCT THAT ARE COMMANDS TO
THE CITIZEN. IN A GOVERNMENT OF LAWS, EXISTENCE OF THE GOVERNMENT WILL
BE IMPERILLED IF IT FAILS TO OBSERVE THE LAW SCRUPULOUSLY. OUR
GOVERNMENT IS THE POTENT, THE OMNIPRESENT TEACHER. FOR GOOD OR FOR
ILL, IT TEACHES THE WHOLE PEOPLE BY ITS EXAMPLE. CRIME IS CONTAGIOUS.
IF THE GOVERNMENT BECOMES A LAWBREAKER, IT BREEDS CONTEMPT FOR LAW; IT
INVITES EVERY MAN TO BECOME A LAW UNTO HIMSELF; IT INVITES ANARCHY. TO
DECLARE THAT IN THE ADMINISTRATION OF THE CRIMINAL LAW THE END
JUSTIFIES THE MEANS ... WOULD BRING TERRIBLE RETRIBUTION. AGAINST
THAT PERNICIOUS DOCTRINE THIS COURT SHOULD RESOLUTELY SET ITS FACE."
OLMSTEAD V. UNITED STATES, 277 U.S. 438, 485 (1928)(DISSENTING
OPINION). (FN49)
IN THIS CONNECTION, ONE OF OUR COUNTRY'S DISTINGUISHED JURISTS HAS
POINTED OUT: "THE QUALITY OF A NATION'S CIVILIZATION CAN BE LARGELY
MEASURED BY THE METHODS IT USES IN THE ENFORCEMENT OF ITS CRIMINAL
LAW." (FN50)
IF THE INDIVIDUAL DESIRES TO EXERCISE HIS PRIVILEGE, HE HAS THE RIGHT
TO DO SO. THIS IS NOT FOR THE AUTHORITIES TO DECIDE. AN ATTORNEY MAY
ADVISE HIS CLIENT NOT TO TALK TO POLICE UNTIL HE HAS HAD AN OPPORTUNITY
TO INVESTIGATE THE CASE, OR HE MAY WISH TO BE PRESENT WITH HIS CLIENT
DURING ANY POLICE QUESTIONING. IN DOING SO AN ATTORNEY IS MERELY
EXERCISING THE GOOD PROFESSIONAL JUDGMENT HE HAS BEEN TAUGHT. THIS IS
NOT CAUSE FOR CONSIDERING THE ATTORNEY A MENACE TO LAW ENFORCEMENT. HE
IS MERELY CARRYING OUT WHAT HE IS SWORN TO DO UNDER HIS OATH - TO
PROTECT TO THE EXTENT OF HIS ABILITY THE RIGHTS OF HIS CLIENT. IN
FULFILLING THIS RESPONSIBILITY THE ATTORNEY PLAYS A VITAL ROLE IN THE
ADMINISTRATION OF CRIMINAL JUSTICE UNDER OUR CONSTITUTION.
IN ANNOUNCING THESE PRINCIPLES, WE ARE NOT UNMINDFUL OF THE BURDENS
WHICH LAW ENFORCEMENT OFFICIALS MUST BEAR, OFTEN UNDER TRYING
CIRCUMSTANCES. WE ALSO FULLY RECOGNIZE THE OBLIGATION OF ALL CITIZENS
TO AID IN ENFORCING THE CRIMINAL LAWS. THIS COURT, WHILE PROTECTING
INDIVIDUAL RIGHTS, HAS ALWAYS GIVEN AMPLE LATITUDE TO LAW ENFORCEMENT
AGENCIES IN THE LEGITIMATE EXERCISE OF THEIR DUTIES. THE LIMITS WE
HAVE PLACED ON THE INTERROGATION PROCESS SHOULD NOT CONSTITUTE AN UNDUE
INTERFERENCE WITH A PROPER SYSTEM OF LAW ENFORCEMENT. AS WE HAVE
NOTED, OUR DECISION DOES NOT IN ANY WAY PRECLUDE POLICE FROM CARRYING
OUT THEIR TRADITIONAL INVESTIGATORY FUNCTIONS. ALTHOUGH CONFESSIONS
MAY PLAY AN IMPORTANT ROLE IN SOME CONVICTIONS, THE CASES BEFORE US
PRESENT GRAPHIC EXAMPLES OF THE OVERSTATEMENT OF THE "NEED" FOR
CONFESSIONS. IN EACH CASE AUTHORITIES CONDUCTED INTERROGATIONS RANGING
UP TO FIVE DAYS IN DURATION DESPITE THE PRESENCE, THROUGH STANDARD
INVESTIGATING RACTICES, OF CONSIDERABLE EVIDENCE AGAINST EACH
DEFENDANT. (FN51) FURTHER EXAMPLES ARE CHRONICLED IN OUR PRIOR
CASES. SEE, E.G., HAYNES V. WASHINGTON, 373 U.S. 503, 518-519 (1963);
ROGERS V. RICHMOND, 365 U.S. 534, 541 (1961); MALINSKI V. NEW YORK, 324
U.S. 401, 402 (1945). (FN52)
IT ALSO URGED THAT AN UNFETTERED RIGHT TO DETENTION FOR INTERROGATION
SHOULD BE ALLOWED BECAUSE IT WILL OFTEN REDOUND TO THE BENEFIT OF THE
PERSON QUESTIONED. WHEN POLICE INQUIRY DETERMINES THAT THERE IS NO
REASON TO BELIEVE THAT THE PERSON HAS COMMITTED ANY CRIME, IT IS SAID,
HE WILL BE RELEASED WITHOUT NEED FOR FURTHER FORMAL PROCEDURES. THE
PERSON WHO HAS COMMITTED NO OFFENSE, HOWEVER, WILL BE BETTER ABLE TO
CLEAR HIMSELF AFTER WARNINGS WITH COUNSEL PRESENT THAN WITHOUT. IT CAN
BE ASSUMED THAT IN SUCH CIRCUMSTANCES A LAWYER WOULD ADVISE HIS CLIENT
TO TALK FREELY TO POLICE IN ORDER TO CLEAR HIMSELF.
CUSTODIAL INTERROGATION, BY CONTRAST, DOES NOT NECESSARILY AFFORD THE
INNOCENT AN OPPORTUNITY TO CLEAR THEMSELVES. A SERIOUS CONSEQUENCE OF
THE PRESENT PRACTICE OF THE INTERROGATION ALLEGED TO BE BENEFICIAL FOR
THE INNOCENT IS THAT MANY ARRESTS "FOR INVESTIGATION" SUBJECT LARGE
NUMBERS OF INNOCENT PERSONS TO DETENTION AND INTERROGATION. IN ONE OF
THE CASES BEFORE US, NO. 584, CALIFORNIA V. STEWART, POLICE HELD FOUR
PERSONS, WHO WERE IN THE DEFENDANT'S HOUSE AT THE TIME OF THE ARREST,
IN JAIL FOR FIVE DAYS UNTIL DEFENDANT CONFESSED. AT THAT TIME THEY
WERE FINALLY RELEASED. POLICE STATED THAT THERE WAS "NO EVIDENCE TO
CONNECT THEM WITH ANY CRIME." AVAILABLE STATISTICS ON THE EXTENT OF
THIS PRACTICE WHERE IT IS CONDONED INDICATE THAT THESE FOUR ARE FAR
FROM ALONE IN BEING SUBJECTED TO ARREST, PROLONGED DETENTION, AND
INTERROGATION WITHOUT THE REQUISITE PROBABLE CAUSE. (FN53)
OVER THE YEARS THE FEDERAL BUREAU OF INVESTIGATION HAS COMPILED AN
EXEMPLARY RECORD OF EFFECTIVE LAW ENFORCEMENT WHILE ADVISING ANY
SUSPECT OR ARRESTED PERSON, AT THE OUTSET OF AN INTERVIEW, THAT HE IS
NOT REQUIRED TO MAKE A STATEMENT, THAT ANY STATEMENT MAY BE USED
AGAINST HIM IN COURT, THAT THE INDIVIDUAL MAY OBTAIN THE SERVICES OF AN
ATTORNEY OF HIS OWN CHOICE AND, MORE RECENTLY, THAT HE HAS A RIGHT TO
FREE COUNSEL IF HE IS UNABLE TO PAY. (FN54) A LETTER RECEIVED FROM
THE SOLICITOR GENERAL IN RESPONSE TO A QUESTION FROM THE BENCH MAKES IT
CLEAR THAT THE PRESENT PATTERN OF WARNINGS AND RESPECT FOR THE RIGHTS
OF THE INDIVIDUAL FOLLOWED AS A PRACTICE BY THE FBI IS CONSISTENT WITH
THE PROCEDURE WHICH WE DELINEATE TODAY. IT STATES:
"AT THE ORAL ARGUMENT OF THE ABOVE CAUSE, MR. JUSTICE FORTAS ASKED
WHETHER I COULD PROVIDE CERTAIN INFORMATION AS TO THE PRACTICES
FOLLOWED BY THE FEDERAL BUREAU OF INVESTIGATION. I HAVE DIRECTED THESE
QUESTIONS TO THE ATTENTION OF THE DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION AND AM SUBMITTING HEREWITH A STATEMENT OF THE QUESTIONS
AND OF THE ANSWERS WHICH WE HAVE RECEIVED.
"'(1) WHEN AN INDIVIDUAL IS INTERVIEWED BY AGENTS OF THE BUREAU,
WHAT WARNING IS GIVEN TO HIM?
"'THE STANDARD WARNING LONG GIVEN BY SPECIAL AGENTS OF THE FBI TO
BOTH SUSPECTS AND PERSONS UNDER ARREST IS THAT THE PERSON HAS A RIGHT
TO SAY NOTHING AND A RIGHT TO COUNSEL, AND THAT ANY STATEMENT HE DOES
MAKE MAY BE USED AGAINST HIM IN COURT. EXAMPLES OF THIS WARNING ARE TO
BE FOUND IN THE WESTOVER CASE AT 342 F.2D 684 (1965), AND JACKSON V.
U.S., 337 F.2D 136 (1964), CERT. DEN. 380 U.S. 935.
"'AFTER PASSAGE OF THE CRIMINAL JUSTICE ACT OF 1964, WHICH PROVIDES
FREE COUNSEL FOR FEDERAL DEFENDANTS UNABLE TO PAY, WE ADDED TO OUR
INSTRUCTIONS TO SPECIAL AGENTS THE REQUIREMENT THAT ANY PERSON WHO IS
UNDER ARREST FOR AN OFFENSE UNDER FBI JURISDICTION, OR WHOSE ARREST IS
CONTEMPLATED FOLLOWING THE INTERVIEW, MUST ALSO BE ADVISED OF HIS RIGHT
TO FREE COUNSEL IF HE IS UNABLE TO PAY, AND THE FACT THAT SUCH COUNSEL
WILL BE ASSIGNED BY THE JUDGE. AT THE SAME TIME, WE BROADENED THE
RIGHT TO COUNSEL WARNING TO READ COUNSEL OF HIS OWN CHOICE, OR ANYONE
ELSE WITH WHOM HE MIGHT WISH TO SPEAK.
"'(2) WHEN IS THE WARNING GIVEN?
"'THE FBI WARNING IS GIVEN TO A SUSPECT AT THE VERY OUTSET OF THE
INTERVIEW, AS SHOWN IN THE WESTOVER CASE, CITED ABOVE. THE WARNING MAY
BE GIVEN TO A PERSON ARRESTED AS SOON AS PRACTICABLE AFTER THE ARREST,
AS SHOWN IN THE JACKSON CASE, ALSO CITED ABOVE, AND IN U.S. V.
KONIGSBERG, 336 F.2D 844 (1964), CERT. DEN. 379 U.S. 933, BUT IN ANY
EVENT IT MUST PRECEDE THE INTERVIEW WITH THE PERSON FOR A CONFESSION OR
ADMISSION OF HIS OWN GUILT.
"'(3) WHAT IS THE BUREAU'S PRACTICE IN THE EVENT THAT (A) THE
INDIVIDUAL REQUESTS COUNSEL AND (B) COUNSEL APPEARS? "'WHEN THE
PERSON WHO HAS BEEN WARNED OF HIS RIGHT TO COUNSEL DECIDES THAT HE
WISHES TO CONSULT WITH COUNSEL BEFORE MAKING A STATEMENT, THE INTERVIEW
IS TERMINATED AT THAT POINT, SHULTZ V. U.S., 351 F.2D 287 (1965). IT
MAY BE CONTINUED, HOWEVER, AS TO ALL MATTERS OTHER THAN THE PERSON'S
OWN GUILT OR INNOCENCE. IF HE IS INDECISIVE IN HIS REQUEST FOR
COUNSEL, THERE MAY BE SOME QUESTION ON WHETHER HE DID OR DID NOT WAIVE
COUNSEL. SITUATIONS OF THIS KIND MUST NECESSARILY BE LEFT TO THE
JUDGMENT OF THE INTERVIEWING AGENT. FOR EXAMPLE, IN HIRAM V. U.S., 354
F.2D 4 (1965), THE AGENT'S CONCLUSION THAT THE PERSON ARRESTED HAD
WAIVED HIS RIGHT TO COUNSEL WAS UPHELD BY THE COURTS. "'A PERSON
BEING INTERVIEWED AND DESIRING TO CONSULT COUNSEL BY TELEPHONE MUST BE
PERMITTED TO DO SO, AS SHOWN IN CALDWELL V. U.S., 351 F.2D 459 (1965).
WHEN COUNSEL APPEARS IN PERSON, HE IS PERMITTED TO CONFER WITH HIS
CLIENT IN PRIVATE.
"'(4) WHAT IS THE BUREAU'S PRACTICE IF THE INDIVIDUAL REQUESTS
COUNSEL, BUT CANNOT AFFORD TO RETAIN AN ATTORNEY?
"'IF ANY PERSON BEING INTERVIEWED AFTER WARNING OF COUNSEL DECIDES
THAT HE WISHES TO CONSULT WITH COUNSEL BEFORE PROCEEDING FURTHER THE
INTERVIEW IS TERMINATED, AS SHOWN ABOVE. FBI AGENTS DO NOT PASS
JUDGMENT ON THE ABILITY OF THE PERSON TO PAY FOR COUNSEL. THEY DO,
HOWEVER, ADVISE THOSE WHO HAVE BEEN ARRESTED FOR AN OFFENSE UNDER FBI
JURISDICTION, OR WHOSE ARREST IS CONTEMPLATED FOLLOWING THE INTERVIEW,
OF A RIGHT TO FREE COUNSEL IF THEY ARE UNABLE TO PAY, AND THE
AVAILABILITY OF SUCH COUNSEL FROM THE JUDGE.'" (FN55)
THE PRACTICE OF THE FBI CAN READILY BE EMULATED BY STATE AND LOCAL
ENFORCEMENT AGENCIES. THE ARGUMENT THAT THE FBI DEALS WITH DIFFERENT
CRIMES THAN ARE DEALT WITH BY STATE AUTHORITIES DOES NOT MITIGATE THE
SIGNIFICANCE OF THE FBI EXPERIENCE. (FN56)
THE EXPERIENCE OF SOME OTHER COUNTRIES ALSO SUGGESTS THAT THE DANGER
TO LAW ENFORCEMENT IN CURBS ON INTERROGATION IS OVERPLAYED. THE
ENGLISH PROCEDURE SINCE 1912 UNDER THE JUDGES' RULES IS SIGNIFICANT.
AS RECENTLY STRENGTHENED, THE RULES REQUIRE THAT A CAUTIONARY WARNING
BE GIVEN AN ACCUSED BY A POLICE OFFICER AS SOON AS HE HAS EVIDENCE THAT
AFFORDS REASONABLE GROUNDS FOR SUSPICION; THEY ALSO REQUIRE THAT ANY
STATEMENT MADE BE GIVEN BY THE ACCUSED WITHOUT QUESTIONING BY POLICE.
(FN57) THE RIGHT OF THE INDIVIDUAL TO CONSULT WITH AN ATTORNEY DURING
THIS PERIOD IS EXPRESSLY RECOGNIZED. (FN58)
THE SAFEGUARDS PRESENT UNDER SCOTTISH LAW MAY BE EVEN GREATER THAN IN
ENGLAND. SCOTTISH JUDICIAL DECISIONS BAR USE IN EVIDENCE OF MOST
CONFESSIONS OBTAINED THROUGH POLICE INTERROGATION. (FN59) IN INDIA,
CONFESSIONS MADE TO POLICE NOT IN THE PRESENCE OF A MAGISTRATE HAVE
BEEN EXCLUDED BY RULE OF EVIDENCE SINCE 1872, AT A TIME WHEN IT
OPERATED UNDER BRITISH LAW. (FN60) IDENTICAL PROVISIONS APPEAR IN THE
EVIDENCE ORDINANCE OF CEYLON, ENACTED IN 1895. (FN61) SIMILARLY, IN
OUR COUNTRY THE UNIFORM CODE OF MILITARY JUSTICE HAS LONG PROVIDED THAT
NO SUSPECT MAY BE INTERROGATED WITHOUT FIRST BEING WARNED OF HIS RIGHT
NOT TO MAKE A STATEMENT AND THAT ANY STATEMENT HE MAKES MAY BE USED
AGAINST HIM. (FN62) DENIAL OF THE RIGHT TO CONSULT COUNSEL DURING
INTERROGATION HAS ALSO BEEN PROSCRIBED BY MILITARY TRIBUNALS. (FN63)
THERE APPEARS TO HAVE BEEN NO MARKED DETRIMENTAL EFFECT ON CRIMINAL LAW
ENFORCEMENT IN THESE JURISDICTIONS AS A RESULT OF THESE RULES.
CONDITIONS OF LAW ENFORCEMENT IN OUR COUNTRY ARE SUFFICIENTLY SIMILAR
TO PERMIT REFERENCE TO THIS EXPERIENCE AS ASSURANCE THAT LAWLESSNESS
WILL NOT RESULT FROM WARNING AN INDIVIDUAL OF HIS RIGHTS OR ALLOWING
HIM TO EXERCISE THEM. MOREOVER, IT IS CONSISTENT WITH OUR LEGAL SYSTEM
THAT WE GIVE AT LEAST AS MUCH PROTECTION TO THESE RIGHTS AS IS GIVEN IN
THE JURISDICTIONS DESCRIBED. WE DEAL IN OUR COUNTRY WITH RIGHTS
GROUNDED IN A SPECIFIC REQUIREMENT OF THE FIFTH AMENDMENT OF THE
CONSTITUTION, WHEREAS OTHER JURISDICTIONS ARRIVED AT THEIR CONCLUSIONS
ON THE BASIS OF PRINCIPLES OF JUSTICE NOT SO SPECIFICALLY DEFINED.
(FN64)
IT IS ALSO URGED UPON US THAT WE WITHHOLD DECISION ON THIS ISSUE
UNTIL STATE LEGISLATIVE BODIES AND ADVISORY GROUPS HAVE HAD AN
OPPORTUNITY TO DEAL WITH THESE PROBLEMS BY RULE MAKING. (FN65) WE
HAVE ALREADY POINTED OUT THAT THE CONSTITUTION DOES NOT REQUIRE ANY
SPECIFIC CODE OF PROCEDURES FOR PROTECTING THE PRIVILEGE AGAINST SELF
INCRIMINATION DURING CUSTODIAL INTERROGATION. CONGRESS AND THE STATES
ARE FREE TO DEVELOP THEIR OWN SAFEGUARDS FOR THE PRIVILEGE, SO LONG AS
THEY ARE FULLY AS EFFECTIVE AS THOSE DESCRIBED ABOVE IN INFORMING
ACCUSED PERSONS OF THEIR RIGHT OF SILENCE AND IN AFFORDING A CONTINUOUS
OPPORTUNITY TO EXERCISE IT. IN ANY EVENT, HOWEVER, THE ISSUES
PRESENTED ARE OF CONSTITUTIONAL DIMENSIONS AND MUST BE DETERMINED BY
THE COURTS. THE ADMISSIBILITY OF A STATEMENT IN THE FACE OF A CLAIM
THAT IT WAS OBTAINED IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL
RIGHTS IS AN ISSUE THE RESOLUTION OF WHICH HAS LONG SINCE BEEN
UNDERTAKEN BY THIS COURT. SEE HOPT V. UTAH, 110 U.S. 574 (1884).
JUDICIAL SOLUTIONS TO PROBLEMS OF CONSTITUTIONAL DIMENSION HAVE EVOLVED
DECADE BY DECADE. AS COURTS HAVE BEEN PRESENTED WITH THE NEED TO
ENFORCE CONSTITUTIONAL RIGHTS, THEY HAVE FOUND MEANS OF DOING SO. THAT
WAS OUR RESPONSIBILITY WHEN ESCOBEDO WAS BEFORE US AND IT IS OUR
RESPONSIBILITY TODAY. WHERE RIGHTS SECURED BY THE CONSTITUTION ARE
INVOLVED, THERE CAN BE NO RULE MAKING OR LEGISLATION WHICH WOULD
ABROGATE THEM.
V.
BECAUSE OF THE NATURE OF THE PROBLEM AND BECAUSE OF ITS RECURRENT
SIGNIFICANCE IN NUMEROUS CASES, WE HAVE TO THIS POINT DISCUSSED THE
RELATIONSHIP OF THE FIFTH AMENDMENT PRIVILEGE TO POLICE INTERROGATION
WITHOUT SPECIFIC CONCENTRATION ON THE FACTS OF THE CASES BEFORE US. WE
TURN NOW TO CONSIDER THE APPLICATION TO THESE CASES OF THE
CONSTITUTIONAL PRINCIPLES DISCUSSED ABOVE. IN EACH INSTANCE, WE HAVE
CONCLUDED THAT STATEMENTS WERE OBTAINED FROM THE DEFENDANT UNDER
CIRCUMSTANCES THAT DID NOT MEET CONSTITUTIONAL STANDARDS FOR PROTECTION
OF THE PRIVILEGE.
NO. 759. MIRANDA V. ARIZONA.
ON MARCH 13, 1963, PETITIONER, ERNESTO MIRANDA, WAS ARRESTED AT HIS
HOME AND TAKEN IN CUSTODY TO A PHOENIX POLICE STATION. HE WAS THERE
IDENTIFIED BY THE COMPLAINING WITNESS. THE POLICE THEN TOOK HIM TO
"INTERROGATION ROOM NO. 2" OF THE DETECTIVE BUREAU. THERE HE WAS
QUESTIONED BY TWO POLICE OFFICERS. THE OFFICERS ADMITTED AT TRIAL THAT
MIRANDA WAS NOT ADVISED THAT HE HAD A RIGHT TO HAVE AN ATTORNEY
PRESENT. (FN66) TWO HOURS LATER, THE OFFICERS EMERGED FROM THE
INTERROGATION ROOM WITH A WRITTEN CONFESSION SIGNED BY MIRANDA. AT THE
TOP OF THE STATEMENT WAS A TYPED PARAGRAPH STATING THAT THE CONFESSION
WAS MADE VOLUNTARILY, WITHOUT THREATS OR PROMISES OF IMMUNITY AND "WITH
FULL KNOWLEDGE OF MY LEGAL RIGHTS, UNDERSTANDING ANY STATEMENT I MAKE
MAY BE USED AGAINST ME." (FN67)
AT HIS TRIAL BEFORE A JURY, THE WRITTEN CONFESSION WAS ADMITTED INTO
EVIDENCE OVER THE OBJECTION OF DEFENSE COUNSEL, AND THE OFFICERS
TESTIFIED TO THE PRIOR ORAL CONFESSION MADE BY MIRANDA DURING THE
INTERROGATION. MIRANDA WAS FOUND GUILTY OF KIDNAPPING AND RAPE. HE
WAS SENTENCED TO 20 TO 30 YEARS' IMPRISONMENT ON EACH COUNT, THE
SENTENCES TO RUN CONCURRENTLY. ON APPEAL, THE SUPREME COURT OF ARIZONA
HELD THAT MIRANDA'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED IN
OBTAINING THE CONFESSION AND AFFIRMED THE CONVICTION. 98 ARIZ. 18, 401
P.2D 721. IN REACHING ITS DECISION, THE COURT EMPHASIZED HEAVILY THE
FACT THAT MIRANDA DID NOT SPECIFICALLY REQUEST COUNSEL.
WE REVERSE. FROM THE TESTIMONY OF THE OFFICERS AND BY THE ADMISSION
OF RESPONDENT, IT IS CLEAR THAT MIRANDA WAS NOT IN ANY WAY APPRISED OF
HIS RIGHT TO CONSULT WITH AN ATTORNEY AND TO HAVE ONE PRESENT DURING
THE INTERROGATION, NOR WAS HIS RIGHT NOT TO BE COMPELLED TO INCRIMINATE
HIMSELF EFFECTIVELY PROTECTED IN ANY OTHER MANNER. WITHOUT THESE
WARNINGS THE STATEMENTS WERE INADMISSIBLE. THE MERE FACT THAT HE
SIGNED A STATEMENT WHICH CONTAINED A TYPED-IN CLAUSE STATING THAT HE
HAD "FULL KNOWLEDGE" OF HIS "LEGAL RIGHTS" DOES NOT APPROACH THE
KNOWING AND INTELLIGENT WAIVER REQUIRED TO RELINQUISH CONSTITUTIONAL
RIGHTS. CF. HAYNES V. WASHINGTON, 373 U.S. 503, 512-513 (1963); HALEY
V. OHIO, 332 U.S. 596, 601 (1948)(OPINION OF MR. JUSTICE DOUGLAS).
NO. 760. VIGNERA V. NEW YORK.
PETITIONER, MICHAEL VIGNERA, WAS PICKED UP BY NEW YORK POLICE ON
OCTOBER 14, 1960, IN CONNECTION WITH THE ROBBERY THREE DAYS EARLIER OF
A BROOKLYN DRESS SHOP. THEY TOOK HIM TO THE 17TH DETECTIVE SQUAD
HEADQUARTERS IN MANHATTAN. SOMETIME THEREAFTER HE WAS TAKEN TO THE
66TH DETECTIVE SQUAD. THERE A DETECTIVE QUESTIONED VIGNERA WITH
RESPECT TO THE ROBBERY. VIGNERA ORALLY ADMITTED THE ROBBERY TO THE
DETECTIVE. THE DETECTIVE WAS ASKED ON CROSS-EXAMINATION AT TRIAL BY
DEFENSE COUNSEL WHETHER VIGNERA WAS WARNED OF HIS RIGHT TO COUNSEL
BEFORE BEING INTERROGATED. THE PROSECUTION OBJECTED TO THE QUESTION
AND THE TRIAL JUDGE SUSTAINED THE OBJECTION. THUS, THE DEFENSE WAS
PRECLUDED FROM MAKING ANY SHOWING THAT WARNINGS HAD NOT BEEN GIVEN.
WHILE AT THE 66TH DETECTIVE SQUAD, VIGNERA WAS IDENTIFIED BY THE STORE
OWNER AND A SALESLADY AS THE MAN WHO ROBBED THE DRESS SHOP. AT ABOUT 3
P.M. HE WAS FORMALLY ARRESTED. THE POLICE THEN TRANSPORTED HIM TO
STILL ANOTHER STATION, THE 70TH PRECINCT IN BROOKLYN, "FOR DETENTION."
AT 11 P.M. VIGNERA WAS QUESTIONED BY AN ASSISTANT DISTRICT ATTORNEY IN
THE PRESENCE OF A HEARING REPORTER WHO TRANSCRIBED THE QUESTIONS AND
VIGNERA'S ANSWERS. THIS VERBATIM ACCOUNT OF THESE PROCEEDINGS CONTAINS
NO STATEMENT OF ANY WARNINGS GIVEN BY THE ASSISTANT DISTRICT ATTORNEY.
AT VIGNERA'S TRIAL ON A CHARGE OF FIRST DEGREE ROBBERY, THE DETECTIVE
TESTIFIED AS TO THE ORAL CONFESSION. THE TRANSCRIPTION OF THE
STATEMENT TAKEN WAS ALSO INTRODUCED IN EVIDENCE. AT THE CONCLUSION OF
THE TESTIMONY, THE TRIAL JUDGE CHARGED THE JURY IN PART AS FOLLOWS:
"THE LAW DOESN'T SAY THAT THE CONFESSION IS VOID OR INVALIDATED
BECAUSE THE POLICE OFFICER DIDN'T ADVISE THE DEFENDANT AS TO HIS
RIGHTS. DID YOU HEAR WHAT I SAID? I AM TELLING YOU WHAT THE LAW OF
THE STATE OF NEW YORK IS."
VIGNERA WAS FOUND GUILTY OF FIRST DEGREE ROBBERY. HE WAS
SUBSEQUENTLY ADJUDGED A THIRD-FELONY OFFENDER AND SENTENCED TO 30 TO 60
YEARS' IMPRISONMENT. (FN68) THE CONVICTION WAS AFFIRMED WITHOUT
OPINION BY THE APPELLATE DIVISION, SECOND DEPARTMENT, 21 APP. DIV. 2D
752, 252 N.Y.S.2D 19, AND BY THE COURT OF APPEALS, ALSO WITHOUT
OPINION, 15 N.Y.2D 970, 207 N.E.2D 527, 259 N.Y.S.2D 857, REMITTITUR
AMENDED, 16 N.Y.2D 614, 209 N.E.2D 110, 261 N.Y.S.2D 65. IN ARGUMENT
TO THE COURT OF APPEALS, THE STATE CONTENDED THAT VIGNERA HAD NO
CONSTITUTIONAL RIGHT TO BE ADVISED OF HIS RIGHT TO COUNSEL OR HIS
PRIVILEGE AGAINST SELF-INCRIMINATION.
WE REVERSE. THE FOREGOING INDICATES THAT VIGNERA WAS NOT WARNED OF
ANY OF HIS RIGHTS BEFORE THE QUESTIONING BY THE DETECTIVE AND BY THE
ASSISTANT DISTRICT ATTORNEY. NO OTHER STEPS WERE TAKEN TO PROTECT
THESE RIGHTS. THUS HE WAS NOT EFFECTIVELY APPRISED OF HIS FIFTH
AMENDMENT PRIVILEGE OR OF HIS RIGHT TO HAVE COUNSEL PRESENT AND HIS
STATEMENTS ARE INADMISSIBLE.
NO. 761. WESTOVER V. UNITED STATES.
AT APPROXIMATELY 9:45 P.M. ON MARCH 20, 1963, PETITIONER, CARL CALVIN
WESTOVER, WAS ARRESTED BY LOCAL POLICE IN KANSAS CITY AS A SUSPECT IN
TWO KANSAS CITY ROBBERIES. A REPORT WAS ALSO RECEIVED FROM THE FBI
THAT HE WAS WANTED ON A FELONY CHARGE IN CALIFORNIA. THE LOCAL
AUTHORITIES TOOK HIM TO A POLICE STATION AND PLACED HIM IN A LINE-UP ON
THE LOCAL CHARGES, AND AT ABOUT 11:45 P.M. HE WAS BOOKED. KANSAS CITY
POLICE INTERROGATED WESTOVER ON THE NIGHT OF HIS ARREST. HE DENIED ANY
KNOWLEDGE OF CRIMINAL ACTIVITIES. THE NEXT DAY LOCAL OFFICERS
INTERROGATED HIM AGAIN THROUGHOUT THE MORNING. SHORTLY BEFORE NOON
THEY INFORMED THE FBI THAT THEY WERE THROUGH INTERROGATING WESTOVER AND
THAT THE FBI COULD PROCEED TO INTERROGATE HIM. THERE IS NOTHING IN THE
RECORD TO INDICATE THAT WESTOVER WAS EVER GIVEN ANY WARNINGS AS TO HIS
RIGHTS BY LOCAL POLICE. AT NOON, THREE SPECIAL AGENTS OF THE FBI
CONTINUED THE INTERROGATION IN A PRIVATE INTERVIEW ROOM OF THE KANSAS
CITY POLICE DEPARTMENT, THIS TIME WITH RESPECT TO THE ROBBERY OF A
SAVINGS AND LOAN ASSOCIATION AND A BANK IN SACRAMENTO, CALIFORNIA.
AFTER TWO OR TWO AND ONE-HALF HOURS, WESTOVER SIGNED SEPARATE
CONFESSIONS TO EACH OF THESE TWO ROBBERIES WHICH HAD BEEN PREPARED BY
ONE OF THE AGENTS DURING THE INTERROGATION. AT TRIAL ONE OF THE AGENTS
TESTIFIED, AND A PARAGRAPH ON EACH OF THE STATEMENTS STATES, THAT THE
AGENTS ADVISED WESTOVER THAT HE DID NOT HAVE TO MAKE A STATEMENT, THAT
ANY STATEMENT HE MADE COULD BE USED AGAINST HIM, AND THAT HE HAD THE
RIGHT TO SEE AN ATTORNEY.
WESTOVER WAS TRIED BY A JURY IN FEDERAL COURT AND CONVICTED OF THE
CALIFORNIA ROBBERIES. HIS STATEMENTS WERE INTRODUCED AT TRIAL. HE WAS
SENTENCED TO 15 YEARS' IMPRISONMENT ON EACH COUNT, THE SENTENCES TO RUN
CONSECUTIVELY. ON APPEAL, THE CONVICTION WAS AFFIRMED BY THE COURT OF
APPEALS FOR THE NINTH CIRCUIT. 342 F.2D 684.
WE REVERSE. ON THE FACTS OF THIS CASE WE CANNOT FIND THAT WESTOVER
KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO REMAIN SILENT AND HIS
RIGHT TO CONSULT WITH COUNSEL PRIOR TO THE TIME HE MADE THE STATEMENT.
(FN69) AT THE TIME THE FBI AGENTS BEGAN QUESTIONING WESTOVER, HE HAD
BEEN IN CUSTODY FOR OVER 14 HOURS AND HAD BEEN INTERROGATED AT LENGTH
DURING THAT PERIOD. THE FBI INTERROGATION BEGAN IMMEDIATELY UPON THE
CONCLUSION OF THE INTERROGATION BY KANSAS CITY POLICE AND WAS CONDUCTED
IN LOCAL POLICE HEADQUARTERS. ALTHOUGH THE TWO LAW ENFORCEMENT
AUTHORITIES ARE LEGALLY DISTINCT AND THE CRIMES FOR WHICH THEY
INTERROGATED WESTOVER WERE DIFFERENT, THE IMPACT ON HIM WAS THAT OF A
CONTINUOUS PERIOD OF QUESTIONING. THERE IS NO EVIDENCE OF ANY WARNING
GIVEN PRIOR TO THE FBI INTERROGATION NOR IS THERE ANY EVIDENCE OF AN
ARTICULATED WAIVER OF RIGHTS AFTER THE FBI COMMENCED ITS
INTERROGATION. THE RECORD SIMPLY SHOWS THAT THE DEFENDANT DID IN FACT
CONFESS A SHORT TIME AFTER BEING TURNED OVER TO THE FBI FOLLOWING
INTERROGATION BY LOCAL POLICE. DESPITE THE FACT THAT THE FBI AGENTS
GAVE WARNINGS AT THE OUTSET OF THEIR INTERVIEW, FROM WESTOVER'S POINT
OF VIEW THE WARNINGS CAME AT THE END OF THE INTERROGATION PROCESS. IN
THESE CIRCUMSTANCES AN INTELLIGENT WAIVER OF CONSTITUTIONAL RIGHTS
CANNOT BE ASSUMED. WE DO NOT SUGGEST THAT LAW ENFORCEMENT
AUTHORITIES ARE PRECLUDED FROM QUESTIONING ANY INDIVIDUAL WHO HAS BEEN
HELD FOR A PERIOD OF TIME BY OTHER AUTHORITIES AND INTERROGATED BY THEM
WITHOUT APPROPRIATE WARNINGS. A DIFFERENT CASE WOULD BE PRESENTED IF
AN ACCUSED WERE TAKEN INTO CUSTODY BY THE SECOND AUTHORITY, REMOVED
BOTH IN TIME AND PLACE FROM HIS ORIGINAL SURROUNDINGS, AND THEN
ADEQUATELY ADVISED OF HIS RIGHTS AND GIVEN AN OPPORTUNITY TO EXERCISE
THEM. BUT HERE THE FBI INTERROGATION WAS CONDUCTED IMMEDIATELY
FOLLOWING THE STATE INTERROGATION IN THE SAME POLICE STATION - IN THE
SAME COMPELLING SURROUNDINGS. THUS, IN OBTAINING A CONFESSION FROM
WESTOVER THE FEDERAL AUTHORITIES WERE THE BENEFICIARIES OF THE PRESSURE
APPLIED BY THE LOCAL IN-CUSTODY INTERROGATION. IN THESE CIRCUMSTANCES
THE GIVING OF WARNINGS ALONE WAS NOT SUFFICIENT TO PROTECT THE
PRIVILEGE.
NO. 584. CALIFORNIA V. STEWART.
IN THE COURSE OF INVESTIGATING A SERIES OF PURSE-SNATCH ROBBERIES IN
WHICH ONE OF THE VICTIMS HAD DIED OF INJURIES INFLICTED BY HER
ASSAILANT, RESPONDENT, ROY ALLEN STEWART, WAS POINTED OUT TO LOS
ANGELES POLICE AS THE ENDORSER OF DIVIDEND CHECKS TAKEN IN ONE OF THE
ROBBERIES. AT ABOUT 7:15 P.M., JANUARY 31, 1963, POLICE OFFICERS WENT
TO STEWART'S HOUSE AND ARRESTED HIM. ONE OF THE OFFICERS ASKED STEWART
IF THEY COULD SEARCH THE HOUSE, TO WHICH HE REPLIED, "GO AHEAD." THE
SEARCH TURNED UP VARIOUS ITEMS TAKEN FROM THE FIVE ROBBERY VICTIMS. AT
THE TIME OF STEWART'S ARREST, POLICE ALSO ARRESTED STEWART'S WIFE AND
THREE OTHER PERSONS WHO WERE VISITING HIM. THESE FOUR WERE JAILED
ALONG WITH STEWART AND WERE INTERROGATED. STEWART WAS TAKEN TO THE
UNIVERSITY STATION OF THE LOS ANGELES POLICE DEPARTMENT WHERE HE WAS
PLACED IN A CELL. DURING THE NEXT FIVE DAYS, POLICE INTERROGATED
STEWART ON NINE DIFFERENT OCCASIONS. EXCEPT DURING THE FIRST
INTERROGATION SESSION, WHEN HE WAS CONFRONTED WITH AN ACCUSING WITNESS,
STEWART WAS ISOLATED WITH HIS INTERROGATORS.
DURING THE NINTH INTERROGATION SESSION, STEWART ADMITTED THAT HE HAD
ROBBED THE DECEASED AND STATED THAT HE HAD NOT MEANT TO HURT HER.
POLICE THAN BROUGHT STEWART BEFORE A MAGISTRATE FOR THE FIRST TIME.
SINCE THERE WAS NO EVIDENCE TO CONNECT THEM WITH ANY CRIME, THE POLICE
THEN RELEASED THE OTHER FOUR PERSONS ARRESTED WITH HIM.
NOTHING IN THE RECORD SPECIFICALLY INDICATES WHETHER STEWART WAS OR
WAS NOT ADVISED OF HIS RIGHT TO REMAIN SILENT OR HIS RIGHT TO COUNSEL.
IN A NUMBER OF INSTANCES, HOWEVER, THE INTERROGATING OFFICERS WERE
ASKED TO RECOUNT EVERYTHING THAT WAS SAID DURING THE INTERROGATIONS.
NONE INDICATED THAT STEWART WAS EVER ADVISED OF HIS RIGHTS.
STEWART WAS CHARGED WITH KIDNAPPING TO COMMIT ROBBERY, RAPE, AND
MURDER. AT HIS TRIAL, TRANSCRIPTS OF THE FIRST INTERROGATION AND THE
CONFESSION AT THE LAST INTERROGATION WERE INTRODUCED IN EVIDENCE. THE
JURY FOUND STEWART GUILTY OF ROBBERY AND FIRST DEGREE MURDER AND FIXED
THE PENALTY AS DEATH. ON APPEAL, THE SUPREME COURT OF CALIFORNIA
REVERSED. 62 CAL. 2D 571, 400 P.2D 97, 43 CAL. RPTR. 201. IT HELD
THAT UNDER THIS COURT'S DECISION IN ESCOBEDO, STEWART SHOULD HAVE BEEN
ADVISED OF HIS RIGHT TO REMAIN SILENT AND OF HIS RIGHT TO COUNSEL AND
THAT IT WOULD NOT PRESUME IN THE FACE OF A SILENT RECORD THAT THE
POLICE ADVISED STEWART OF HIS RIGHTS. (FN70)
WE AFFIRM. (FN71) IN DEALING WITH CUSTODIAL INTERROGATION, WE WILL
NOT PRESUME THAT A DEFENDANT HAS BEEN EFFECTIVELY APPRISED OF HIS
RIGHTS AND THAT HIS PRIVILEGE AGAINST SELF-INCRIMINATION HAS BEEN
ADEQUATELY SAFEGUARDED ON A RECORD THAT DOES NOT SHOW THAT ANY WARNINGS
HAVE BEEN GIVEN OR THAT ANY EFFECTIVE ALTERNATIVE HAS BEEN EMPLOYED.
NOR CAN A KNOWING AND INTELLIGENT WAIVER OF THESE RIGHTS BE ASSUMED ON
A SILENT RECORD. FURTHERMORE, STEWART'S STEADFAST DENIAL OF THE
ALLEGED OFFENSES THROUGH EIGHT OF THE NINE INTERROGATIONS OVER A PERIOD
OF FIVE DAYS IS SUBJECT TO NO OTHER CONSTRUCTION THAN THAT HE WAS
COMPELLED BY PERSISTENT INTERROGATION TO FORGO HIS FIFTH AMENDMENT
PRIVILEGE.
THEREFORE, IN ACCORDANCE WITH THE FOREGOING, THE JUDGMENTS OF THE
SUPREME COURT OF ARIZONA IN NO. 759, OF THE NEW YORK COURT OF APPEALS
IN NO. 760, AND OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN NO.
761 ARE REVERSED. THE JUDGMENT OF THE SUPREME COURT OF CALIFORNIA IN
NO. 584 IS AFFIRMED. IT IS SO ORDERED.
FN1 COMPARE UNITED STATES V. CHILDRESS, 347 F.2D 448 (C.A. 7TH CIR.
1965), WITH COLLINS V. BETO, 348 F.2D 823 (C.A. 5TH CIR. 1965).
COMPARE PEOPLE V. DORADO, 62 CAL. 2D 338, 398 P.2D 361, 42 CAL. RPTR.
169 (1964) WITH PEOPLE V. HARTGRAVES, 31 ILL. 2D 375, 202 N.E.2D 33
(1964).
FN2 SEE, E.G., ENKER & ELSEN, COUNSEL FOR THE SUSPECT: MASSIAH V.
UNITED STATES AND ESCOBEDO V. ILLINOIS, 49 MINN. L. REV. 47 (1964);
HERMAN, THE SUPREME COURT AND RESTRICTIONS ON POLICE INTERROGATION, 25
OHIO ST. L.J. 449 (1964); KAMISAR, EQUAL JUSTICE IN THE GATEHOUSES AND
MANSIONS OF AMERICAN CRIMINAL PROCEDURE, IN CRIMINAL JUSTICE IN OUR
TIME 1 (1965); DOWLING, ESCOBEDO AND BEYOND: THE NEED FOR A FOURTEENTH
AMENDMENT CODE OF CRIMINAL PROCEDURE, 56 J. CRIM. L., C.&P.S. 143, 156
(1965).
THE COMPLEX PROBLEMS ALSO PROMPTED DISCUSSIONS BY JURISTS. COMPARE
BAZELON, LAW, MORALITY, AND CIVIL LIBERTIES, 12 U.C.L.A.L. REV. 13
(1964), WITH FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL
PROCEDURE, 53 CALIF. L. REV. 929 (1965).
FN3 FOR EXAMPLE, THE LOS ANGELES POLICE CHIEF STATED THAT "IF THE
POLICE ARE REQUIRED ... TO ... ESTABLISH THAT THE DEFENDANT WAS
APPRISED OF HIS CONSTITUTIONAL GUARANTEES OF SILENCE AND LEGAL COUNSEL
PRIOR TO THE UTTERING OF ANY ADMISSION OR CONFESSION, AND THAT HE
INTELLIGENTLY WAIVED THESE GUARANTEES ... A WHOLE PANDORA'S BOX IS
OPENED AS TO UNDER WHAT CIRCUMSTANCES ... CAN A DEFENDANT
INTELLIGENTLY WAIVE THESE RIGHTS ... . ALLEGATIONS THAT MODERN
CRIMINAL INVESTIGATION CAN COMPENSATE FOR THE LACK OF A CONFESSION OR
ADMISSION IN EVERY CRIMINAL CASE IS TOTALLY ABSURD]" PARKER, 40 L.A.
BAR BULL. 603, 607, 642 (1965). HIS PROSECUTORIAL COUNTERPART,
DISTRICT ATTORNEY YOUNGER, STATED THAT "IT BEGINS TO APPEAR THAT MANY
OF THESE SEEMINGLY RESTRICTIVE DECISIONS ARE GOING TO CONTRIBUTE
DIRECTLY TO A MORE EFFECTIVE, EFFICIENT AND PROFESSIONAL LEVEL OF LAW
ENFORCEMENT." L.A. TIMES, OCT. 2, 1965, P. 1. THE FORMER POLICE
COMMISSIONER OF NEW YORK, MICHAEL J. MURPHY, STATED OF ESCOBEDO: "WHAT
THE COURT IS DOING IS AKIN TO REQUIRING ONE BOXER TO FIGHT BY MARQUIS
OF QUEENSBURY RULES WHILE PERMITTING THE OTHER TO BUTT, GOUGE AND
BITE." N.Y. TIMES, MAY 14, 1965, P. 39. THE FORMER UNITED STATES
ATTORNEY FOR THE DISTRICT OF COLUMBIA, DAVID C. ACHESON, WHO IS
PRESENTLY SPECIAL ASSISTANT TO THE SECRETARY OF THE TREASURY (FOR
ENFORCEMENT), AND DIRECTLY IN CHARGE OF THE SECRET SERVICE AND THE
BUREAU OF NARCOTICS, OBSERVED THAT "PROSECUTION PROCEDURE HAS, AT MOST,
ONLY THE MOST REMOTE CASUAL CONNECTION WITH CRIME. CHANGES IN COURT
DECISIONS AND PROSECUTION PROCEDURE WOULD HAVE ABOUT THE SAME EFFECT ON
THE CRIME RATE AS AN ASPIRIN WOULD HAVE ON A TUMOR OF THE BRAIN."
QUOTED IN HERMAN, SUPRA, N. 2, AT 500, N. 270. OTHER VIEWS ON THE
SUBJECT IN GENERAL ARE COLLECTED IN WEISBERG, POLICE INTERROGATION OF
ARRESTED PERSONS: A SKEPTICAL VIEW, 52 J. CRIM. L., C.&P.S. 21
(1961).
FN4 THIS IS WHAT WE MEANT IN ESCOBEDO WHEN WE SPOKE OF AN
INVESTIGATION WHICH HAD FOCUSED ON AN ACCUSED.
FN5 SEE, FOR EXAMPLE, IV NATIONAL COMMISSION ON LAW OBSERVANCE AND
ENFORCEMENT, REPORT ON LAWLESSNESS IN LAW ENFORCEMENT (1931)(WICKERSHAM
REPORT); BOOTH, CONFESSIONS, AND METHODS EMPLOYED IN PROCURING THEM, 4
SO. CALIF. L. REV. 83 (1930); KAUPER, JUDICIAL EXAMINATION OF THE
ACCUSED - A REMEDY FOR THE THIRD DEGREE, 30 MICH. L. REV. 1224 (1932).
IT IS SIGNIFICANT THAT INSTANCES OF THIRD-DEGREE TREATMENT OF PRISONERS
ALMOST INVARIABLY TOOK PLACE DURING THE PERIOD BETWEEN ARREST AND
PRELIMINARY EXAMINATION. WICKERSHAM REPORT, AT 169; HALL, THE LAW OF
ARREST IN RELATION TO CONTEMPORARY SOCIAL PROBLEMS, 3 U. CHI. L. REV.
345, 357 (1936). SEE ALSO FOOTE, LAW AND POLICE PRACTICE: SAFEGUARDS
IN THE LAW OF ARREST, 52 NW. U.L. REV. 16 (1957).
FN6 BROWN V. MISSISSIPPI, 297 U.S. 278 (1936); CHAMBERS V. FLORIDA,
309 U.S. 227 (1940); CANTY V. ALABAMA, 309 U.S. 629 (1940); WHITE V.
TEXAS, 310 U.S. 530 (1940); VERNON V. ALABAMA, 313 U.S. 547 (1941);
WARD V. TEXAS, 316 U.S. 547 (1942); ASHCRAFT V. TENNESSEE, 322 U.S. 143
(1944); MALINSKI V. NEW YORK, 324 U.S. 401 (1945); LEYRA V. DENNO, 347
U.S. 556 (1954). SEE ALSO WILLIAMS V. UNITED STATES, 341 U.S. 97
(1951).
FN7 IN ADDITION, SEE PEOPLE V. WAKAT, 415 ILL. 610, 114 N.E.2D 706
(1953); WAKAT V. HARLIB, 253 F.2D 59 (C.A. 7TH CIR. 1958)(DEFENDANT
SUFFERING FROM BROKEN BONES, MULTIPLE BRUISES AND INJURIES SUFFICIENTLY
SERIOUS TO REQUIRE EIGHT MONTHS' MEDICAL TREATMENT AFTER BEING
MANHANDLED BY FIVE POLICEMEN); KIER V. STATE, 213 MD. 556, 132 A.2D 494
(1957)(POLICE DOCTOR TOLD ACCUSED, WHO WAS STRAPPED TO A CHAIR
COMPLETELY NUDE, THAT HE PROPOSED TO TAKE HAIR AND SKIN SCRAPINGS FROM
ANYTHING THAT LOOKED LIKE BLOOD OR SPERM FROM VARIOUS PARTS OF HIS
BODY); BRUNER V. PEOPLE, 113 COLO. 194, 156 P.2D 111 (1945)(DEFENDANT
HELD IN CUSTODY OVER TWO MONTHS, DEPRIVED OF FOOD FOR 15 HOURS, FORCED
TO SUBMIT TO A LIE DETECTOR TEST WHEN HE WANTED TO GO TO THE TOILET);
PEOPLE V. MATLOCK, 51 CAL. 2D 682, 336 P.2D 505 (1959) (DEFENDANT
QUESTIONED INCESSANTLY OVER AN EVENING'S TIME, MADE TO LIE ON COLD
BOARD AND TO ANSWER QUESTIONS WHENEVER IT APPEARED HE WAS GETTING
SLEEPY). OTHER CASES ARE DOCUMENTED IN AMERICAN CIVIL LIBERTIES UNION,
ILLINOIS DIVISION, SECRET DETENTION BY THE CHICAGO POLICE (1959);
POTTS, THE PRELIMINARY EXAMINATION AND "THE THIRD DEGREE," 2 BAYLOR L.
REV. 131 (1950); STERLING, POLICE INTERROGATION AND THE PSYCHOLOGY OF
CONFESSION, 14 J. PUB. L. 25 (1965).
FN8 THE MANUALS QUOTED IN THE TEXT FOLLOWING ARE THE MOST RECENT AND
REPRESENTATIVE OF THE TEXTS CURRENTLY AVAILABLE. MATERIAL OF THE SAME
NATURE APPEARS IN KIDD, POLICE INTERROGATION (1940); MULBAR,
INTERROGATION (1951); DIENSTEIN, TECHNIQUES FOR THE CRIME INVESTIGATOR
97-115 (1952). STUDIES CONCERNING THE OBSERVED PRACTICES OF THE POLICE
APPEAR IN LAFAVE, ARREST: THE DECISION TO TAKE A SUSPECT INTO CUSTODY
244-437, 490-521 (1965); LAFAVE, DETENTION FOR INVESTIGATION BY THE
POLICE: AN ANALYSIS OF CURRENT PRACTICES, 1962 WASH. U.L.Q. 331;
BARRETT, POLICE PRACTICES AND THE LAW - FROM ARREST TO RELEASE OR
CHARGE, 50 CALIF. L. REV. 11 (1962); STERLING, SUPRA, N.7, AT 47-65.
FN9 THE METHODS DESCRIBED IN INBAU & REID, CRIMINAL INTERROGATION
AND CONFESSIONS (1962), ARE A REVISION AND ENLARGEMENT OF MATERIAL
PRESENTED IN THREE PRIOR EDITIONS OF A PREDECESSOR TEXT, LIE DETECTION
AND CRIMINAL INTERROGATION (3D ED. 1953). THE AUTHORS AND THEIR
ASSOCIATES ARE OFFICERS OF THE CHICAGO POLICE SCIENTIFIC CRIME
DETECTION LABORATORY AND HAVE HAD EXTENSIVE EXPERIENCE IN WRITING,
LECTURING AND SPEAKING TO LAW ENFORCEMENT AUTHORITIES OVER A 20-YEAR
PERIOD. THEY SAY THAT THE TECHNIQUES PORTRAYED IN THEIR MANUALS
REFLECT THEIR EXPERIENCES AND ARE THE MOST EFFECTIVE PSYCHOLOGICAL
STRATEGEMS TO EMPLOY DURING INTERROGATIONS. SIMILARLY, THE TECHNIQUES
DESCRIBED ON O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION (1956),
WERE GLEANED FROM LONG SERVICE AS OBSERVER, LECTURER IN POLICE SCIENCE,
AND WORK AS A FEDERAL CRIMINAL INVESTIGATOR. ALL THESE TEXTS HAVE HAD
RATHER EXTENSIVE USE AMONG LAW ENFORCEMENT AGENCIES AND AMONG STUDENTS
OF POLICE SCIENCE, WITH TOTAL SALES AND CIRCULATION OF OVER 44,000.
FN10 INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS (1962), AT
1.
FN11 O'HARA, SUPRA, AT 99.
FN12 INBAU & REID, SUPRA, AT 34-43, 87. FOR EXAMPLE, IN LEYRA V.
DENNO, 347 U.S. 556 (1954), THE INTERROGATOR-PSYCHIATRIST TOLD THE
ACCUSED, "WE DO SOMETIMES THINGS THAT ARE NOT RIGHT, BUT IN A FIT OF
TEMPER OR ANGER WE SOMETIMES DO THINGS WE AREN'T REALLY RESPONSIBLE
FOR," ID., AT 562, AND AGAIN, "WE KNOW THAT MORALLY YOU WERE JUST IN
ANGER. MORALLY, YOU ARE NOT TO BE CONDEMNED," ID., AT 582.
FN13 INBAU & REID, SUPRA, AT 43-55.
FN14 O'HARA, SUPRA, AT 112.
FN15 INBAU & REID, SUPRA, AT 40.
FN16 IBID.
FN17 O'HARA, SUPRA, AT 104, INBAU & REID, SUPRA, AT 58-59. SEE
SPANO V. NEW YORK, 360 U.S. 315 (1959). A VARIANT ON THE TECHNIQUE OF
CREATING HOSTILITY IS ONE OF ENGENDERING FEAR. THIS IS PERHAPS BEST
DESCRIBED BY THE PROSECUTING ATTORNEY IN MALINSKI V. NEW YORK, 324 U.S.
401, 407 (1945): "WHY THIS TALK ABOUT BEING UNDRESSED? OF COURSE,
THEY HAD A RIGHT TO UNDRESS HIM TO LOOK FOR BULLET SCARS, AND KEEP THE
CLOTHES OFF HIM. THAT WAS QUITE PROPER POLICE PROCEDURE. THAT IS SOME
MORE PSYCHOLOGY - LET HIM SIT AROUND WITH A BLANKET ON HIM, HUMILIATE
HIM THERE FOR A WHILE; LET HIM SIT IN THE CORNER, LET HIM THINK HE IS
GOING TO GET A SHELLACKING."
FN18 O'HARA, SUPRA, AT 105-106.
FN19 ID., AT 106.
FN20 INBAU & REID, SUPRA, AT 111.
FN21 IBID.
FN22 INBAU & REID, SUPRA, AT 112.
FN23 INBAU & REID, LIE DETECTION AND CRIMINAL INTERROGATION 185 (3D
ED. 1953).
FN24 INTERROGATION PROCEDURES MAY EVEN GIVE RISE TO A FALSE
CONFESSION. THE MOST RECENT CONSPICUOUS EXAMPLE OCCURRED IN NEW YORK,
IN 1964, WHEN A NEGRO OF LIMITED INTELLIGENCE CONFESSED TO TWO BRUTAL
MURDERS AND A RAPE WHICH HE HAD NOT COMMITTED. WHEN THIS WAS
DISCOVERED, THE PROSECUTOR WAS REPORTED AS SAYING: "CALL IT WHAT YOU
WANT - BRAIN-WASHING, HYPNOSIS, FRIGHT. THEY MADE HIM GIVE AN UNTRUE
CONFESSION. THE ONLY THING I DON'T BELIEVE IS THAT WHITMORE WAS
BEATEN." N.Y. TIMES, JAN. 28, 1965, P. 1, COL. 5. IN TWO OTHER
INSTANCES, SIMILAR EVENTS HAD OCCURRED. N.Y. TIMES, OCT. 20, 1964, P.
22, COL. 1; N.Y. TIMES, AUG. 25, 1965, P. 1, COL. 1. IN GENERAL, SEE
BORCHARD, CONVICTING THE INNOCENT (1932); FRANK & FRANK, NOT GUILTY
(1957). FN25 IN THE FOURTH CONFESSION CASE DECIDED BY THE COURT IN
THE 1962 TERM, FAY V. NOIA, 372 U.S. 391 (1963), OUR DISPOSITION MADE
IT UNNECESSARY TO DELVE AT LENGTH INTO THE FACTS. THE FACTS OF THE
DEFENDANT'S CASE THERE, HOWEVER, PARALLELED THOSE OF HIS CO-DEFENDANTS,
WHOSE CONFESSIONS WERE FOUND TO HAVE RESULTED FROM CONTINUOUS AND
COERCIVE INTERROGATION FOR 27 HOURS, WITH DENIAL OF REQUESTS FOR
FRIENDS OR ATTORNEY. SEE UNITED STATES V. MURPHY, 222 F.2D 698 (C.A.2D
CIR. 1955)(FRANK, J.); PEOPLE V. BONINO, 1 N.Y.2D 752, 135 N.E.2D 51
(1956).
FN26 THE ABSURDITY OF DENYING THAT A CONFESSION OBTAINED UNDER THESE
CIRCUMSTANCES IS COMPELLED IS APTLY PORTRAYED BY AN EXAMPLE IN
PROFESSOR SUTHERLAND'S RECENT ARTICLE, CRIME AND CONFESSION, 79 HARV.
L. REV. 21, 37 (1965):
"SUPPOSE A WELL-TO-DO TESTATRIX SAYS SHE INTENDS TO WILL HER PROPERTY
TO ELIZABETH. JOHN AND JAMES WANT HER TO BEQUEATH IT TO THEM INSTEAD.
THEY CAPTURE THE TESTATRIX, PUT HER IN A CAREFULLY DESIGNED ROOM, OUT
OF TOUCH WITH EVERYONE BUT THEMSELVES AND THEIR CONVENIENT 'WITNESSES,'
KEEP HER SECLUDED THERE FOR HOURS WHILE THEY MAKE INSISTENT DEMANDS,
WEARY HER WITH CONTRADICTIONS OF HER ASSERTIONS THAT SHE WANTS TO LEAVE
HER MONEY TO ELIZABETH, AND FINALLY INDUCE HER TO EXECUTE THE WILL IN
THEIR FAVOR. ASSUME THAT JOHN AND JAMES ARE DEEPLY AND CORRECTLY
CONVINCED THAT ELIZABETH IS UNWORTHY AND WILL MAKE BASE USE OF THE
PROPERTY IF SHE GETS HER HANDS ON IT, WHEREAS JOHN AND JAMES HAVE THE
NOBLEST AND MOST RIGHTEOUS INTENTIONS. WOULD ANY JUDGE OF PROBATE
ACCEPT THE WILL SO PROCURED AS THE 'VOLUNTARY' ACT OF THE TESTATRIX?"
FN27 THIRTEENTH CENTURY COMMENTATORS FOUND AN ANALOGUE TO THE
PRIVILEGE GROUNDED IN THE BIBLE. "TO SUM UP THE MATTER, THE PRINCIPLE
THAT NO MAN IS TO BE DECLARED GUILTY ON HIS OWN ADMISSION IS A DIVINE
DECREE." MAIMONIDES, MISHNEH TORAH (CODE OF JEWISH LAW), BOOK OF
JUDGES, LAWS OF THE SANHEDRIN, C. 18, PARA 6, III YALE JUDAICA SERIES
52-53. SEE ALSO LAMM, THE FIFTH AMENDMENT AND ITS EQUIVALENT IN THE
HALAKHAH, 5 JUDAISM 53 (WINTER 1956).
FN28 SEE MORGAN, THE PRIVILEGE AGAINST SELF-INCRIMINATION, 34 MINN.
L. REV. 1, 9-11 (1949); 8 WIGMORE, EVIDENCE 289-295 (MCNAUGHTON REV.
1961). SEE ALSO LOWELL, THE JUDICIAL USE OF TORTURE, PARTS I AND II,
11 HARV. L. REV. 220, 290 (1897).
FN29 SEE PITTMAN, THE COLONIAL AND CONSTITUTIONAL HISTORY OF THE
PRIVILEGE AGAINST SELF-INCRIMINATION IN AMERICA, 21 VA. L. REV. 763
(1935); ULLMANN V. UNITED STATES, 350 U.S. 422, 445-449 (1956)(DOUGLAS,
J., DISSENTING).
FN30 COMPARE BROWN V. WALKER, 161 U.S. 591 (1896); QUINN V. UNITED
STATES, 349 U.S. 155 (1955).
FN31 BRIEF FOR THE UNITED STATES, P. 28. TO THE SAME EFFECT, SEE
BRIEF FOR THE UNITED STATES, PP. 40-49, N.44, ANDERSON V. UNITED
STATES, 318 U.S. 350 (1943); BRIEF FOR THE UNITED STATES, PP. 17-18,
MCNABB V. UNITED STATES, 318 U.S. 332 (1943).
FN32 OUR DECISION TODAY DOES NOT INDICATE IN ANY MANNER, OF COURSE,
THAT THESE RULES CAN BE DISREGARDED. WHEN FEDERAL OFFICIALS ARREST AN
INDIVIDUAL, THEY MUST ALWAYS COMPLY WITH THE DICTATES OF THE
CONGRESSIONAL LEGISLATION AND CASES THEREUNDER. SEE GENERALLY, HOGAN &
SNEE, THE MCNABB-MALLORY RULE: ITS RISE, RATIONALE AND RESCUE, 47 GEO.
L.J. 1 (1958).
FN33 THE DECISIONS OF THIS COURT HAVE GUARANTEED THE SAME PROCEDURAL
PROTECTION FOR THE DEFENDANT WHETHER HIS CONFESSION WAS USED IN A
FEDERAL OR STATE COURT. IT IS NOW AXIOMATIC THAT THE DEFENDANT'S
CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED IF HIS CONVICTION IS BASED, IN
WHOLE OR IN PART, ON AN INVOLUNTARY CONFESSION, REGARDLESS OF ITS TRUTH
OR FALSITY. ROGERS V. RICHMOND, 365 U.S. 534, 544 (1961); WAN V.
UNITED STATES, 266 U.S. 1 (1924). THIS IS SO EVEN IF THERE IS AMPLE
EVIDENCE ASIDE FROM THE CONFESSION TO SUPPORT THE CONVICTION, E.G.,
MALINSKI V. NEW YORK, 324 U.S. 401, 404 (1945); BRAM V. UNITED STATES,
168 U.S. 532, 540-542 (1897). BOTH STATE AND FEDERAL COURTS NOW ADHERE
TO TRIAL PROCEDURES WHICH SEEK TO ASSURE A RELIABLE AND CLEAR-CUT
DETERMINATION OF THE VOLUNTARINESS OF THE CONFESSION OFFERED AT TRIAL,
JACKSON V. DENNO, 378 U.S. 368 (1964); UNITED STATES V. CARIGNAN, 342
U.S. 36, 38 (1951); SEE ALSO WILSON V. UNITED STATES, 162 U.S. 613, 624
(1896). APPELLATE REVIEW IS EXACTING, SEE HAYNES V. WASHINGTON, 373
U.S. 503 (1963); BLACKBURN V. ALABAMA, 361 U.S. 199 (1960). WHETHER
HIS CONVICTION WAS IN A FEDERAL OR STATE COURT, THE DEFENDANT MAY
SECURE A POST-CONVICTION HEARING BASED ON THE ALLEGED INVOLUNTARY
CHARACTER OF HIS CONFESSION, PROVIDED HE MEETS THE PROCEDURAL
REQUIREMENTS, FAY V. NOIA, 372 U.S. 391 (1963); TOWNSEND V. SAIN, 372
U.S. 293 (1963). IN ADDITION, SEE MURPHY V. WATERFRONT COMM'N, 378
U.S. 52 (1964).
FN34 SEE LISENBA V. CALIFORNIA, 314 U.S. 219, 241 (1941); ASHCRAFT
V. TENNESSEE, 322 U.S. 143 (1944); MALINSKI V. NEW YORK, 324 U.S. 401
(1945); SPANO V. NEW YORK, 360 U.S. 315 (1959); LYNUMN V. ILLINOIS, 372
U.S. 528 (1963); HAYNES V. WASHINGTON, 373 U.S. 503 (1963).
FN35 THE POLICE ALSO PREVENTED THE ATTORNEY FROM CONSULTING WITH HIS
CLIENT. INDEPENDENT OF ANY OTHER CONSTITUTIONAL PROSCRIPTION, THIS
ACTION CONSTITUTES A VIOLATION OF THE SIXTH AMENDMENT RIGHT TO THE
ASSISTANCE OF COUNSEL AND EXCLUDES ANY STATEMENT OBTAINED IN ITS WAKE.
SEE PEOPLE V. DONOVAN, 13 N.Y.2D 148, 193 N.E.2D 628, 243 N.Y.S.2D 841
(1963)(FULD, J.).
FN36 IN RE GROBAN, 352 U.S. 330, 340-352 (1957)(BLACK, J.,
DISSENTING); NOTE, 73 YALE L.J. 1000, 1048-1051 (1964); COMMENT, 31 U.
CHI. L. REV. 313, 320 (1964) AND AUTHORITIES CITED.
FN37 SEE P. 454, SUPRA. LORD DEVLIN HAS COMMENTED:
"IT IS PROBABLE THAT EVEN TODAY, WHEN THERE IS MUCH LESS IGNORANCE
ABOUT THESE MATTERS THAN FORMERLY, THERE IS STILL A GENERAL BELIEF THAT
YOU MUST ANSWER ALL QUESTIONS PUT TO YOU BY A POLICEMAN, OR AT LEAST
THAT IT WILL BE THE WORSE FOR YOU IF YOU DO NOT." DEVLIN, THE CRIMINAL
PROSECUTION IN ENGLAND 32 (1958).
IN ACCORD WITH OUR DECISION TODAY, IT IS IMPERMISSIBLE TO PENALIZE AN
INDIVIDUAL FOR EXERCISING HIS FIFTH AMENDMENT PRIVILEGE WHEN HE IS
UNDER POLICE CUSTODIAL INTERROGATION. THE PROSECUTION MAY NOT,
THEREFORE, USE AT TRIAL THE FACT THAT HE STOOD MUTE OR CLAIMED HIS
PRIVILEGE IN THE FACE OF ACCUSATION. CF. GRIFFIN V. CALIFORNIA, 380
U.S. 609 (1965); MALLOY V. HOGAN, 378 U.S. 1, 8 (1964); COMMENT, 31 U.
CHI. L. REV. 556 (1964); DEVELOPMENTS IN THE LAW - CONFESSIONS, 79
HARV. L. REV. 935, 1041-1044 (1966). SEE ALSO BRAM V. UNITED STATES,
168 U.S. 532, 562 (1897).
FN38 CF. BETTS V. BRADY, 316 U.S. 455 (1942), AND THE RECURRENT
INQUIRY INTO SPECIAL CIRCUMSTANCES IT NECESSITATED. SEE GENERALLY,
KAMISAR, BETTS V. BRADY TWENTY YEARS LATER: THE RIGHT TO COUNSEL AND
DUE PROCESS VALUES, 61 MICH. L. REV. 219 (1962).
FN39 SEE HERMAN, THE SUPREME COURT AND RESTRICTIONS ON POLICE
INTERROGATION, 25 OHIO ST. L.J. 449, 480 (1964).
FN40 ESTIMATES OF 50-90% INDIGENCY AMONG FELONY DEFENDANTS HAVE BEEN
REPORTED. POLLOCK, EQUAL JUSTICE IN PRACTICE, 45 MINN. L. REV. 737,
738-739 (1961); BIRZON, KASANOFF & FORMA, THE RIGHT TO COUNSEL AND THE
INDIGENT ACCUSED IN COURTS OF CRIMINAL JURISDICTION IN NEW YORK STATE,
14 BUFFALO L. REV. 428, 433 (1965).
FN41 SEE KAMISAR, EQUAL JUSTICE IN THE GATEHOUSES AND MANSIONS OF
AMERICAN CRIMINAL PROCEDURE, IN CRIMINAL JUSTICE IN OUR TIME 1, 64-81
(1965). AS WAS STATED IN THE REPORT OF THE ATTORNEY GENERAL'S
COMMITTEE ON POVERTY AND THE ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE
9 (1963):
"WHEN GOVERNMENT CHOOSES TO EXERT ITS POWERS IN THE CRIMINAL AREA,
ITS OBLIGATION IS SURELY NO LESS THAN THAT OF TAKING REASONABLE
MEASURES TO ELIMINATE THOSE FACTORS THAT ARE IRRELEVANT TO JUST
ADMINISTRATION OF THE LAW BUT WHICH, NEVERTHELESS, MAY OCCASIONALLY
AFFECT DETERMINATIONS OF THE ACCUSED'S LIABILITY OR PENALTY. WHILE
GOVERNMENT MAY NOT BE REQUIRED TO RELIEVE THE ACCUSED OF HIS POVERTY,
IT MAY PROPERLY BE REQUIRED TO MINIMIZE THE INFLUENCE OF POVERTY ON ITS
ADMINISTRATION OF JUSTICE."
FN42 CF. UNITED STATES EX REL. BROWN V. FAY, 242 F. SUPP. 273, 277
(D.C.S.D.N.Y. 1965); PEOPLE V. WITENSKI, 15 N.Y.2D 392, 207 N.E.2D 358,
259 N.Y.S.2D 413 (1965).
FN43 WHILE A WARNING THAT THE INDIGENT MAY HAVE COUNSEL APPOINTED
NEED NOT BE GIVEN TO THE PERSON WHO IS KNOWN TO HAVE AN ATTORNEY OR IS
KNOWN TO HAVE AMPLE FUNDS TO SECURE ONE, THE EXPEDIENT OF GIVING A
WARNING IS TOO SIMPLE AND THE RIGHTS INVOLVED TOO IMPORTANT TO ENGAGE
IN EX POST FACTO INQUIRIES INTO FINANCIAL ABILITY WHEN THERE IS ANY
DOUBT AT ALL ON THAT SCORE.
FN44 IF AN INDIVIDUAL INDICATES HIS DESIRE TO REMAIN SILENT, BUT HAS
AN ATTORNEY PRESENT, THERE MAY BE SOME CIRCUMSTANCES IN WHICH FURTHER
QUESTIONING WOULD BE PERMISSIBLE. IN THE ABSENCE OF EVIDENCE OF
OVERBEARING, STATEMENTS THEN MADE IN THE PRESENCE OF COUNSEL MIGHT BE
FREE OF THE COMPELLING INFLUENCE OF THE INTERROGATION PROCESS AND MIGHT
FAIRLY BE CONSTRUED AS A WAIVER OF THE PRIVILEGE FOR PURPOSES OF THESE
STATEMENTS.
FN45 ALTHOUGH THIS COURT HELD IN ROGERS V. UNITED STATES, 340 U.S.
367 (1951), OVER STRONG DISSENT, THAT A WITNESS BEFORE A GRAND JURY MAY
NOT IN CERTAIN CIRCUMSTANCES DECIDE TO ANSWER SOME QUESTIONS AND THEN
REFUSE TO ANSWER OTHERS, THAT DECISION HAS NO APPLICATION TO THE
INTERROGATION SITUATION WE DEAL WITH TODAY. NO LEGISLATIVE OR JUDICIAL
FACT-FINDING AUTHORITY IS INVOLVED HERE, NOR IS THERE A POSSIBILITY
THAT THE INDIVIDUAL MIGHT MAKE SELF-SERVING STATEMENTS OF WHICH HE
COULD MAKE USE AT TRIAL WHILE REFUSING TO ANSWER INCRIMINATING
STATEMENTS.
FN46 THE DISTINCTION AND ITS SIGNIFICANCE HAS BEEN APTLY DESCRIBED
IN THE OPINION OF A SCOTTISH COURT:
"IN FORMER TIMES SUCH QUESTIONING, IF UNDERTAKEN, WOULD BE CONDUCTED
BY POLICE OFFICERS VISITING THE HOUSE OR PLACE OF BUSINESS OF THE
SUSPECT AND THERE QUESTIONING HIM, PROBABLY IN THE PRESENCE OF A
RELATION OR FRIEND. HOWEVER CONVENIENT THE MODERN PRACTICE MAY BE, IT
MUST NORMALLY CREATE A SITUATION VERY UNFAVOURABLE TO THE SUSPECT."
CHALMERS V. H.M. ADVOCATE, 1954 SESS. CAS. 66, 78 (J.C.).
FN47 SEE PEOPLE V. DORADO, 62 CAL. 2D 338, 354, 398 P.2D 361, 371,
42 CAL. RPTR. 169, 179 (1965).
FN48 IN ACCORDANCE WITH OUR HOLDINGS TODAY IN ESCOBEDO V. ILLINOIS,
378 U.S. 478, 492, CROOKER V. CALIFORNIA, 357 U.S. 433 (1958) AND
CICENIA V. LAGAY, 357 U.S. 504 (1958) ARE NOT TO BE FOLLOWED.
FN49 IN QUOTING THE ABOVE FROM THE DISSENTING OPINION OF MR. JUSTICE
BRANDEIS WE, OF COURSE, DO NOT INTEND TO PASS ON THE CONSTITUTIONAL
QUESTIONS INVOLVED IN THE OLMSTEAD CASE.
FN50 SCHAEFER, FEDERALISM AND STATE CRIMINAL PROCEDURE, 70 HARV. L.
REV. 1, 26 (1956).
FN51 MIRANDA, VIGNERA, AND WESTOVER WERE IDENTIFIED BY
EYEWITNESSES. MARKED BILLS FROM THE BANK ROBBED WERE FOUND IN
WESTOVER'S CAR. ARTICLES STOLEN FROM THE VICTIM AS WELL AS FROM
SEVERAL OTHER ROBBERY VICTIMS WERE FOUND IN STEWART'S HOME AT THE
OUTSET OF THE INVESTIGATION.
FN52 DEALING AS WE DO HERE WITH CONSTITUTIONAL STANDARDS IN RELATION
TO STATEMENTS MADE, THE EXISTENCE OF INDEPENDENT CORROBORATING EVIDENCE
PRODUCED AT TRIAL IS, OF COURSE, IRRELEVANT TO OUR DECISIONS. HAYNES
V. WASHINGTON, 373 U.S. 503, 518-519 (1963); LYNUMN V. ILLINOIS, 372
U.S. 528, 537-538 (1963); ROGERS V. RICHMOND, 365 U.S. 534, 541 (1961);
BLACKBURN V. ALABAMA, 361 U.S. 199, 206 (1960).
FN53 SEE, E.G., REPORT AND RECOMMENDATIONS OF THE DISTRICT OF
COLUMBIA COMMISSIONERS' COMMITTEE ON POLICE ARRESTS FOR INVESTIGATION
(1962); AMERICAN CIVIL LIBERTIES UNION, SECRET DETENTION BY THE CHICAGO
POLICE (1959). AN EXTREME EXAMPLE OF THIS PRACTICE OCCURRED IN THE
DISTRICT OF COLUMBIA IN 1958. SEEKING THREE "STOCKY" YOUNG NEGROES WHO
HAD ROBBED A RESTAURANT, POLICE ROUNDED UP 90 PERSONS OF THAT GENERAL
DESCRIPTION. SIXTY-THREE WERE HELD OVERNIGHT BEFORE BEING RELEASED FOR
LACK OF EVIDENCE. A MAN NOT AMONG THE 90 ARRESTED WAS ULTIMATELY
CHARGED WITH THE CRIME. WASHINGTON DAILY NEWS, JANUARY 21, 1958, P. 5,
COL. 1; HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY
COMMITTEE ON H.R. 11477, S. 2970, S. 3325, AND S. 3355, 85TH CONG., 2D
SESS. (JULY 1958), PP. 40, 78.
FN54 IN 1952, J. EDGAR HOOVER, DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION, STATED:
"LAW ENFORCEMENT, HOWEVER, IN DEFEATING THE CRIMINAL, MUST MAINTAIN
INVIOLATE THE HISTORIC LIBERTIES OF THE INDIVIDUAL. TO TURN BACK THE
CRIMINAL, YET, BY SO DOING, DESTROY THE DIGNITY OF THE INDIVIDUAL,
WOULD BE A HOLLOW VICTORY.
* * * * *
"WE CAN HAVE THE CONSTITUTION, THE BEST LAWS IN THE LAND, AND THE
MOST HONEST REVIEWS BY COURTS - BUT UNLESS THE LAW ENFORCEMENT
PROFESSION IS STEEPED IN THE DEMOCRATIC TRADITION, MAINTAINS THE
HIGHEST IN ETHICS, AND MAKES ITS WORK A CAREER OF HONOR, CIVIL
LIBERTIES WILL CONTINUALLY - AND WITHOUT END - BE VIOLATED ... . THE
BEST PROTECTION OF CIVIL LIBERTIES IS AN ALERT, INTELLIGENT AND HONEST
LAW ENFORCEMENT AGENCY. THERE CAN BE NO ALTERNATIVE.
* * * * *
" ... SPECIAL AGENTS ARE TAUGHT THAT ANY SUSPECT OR ARRESTED
PERSON, AT THE OUTSET OF AN INTERVIEW, MUST BE ADVISED THAT HE IS NOT
REQUIRED TO MAKE A STATEMENT AND THAT ANY STATEMENT GIVEN CAN BE USED
AGAINST HIM IN COURT. MOREOVER, THE INDIVIDUAL MUST BE INFORMED THAT,
IF HE DESIRES, HE MAY OBTAIN THE SERVICES OF AN ATTORNEY OF HIS OWN
CHOICE." HOOVER, CIVIL LIBERTIES AND LAW ENFORCEMENT: THE ROLE OF
THE FBI, 37 IOWA L. REV. 175, 177-182 (1952).
FN55 WE AGREE THAT THE INTERVIEWING AGENT MUST EXERCISE HIS JUDGMENT
IN DETERMINING WHETHER THE INDIVIDUAL WAIVES HIS RIGHT TO COUNSEL.
BECAUSE OF THE CONSTITUTIONAL BASIS OF THE RIGHT, HOWEVER, THE STANDARD
FOR WAIVER IS NECESSARILY HIGH. AND, OF COURSE, THE ULTIMATE
RESPONSIBILITY FOR RESOLVING THIS CONSTITUTIONAL QUESTION LIES WITH THE
COURTS.
FN56 AMONG THE CRIMES WITHIN THE ENFORCEMENT JURISDICTION OF THE FBI
ARE KIDNAPPING, 18 U.S.C. SEC 1201 (1964 ED.), WHITE SLAVERY, 18 U.S.C.
SECS 2421-2423 (1964 ED.), BANK ROBBERY, 18 U.S.C. SEC 2113 (1964 ED.),
INTERSTATE TRANSPORTATION AND SALE OF STOLEN PROPERTY, 18 U.S.C. SECS
2311-2317 (1964 ED.), ALL MANNER OF CONSPIRACIES, 18 U.S.C. SEC 371
(1964 ED.), AND VIOLATIONS OF CIVIL RIGHTS, 18 U.S.C. SECS 241-242
(1964 ED.). SEE ALSO 18 U.S.C. SEC 1114 (1964 ED.)(MURDER OF OFFICER
OR EMPLOYEE OF THE UNITED STATES).
FN57 (1964) CRIM. L. REV., AT 166-170. THESE RULES PROVIDE IN
PART:
"II. AS SOON AS A POLICE OFFICER HAS EVIDENCE WHICH WOULD AFFORD
REASONABLE GROUNDS FOR SUSPECTING THAT A PERSON HAS COMMITTED AN
OFFENSE, HE SHALL CAUTION THAT PERSON OR CAUSE HIM TO BE CAUTIONED
BEFORE PUTTING ON HIM ANY QUESTIONS, OR FURTHER QUESTIONS, RELATING TO
THAT OFFENSE.
"THE CAUTION SHALL BE IN THE FOLLOWING TERMS:
"'YOU ARE NOT OBLIGED TO SAY ANYTHING UNLESS YOU WISH TO DO SO BUT
WHAT YOU SAY MAY BE PUT INTO WRITING AND GIVEN IN EVIDENCE.'
"WHEN AFTER BEING CAUTIONED A PERSON IS BEING QUESTIONED, OR ELECTS
TO MAKE A STATEMENT, A RECORD SHALL BE KEPT OF THE TIME AND PLACE AT
WHICH ANY SUCH QUESTIONING OR STATEMENT BEGAN AND ENDED AND OF THE
PERSONS PRESENT.
* * * * *
"III ... .
* * * * *
"(B) IT IS ONLY IN EXCEPTIONAL CASES THAT QUESTIONS RELATING TO THE
OFFENSE SHOULD BE PUT TO THE ACCUSED PERSON AFTER HE HAS BEEN CHARGED
OR INFORMED THAT HE MAY BE PROSECUTED.
* * * * *
"IV. ALL WRITTEN STATEMENTS MADE AFTER CAUTION SHALL BE TAKEN IN THE
FOLLOWING MANNER:
"(A) IF A PERSON SAYS THAT HE WANTS TO MAKE A STATEMENT HE SHALL BE
TOLD THAT IT IS INTENDED TO MAKE A WRITTEN RECORD OF WHAT HE SAYS.
"HE SHALL ALWAYS BE ASKED WHETHER HE WISHES TO WRITE DOWN HIMSELF
WHAT HE WANTS TO SAY; IF HE SAYS THAT HE CANNOT WRITE OR THAT HE WOULD
LIKE SOMEONE TO WRITE IT FOR HIM, A POLICE OFFICER MAY OFFER TO WRITE
THE STATEMENT FOR HIM ... .
"(B) ANY PERSON WRITING HIS OWN STATEMENT SHALL BE ALLOWED TO DO SO
WITHOUT ANY PROMPTING AS DISTINCT FROM INDICATING TO HIM WHAT MATTERS
ARE MATERIAL.
* * * * *
"(D) WHENEVER A POLICE OFFICER WRITES THE STATEMENT, HE SHALL TAKE
DOWN THE EXACT WORDS SPOKEN BY THE PERSON MAKING THE STATEMENT, WITHOUT
PUTTING ANY QUESTIONS OTHER THAN SUCH AS MAY BE NEEDED TO MAKE THE
STATEMENT COHERENT, INTELLIGIBLE AND RELEVANT TO THE MATERIAL MATTERS:
HE SHALL NOT PROMPT HIM."
THE PRIOR RULES APPEAR IN DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND
137-141 (1958).
DESPITE SUGGESTIONS OF SOME LAXITY IN ENFORCEMENT OF THE RULES AND
DESPITE THE FACT SOME DISCRETION AS TO ADMISSIBILITY IS INVESTED IN THE
TRIAL JUDGE, THE RULES ARE A SIGNIFICANT INFLUENCE IN THE ENGLISH
CRIMINAL LAW ENFORCEMENT SYSTEM. SEE, E.G., (1964) CRIM. L. REV., AT
182; AND ARTICLES COLLECTED IN (1960) CRIM. L. REV., AT 298-356.
FN58 THE INTRODUCTION TO THE JUDGES' RULES STATES IN PART:
"THESE RULES DO NOT AFFECT THE PRINCIPLES:
* * * * *
"(C) THAT EVERY PERSON AT ANY STAGE OF AN INVESTIGATION SHOULD BE
ABLE TO COMMUNICATE AND TO CONSULT PRIVATELY WITH A SOLICITOR. THIS IS
SO EVEN IF HE IS IN CUSTODY PROVIDED THAT IN SUCH A CASE NO
UNREASONABLE DELAY OR HINDRANCE IS CAUSED TO THE PROCESSES OF
INVESTIGATION OR THE ADMINISTRATION OF JUSTICE BY HIS DOING SO ...
." (1964) CRIM. L. REV., AT 166-167.
FN59 AS STATED BY THE LORD JUSTICE GENERAL IN CHALMERS V. H.M.
ADVOCATE, (1954) SESS. CAS. 66, 78 (J.C.):
"THE THEORY OF OUR LAW IS THAT AT THE STAGE OF INITIAL INVESTIGATION
THE POLICE MAY QUESTION ANYONE WITH A VIEW TO ACQUIRING INFORMATION
WHICH MAY LEAD TO THE DETECTION OF THE CRIMINAL; BUT THAT, WHEN THE
STAGE HAS BEEN REACHED AT WHICH SUSPICION, OR MORE THAN SUSPICION, HAS
IN THEIR VIEW CENTRED UPON SOME PERSON AS THE LIKELY PERPETRATOR OF THE
CRIME, FURTHER INTERROGATION OF THAT PERSON BECOMES VERY DANGEROUS,
AND, IF CARRIED TOO FAR, E.G., TO THE POINT OF EXTRACTING A CONFESSION
BY WHAT AMOUNTS TO CROSS-EXAMINATION, THE EVIDENCE OF THAT CONFESSION
WILL ALMOST CERTAINLY BE EXCLUDED. ONCE THE ACCUSED HAS BEEN
APPREHENDED AND CHARGED HE HAS THE STATUTORY RIGHT TO A PRIVATE
INTERVIEW WITH A SOLICITOR AND TO BE BROUGHT BEFORE A MAGISTRATE WITH
ALL CONVENIENT SPEED SO THAT HE MAY, IF SO ADVISED, EMIT A DECLARATION
IN PRESENCE OF HIS SOLICITOR UNDER CONDITIONS WHICH SAFEGUARD HIM
AGAINST PREJUDICE."
FN60 "NO CONFESSION MADE TO A POLICE OFFICER SHALL BE PROVED AS
AGAINST A PERSON ACCUSED OF ANY OFFENSE." INDIAN EVIDENCE ACT SEC 25.
"NO CONFESSION MADE BY ANY PERSON WHILST HE IS IN THE CUSTODY OF A
POLICE OFFICER UNLESS IT BE MADE IN THE IMMEDIATE PRESENCE OF A
MAGISTRATE, SHALL BE PROVED AS AGAINST SUCH PERSON." INDIAN EVIDENCE
ACT SEC 26. SEE 1 RAMASWAMI & RAJAGOPALAN, LAW OF EVIDENCE IN INDIA
553-569 (1962). TO AVOID ANY CONTINUING EFFECT OF POLICE PRESSURE OR
INDUCEMENT, THE INDIAN SUPREME COURT HAS INVALIDATED A CONFESSION MADE
SHORTLY AFTER POLICE BROUGHT A SUSPECT BEFORE A MAGISTRATE, SUGGESTING:
"IT WOULD, WE THINK, BE REASONABLE TO INSIST UPON GIVING AN ACCUSED
PERSON AT LEAST 24 HOURS TO DECIDE WHETHER OR NOT HE SHOULD MAKE A
CONFESSION." SARWAN SINGH V. STATE OF PUNJAB, 44 ALL INDIAN REP. 1957,
SUP. CT. 637, 644.
FN61 I LEGISLATIVE ENACTMENTS OF CEYLON 211 (1958).
FN62 10 U.S.C. SEC 831(B) (1964 ED.).
FN63 UNITED STATES V. ROSE, 24 CMR 251 (1957); UNITED STATES V.
GUNNELS, 23 CMR 354 (1957).
FN64 ALTHOUGH NO CONSTITUTION EXISTED AT THE TIME CONFESSIONS WERE
EXCLUDED BY RULE OF EVIDENCE IN 1872, INDIA NOW HAS A WRITTEN
CONSTITUTION WHICH INCLUDES THE PROVISION THAT "NO PERSON ACCUSED OF
ANY OFFENCE SHALL BE COMPELLED TO BE A WITNESS AGAINST HIMSELF."
CONSTITUTION OF INDIA, ARTICLE 20(3). SEE TOPE, THE CONSTITUTION OF
INDIA, 63-67 (1960).
FN65 BRIEF FOR UNITED STATES IN NO. 761, WESTOVER V. UNITED STATES,
PP. 44-47; BRIEF FOR THE STATE OF NEW YORK AS AMICUS CURIAE, PP. 35
39. SEE ALSO BRIEF FOR THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION AS
AMICUS CURIAE, PP. 23-26.
FN66 MIRANDA WAS ALSO CONVICTED IN A SEPARATE TRIAL ON AN UNRELATED
ROBBERY CHARGE NOT PRESENTED HERE FOR REVIEW. A STATEMENT INTRODUCED
AT THAT TRIAL WAS OBTAINED FROM MIRANDA DURING THE SAME INTERROGATION
WHICH RESULTED IN THE CONFESSION INVOLVED HERE. AT THE ROBBERY TRIAL,
ONE OFFICER TESTIFIED THAT DURING THE INTERROGATION HE DID NOT TELL
MIRANDA THAT ANYTHING HE SAID WOULD BE HELD AGAINST HIM OR THAT HE
COULD CONSULT WITH AN ATTORNEY. THE OTHER OFFICER STATED THAT THEY HAD
BOTH TOLD MIRANDA THAT ANYTHING HE SAID WOULD BE USED AGAINST HIM AND
THAT HE WAS NOT REQUIRED BY LAW TO TELL THEM ANYTHING.
FN67 ONE OF THE OFFICERS TESTIFIED THAT HE READ THIS PARAGRAPH TO
MIRANDA. APPARENTLY, HOWEVER, HE DID NOT DO SO UNTIL AFTER MIRANDA HAD
CONFESSED ORALLY.
FN68 VIGNERA THEREAFTER SUCCESSFULLY ATTACKED THE VALIDITY OF ONE OF
THE PRIOR CONVICTIONS, VIGNERA V. WILKINS, CIV. 9901 (D.C.W.D.N.Y. DEC.
31, 1961)(UNREPORTED), BUT WAS THEN RESENTENCED AS A SECOND-FELONY
OFFENDER TO THE SAME TERM OF IMPRISONMENT AS THE ORIGINAL SENTENCE. R.
31-33.
FN69 THE FAILURE OF DEFENSE COUNSEL TO OBJECT TO THE INTRODUCTION OF
THE CONFESSION AT TRIAL, NOTED BY THE COURT OF APPEALS AND EMPHASIZED
BY THE SOLICITOR GENERAL, DOES NOT PRECLUDE OUR CONSIDERATION OF THE
ISSUE. SINCE THE TRIAL WAS HELD PRIOR TO OUR DECISION IN ESCOBEDO AND,
OF COURSE, PRIOR TO OUR DECISION TODAY MAKING THE OBJECTION AVAILABLE,
THE FAILURE TO OBJECT AT TRIAL DOES NOT CONSTITUTE A WAIVER OF THE
CLAIM. SEE, E.G., UNITED STATES EX REL. ANGELET V. FAY, 333 F.2D 12,
16 (C.A.2D CIR. 1964), AFF'D, 381 U.S. 654 (1965). CF. ZIFFRIN, INC.
V. UNITED STATES, 318 U.S. 73, 78 (1943).
FN70 BECAUSE OF THIS DISPOSITION OF THE CASE, THE CALIFORNIA SUPREME
COURT DID NOT REACH THE CLAIMS THAT THE CONFESSION WAS COERCED BY
POLICE THREATS TO HOLD HIS AILING WIFE IN CUSTODY UNTIL HE CONFESSED,
THAT THERE WAS NO HEARING AS REQUIRED BY JACKSON V. DENNO, 378 U.S. 368
(1964), AND THAT THE TRIAL JUDGE GAVE AN INSTRUCTION CONDEMNED BY THE
CALIFORNIA SUPREME COURT'S DECISION IN PEOPLE V. MORSE, 60 CAL. 2D 631,
338 P.2D 33, 36 CAL. RPTR. 201 (1964).
FN71 AFTER CERTIORARI WAS GRANTED IN THIS CASE, RESPONDENT MOVED TO
DISMISS ON THE GROUND THAT THERE WAS NO FINAL JUDGMENT FROM WHICH THE
STATE COULD APPEAL SINCE THE JUDGMENT BELOW DIRECTED THAT HE BE
RETRIED. IN THE EVENT RESPONDENT WAS SUCCESSFUL IN OBTAINING AN
ACQUITTAL ON RETRIAL, HOWEVER, UNDER CALIFORNIA LAW THE STATE WOULD
HAVE NO APPEAL. SATISFIED THAT IN THESE CIRCUMSTANCES THE DECISION
BELOW CONSTITUTED A FINAL JUDGMENT UNDER 28 U.S.C. SEC 1257(3) (1964
ED.), WE DENIED THE MOTION. 383 U.S. 903.
MR. JUSTICE CLARK, DISSENTING IN NOS. 759, 760, AND 761, AND
CONCURRING IN THE RESULT IN NO. 584.
IT IS WITH REGRET THAT I FIND IT NECESSARY TO WRITE IN THESE CASES.
HOWEVER, I AM UNABLE TO JOIN THE MAJORITY BECAUSE ITS OPINION GOES TOO
FAR ON TOO LITTLE, WHILE MY DISSENTING BRETHREN DO NOT GO QUITE FAR
ENOUGH. NOR CAN I JOIN IN THE COURT'S CRITICISM OF THE PRESENT
PRACTICES OF POLICE AND INVESTIGATORY AGENCIES AS TO CUSTODIAL
INTERROGATION. THE MATERIALS IT REFERS TO AS "POLICE MANUALS" (FN1)
ARE, AS I READ THEM, MERELY WRITINGS IN THIS FIELD BY PROFESSORS AND
SOME POLICE OFFICERS. NOT ONE IS SHOWN BY THE RECORD HERE TO BE THE
OFFICIAL MANUAL OF ANY POLICE DEPARTMENT, MUCH LESS IN UNIVERSAL USE IN
CRIME DETECTION. MOREOVER, THE EXAMPLES OF POLICE BRUTALITY MENTIONED
BY THE COURT (FN2) ARE RARE EXCEPTIONS TO THE THOUSANDS OF CASES THAT
APPEAR EVERY YEAR IN THE LAW REPORTS. THE POLICE AGENCIES - ALL THE
WAY FROM MUNICIPAL AND STATE FORCES TO THE FEDERAL BUREAUS - ARE
RESPONSIBLE FOR LAW ENFORCEMENT AND PUBLIC SAFETY IN THIS COUNTRY. I
AM PROUD OF THEIR EFFORTS, WHICH IN MY VIEW ARE NOT FAIRLY
CHARACTERIZED BY THE COURT'S OPINION.
I.
THE IPSE DIXIT OF THE MAJORITY HAS NO SUPPORT IN OUR CASES. INDEED,
THE COURT ADMITS THAT "WE MIGHT NOT FIND THE DEFENDANTS' STATEMENTS
HERE TO HAVE BEEN INVOLUNTARY IN TRADITIONAL TERMS." ANTE, P. 457. IN
SHORT, THE COURT HAS ADDED MORE TO THE REQUIREMENTS THAT THE ACCUSED IS
ENTITLED TO CONSULT WITH HIS LAWYER AND THAT HE MUST BE GIVEN THE
TRADITIONAL WARNING THAT HE MAY REMAIN SILENT AND THAT ANYTHING THAT HE
SAYS MAY BE USED AGAINST HIM. ESCOBEDO V. ILLINOIS, 378 U.S. 478, 490
491 (1964). NOW, THE COURT FASHIONS A CONSTITUTIONAL RULE THAT THE
POLICE MAY ENGAGE IN NO CUSTODIAL INTERROGATION WITHOUT ADDITIONALLY
ADVISING THE ACCUSED THAT HE HAS A RIGHT UNDER THE FIFTH AMENDMENT TO
THE PRESENCE OF COUNSEL DURING INTERROGATION AND THAT, IF HE IS WITHOUT
FUNDS, COUNSEL WILL BE FURNISHED HIM. WHEN AT ANY POINT DURING AN
INTERROGATION THE ACCUSED SEEKS AFFIRMATIVELY OR IMPLIEDLY TO INVOKE
HIS RIGHTS TO SILENCE OR COUNSEL, INTERROGATION MUST BE FORGONE OR
POSTPONED. THE COURT FURTHER HOLDS THAT FAILURE TO FOLLOW THE NEW
PROCEDURES REQUIRES INEXORABLY THE EXCLUSION OF ANY STATEMENT BY THE
ACCUSED, AS WELL AS THE FRUITS THEREOF. SUCH A STRICT CONSTITUTIONAL
SPECIFIC INSERTED AT THE NERVE CENTER OF CRIME DETECTION MAY WELL KILL
THE PATIENT. (FN3) SINCE THERE IS AT THIS TIME A PAUCITY OF
INFORMATION AND AN ALMOST TOTAL LACK OF EMPIRICAL KNOWLEDGE ON THE
PRACTICAL OPERATION OF REQUIREMENTS TRULY COMPARABLE TO THOSE ANNOUNCED
BY THE MAJORITY, I WOULD BE MORE RESTRAINED LEST WE GO TOO FAR TOO
FAST.
II.
CUSTODIAL INTERROGATION HAS LONG BEEN RECOGNIZED AS "UNDOUBTEDLY AN
ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT." HAYNES V. WASHINGTON,
373 U.S. 503, 515 (1963). RECOGNITION OF THIS FACT SHOULD PUT US ON
GUARD AGAINST THE PROMULGATION OF DOCTRINAIRE RULES. ESPECIALLY IS
THIS TRUE WHERE THE COURT FINDS THAT "THE CONSTITUTION HAS PRESCRIBED"
ITS HOLDINGS AND WHERE THE LIGHT OF OUR PAST CASES, FROM HOPT V. UTAH,
110 U.S. 574, (1884), DOWN TO HAYNES V. WASHINGTON, SUPRA, IS TO THE
CONTRARY. INDEED, EVEN IN ESCOBEDO THE COURT NEVER HINTED THAT AN
AFFIRMATIVE "WAIVER" WAS A PREREQUISITE TO QUESTIONING; THAT THE BURDEN
OF PROOF AS TO WAIVER WAS ON THE PROSECUTION; THAT THE PRESENCE OF
COUNSEL - ABSENT A WAIVER - DURING INTERROGATION WAS REQUIRED; THAT A
WAIVER CAN BE WITHDRAWN AT THE WILL OF THE ACCUSED; THAT COUNSEL MUST
BE FURNISHED DURING AN ACCUSATORY STAGE TO THOSE UNABLE TO PAY; NOR
THAT ADMISSIONS AND EXCULPATORY STATEMENTS ARE "CONFESSIONS." TO
REQUIRE ALL THOSE THINGS AT ONE GULP SHOULD CAUSE THE COURT TO CHOKE
OVER MORE CASES THAN CROOKER V. CALIFORNIA, 357 U.S. 433 (1958), AND
CICENIA V. LAGAY, 357 U.S. 504 (1958), WHICH IT EXPRESSLY OVERRULES
TODAY.
THE RULE PRIOR TO TODAY - AS MR. JUSTICE GOLDBERG, THE AUTHOR OF THE
COURT'S OPINION IN ESCOBEDO, STATED IT IN HAYNES V. WASHINGTON -
DEPENDED UPON "A TOTALITY OF CIRCUMSTANCES EVIDENCING AN INVOLUNTARY
... ADMISSION OF GUILT." 373 U.S., AT 514. AND HE CONCLUDED: "OF
COURSE, DETECTION AND SOLUTION OF CRIME IS, AT BEST, A DIFFICULT AND
ARDUOUS TASK REQUIRING DETERMINATION AND PERSISTENCE ON THE PART OF ALL
RESPONSIBLE OFFICERS CHARGED WITH THE DUTY OF LAW ENFORCEMENT. AND,
CERTAINLY, WE DO NOT MEAN TO SUGGEST THAT ALL INTERROGATION OF
WITNESSES AND SUSPECTS IS IMPERMISSIBLE. SUCH QUESTIONING IS
UNDOUBTEDLY AN ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT. THE LINE
BETWEEN PROPER AND PERMISSIBLE POLICE CONDUCT AND TECHNIQUES AND
METHODS OFFENSIVE TO DUE PROCESS IS, AT BEST, A DIFFICULT ONE TO DRAW,
PARTICULARLY IN CASES SUCH AS THIS WHERE IT IS NECESSARY TO MAKE FINE
JUDGMENTS AS TO THE EFFECT OF PSYCHOLOGICALLY COERCIVE PRESSURES AND
INDUCEMENTS ON THE MIND AND WILL OF AN ACCUSED ... . WE ARE HERE
IMPELLED TO THE CONCLUSION, FROM ALL OF THE FACTS PRESENTED, THAT THE
BOUNDS OF DUE PROCESS HAVE BEEN EXCEEDED." ID., AT 514-515.
III.
I WOULD CONTINUE TO FOLLOW THAT RULE. UNDER THE "TOTALITY OF
CIRCUMSTANCES" RULE OF WHICH MY BROTHER GOLDBERG SPOKE IN HAYNES, I
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.
RATHER THAN EMPLOYING THE ARBITRARY FIFTH AMENDMENT RULE (FN4) WHICH
THE COURT LAYS DOWN I WOULD FOLLOW THE MORE PLIABLE DICTATES OF THE DUE
PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS WHICH WE ARE
ACCUSTOMED TO ADMINISTERING AND WHICH WE KNOW FROM OUR CASES ARE
EFFECTIVE INSTRUMENTS IN PROTECTING PERSONS IN POLICE CUSTODY. IN THIS
WAY WE WOULD NOT BE ACTING IN THE DARK NOR IN ONE FULL SWEEP CHANGING
THE TRADITIONAL RULES OF CUSTODIAL INTERROGATION WHICH THIS COURT HAS
FOR SO LONG RECOGNIZED AS A JUSTIFIABLE AND PROPER TOOL IN BALANCING
INDIVIDUAL RIGHTS AGAINST THE RIGHTS OF SOCIETY. IT WILL BE SOON
ENOUGH TO GO FURTHER WHEN WE ARE ABLE TO APPRAISE WITH SOMEWHAT BETTER
ACCURACY THE EFFECT OF SUCH A HOLDING.
I WOULD AFFIRM THE CONVICTIONS IN MIRANDA V. ARIZONA, NO. 759;
VIGNERA V. NEW YORK, NO. 760; AND WESTOVER V. UNITED STATES, NO. 761.
IN EACH OF THOSE CASES I FIND FROM THE CIRCUMSTANCES NO WARRANT FOR
REVERSAL. IN CALIFORNIA V. STEWART, NO. 584, I WOULD DISMISS THE WRIT
OF CERTIORARI FOR WANT OF A FINAL JUDGMENT, 28 U.S.C. SEC. 1257(3)
(1964 ED.); BUT IF THE MERITS ARE TO BE REACHED I WOULD AFFIRM ON THE
GROUND THAT THE STATE FAILED TO FULFILL ITS BURDEN, IN THE ABSENCE OF A
SHOWING THAT APPROPRIATE WARNINGS WERE GIVEN, OF PROVING A WAIVER OR A
TOTALITY OF CIRCUMSTANCES SHOWING VOLUNTARINESS. SHOULD THERE BE A
RETRIAL, I WOULD LEAVE THE STATE FREE TO ATTEMPT TO PROVE THESE
ELEMENTS.
FN1 E.G., INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS
(1962); O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION (1956);
DIENSTEIN, TECHNICS FOR THE CRIME INVESTIGATOR (1952); MULBAR,
INTERROGATION (1951); KIDD, POLICE INTERROGATION (1940).
FN2 AS DEVELOPED BY MY BROTHER HARLAN, POST. PP. 506-514, SUCH
CASES, WITH THE EXCEPTION OF THE LONG-DISCREDITED DECISION IN BRAM V.
UNITED STATES, 168 U.S. 532 (1897), WERE ADEQUATELY TREATED IN TERMS OF
DUE PROCESS.
FN3 THE COURT POINTS TO ENGLAND, SCOTLAND, CEYLON AND INDIA AS
HAVING EQUALLY RIGID RULES. AS MY BROTHER HARLAN POINTS OUT, POST, PP.
521-523, THE COURT IS MISTAKEN IN THIS REGARD, FOR IT OVERLOOKS
COUNTERBALANCING PROSECUTORIAL ADVANTAGES. MOREOVER, THE REQUIREMENTS
OF THE FEDERAL BUREAU OF INVESTIGATION DO NOT APPEAR FROM THE SOLICITOR
GENERAL'S LETTER, ANTE, PP. 484-486, TO BE AS STRICT AS THOSE IMPOSED
TODAY IN AT LEAST TWO RESPECTS: (1) THE OFFER OF COUNSEL IS
ARTICULATED ONLY AS "A RIGHT TO COUNSEL"; NOTHING IS SAID ABOUT A RIGHT
TO HAVE COUNSEL PRESENT AT THE CUSTODIAL INTERROGATION. (SEE ALSO
EXAMPLES CITED BY THE SOLICITOR GENERAL, WESTOVER V. UNITED STATES, 342
F.2D 684, 685 (1965)("RIGHT TO CONSULT COUNSEL"); JACKSON V. UNITED
STATES, 337 F.2D 136, 138 (1964)(ACCUSED "ENTITLED TO AN ATTORNEY").)
INDEED, THE PRACTICE IS THAT WHENEVER THE SUSPECT "DECIDES THAT HE
WISHES TO CONSULT WITH COUNSEL BEFORE MAKING A STATEMENT, THE INTERVIEW
IS TERMINATED AT THAT POINT ... . WHEN COUNSEL APPEARS IN PERSON, HE
IS PERMITTED TO CONFER WITH HIS CLIENT IN PRIVATE." THIS CLEARLY
INDICATES THAT THE FBI DOES NOT WARN THAT COUNSEL MAY BE PRESENT DURING
CUSTODIAL INTERROGATION. (2) THE SOLICITOR GENERAL'S LETTER STATES:
"THOSE WHO HAVE BEEN ARRESTED FOR AN OFFENSE UNDER FBI JURISDICTION, OR
WHOSE ARREST IS CONTEMPLATED FOLLOWING THE INTERVIEW, ARE ADVISED OF A
RIGHT TO FREE COUNSEL IF THEY ARE UNABLE TO PAY, AND THE AVAILABILITY
OF SUCH COUNSEL FROM THE JUDGE." SO PHRASED, THIS WARNING DOES NOT
INDICATE THAT THE AGENT WILL SECURE COUNSEL. RATHER, THE STATEMENT MAY
WELL BE INTERPRETED BY THE SUSPECT TO MEAN THAT THE BURDEN IS PLACED
UPON HIMSELF AND THAT HE MAY HAVE COUNSEL APPOINTED ONLY WHEN BROUGHT
BEFORE THE JUDGE OR AT TRIAL - BUT NOT AT CUSTODIAL INTERROGATION. AS
I VIEW THE FBI PRACTICE, IT IS NOT AS BROAD AS THE ONE LAID DOWN TODAY
BY THE COURT.
FN4 IN MY VIEW THERE IS "NO SIGNIFICANT SUPPORT" IN OUR CASES FOR
THE HOLDING OF THE COURT TODAY THAT THE FIFTH AMENDMENT PRIVILEGE, IN
EFFECT, FORBIDS CUSTODIAL INTERROGATION. FOR A DISCUSSION OF THIS
POINT SEE THE DISSENTING OPINION OF MY BROTHER WHITE, POST, PP. 526
531.
MR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART AND MR. JUSTICE WHITE
JOIN, DISSENTING.
I BELIEVE THE DECISION OF THE COURT REPRESENTS POOR CONSTITUTIONAL
LAW AND ENTAILS HARMFUL CONSEQUENCES FOR THE COUNTRY AT LARGE. HOW
SERIOUS THESE CONSEQUENCES MAY PROVE TO BE ONLY TIME CAN TELL. BUT THE
BASIC FLAWS IN THE COURT'S JUSTIFICATION SEEM TO ME READILY APPARENT
NOW ONCE ALL SIDES OF THE PROBLEM ARE CONSIDERED.
I. INTRODUCTION.
AT THE OUTSET, IT IS WELL TO NOTE EXACTLY WHAT IS REQUIRED BY THE
COURT'S NEW CONSTITUTIONAL CODE OF RULES FOR CONFESSIONS. THE FOREMOST
REQUIREMENT, UPON WHICH LATER ADMISSIBILITY OF A CONFESSION DEPENDS, IS
THAT A FOURFOLD WARNING BE GIVEN TO A PERSON IN CUSTODY BEFORE HE IS
QUESTIONED, NAMELY, THAT HE HAS A RIGHT TO REMAIN SILENT, THAT ANYTHING
HE SAYS MAY BE USED AGAINST HIM, THAT HE HAS A RIGHT TO HAVE PRESENT AN
ATTORNEY DURING THE QUESTIONING, AND THAT IF INDIGENT HE HAS A RIGHT TO
A LAWYER WITHOUT CHARGE. TO FORGO THESE RIGHTS, SOME AFFIRMATIVE
STATEMENT OF REJECTION IS SEEMINGLY REQUIRED, AND THREATS, TRICKS, OR
CAJOLINGS TO OBTAIN THIS WAIVER ARE FORBIDDEN. IF BEFORE OR DURING
QUESTIONING THE SUSPECT SEEKS TO INVOKE HIS RIGHT TO REMAIN SILENT,
INTERROGATION MUST BE FORGONE OR CEASE, A REQUEST FOR COUNSEL BRINGS
ABOUT THE SAME RESULT UNTIL A LAWYER IS PROCURED. FINALLY, THERE ARE A
MISCELLANY OF MINOR DIRECTIVES, FOR EXAMPLE, THE BURDEN OF PROOF OF
WAIVER IS ON THE STATE, ADMISSIONS AND EXCULPATORY STATEMENTS ARE
TREATED JUST LIKE CONFESSIONS, WITHDRAWAL OF A WAIVER IS ALWAYS
PERMITTED, AND SO FORTH. (FN1)
WHILE THE FINE POINTS OF THIS SCHEME ARE FAR LESS CLEAR THAN THE
COURT ADMITS, THE TENOR IS QUITE APPARENT. THE NEW RULES ARE NOT
DESIGNED TO GUARD AGAINST POLICE BRUTALITY OR OTHER UNMISTAKABLY BANNED
FORMS OF COERCION. THOSE WHO USE THIRD-DEGREE TACTICS AND DENY THEM IN
COURT ARE EQUALLY ABLE AND DESTINED TO LIE AS SKILLFULLY ABOUT WARNINGS
AND WAIVERS. RATHER, THE THRUST OF THE NEW RULES IS TO NEGATE ALL
PRESSURES, TO REINFORCE THE NERVOUS OR IGNORANT SUSPECT, AND ULTIMATELY
TO DISCOURAGE ANY CONFESSION AT ALL. THE AIM IN SHORT IS TOWARD
"VOLUNTARINESS" IN A UTOPIAN SENSE, OR TO VIEW IT FROM A DIFFERENT
ANGLE, VOLUNTARINESS WITH A VENGEANCE.
TO INCORPORATE THIS NOTION INTO THE CONSTITUTION REQUIRES A STRAINED
READING OF HISTORY AND PRECEDENT AND A DISREGARD OF THE VERY PRAGMATIC
CONCERNS THAT ALONE MAY ON OCCASION JUSTIFY SUCH STRAINS. I BELIEVE
THAT REASONED EXAMINATION WILL SHOW THAT THE DUE PROCESS CLAUSES
PROVIDE AN ADEQUATE TOOL FOR COPING WITH CONFESSIONS AND THAT, EVEN IF
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION BE INVOKED,
ITS PRECEDENTS TAKEN AS A WHOLE DO NOT SUSTAIN THE PRESENT RULES.
VIEWED AS A CHOICE BASED ON PURE POLICY, THESE NEW RULES PROVE TO BE A
HIGHLY DEBATABLE, IF NOT ONE-SIDED, APPRAISAL OF THE COMPETING
INTERESTS, IMPOSED OVER WIDESPREAD OBJECTION, AT THE VERY TIME WHEN
JUDICIAL RESTRAINT IS MOST CALLED FOR BY THE CIRCUMSTANCES.
II. CONSTITUTIONAL PREMISES.
IT IS MOST FITTING TO BEGIN AN INQUIRY INTO THE CONSTITUTIONAL
PRECEDENTS BY SURVEYING THE LIMITS ON CONFESSIONS THE COURT HAS EVOLVED
UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. THIS IS SO
BECAUSE THESE CASES SHOW THAT THERE EXISTS A WORKABLE AND EFFECTIVE
MEANS OF DEALING WITH CONFESSIONS IN A JUDICIAL MANNER; BECAUSE THE
CASES ARE THE BASELINE FROM WHICH THE COURT NOW DEPARTS AND SO SERVE TO
MEASURE THE ACTUAL AS OPPOSED TO THE PROFESSED DISTANCE IT TRAVELS; AND
BECAUSE EXAMINATION OF THEM HELPS REVEAL HOW THE COURT HAS COASTED INTO
ITS PRESENT POSITION.
THE EARLIEST CONFESSION CASES IN THIS COURT EMERGED FROM FEDERAL
PROSECUTIONS AND WERE SETTLED ON A NONCONSTITUTIONAL BASIS, THE COURT
ADOPTING THE COMMON-LAW RULE THAT THE ABSENCE OF INDUCEMENTS, PROMISES,
AND THREATS MADE A CONFESSION VOLUNTARY AND ADMISSIBLE. HOPT V. UTAH,
110 U.S. 574; PIERCE V. UNITED STATES, 160 U.S. 355. WHILE A LATER
CASE SAID THE FIFTH AMENDMENT PRIVILEGE CONTROLLED ADMISSIBILITY, THIS
PROPOSITION WAS NOT ITSELF DEVELOPED IN SUBSEQUENT DECISIONS. (FN2)
THE COURT DID, HOWEVER, HEIGHTEN THE TEST OF ADMISSIBILITY IN FEDERAL
TRIALS TO ONE OF VOLUNTARINESS "IN FACT," WAN V. UNITED STATES, 266
U.S. 1, 14 (QUOTED, ANTE, P. 462), AND THEN BY AND LARGE LEFT FEDERAL
JUDGES TO APPLY THE SAME STANDARDS THE COURT BEGAN TO DERIVE IN A
STRING OF STATE COURT CASES.
THIS NEW LINE OF DECISIONS, TESTING ADMISSIBILITY BY THE DUE PROCESS
CLAUSE, BEGAN IN 1936 WITH BROWN V. MISSISSIPPI, 297 U.S. 278, AND MUST
NOW EMBRACE SOMEWHAT MORE THAN 30 FULL OPINIONS OF THE COURT. (FN3)
WHILE THE VOLUNTARINESS RUBRIC WAS REPEATED IN MANY INSTANCES, E.G.,
LYONS V. OKLAHOMA, 322 U.S. 596, THE COURT NEVER PINNED IT DOWN TO A
SINGLE MEANING BUT ON THE CONTRARY INFUSED IT WITH A NUMBER OF
DIFFERENT VALUES. TO TRAVEL QUICKLY OVER THE MAIN THEMES, THERE WAS AN
INITIAL EMPHASIS ON RELIABILITY, E.G., WARD V. TEXAS, 316 U.S. 547,
SUPPLEMENTED BY CONCERN OVER THE LEGALITY AND FAIRNESS OF THE POLICE
PRACTICES, E.G., ASHCRAFT V. TENNESSEE, 322 U.S. 143, IN AN
"ACCUSATORIAL" SYSTEM OF LAW ENFORCEMENT, WATTS V. INDIANA, 338 U.S.
49, 54, AND EVENTUALLY BY CLOSE ATTENTION TO THE INDIVIDUAL'S STATE OF
MIND AND CAPACITY FOR EFFECTIVE CHOICE, E.G., GALLEGOS V. COLORADO, 370
U.S. 49. THE OUTCOME WAS A CONTINUING RE-EVALUATION ON THE FACTS OF
EACH CASE OF HOW MUCH PRESSURE ON THE SUSPECT WAS PERMISSIBLE. (FN4)
AMONG THE CRITERIA OFTEN TAKEN INTO ACCOUNT WERE THREATS OR IMMINENT
DANGER, E.G., PAYNE V. ARKANSAS, 356 U.S. 560, PHYSICAL DEPRIVATIONS
SUCH AS LACK OF SLEEP OR FOOD, E.G., RECK V. PATE, 367 U.S. 433,
REPEATED OR EXTENDED INTERROGATION, E.G., CHAMBERS V. FLORIDA, 309 U.S.
227, LIMITS ON ACCESS TO COUNSEL OR FRIENDS, CROOKER V. CALIFORNIA, 357
U.S. 433; CICENIA V. LAGAY, 357 U.S. 504, LENGTH AND ILLEGALITY OF
DETENTION UNDER STATE LAW, E.G., HAYNES V. WASHINGTON, 373 U.S. 503,
AND INDIVIDUAL WEAKNESS OR INCAPACITIES, LYNUMN V. ILLINOIS, 372 U.S.
528. APART FROM DIRECT PHYSICAL COERCION, HOWEVER, NO SINGLE DEFAULT
OR FIXED COMBINATION OF DEFAULTS GUARANTEED EXCLUSION, AND SYNOPSES OF
THE CASES WOULD SERVE LITTLE USE BECAUSE THE OVERALL GAUGE HAS BEEN
STEADILY CHANGING, USUALLY IN THE DIRECTION OF RESTRICTING
ADMISSIBILITY. BUT TO MARK JUST WHAT POINT HAD BEEN REACHED BEFORE THE
COURT JUMPED THE RAILS IN ESCOBEDO V. ILLINOIS, 378 U.S. 478, IT IS
WORTH CAPSULIZING THE THEN-RECENT CASE OF HAYNES V. WASHINGTON, 373
U.S. 503. THERE, HAYNES HAD BEEN HELD SOME 16 OR MORE HOURS IN
VIOLATION OF STATE LAW BEFORE SIGNING THE DISPUTED CONFESSION, HAD
RECEIVED NO WARNINGS OF ANY KIND, AND DESPITE REQUESTS HAD BEEN REFUSED
ACCESS TO HIS WIFE OR TO COUNSEL, THE POLICE INDICATING THAT ACCESS
WOULD BE ALLOWED AFTER A CONFESSION. EMPHASIZING ESPECIALLY THIS LAST
INDUCEMENT AND REJECTING SOME CONTRARY INDICIA OF VOLUNTARINESS, THE
COURT IN A 5-TO-4 DECISION HELD THE CONFESSION INADMISSIBLE.
THERE ARE SEVERAL RELEVANT LESSONS TO BE DRAWN FROM THIS
CONSTITUTIONAL HISTORY. THE FIRST IS THAT WITH OVER 25 YEARS OF
PRECEDENT THE COURT HAS DEVELOPED AN ELABORATE, SOPHISTICATED, AND
SENSITIVE APPROACH TO ADMISSIBILITY OF CONFESSIONS. IT IS "JUDICIAL"
IN ITS TREATMENT OF ONE CASE AT A TIME, SEE CULOMBE V. CONNECTICUT, 367
U.S. 568, 635 (CONCURRING OPINION OF THE CHIEF JUSTICE), FLEXIBLE IN
ITS ABILITY TO RESPOND TO THE ENDLESS MUTATIONS OF FACT PRESENTED, AND
EVER MORE FAMILIAR TO THE LOWER COURTS. OF COURSE, STRICT CERTAINTY IS
NOT OBTAINED IN THIS DEVELOPING PROCESS, BUT THIS IS OFTEN SO WITH
CONSTITUTIONAL PRINCIPLES, AND DISAGREEMENT IS USUALLY CONFINED TO THAT
BORDERLAND OF CLOSE CASES WHERE IT MATTERS LEAST.
THE SECOND POINT IS THAT IN PRACTICE AND FROM TIME TO TIME IN
PRINCIPLE, THE COURT HAS GIVEN AMPLE RECOGNITION TO SOCIETY'S INTEREST
IN SUSPECT QUESTIONING AS AN INSTRUMENT OF LAW ENFORCEMENT. CASES
COUNTENANCING QUITE SIGNIFICANT PRESSURES CAN BE CITED WITHOUT
DIFFICULTY, (FN5) AND THE LOWER COURTS MAY OFTEN HAVE BEEN YET MORE
TOLERANT. OF COURSE THE LIMITATIONS IMPOSED TODAY WERE REJECTED BY
NECESSARY IMPLICATION IN CASE AFTER CASE, THE RIGHT TO WARNINGS HAVE
BEEN EXPLICITLY REBUFFED IN THIS COURT MANY YEARS AGO. POWERS V.
UNITED STATES, 223 U.S. 303; WILSON V. UNITED STATES, 162 U.S. 613. AS
RECENTLY AS HAYNES V. WASHINGTON, 373 U.S. 503, 515, THE COURT OPENLY
ACKNOWLEDGED THAT QUESTIONING OF WITNESSES AND SUSPECTS "IS UNDOUBTEDLY
AN ESSENTIAL TOOL IN EFFECTIVE LAW ENFORCEMENT." ACCORD, CROOKER V.
CALIFORNIA, 357 U.S. 433, 441. FINALLY, THE CASES DISCLOSE THAT THE
LANGUAGE IN MANY OF THE OPINIONS OVERSTATES THE ACTUAL COURSE OF
DECISION. IT HAS BEEN SAID, FOR EXAMPLE, THAT AN ADMISSIBLE CONFESSION
MUST BE MADE BY THE SUSPECT "IN THE UNFETTERED EXERCISE OF HIS OWN
WILL," MALLOY V. HOGAN, 378 U.S. 1, 8, AND THAT "A PRISONER IS NOT 'TO
BE MADE THE DELUDED INSTRUMENT OF HIS OWN CONVICTION,'" CULOMBE V.
CONNECTICUT, 367 U.S. 568, 581 (FRANKFURTER, J., ANNOUNCING THE COURT'S
JUDGMENT AND AN OPINION). THOUGH OFTEN REPEATED, SUCH PRINCIPLES ARE
RARELY OBSERVED IN FULL MEASURE. EVEN THE WORD "VOLUNTARY" MAY BE
DEEMED SOMEWHAT MISLEADING, ESPECIALLY WHEN ONE CONSIDERS MANY OF THE
CONFESSIONS THAT HAVE BEEN BROUGHT UNDER ITS UMBRELLA. SEE, E.G.,
SUPRA, N. 5. THE TENDENCY TO OVERSTATE MAY BE LAID IN PART TO THE
FLAGRANT FACTS OFTEN BEFORE THE COURT; BUT IN ANY EVENT ONE MUST
RECOGNIZE HOW IT HAS TEMPERED ATTITUDES AND LENT SOME COLOR OF
AUTHORITY TO THE APPROACH NOW BEING TAKEN BY THE COURT.
I TURN NOW TO THE COURT'S ASSERTED RELIANCE ON THE FIFTH AMENDMENT,
AN APPROACH WHICH I FRANKLY REGARD AS A TROMPE L'OEIL. THE COURT'S
OPINION IN MY VIEW REVEALS NO ADEQUATE BASIS FOR EXTENDING THE FIFTH
AMENDMENT'S PRIVILEGE AGAINST SELF-INCRIMINATION TO THE POLICE
STATION. FAR MORE IMPORTANT, IT FAILS TO SHOW THAT THE COURT'S NEW
RULES ARE WELL SUPPORTED, LET ALONE COMPELLED, BY FIFTH AMENDMENT
PRECEDENTS. INSTEAD, THE NEW RULES ACTUALLY DERIVE FROM QUOTATION AND
ANALOGY DRAWN FROM PRECEDENTS UNDER THE SIXTH AMENDMENT, WHICH SHOULD
PROPERLY HAVE NO BEARING ON POLICE INTERROGATION.
THE COURT'S OPENING CONTENTION, THAT THE FIFTH AMENDMENT GOVERNS
POLICE STATION CONFESSIONS, IS PERHAPS NOT AN IMPERMISSIBLE EXTENSION
OF THE LAW BUT IT HAS LITTLE TO COMMEND ITSELF IN THE PRESENT
CIRCUMSTANCES. HISTORICALLY, THE PRIVILEGE AGAINST SELF-INCRIMINATION
DID NOT BEAR AT ALL ON THE USE OF EXTRA-LEGAL CONFESSIONS, FOR WHICH
DISTINCT STANDARDS EVOLVED; INDEED, "THE HISTORY OF THE TWO PRINCIPLES
IS WIDE APART, DIFFERING BY ONE HUNDRED YEARS IN ORIGIN, AND DERIVED
THROUGH SEPARATE LINES OF PRECEDENTS ... ." 8 WIGMORE, EVIDENCE SEC.
2266, AT 401 (MCNAUGHTON REV. 1961). PRACTICE UNDER THE TWO DOCTRINES
HAS ALSO DIFFERED IN A NUMBER OF IMPORTANT RESPECTS. (FN6) EVEN THOSE
WHO WOULD READILY ENLARGE THE PRIVILEGE MUST CONCEDE SOME LINGUISTIC
DIFFICULTIES SINCE THE FIFTH AMENDMENT IN TERMS PROSCRIBES ONLY
COMPELLING ANY PERSON "IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF." CF. KAMISAR, EQUAL JUSTICE IN THE GATEHOUSES AND MANSIONS OF
AMERICAN CRIMINAL PROCEDURE, IN CRIMINAL JUSTICE IN OUR TIME, 1, 25-26
(1965).
THOUGH WEIGHTY, I DO NOT SAY THESE POINTS AND SIMILAR ONES ARE
CONCLUSIVE, FOR, AS THE COURT REITERATES, THE PRIVILEGE EMBODIES BASIC
PRINCIPLES ALWAYS CAPABLE OF EXPANSION. (FN7) CERTAINLY THE PRIVILEGE
DOES REPRESENT A PROTECTIVE CONCERN FOR THE ACCUSED AND AN EMPHASIS
UPON ACCUSATORIAL RATHER THAN INQUISITORIAL VALUES IN LAW ENFORCEMENT,
ALTHOUGH THIS IS SIMILARLY TRUE OF OTHER LIMITATIONS SUCH AS THE GRAND
JURY REQUIREMENT AND THE REASONABLE DOUBT STANDARD. ACCUSATORIAL
VALUES, HOWEVER, HAVE OPENLY BEEN ABSORBED INTO THE DUE PROCESS
STANDARD GOVERNING CONFESSIONS; THIS INDEED IS WHY AT PRESENT, "THE
KINSHIP OF THE TWO RULES GOVERNING CONFESSIONS AND SELF-INCRIMINATION
IS TOO APPARENT FOR DENIAL." MCCORMICK, EVIDENCE 155 (1954). SINCE
EXTENSION OF THE GENERAL PRINCIPLE HAS ALREADY OCCURRED, TO INSIST THAT
THE PRIVILEGE APPLIES AS SUCH SERVES ONLY TO CARRY OVER INAPPOSITE
HISTORICAL DETAILS AND ENGAGING RHETORIC AND TO OBSCURE THE POLICY
CHOICES TO BE MADE IN REGULATING CONFESSIONS.
HAVING DECIDED THAT THE FIFTH AMENDMENT PRIVILEGE DOES APPLY IN THE
POLICE STATION, THE COURT REVEALS THAT THE PRIVILEGE IMPOSES MORE
EXACTING RESTRICTIONS THAN DOES THE FOURTEENTH AMENDMENT'S
VOLUNTARINESS TEST. (FN8) IT THEN EMERGES FROM A DISCUSSION OF
ESCOBEDO THAT THE FIFTH AMENDMENT REQUIRES FOR AN ADMISSIBLE CONFESSION
THAT IT BE GIVEN BY ONE DISTINCTLY AWARE OF HIS RIGHT NOT TO SPEAK AND
SHIELDED FROM "THE COMPELLING ATMOSPHERE" OF INTERROGATION. SEE ANTE,
PP. 465-466. FROM THESE KEY PREMISES, THE COURT FINALLY DEVELOPS THE
SAFEGUARDS OF WARNING, COUNSEL, AND SO FORTH. I DO NOT BELIEVE THESE
PREMISES ARE SUSTAINED BY PRECEDENTS UNDER THE FIFTH AMENDMENT. (FN9)
THE MORE IMPORTANT PREMISE IS THAT PRESSURE ON THE SUSPECT MUST BE
ELIMINATED THOUGH IT BE ONLY THE SUBTLE INFLUENCE OF THE ATMOSPHERE AND
SURROUNDINGS. THE FIFTH AMENDMENT, HOWEVER, HAS NEVER BEEN THOUGHT TO
FORBID ALL PRESSURE TO INCRIMINATE ONE'S SELF IN THE SITUATIONS COVERED
BY IT. ON THE CONTRARY, IT HAS BEEN HELD THAT FAILURE TO INCRIMINATE
ONE'S SELF CAN RESULT IN DENIAL OF REMOVAL OF ONE'S CASE FROM STATE TO
FEDERAL COURT, MARYLAND V. SOPER, 270 U.S. 9; IN REFUSAL OF A MILITARY
COMMISSION, ORLOFF V. WILLOUGHBY, 345 U.S. 83; IN DENIAL OF A DISCHARGE
IN BANKRUPTCY, KAUFMAN V. HURWITZ, 176 F.2D 210; AND IN NUMEROUS OTHER
ADVERSE CONSEQUENCES. SEE 8 WIGMORE, EVIDENCE SEC. 2272, AT 441-444,
N. 18 (MCNAUGHTON REV. 1961); MAGUIRE, EVIDENCE OF GUILT SEC. 2.062
(1959). THIS IS NOT TO SAY THAT SHORT OF JAIL OR TORTURE ANY SANCTION
IS PERMISSIBLE IN ANY CASE; POLICY AND HISTORY ALIKE MAY IMPOSE SHARP
LIMITS. SEE, E.G., GRIFFIN V. CALIFORNIA, 380 U.S. 609. HOWEVER, THE
COURT'S UNSPOKEN ASSUMPTION THAT ANY PRESSURE VIOLATES THE PRIVILEGE IS
NOT SUPPORTED BY THE PRECEDENTS AND IT HAS FAILED TO SHOW WHY THE FIFTH
AMENDMENT PROHIBITS THAT RELATIVELY MILD PRESSURE THE DUE PROCESS
CLAUSE PERMITS.
THE COURT APPEARS SIMILARLY WRONG IN THINKING THAT PRECISE KNOWLEDGE
OF ONE'S RIGHTS IS A SETTLED PREREQUISITE UNDER THE FIFTH AMENDMENT TO
THE LOSS OF ITS PROTECTIONS. A NUMBER OF LOWER FEDERAL COURT CASES
HAVE HELD THAT GRAND JURY WITNESSES NEED NOT ALWAYS BE WARNED OF THEIR
PRIVILEGE, E.G., UNITED STATES V. SCULLY, 225 F.2D 113, 116, AND
WIGMORE STATES THIS TO BE THE BETTER RULE FOR TRIAL WITNESSES. SEE 8
WIGMORE, EVIDENCE SEC. 2269 (MCNAUGHTON REV. 1961). CF. HENRY V.
MISSISSIPPI, 379 U.S. 443, 451-452 (WAIVER OF CONSTITUTIONAL RIGHTS BY
COUNSEL DESPITE DEFENDANT'S IGNORANCE HELD ALLOWABLE). NO FIFTH
AMENDMENT PRECEDENT IS CITED FOR THE COURT'S CONTRARY VIEW. THERE
MIGHT OF COURSE BE REASONS APART FROM FIFTH AMENDMENT PRECEDENT FOR
REQUIRING WARNING OR ANY OTHER SAFEGUARD ON QUESTIONING BUT THAT IS A
DIFFERENT MATTER ENTIRELY. SEE INFRA, PP. 516-517.
A CLOSING WORD MUST BE SAID ABOUT THE ASSISTANCE OF COUNSEL CLAUSE OF
THE SIXTH AMENDMENT, WHICH IS NEVER EXPRESSLY RELIED ON BY THE COURT
BUT WHOSE JUDICIAL PRECEDENTS TURN OUT TO BE LINCHPINS OF THE
CONFESSION RULES ANNOUNCED TODAY. TO SUPPORT ITS REQUIREMENT OF A
KNOWING AND INTELLIGENT WAIVER, THE COURT CITES JOHNSON V. ZERBST, 304
U.S. 458, ANTE, P. 475; APPOINTMENT OF COUNSEL FOR THE INDIGENT SUSPECT
IS TIED TO GIDEON V. WAINWRIGHT, 372 U.S. 335, AND DOUGLAS V.
CALIFORNIA, 372 U.S. 353, ANTE, P. 473; THE SILENT-RECORD DOCTRINE IS
BORROWED FROM CARNLEY V. COCHRAN, 369 U.S. 506, ANTE, P. 475, AS IS THE
RIGHT TO AN EXPRESS OFFER OF COUNSEL, ANTE, P. 471. ALL THESE CASES
IMPARTING GLOSSES TO THE SIXTH AMENDMENT CONCERNED COUNSEL AT TRIAL OR
ON APPEAL. WHILE THE COURT FINDS NO PERTINENT DIFFERENCE BETWEEN
JUDICIAL PROCEEDINGS AND POLICE INTERROGATION, I BELIEVE THE
DIFFERENCES ARE SO VAST AS TO DISQUALIFY WHOLLY THE SIXTH AMENDMENT
PRECEDENTS AS SUITABLE ANALOGIES IN THE PRESENT CASES. (FN10)
THE ONLY ATTEMPT IN THIS COURT TO CARRY THE RIGHT TO COUNSEL INTO THE
STATION HOUSE OCCURRED IN ESCOBEDO, THE COURT REPEATING SEVERAL TIMES
THAT THE STAGE WAS NO LESS "CRITICAL" THAN TRIAL ITSELF. SEE 378
U.S., 485-488. THIS IS HARDLY PERSUASIVE WHEN WE CONSIDER THAT A GRAND
JURY INQUIRY, THE FILING OF A CERTIORARI PETITION, AND CERTAINLY THE
PURCHASE OF NARCOTICS BY AN UNDERCOVER AGENT FROM A PROSPECTIVE
DEFENDANT MAY ALL BE EQUALLY "CRITICAL" YET PROVISION OF COUNSEL AND
ADVICE ON THAT SCORE HAVE NEVER BEEN THOUGHT COMPELLED BY THE
CONSTITUTION IN SUCH CASES. THE SOUND REASON WHY THIS RIGHT IS SO
FREELY EXTENDED FOR A CRIMINAL TRIAL IS THE SEVERE INJUSTICE RISKED BY
CONFRONTING AN UNTRAINED DEFENDANT WITH A RANGE OF TECHNICAL POINTS OF
LAW, EVIDENCE, AND TACTICS FAMILIAR TO THE PROSECUTOR BUT NOT TO
HIMSELF. THIS DANGER SHRINKS MARKEDLY IN THE POLICE STATION WHERE
INDEED THE LAWYER IN FULFILLING HIS PROFESSIONAL RESPONSIBILITIES OF
NECESSITY MAY BECOME AN OBSTACLE TO TRUTHFINDING. SEE INFRA, N. 12.
THE COURT'S SUMMARY CITATION OF THE SIXTH AMENDMENT CASES HERE SEEMS TO
ME BEST DESCRIBED AS "THE DOMINO METHOD OF CONSTITUTIONAL ADJUDICATION
... WHEREIN EVERY EXPLANATORY STATEMENT IN A PREVIOUS OPINION IS MADE
THE BASIS FOR EXTENSION ... WHEREIN EVERY EXPLANATORY STATEMENT IN A
PREVIOUS OPINION IS MADE THE
III. POLICY CONSIDERATIONS.
EXAMINED AS AN EXPRESSION OF PUBLIC POLICY, THE COURT'S NEW REGIME
PROVES SO DUBIOUS THAT THERE CAN BE NO DUE COMPENSATION FOR ITS
WEAKNESS IN CONSTITUTIONAL LAW. THE FOREGOING DISCUSSION HAS SHOWN, I
THINK, HOW MISTAKEN IS THE COURT IN IMPLYING THAT THE CONSTITUTION HAS
STRUCK THE BALANCE IN FAVOR OF THE APPROACH THE COURT TAKES. ANTE, P.
479. RATHER, PRECEDENT REVEALS THAT THE FOURTEENTH AMENDMENT IN
PRACTICE HAS BEEN CONSTRUED TO STRIKE A DIFFERENT BALANCE, THAT THE
FIFTH AMENDMENT GIVES THE COURT LITTLE SOLID SUPPORT IN THIS CONTEXT,
AND THAT THE SIXTH AMENDMENT SHOULD HAVE NO BEARING AT ALL. LEGAL
HISTORY HAS BEEN STRETCHED BEFORE TO SATISFY DEEP NEEDS OF SOCIETY. IN
THIS INSTANCE, HOWEVER, THE COURT HAS NOT AND CANNOT MAKE THE POWERFUL
SHOWING THAT ITS NEW RULES ARE PLAINLY DESIRABLE IN THE CONTEXT OF OUR
SOCIETY, SOMETHING WHICH IS SURELY DEMANDED BEFORE THOSE RULES ARE
ENGRAFTED ONTO THE CONSTITUTION AND IMPOSED ON EVERY STATE AND COUNTY
IN THE LAND.
WITHOUT AT ALL SUBSCRIBING TO THE GENERALLY BLACK PICTURE OF POLICE
CONDUCT PAINTED BY THE COURT, I THINK IT MUST BE FRANKLY RECOGNIZED AT
THE OUTSET THAT POLICE QUESTIONING ALLOWABLE UNDER DUE PROCESS
PRECEDENTS MAY INHERENTLY ENTAIL SOME PRESSURE ON THE SUSPECT AND MAY
SEEK ADVANTAGE IN HIS IGNORANCE OR WEAKNESSES. THE ATMOSPHERE AND
QUESTIONING TECHNIQUES, PROPER AND FAIR THOUGH THEY BE, CAN IN
THEMSELVES EXERT A TUG ON THE SUSPECT TO CONFESS, AND IN THIS LIGHT "TO
SPEAK OF ANY CONFESSIONS OF CRIME MADE AFTER ARREST AS BEING
'VOLUNTARY' OR 'UNCOERCED' IS SOMEWHAT INACCURATE, ALTHOUGH
TRADITIONAL. A CONFESSION IS WHOLLY AND INCONTESTABLY VOLUNTARY ONLY
IF A GUILTY PERSON GIVES HIMSELF UP TO THE LAW AND BECOMES HIS OWN
ACCUSER." ASHCRAFT V. TENNESSEE, 322 U.S. 143, 161 (JACKSON, J.,
DISSENTING). UNTIL TODAY, THE ROLE OF THE CONSTITUTION HAS BEEN ONLY
TO SIFT OUT UNDUE PRESSURE, NOT TO ASSURE SPONTANEOUS CONFESSIONS.
(FN11)
THE COURT'S NEW RULES AIM TO OFFSET THESE MINOR PRESSURES AND
DISADVANTAGES INTRINSIC TO ANY KIND OF POLICE INTERROGATION. THE RULES
DO NOT SERVE DUE PROCESS INTERESTS IN PREVENTING BLATANT COERCION
SINCE, AS I NOTED EARLIER, THEY DO NOTHING TO CONTAIN THE POLICEMAN WHO
IS PREPARED TO LIE FROM THE START. THE RULES WORK FOR RELIABILITY IN
CONFESSIONS ALMOST ONLY IN THE PICKWICKIAN SENSE THAT THEY CAN PREVENT
SOME FROM BEING GIVEN AT ALL. (FN12) IN SHORT, THE BENEFIT OF THIS
NEW REGIME IS SIMPLY TO LESSEN OR WIPE OUT THE INHERENT COMPULSION AND
INEQUALITIES TO WHICH THE COURT DEVOTES SOME NINE PAGES OF
DESCRIPTION. ANTE, PP. 448-456.
WHAT THE COURT LARGELY IGNORES IS THAT ITS RULES IMPAIR, IF THEY WILL
NOT EVENTUALLY SERVE WHOLLY TO FRUSTRATE, AN INSTRUMENT OF LAW
ENFORCEMENT THAT HAS LONG AND QUITE REASONABLY BEEN THOUGHT WORTH THE
PRICE PAID FOR IT. (FN13) THERE CAN BE LITTLE DOUBT THAT THE COURT'S
NEW CODE WOULD MARKEDLY DECREASE THE NUMBER OF CONFESSIONS. TO WARN
THE SUSPECT THAT HE MAY REMAIN SILENT AND REMIND HIM THAT HIS
CONFESSION MAY BE USED IN COURT ARE MINOR OBSTRUCTIONS. TO REQUIRE
ALSO AN EXPRESS WAIVER BY THE SUSPECT AND AN END TO QUESTIONING
WHENEVER HE DEMURS MUST HEAVILY HANDICAP QUESTIONING. AND TO SUGGEST
OR PROVIDE COUNSEL FOR THE SUSPECT SIMPLY INVITES THE END OF THE
INTERROGATION. SEE, SUPRA, N. 12.
HOW MUCH HARM THIS DECISION WILL INFLICT ON LAW ENFORCEMENT CANNOT
FAIRLY BE PREDICTED WITH ACCURACY. EVIDENCE ON THE ROLE OF CONFESSIONS
IS NOTORIOUSLY INCOMPLETE, SEE DEVELOPMENTS, SUPRA, N. 2, AT 941-944,
AND LITTLE IS ADDED BY THE COURT'S REFERENCE TO THE FBI EXPERIENCE AND
THE RESOURCES BELIEVED WASTED IN INTERROGATION. SEE INFRA, N. 19, AND
TEXT. WE DO KNOW THAT SOME CRIMES CANNOT BE SOLVED WITHOUT
CONFESSIONS, THAT AMPLE EXPERT TESTIMONY ATTESTS TO THEIR IMPORTANCE IN
CRIME CONTROL, (FN14) AND THAT THE COURT IS TAKING A REAL RISK WITH
SOCIETY'S WELFARE IN IMPOSING ITS NEW REGIME ON THE COUNTRY. THE
SOCIAL COSTS OF CRIME ARE TOO GREAT TO CALL THE NEW RULES ANYTHING BUT
A HAZARDOUS EXPERIMENTATION.
WHILE PASSING OVER THE COSTS AND RISKS OF ITS EXPERIMENT, THE COURT
PORTRAYS THE EVILS OF NORMAL POLICE QUESTIONING IN TERMS WHICH I THINK
ARE EXAGGERATED. ALBEIT STRINGENTLY CONFINED BY THE DUE PROCESS
STANDARDS INTERROGATION IS NO DOUBT OFTEN INCONVENIENT AND UNPLEASANT
FOR THE SUSPECT. HOWEVER, IT IS NO LESS SO FOR A MAN TO BE ARRESTED
AND JAILED, TO HAVE HIS HOUSE SEARCHED, OR TO STAND TRIAL IN COURT, YET
ALL THIS MAY PROPERLY HAPPEN TO THE MOST INNOCENT GIVEN PROBABLE CAUSE,
A WARRANT, OR AN INDICTMENT. SOCIETY HAS ALWAYS PAID A STIFF PRICE FOR
LAW AND ORDER, AND PEACEFUL INTERROGATION IS NOT ONE OF THE DARK
MOMENTS OF THE LAW. THIS BRIEF STATEMENT OF THE COMPETING
CONSIDERATIONS SEEMS TO ME AMPLE PROOF THAT THE COURT'S PREFERENCE IS
HIGHLY DEBATABLE AT BEST AND THEREFORE NOT TO BE READ INTO THE
CONSTITUTION. HOWEVER, IT MAY MAKE THE ANALYSIS MORE GRAPHIC TO
CONSIDER THE ACTUAL FACTS OF ONE OF THE FOUR CASES REVERSED BY THE
COURT. MIRANDA V. ARIZONA SERVES BEST, BEING NEITHER THE HARDEST NOR
THE EASIEST OF THE FOUR UNDER THE COURT'S STANDARDS. (FN15)
ON MARCH 3, 1963, AN 18-YEAR-OLD GIRL WAS KIDNAPPED AND FORCIBLY
RAPED NEAR PHOENIX, ARIZONA. TEN DAYS LATER, ON THE MORNING OF MARCH
13, PETITIONER MIRANDA WAS ARRESTED AND TAKEN TO THE POLICE STATION.
AT THIS TIME MIRANDA WAS 23 YEARS OLD, INDIGENT, AND EDUCATED TO THE
EXTENT OF COMPLETING HALF THE NINTH GRADE. HE HAD "AN EMOTIONAL
ILLNESS" OF THE SCHIZOPHRENIC TYPE, ACCORDING TO THE DOCTOR WHO
EVENTUALLY EXAMINED HIM; THE DOCTOR'S REPORT ALSO STATED THAT MIRANDA
WAS "ALERT AND ORIENTED AS TO TIME, PLACE, AND PERSON," INTELLIGENT
WITHIN NORMAL LIMITS, COMPETENT TO STAND TRIAL, AND SANE WITHIN THE
LEGAL DEFINITION. AT THE POLICE STATION, THE VICTIM PICKED MIRANDA OUT
OF A LINEUP, AND TWO OFFICERS THEN TOOK HIM INTO A SEPARATE ROOM TO
INTERROGATE HIM, STARTING ABOUT 11:30 A.M. THOUGH AT FIRST DENYING HIS
GUILT, WITHIN A SHORT TIME MIRANDA GAVE A DETAILED ORAL CONFESSION AND
THEN WROTE OUT IN HIS OWN HAND AND SIGNED A BRIEF STATEMENT ADMITTING
AND DESCRIBING THE CRIME. ALL THIS WAS ACCOMPLISHED IN TWO HOURS OR
LESS WITHOUT ANY FORCE, THREATS OR PROMISES AND - I WILL ASSUME THIS
THOUGH THE RECORD IS UNCERTAIN, ANTE, 491-492 AND NN. 66-67 - WITHOUT
ANY EFFECTIVE WARNINGS AT ALL.
MIRANDA'S ORAL AND WRITTEN CONFESSIONS ARE NOW HELD INADMISSIBLE
UNDER THE COURT'S NEW RULES. ONE IS ENTITLED TO FEEL ASTONISHED THAT
THE CONSTITUTION CAN BE READ TO PRODUCE THIS RESULT. THESE CONFESSIONS
WERE OBTAINED DURING BRIEF, DAYTIME QUESTIONING CONDUCTED BY TWO
OFFICERS AND UNMARKED BY ANY OF THE TRADITIONAL INDICIA OF COERCION.
THEY ASSURED A CONVICTION FOR A BRUTAL AND UNSETTLING CRIME, FOR WHICH
THE POLICE HAD AND QUITE POSSIBLY COULD OBTAIN LITTLE EVIDENCE OTHER
THAN THE VICTIM'S IDENTIFICATIONS, EVIDENCE WHICH IS FREQUENTLY
UNRELIABLE. THERE WAS, IN SUM, A LEGITIMATE PURPOSE, NO PERCEPTIBLE
UNFAIRNESS, AND CERTAINLY LITTLE RISK OF INJUSTICE IN THE
INTERROGATION. YET THE RESULTING CONFESSIONS AND THE RESPONSIBLE
COURSE OF POLICE PRACTICE THEY REPRESENT, ARE TO BE SACRIFICED TO THE
COURT'S OWN FINESPUN CONCEPTION OF FAIRNESS WHICH I SERIOUSLY DOUBT IS
SHARED BY MANY THINKING CITIZENS IN THIS COUNTRY. (FN16)
THE TENOR OF JUDICIAL OPINION ALSO FALLS WELL SHORT OF SUPPORTING THE
COURT'S NEW APPROACH. ALTHOUGH ESCOBEDO HAS WIDELY BEEN INTERPRETED AS
AN OPEN INVITATION TO LOWER COURTS TO REWRITE THE LAW OF CONFESSIONS, A
SIGNIFICANT HEAVY MAJORITY OF THE STATE AND FEDERAL DECISIONS IN POINT
HAVE SOUGHT QUITE NARROW INTERPRETATIONS. (FN17) OF THE COURTS THAT
ACCEPTED THE INVITATION, IT IS HARD TO KNOW HOW MANY HAVE FELT
COMPELLED BY THEIR BEST GUESS AS TO THIS COURT'S LIKELY CONSTRUCTION;
BUT NONE OF THE STATE DECISIONS SAW FIT TO RELY ON THE STATE PRIVILEGE
AGAINST SELF-INCRIMINATION, AND NO DECISION AT ALL HAS GONE AS FAR AS
THIS COURT GOES TODAY. (FN18)
IT IS ALSO INSTRUCTIVE TO COMPARE THE ATTITUDE IN THIS CASE OF THOSE
RESPONSIBLE FOR LAW ENFORCEMENT WITH THE OFFICIAL VIEWS THAT EXISTED
WHEN THE COURT UNDERTOOK THREE MAJOR REVISIONS OF PROSECUTORIAL
PRACTICE PRIOR TO THIS CASE, JOHNSON V. ZERBST, 304 U.S. 458, MAPP V.
OHIO, 367 U.S. 643, AND GIDEON V. WAINWRIGHT, 372 U.S. 335. IN
JOHNSON, WHICH ESTABLISHED THAT APPOINTED COUNSEL MUST BE OFFERED THE
INDIGENT IN FEDERAL CRIMINAL TRIALS, THE FEDERAL GOVERNMENT ALL BUT
CONCEDED THE BASIC ISSUE, WHICH HAD IN FACT BEEN RECENTLY FIXED AS
DEPARTMENT OF JUSTICE POLICY. SEE BEANEY, RIGHT TO COUNSEL 29-30, 36
42 (1955). IN MAPP, WHICH IMPOSED THE EXCLUSIONARY RULE ON THE STATES
FOR FOURTH AMENDMENT VIOLATIONS, MORE THAN HALF OF THE STATES HAD
THEMSELVES ALREADY ADOPTED SOME SUCH RULE. SEE 367 U.S., AT 651. IN
GIDEON, WHICH EXTENDED JOHNSON V. ZERBST TO THE STATES, AN AMICUS BRIEF
WAS FILED BY 22 STATES AND COMMONWEALTHS URGING THAT COURSE; ONLY TWO
STATES BESIDES THAT OF THE RESPONDENT CAME FORWARD TO PROTEST. SEE 372
U.S., AT 345. BY CONTRAST, IN THIS CASE NEW RESTRICTIONS ON POLICE
QUESTIONING HAVE BEEN OPPOSED BY THE UNITED STATES AND IN AN AMICUS
BRIEF SIGNED BY 27 STATES AND COMMONWEALTHS, NOT INCLUDING THE THREE
OTHER STATES WHICH ARE PARTIES. NO STATE IN THE COUNTRY HAS URGED THIS
COURT TO IMPOSE THE NEWLY ANNOUNCED RULES, NOR HAS ANY STATE CHOSEN TO
GO NEARLY SO FAR ON ITS OWN.
THE COURT IN CLOSING ITS GENERAL DISCUSSION INVOKES THE PRACTICE IN
FEDERAL AND FOREIGN JURISDICTIONS AS LENDING WEIGHT TO ITS NEW CURBS ON
CONFESSIONS FOR ALL THE STATES. A BRIEF RESUME WILL SUFFICE TO SHOW
THAT NONE OF THESE JURISDICTIONS HAS STRUCK SO ONE-SIDED A BALANCE AS
THE COURT DOES TODAY. HEAVIEST RELIANCE IS PLACED ON THE FBI
PRACTICE. DIFFERING CIRCUMSTANCES MAY MAKE THIS COMPARISON QUITE
UNTRUSTWORTHY, (FN19) BUT IN ANY EVENT THE FBI FALLS SENSIBLY SHORT OF
THE COURT'S FORMALISTIC RULES. FOR EXAMPLE, THERE IS NO INDICATION
THAT FBI AGENTS MUST OBTAIN AN AFFIRMATIVE "WAIVER" BEFORE THEY PURSUE
THEIR QUESTIONING. NOR IS IT CLEAR THAT ONE INVOKING HIS RIGHT TO
SILENCE MAY NOT BE PREVAILED UPON TO CHANGE HIS MIND. AND THE WARNING
AS TO APPOINTED COUNSEL APPARENTLY INDICATES ONLY THAT ONE WILL BE
ASSIGNED BY THE JUDGE WHEN THE SUSPECT APPEARS BEFORE HIM; THE THRUST
OF THE COURT'S RULES IS TO INDUCE THE SUSPECT TO OBTAIN APPOINTED
COUNSEL BEFORE CONTINUING THE INTERVIEW. SEE ANTE, PP. 484-486.
APPARENTLY AMERICAN MILITARY PRACTICE, BRIEFLY MENTIONED BY THE COURT,
HAS THESE SAME LIMITS AND IS STILL LESS FAVORABLE TO THE SUSPECT THAN
THE FBI WARNING, MAKING NO MENTION OF APPOINTED COUNSEL. DEVELOPMENTS,
SUPRA, N. 2, AT 1084-1089.
THE LAW OF THE FOREIGN COUNTRIES DESCRIBED BY THE COURT ALSO REFLECTS
A MORE MODERATE CONCEPTION OF THE RIGHTS OF THE ACCUSED AS AGAINST
THOSE OF SOCIETY WHEN OTHER DATA ARE CONSIDERED. CONCEDEDLY, THE
ENGLISH EXPERIENCE IS MOST RELEVANT. IN THAT COUNTRY, A CAUTION AS TO
SILENCE BUT NOT COUNSEL HAS LONG BEEN MANDATED BY THE "JUDGES' RULES,"
WHICH ALSO PLACE OTHER SOMEWHAT IMPRECISE LIMITS ON POLICE CROSS
EXAMINATION OF SUSPECTS. HOWEVER, IN THE COURT'S DISCRETION
CONFESSIONS CAN BE AND APPARENTLY QUITE FREQUENTLY ARE ADMITTED IN
EVIDENCE DESPITE DISREGARD OF THE JUDGES' RULES, SO LONG AS THEY ARE
FOUND VOLUNTARY UNDER THE COMMON-LAW TEST. MOREOVER, THE CHECK THAT
EXISTS ON THE USE OF PRETRIAL STATEMENTS IS COUNTERBALANCED BY THE
EVIDENT ADMISSIBILITY OF FRUITS OF AN ILLEGAL CONFESSION AND BY THE
JUDGE'S OFTEN-USED AUTHORITY TO COMMENT ADVERSELY ON THE DEFENDANT'S
FAILURE TO TESTIFY. (FN20)
INDIA, CEYLON AND SCOTLAND ARE THE OTHER EXAMPLES CHOSEN BY THE
COURT. IN INDIA AND CEYLON THE GENERAL BAN ON POLICE-ADDUCED
CONFESSIONS CITED BY THE COURT IS SUBJECT TO A MAJOR EXCEPTION: IF
EVIDENCE IS UNCOVERED BY POLICE QUESTIONING, IT IS FULLY ADMISSIBLE AT
TRIAL ALONG WITH THE CONFESSION ITSELF, SO FAR AS IT RELATES TO THE
EVIDENCE AND IS NOT BLATANTLY COERCED. SEE DEVELOPMENTS, SUPRA, N. 2,
AT 1106-1110; REG. V. RAMASAMY (1965) A.C. 1 (P.C.). SCOTLAND'S LIMITS
ON INTERROGATION DO MEASURE UP TO THE COURT'S; HOWEVER, RESTRAINED
COMMENT AT TRIAL ON THE DEFENDANT'S FAILURE TO TAKE THE STAND IS
ALLOWED THE JUDGE, AND IN MANY OTHER RESPECTS SCOTCH LAW REDRESSES THE
PROSECUTOR'S DISADVANTAGE IN WAYS NOT PERMITTED IN THIS COUNTRY.
(FN21) THE COURT ENDS ITS SURVEY BY IMPUTING ADDED STRENGTH TO OUR
PRIVILEGE AGAINST SELF-INCRIMINATION SINCE, BY CONTRAST TO OTHER
COUNTRIES, IT IS EMBODIED IN A WRITTEN CONSTITUTION. CONSIDERING THE
LIBERTIES THE COURT HAS TODAY TAKEN WITH CONSTITUTIONAL HISTORY AND
PRECEDENT, FEW WILL FIND THIS EMPHASIS PERSUASIVE.
IN CLOSING THIS NECESSARY TRUNCATED DISCUSSION OF POLICY
CONSIDERATIONS ATTENDING THE NEW CONFESSION RULES, SOME REFERENCE MUST
BE MADE TO THEIR IRONIC UNTIMELINESS. THERE IS NOW IN PROGRESS IN THIS
COUNTRY A MASSIVE RE-EXAMINATION OF CRIMINAL LAW ENFORCEMENT PROCEDURES
ON A SCALE NEVER BEFORE WITNESSED. PARTICIPANTS IN THIS UNDERTAKING
INCLUDE A SPECIAL COMMITTEE OF THE AMERICAN BAR ASSOCIATION, UNDER THE
CHAIRMANSHIP OF CHIEF JUDGE LUMBARD OF THE COURT OF APPEALS FOR THE
SECOND CIRCUIT; A DISTINGUISHED STUDY GROUP OF THE AMERICAN LAW
INSTITUTE, HEADED BY PROFESSORS VORENBERG AND BATOR OF THE HARVARD LAW
SCHOOL; AND THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, UNDER THE LEADERSHIP OF THE ATTORNEY GENERAL
OF THE UNITED STATES. (FN22) STUDIES ARE ALSO BEING CONDUCTED BY THE
DISTRICT OF COLUMBIA CRIME COMMISSION, THE GEORGETOWN LAW CENTER, AND
BY OTHERS EQUIPPED TO DO PRACTICAL RESEARCH. (FN23) THERE ARE ALSO
SIGNS THAT LEGISLATURES IN SOME OF THE STATES MAY BE PREPARING TO RE
EXAMINE THE PROBLEM BEFORE US. (FN24)
IT IS NO SECRET THAT CONCERN HAS BEEN EXPRESSED LEST LONG-RANGE AND
LASTING REFORMS BE FRUSTRATED BY THIS COURT'S TOO RAPID DEPARTURE FROM
EXISTING CONSTITUTIONAL STANDARDS. DESPITE THE COURT'S DISCLAIMER, THE
PRACTICAL EFFECT OF THE DECISION MADE TODAY MUST INEVITABLY BE TO
HANDICAP SERIOUSLY SOUND EFFORTS AT REFORM, NOT LEAST BY REMOVING
OPTIONS NECESSARY TO A JUST COMPROMISE OF COMPETING INTERESTS. OF
COURSE LEGISLATIVE REFORM IS RARELY SPEEDY OR UNANIMOUS, THOUGH THIS
COURT HAS BEEN MORE PATIENT IN THE PAST. (FN25) BUT THE LEGISLATIVE
REFORMS WHEN THEY COME WOULD HAVE THE VAST ADVANTAGE OF EMPIRICAL DATA
AND COMPREHENSIVE STUDY, THEY WOULD ALLOW EXPERIMENTATION AND USE OF
SOLUTIONS NOT OPEN TO THE COURTS, AND THEY WOULD RESTORE THE INITIATIVE
IN CRIMINAL LAW REFORM TO THOSE FORUMS WHERE IT TRULY BELONGS.
IV. CONCLUSIONS.
ALL FOUR OF THE CASES INVOLVED HERE PRESENT EXPRESS CLAIMS THAT
CONFESSIONS WERE INADMISSIBLE, NOT BECAUSE OF COERCION IN THE
TRADITIONAL DUE PROCESS SENSE, BUT SOLELY BECAUSE OF LACK OF COUNSEL OR
LACK OF WARNINGS CONCERNING COUNSEL AND SILENCE. FOR THE REASONS
STATED IN THIS OPINION, I WOULD ADHERE TO THE DUE PROCESS TEST AND
REJECT THE NEW REQUIREMENTS INAUGURATED BY THE COURT. ON THIS PREMISE
MY DISPOSITION TO EACH OF THESE CASES CAN BE STATED BRIEFLY.
IN TWO OF THE THREE CASES COMING FROM STATE COURTS, MIRANDA V.
ARIZONA (NO. 759) AND VIGNERA V. NEW YORK (NO. 760), THE CONFESSIONS
WERE HELD ADMISSIBLE AND NO OTHER ERRORS WORTH COMMENT ARE ALLEGED BY
PETITIONERS. I WOULD AFFIRM IN THESE TWO CASES. THE OTHER STATE CASE
IS CALIFORNIA V. STEWART (NO. 584), WHERE THE STATE SUPREME COURT HELD
THE CONFESSION INADMISSIBLE AND REVERSED THE CONVICTION. IN THAT CASE
I WOULD DISMISS THE WRIT OF CERTIORARI ON THE GROUND THAT NO FINAL
JUDGMENT IS BEFORE US, 28 U.S.C. SEC. 1257 (1964 ED.); PUTTING ASIDE
THE NEW TRIAL OPEN TO THE STATE IN ANY EVENT, THE CONFESSION ITSELF HAS
NOT EVEN BEEN FINALLY EXCLUDED SINCE THE CALIFORNIA SUPREME COURT LEFT
THE STATE FREE TO SHOW PROOF OF A WAIVER. IF THE MERITS OF THE
DECISION IN STEWART BE REACHED, THEN I BELIEVE IT SHOULD BE REVERSED
AND THE CASE REMANDED SO THE STATE SUPREME COURT MAY PASS ON THE OTHER
CLAIMS AVAILABLE TO RESPONDENT.
IN THE FEDERAL CASE, WESTOVER V. UNITED STATES (NO. 761), A NUMBER OF
ISSUES ARE RAISED BY PETITIONER APART FROM THE ONE ALREADY DEALT WITH
IN THIS DISSENT. NONE OF THESE OTHER CLAIMS APPEARS TO ME TENABLE, NOR
IN THIS CONTEXT TO WARRANT EXTENDED DISCUSSION. IT IS URGED THAT THE
CONFESSION WAS ALSO INADMISSIBLE BECAUSE NOT VOLUNTARY EVEN MEASURED BY
DUE PROCESS STANDARDS AND BECAUSE FEDERAL-STATE COOPERATION BROUGHT THE
MCNABB-MALLORY RULE INTO PLAY UNDER ANDERSON V. UNITED STATES, 318 U.S.
350. HOWEVER, THE FACTS ALLEGED FALL WELL SHORT OF COERCION IN MY
VIEW, AND I BELIEVE THE INVOLVEMENT OF FEDERAL AGENTS IN PETITIONER'S
ARREST AND DETENTION BY THE STATE TOO SLIGHT TO INVOKE ANDERSON. I
AGREE WITH THE GOVERNMENT THAT THE ADMISSION OF THE EVIDENCE NOW
PROTESTED BY PETITIONER WAS AT MOST HARMLESS ERROR, AND TWO FINAL
CONTENTIONS - ONE INVOLVING WEIGHT OF THE EVIDENCE AND ANOTHER IMPROPER
PROSECUTOR COMMENT - SEEM TO ME WITHOUT MERIT. I WOULD THEREFORE
AFFIRM WESTOVER'S CONVICTION.
IN CONCLUSION: 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. THE FORAY WHICH THE
COURT MAKES TODAY BRINGS TO MIND THE WISE AND FARSIGHTED WORDS OF MR.
JUSTICE JACKSON IN DOUGLAS V. JEANNETTE, 319 U.S. 157, 181 (SEPARATE
OPINION): "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."
FN1 MY DECISION IN THIS OPINION IS DIRECTED TO THE MAIN QUESTIONS
DECIDED BY THE COURT AND NECESSARY TO ITS DECISION; IN IGNORING SOME OF
THE COLLATERAL POINTS, I DO NOT MEAN TO IMPLY AGREEMENT.
FN2 THE CASE WAS BRAM V. UNITED STATES, 168 U.S. 532 (QUOTED, ANTE,
P. 461). ITS HISTORICAL PREMISES WERE AFTERWARDS DISPROVED BY WIGMORE,
WHO CONCLUDED "THAT NO ASSERTIONS COULD BE MORE UNFOUNDED." 3 WIGMORE,
EVIDENCE SEC. 823, AT 250, N. 5 (3D ED. 1940). THE COURT IN UNITED
STATES V. CARIGNAN, 342 U.S. 36, 41, DECLINED TO CHOOSE BETWEEN BRAM
AND WIGMORE, AND STEIN V. NEW YORK, 346 U.S. 156, 191, N. 35, CAST
FURTHER DOUBT ON BRAM. THERE ARE, HOWEVER, SEVERAL COURT OPINIONS
WHICH ASSUME IN DICTA THE RELEVANCE OF THE FIFTH AMENDMENT PRIVILEGE TO
CONFESSIONS. BURDEAU V. MCDOWELL, 256 U.S 465, 475; SEE SHOTWELL MFG.
CO. V. UNITED STATES, 371 U.S. 341, 347. ON BRAM AND THE FEDERAL
CONFESSION CASES GENERALLY, SEE DEVELOPMENTS IN THE LAW - CONFESSIONS,
79 HARV. L. REV. 935, 959-961 (1966). FN3 COMMENT, 31 U. CHI. L.
REV. 313 & N. 1 (1964), STATES THAT BY THE 1963 TERM 33 STATE COERCED
CONFESSION CASES HAD BEEN DECIDED BY THIS COURT, APART FROM PER
CURIAMS. SPANO V. NEW YORK, 360 U.S. 315, 321, N. 2, COLLECTS 28
CASES.
FN4 BATOR & VORENBERG, ARREST, DETENTION, INTERROGATION AND THE
RIGHT TO COUNSEL, 66 COL. L. REV. 62, 73 (1966): "IN FACT, THE CONCEPT
OF INVOLUNTARINESS SEEMS TO BE USED BY THE COURTS AS A SHORTHAND TO
REFER TO PRACTICES WHICH ARE REPELLENT TO CIVILIZED STANDARDS OF
DECENCY OR WHICH, UNDER THE CIRCUMSTANCES, ARE THOUGHT TO APPLY A
DEGREE OF PRESSURE TO AN INDIVIDUAL WHICH UNFAIRLY IMPAIRS HIS CAPACITY
TO MAKE A RATIONAL CHOICE." SEE HERMAN, THE SUPREME COURT AND
RESTRICTIONS ON POLICE INTERROGATION, 25 OHIO ST. L.J. 449, 452-458
(1964); DEVELOPMENTS, SUPRA, N. 2, AT 964-984.
FN5 SEE THE CASES SYNOPSIZED IN HERMAN, SUPRA, N. 4, AT 456, NN. 36
39. ONE NOT TOO DISTANT EXAMPLE IS STROBLE V. CALIFORNIA, 343 U.S.
181, IN WHICH THE SUSPECT WAS KICKED AND THREATENED AFTER HIS ARREST,
QUESTIONED A LITTLE LATER FOR TWO HOURS, AND ISOLATED FROM A LAWYER
TRYING TO SEE HIM; THE RESULTING CONFESSION WAS HELD ADMISSIBLE.
FN6 AMONG THE EXAMPLES GIVEN IN 8 WIGMORE, EVIDENCE SEC. 2266, AT
401 (MCNAUGHTON REV. 1961), ARE THESE: THE PRIVILEGE APPLIES TO ANY
WITNESS, CIVIL OR CRIMINAL, BUT THE CONFESSION RULE PROTECTS ONLY
CRIMINAL DEFENDANTS; THE PRIVILEGE DEALS ONLY WITH COMPULSION, WHILE
THE CONFESSION RULE MAY EXCLUDE STATEMENTS OBTAINED BY TRICK OR
PROMISE; AND WHERE THE PRIVILEGE HAS BEEN NULLIFIED - AS BY THE ENGLISH
BANKRUPTCY ACT - THE CONFESSION RULE MAY STILL OPERATE.
FN7 ADDITIONALLY, THERE ARE PRECEDENTS AND EVEN HISTORICAL ARGUMENTS
THAT CAN BE ARRAYED IN FAVOR OF BRINGING EXTRA-LEGAL QUESTIONING WITHIN
THE PRIVILEGE. SEE GENERALLY MAGUIRE, EVIDENCE OF GUILT SEC. 2.03, AT
15-16 (1959).
FN8 THIS, OF COURSE, IS IMPLICIT IN THE COURT'S INTRODUCTORY
ANNOUNCEMENT THAT "OUR DECISION IN MALLOY V. HOGAN, 378 U.S. 1 (1964)
EXTENDING THE FIFTH AMENDMENT PRIVILEGES TO THE STATES NECESSITATES AN
EXAMINATION OF THE SCOPE OF THE PRIVILEGE IN STATE CASES AS WELL."
ANTE, P. 463. IT IS ALSO INCONSISTENT WITH MALLOY ITSELF, IN WHICH
EXTENSION OF THE FIFTH AMENDMENT TO THE STATES RESTED IN PART ON THE
VIEW THAT THE DUE PROCESS CLAUSE RESTRICTION ON STATE CONFESSIONS HAS
IN RECENT YEARS BEEN "THE SAME STANDARD" AS THAT IMPOSED IN FEDERAL
PROSECUTIONS ASSERTEDLY BY THE FIFTH AMENDMENT. 378 U.S., AT 7.
FN9 I LAY ASIDE ESCOBEDO ITSELF; IT CONTAINS NO REASONING OR EVEN
GENERAL CONCLUSIONS ADDRESSED TO THE FIFTH AMENDMENT AND INDEED ITS
CITATION IN THIS REGARD SEEMS SURPRISING IN VIEW OF ESCOBEDO'S PRIMARY
RELIANCE ON THE SIXTH AMENDMENT.
FN10 SINCE THE COURT CONSPICUOUSLY DOES NOT ASSERT THAT THE SIXTH
AMENDMENT ITSELF WARRANTS ITS NEW POLICE-INTERROGATION RULES, THERE IS
NO REASON NOW TO DRAW OUT THE EXTREMELY POWERFUL HISTORICAL AND
PRECEDENTIAL EVIDENCE THAT THE AMENDMENT WILL BEAR NO SUCH MEANING.
SEE GENERALLY FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL
PROCEDURE, 53 CALIF. L. REV. 929, 943-948 (1965).
FN11 SEE SUPRA, N. 4, AND TEXT. OF COURSE, THE USE OF TERMS LIKE
VOLUNTARINESS INVOLVES QUESTIONS OF LAW AND TERMINOLOGY QUITE AS MUCH
AS QUESTIONS OF FACT. SEE COLLINS V. BETO, 348 F.2D 823, 832
(CONCURRING OPINION); BATOR & VORENBERG, SUPRA, N. 4, AT 72-73.
FN12 THE COURT'S VISION OF A LAWYER "MITIGATING THE DANGERS OF
UNTRUSTWORTHINESS" (ANTE, P. 470) BY WITNESSING COERCION AND ASSISTING
ACCURACY IN THE CONFESSION IS LARGELY A FANCY; FOR IF COUNSEL ARRIVES,
THERE IS RARELY GOING TO BE A POLICE STATION CONFESSION. WATTS V.
INDIANA, 338 U.S. 49, 59 (SEPARATE OPINION OF JACKSON, J.): "ANY
LAWYER WORTH HIS SALT WILL TELL THE SUSPECT IN NO UNCERTAIN TERMS TO
MAKE NO STATEMENT TO POLICE UNDER ANY CIRCUMSTANCES." SEE ENKER &
ELSEN, COUNSEL FOR THE SUSPECT, 49 MINN. L. REV. 47, 66-68 (1964).
FN13 THIS NEED IS, OF COURSE, WHAT MAKES SO MISLEADING THE COURT'S
COMPARISON OF A PROBATE JUDGE READILY SETTING ASIDE AS INVOLUNTARY THE
WILL OF AN OLD LADY BADGERED AND BELEAGURED BY THE NEW HEIRS. ANTE,
PP. 457-458, N. 26. WITH WILLS, THERE IS NO PUBLIC INTEREST SAVE IN A
TOTALLY FREE CHOICE; WITH CONFESSIONS, THE SOLUTION OF CRIME IS A
COUNTERVAILING GAIN, HOWEVER THE BALANCE IS RESOLVED.
FN14 SEE, E.G., THE VOLUMINOUS CITATIONS TO CONGRESSIONAL COMMITTEE
TESTIMONY AND OTHER SOURCES COLLECTED IN CULOMBE V. CONNECTICUT, 367
U.S. 568, 578-579 (FRANKFURTER, J., ANNOUNCING THE COURT'S JUDGMENT AND
AN OPINION).
FN15 IN WESTOVER, A SEASONED CRIMINAL WAS PRACTICALLY GIVEN THE
COURT'S FULL COMPLEMENT OF WARNINGS AND DID NOT HEED THEM. THE STEWART
CASE, ON THE OTHER HAND, INVOLVES LONG DETENTION AND SUCCESSIVE
QUESTIONING. IN VIGNERA, THE FACTS ARE COMPLICATED AND THE RECORD
SOMEWHAT INCOMPLETE.
FN16 "JUSTICE, THOUGH DUE TO THE ACCUSED, IS DUE TO THE ACCUSER
ALSO. THE CONCEPT OF FAIRNESS MUST NOT BE STRAINED TILL IT IS NARROWED
TO A FILAMENT. WE ARE TO KEEP THE BALANCE TRUE." SNYDER V.
MASSACHUSETTS, 291 U.S. 97, 122 (CARDOZO, J.).
FN17 A NARROW READING IS GIVEN IN: UNITED STATES V. ROBINSON, 354
F.2D 109 (C.A.2D CIR.); DAVIS V. NORTH CAROLINA, 339 F.2D 770 (C.A. 4TH
CIR.); EDWARDS V. HOLMAN, 342 F.2D 679 (C.A. 5TH CIR.); UNITED STATES
EX REL. TOWNSEND V. OGILVIE, 334 F.2D 837 (C.A. 7TH CIR.); PEOPLE V.
HARTGRAVES, 31 ILL. 2D 375, 202 N.E.2D 33; STATE V. FOX, - IOWA - , 131
N.W.2D 684; ROWE V. COMMONWEALTH, 394 S.W.2D 761 (KY.); PARKER V.
WARDEN, 236 MD. 236, 203 A.2D 418; STATE V. HOWARD, 383 S.W.2D 701
(MO.); BEAN V. STATE, - NEV. - , 398 P.2D 251; STATE V. HODGSON, 44
N.J. 151, 207 A.2D 542; PEOPLE V. GUNNER, 15 N.Y.2D 226, 205 N.E.2D
852; COMMONWEALTH EX REL. LINDE V. MARONEY, 416 PA. 331, 206 A.2D 288;
BROWNE V. STATE, 24 WIS. 2D 491, 131 N.W.2D 169.
AN AMPLE READING IS GIVEN IN: UNITED STATES EX REL. RUSSO V. NEW
JERSEY, 351 F.2D 429 (C.A. 3D CIR.); WRIGHT V. DICKSON, 336 F.2D 878
(C.A. 9TH CIR.); PEOPLE V. DORADO, 62 CAL. 2D 338, 398 P.2D 361; STATE
V. DUFOUR, - R.I. - , 206 A.2D 82; STATE V. NEELY, 239 ORE. 487, 395
P.2D 557, MODIFIED, 398 P.2D 482.
THE CASES IN BOTH CATEGORIES ARE THOSE READILY AVAILABLE; THERE ARE
CERTAINLY MANY OTHERS.
FN18 FOR INSTANCE, COMPARE THE REQUIREMENTS OF THE CATALYTIC CASE OF
PEOPLE V. DORADO, 62 CAL. 2D 338, 398 P.2D 361, WITH THOSE LAID DOWN
TODAY. SEE ALSO TRAYNOR, THE DEVILS OF DUE PROCESS IN CRIMINAL
DETECTION, DETENTION, AND TRIAL, 33 U. CHI. L. REV. 657, 670.
FN19 THE COURT'S OBITER DICTUM NOTWITHSTANDING, ANTE, P. 486, THERE
IS SOME BASIS FOR BELIEVING THAT THE STAPLE OF FBI CRIMINAL WORK
DIFFERS IMPORTANTLY FROM MUCH CRIME WITHIN THE KEN OF LOCAL POLICE.
THE SKILL AND RESOURCES OF THE FBI MAY ALSO BE UNUSUAL.
FN20 FOR CITATIONS AND DISCUSSION COVERING EACH OF THESE POINTS, SEE
DEVELOPMENTS, SUPRA, N. 2, AT 1091-1097, AND ENKER & ELSEN, SUPRA, N.
12, AT 80 & N. 94.
FN21 ON COMMENT, SEE HARDIN, OTHER ANSWERS: SEARCH AND SEIZURE,
COERCED CONFESSION, AND CRIMINAL TRIAL IN SCOTLAND, 113 U. PA. L. REV.
165, 181 AND NN. 96-97 (1964). OTHER EXAMPLES ARE LESS STRINGENT
SEARCH AND SEIZURE RULES AND NO AUTOMATIC EXCLUSION FOR VIOLATION OF
THEM, ID., AT 167-169; GUILT BASED ON MAJORITY JURY VERDICTS, ID., AT
185; AND PRE-TRIAL DISCOVERY OF EVIDENCE ON BOTH SIDES, ID., AT 175.
FN22 OF PARTICULAR RELEVANCE IS THE ALI'S DRAFTING OF A MODEL CODE
OF PRE-ARRAIGNMENT PROCEDURE, NOW IN ITS FIRST TENTATIVE DRAFT. WHILE
THE ABA AND NATIONAL COMMISSION STUDIES HAVE WIDER SCOPE, THE FORMER IS
LENDING ITS ADVICE TO THE ALI PROJECT AND THE EXECUTIVE DIRECTOR OF THE
LATTER IS ONE OF THE REPORTERS FOR THE MODEL CODE.
FN23 SEE BRIEF FOR THE UNITED STATES IN WESTOVER, P. 45. THE N.Y.
TIMES, JUNE 3, 1966, P. 41 (LATE CITY ED.) REPORTED THAT THE FORD
FOUNDATION HAS AWARDED $1,100,000 FOR A FIVE-YEAR STUDY OF ARRESTS AND
CONFESSIONS IN NEW YORK.
FN24 THE NEW YORK ASSEMBLY RECENTLY PASSED A BILL TO REQUIRE CERTAIN
WARNINGS BEFORE AN ADMISSIBLE CONFESSION IS TAKEN, THOUGH THE RULES ARE
LESS STRICT THAN ARE THE COURT'S. N.Y. TIMES, MAY 24, 1966, P. 35
(LATE CITY ED.).
FN25 THE COURT WAITED 12 YEARS AFTER WOLF V. COLORADO, 338 U.S. 25,
DECLARED PRIVACY AGAINST IMPROPER STATE INTRUSIONS TO BE
CONSTITUTIONALLY SAFEGUARDED BEFORE IT CONCLUDED IN MAPP V. OHIO, 367
U.S. 643, THAT ADEQUATE STATE REMEDIES HAD NOT BEEN PROVIDED TO PROTECT
THIS INTEREST SO THE EXCLUSIONARY RULE WAS NECESSARY.
MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING.
I.
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. AS FOR THE ENGLISH AUTHORITIES AND THE COMMON-LAW HISTORY,
THE PRIVILEGE, FIRMLY ESTABLISHED IN THE SECOND HALF OF THE SEVENTEENTH
CENTURY, WAS NEVER APPLIED EXCEPT TO PROHIBIT COMPELLED JUDICIAL
INTERROGATIONS. THE RULE EXCLUDING COERCED CONFESSIONS MATURED ABOUT
100 YEARS LATER, "BUT THERE IS NOTHING IN THE REPORTS TO SUGGEST THAT
THE THEORY HAS ITS ROOTS IN THE PRIVILEGE AGAINST SELF-INCRIMINATION.
AND SO FAR AS THE CASES REVEAL, THE PRIVILEGE, AS SUCH, SEEMS TO HAVE
BEEN GIVEN EFFECT ONLY IN JUDICIAL PROCEEDINGS, INCLUDING THE
PRELIMINARY EXAMINATIONS BY AUTHORIZED MAGISTRATES." MORGAN, THE
PRIVILEGE AGAINST SELF-INCRIMINATION, 34 MINN. L. REV. 1, 18 (1949).
OUR OWN CONSTITUTIONAL PROVISION PROVIDES THAT NO PERSON "SHALL BE
COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF." THESE
WORDS, WHEN "CONSIDERED IN THE LIGHT TO BE SHED BY GRAMMAR AND THE
DICTIONARY ... APPEAR TO SIGNIFY SIMPLY THAT NOBODY SHALL BE
COMPELLED TO GIVE ORAL TESTIMONY AGAINST HIMSELF IN A CRIMINAL
PROCEEDING UNDER WAY IN WHICH HE IS DEFENDANT." CORWIN, THE SUPREME
COURT'S CONSTRUCTION OF THE SELF-INCRIMINATION CLAUSE, 29 MICH. L. REV.
1, 2. AND THERE IS VERY LITTLE IN THE SURROUNDING CIRCUMSTANCES OF THE
ADOPTION OF THE FIFTH AMENDMENT OR IN THE PROVISIONS OF THE THEN
EXISTING STATE CONSTITUTIONS OR IN STATE PRACTICE WHICH WOULD GIVE THE
CONSTITUTIONAL PROVISION ANY BROADER MEANING. MAYERS, THE FEDERAL
WITNESS' PRIVILEGE AGAINST SELF-INCRIMINATION: CONSTITUTIONAL OR
COMMON-LAW? 4 AMERICAN JOURNAL OF LEGAL HISTORY 107 (1960). SUCH A
CONSTRUCTION, HOWEVER, WAS CONSIDERABLY NARROWER THAN THE PRIVILEGE AT
COMMON LAW, AND WHEN EVENTUALLY FACED WITH THE ISSUES, THE COURT
EXTENDED THE CONSTITUTIONAL PRIVILEGE TO THE COMPULSORY PRODUCTION OF
BOOKS AND PAPERS, TO THE ORDINARY WITNESS BEFORE THE GRAND JURY AND TO
WITNESSES GENERALLY. BOYD V. UNITED STATES, 116 U.S. 616, AND
COUNSELMAN V. HITCHCOCK, 142 U.S. 547. BOTH RULES HAD SOLID SUPPORT IN
COMMON-LAW HISTORY, IF NOT IN THE HISTORY OF OUR OWN CONSTITUTIONAL
PROVISION.
A FEW YEARS LATER THE FIFTH AMENDMENT PRIVILEGE WAS SIMILARLY
EXTENDED TO ENCOMPASS THE THEN WELL-ESTABLISHED RULE AGAINST COERCED
CONFESSIONS: "IN CRIMINAL TRIALS, IN THE COURTS OF THE UNITED STATES,
WHEREVER A QUESTION ARISES WHETHER A CONFESSION IS INCOMPETENT BECAUSE
NOT VOLUNTARY, THE ISSUE IS CONTROLLED BY THAT PORTION OF THE FIFTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, COMMANDING THAT NO
PERSON 'SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST
HIMSELF.' " BRAM V. UNITED STATES, 168 U.S. 532, 542. ALTHOUGH THIS
VIEW HAS FOUND APPROVAL IN OTHER CASES, BURDEAU V. MCDOWELL, 256 U.S.
465, 475; POWERS V. UNITED STATES, 223 U.S. 303, 313; SHOTWELL V.
UNITED STATES, 371 U.S. 341, 347, IT HAS ALSO BEEN QUESTIONED, SEE
BROWN V. MISSISSIPPI, 297 U.S. 278, 285; UNITED STATES V. CARIGNAN, 342
U.S. 36, 41; STEIN V. NEW YORK, 346 U.S. 156, 191, N. 35, AND FINDS
SCANT SUPPORT IN EITHER THE ENGLISH OR AMERICAN AUTHORITIES, SEE
GENERALLY REGINA V. SCOTT, DEARS. & BELL 47; 3 WIGMORE, EVIDENCE SEC.
823 (3D ED. 1940), AT 249 ("A CONFESSION IS NOT REJECTED BECAUSE OF ANY
CONNECTION WITH THE PRIVILEGE AGAINST SELF-INCRIMINATION"), AND 250, N.
5 (PARTICULARLY CRITICIZING BRAM); 8 WIGMORE, EVIDENCE SEC. 2266, AT
400-401 (MCNAUGHTON REV. 1961). WHATEVER THE SOURCE OF THE RULE
EXCLUDING COERCED CONFESSIONS, IT IS CLEAR THAT PRIOR TO THE
APPLICATION OF THE PRIVILEGE ITSELF TO STATE COURTS, MALLOY V. HOGAN,
378 U.S. 1, THE ADMISSIBILITY OF A CONFESSION IN A STATE CRIMINAL
PROSECUTION WAS TESTED BY THE SAME STANDARDS AS WERE APPLIED IN FEDERAL
PROSECUTIONS. ID., AT 6-7, 10.
BRAM, HOWEVER, ITSELF REJECTED THE PROPOSITION WHICH THE COURT NOW
ESPOUSES. THE QUESTION IN BRAM WAS WHETHER A CONFESSION, OBTAINED
DURING CUSTODIAL INTERROGATION, HAD BEEN COMPELLED, AND IF SUCH
INTERROGATION WAS TO BE DEEMED INHERENTLY VULNERABLE THE COURT'S
INQUIRY COULD HAVE ENDED THERE. AFTER EXAMINING THE ENGLISH AND
AMERICAN AUTHORITIES, HOWEVER, THE COURT DECLARED THAT:
"IN THIS COURT ALSO IT HAS BEEN SETTLED THAT THE MERE FACT THAT THE
CONFESSION IS MADE TO A POLICE OFFICER, WHILE THE ACCUSED WAS UNDER
ARREST IN OR OUT OF PRISON, OR WAS DRAWN OUT BY HIS QUESTIONS, DOES NOT
NECESSARILY RENDER THE CONFESSION INVOLUNTARY, BUT, AS ONE OF THE
CIRCUMSTANCES, SUCH IMPRISONMENT OR INTERROGATION MAY BE TAKEN INTO
ACCOUNT IN DETERMINING WHETHER OR NOT THE STATEMENTS OF THE PRISONER
WERE VOLUNTARY." 168 U.S., AT 558.
IN THIS RESPECT THE COURT WAS WHOLLY CONSISTENT WITH PRIOR AND
SUBSEQUENT PRONOUNCEMENTS IN THIS COURT.
THUS PRIOR TO BRAM THE COURT, IN HOPT V. UTAH, 110 U.S. 574, 583-587,
HAD UPHELD THE ADMISSIBILITY OF A CONFESSION MADE TO POLICE OFFICERS
FOLLOWING ARREST, THE RECORD BEING SILENT CONCERNING WHAT CONVERSATION
HAD OCCURRED BETWEEN THE OFFICERS AND THE DEFENDANT IN THE SHORT PERIOD
PRECEDING THE CONFESSION. RELYING ON HOPT, THE COURT RULED SQUARELY ON
THE ISSUE IN SPARF AND HANSEN V. UNITED STATES, 156 U.S. 51, 55:
"COUNSEL FOR THE ACCUSED INSIST THAT THERE CANNOT BE A VOLUNTARY
STATEMENT, A FREE OPEN CONFESSION, WHILE A DEFENDANT IS CONFINED AND IN
IRONS UNDER AN ACCUSATION OF HAVING COMMITTED A CAPITAL OFFENCE. WE
HAVE NOT BEEN REFERRED TO ANY AUTHORITY IN SUPPORT OF THAT POSITION.
IT IS TRUE THAT THE FACT OF A PRISONER BEING IN CUSTODY AT THE TIME HE
MAKES A CONFESSION IS A CIRCUMSTANCE NOT TO BE OVERLOOKED, BECAUSE IT
BEARS UPON THE INQUIRY WHETHER THE CONFESSION WAS VOLUNTARILY MADE OR
WAS EXTORTED BY THREATS OR VIOLENCE OR MADE UNDER THE INFLUENCE OF
FEAR. BUT CONFINEMENT OR IMPRISONMENT IS NOT IN ITSELF SUFFICIENT TO
JUSTIFY THE EXCLUSION OF A CONFESSION, IF IT APPEARS TO HAVE BEEN
VOLUNTARY, AND WAS NOT OBTAINED BY PUTTING THE PRISONER IN FEAR OR BY
PROMISES. WHARTON'S CR. EV. 9TH ED. SECS. 661, 663, AND AUTHORITIES
CITED."
ACCORD, PIERCE V. UNITED STATES, 160 U.S. 355, 357.
AND IN WILSON V. UNITED STATES, 162 U.S. 613, 623, THE COURT HAD
CONSIDERED THE SIGNIFICANCE OF CUSTODIAL INTERROGATION WITHOUT ANY
ANTECEDENT WARNINGS REGARDING THE RIGHT TO REMAIN SILENT OR THE RIGHT
TO COUNSEL. THERE THE DEFENDANT HAD ANSWERED QUESTIONS POSED BY A
COMMISSIONER, WHO HAD FAILED TO ADVISE HIM OF HIS RIGHTS, AND HIS
ANSWERS WERE HELD ADMISSIBLE OVER HIS CLAIM OF INVOLUNTARINESS. "THE
FACT THAT A DEFENDANT IS IN CUSTODY AND MANACLED DOES NOT NECESSARILY
RENDER HIS STATEMENT INVOLUNTARY, NOR IS THAT NECESSARILY THE EFFECT OF
POPULAR EXCITEMENT SHORTLY PRECEDING ... . AND IT IS LAID DOWN THAT
IT IS NOT ESSENTIAL TO THE ADMISSIBILITY OF A CONFESSION THAT IT SHOULD
APPEAR THAT THE PERSON WAS WARNED THAT WHAT HE SAID WOULD BE USED
AGAINST HIM, BUT ON THE CONTRARY, IF THE CONFESSION WAS VOLUNTARY, IT
IS SUFFICIENT THOUGH IT APPEAR THAT HE WAS NOT SO WARNED."
SINCE BRAM, THE ADMISSIBILITY OF STATEMENTS MADE DURING CUSTODIAL
INTERROGATION HAS BEEN FREQUENTLY REITERATED. POWERS V. UNITED STATES,
223 U.S. 303, CITED WILSON APPROVINGLY AND HELD ADMISSIBLE AS VOLUNTARY
STATEMENTS THE ACCUSED'S TESTIMONY AT A PRELIMINARY HEARING EVEN THOUGH
HE WAS NOT WARNED THAT WHAT HE SAID MIGHT BE USED AGAINST HIM. WITHOUT
ANY DISCUSSION OF THE PRESENCE OR ABSENCE OF WARNINGS, PRESUMABLY
BECAUSE SUCH DISCUSSION WAS DEEMED UNNECESSARY, NUMEROUS OTHER CASES
HAVE DECLARED THAT "THE MERE FACT THAT A CONFESSION WAS MADE WHILE IN
THE CUSTODY OF THE POLICE DOES NOT RENDER IT INADMISSIBLE," MCNABB V.
UNITED STATES, 318 U.S. 332, 346; ACCORD, UNITED STATES V. MITCHELL,
322 U.S. 65, DESPITE ITS HAVING BEEN ELICITED BY POLICE EXAMINATION,
WAN V. UNITED STATES, 266 U.S. 1, 14; UNITED STATES V. CARIGNAN, 342
U.S. 36, 39. LIKEWISE, IN CROOKER V. CALIFORNIA, 357 U.S. 433, 437,
THE COURT SAID THAT "THE BARE FACT OF POLICE 'DETENTION AND POLICE
EXAMINATION IN PRIVATE OF ONE IN OFFICIAL STATE CUSTODY' DOES NOT
RENDER INVOLUNTARY A CONFESSION BY THE ONE SO DETAINED." AND FINALLY,
IN CICENIA V. LAGAY, 357 U.S. 504, A CONFESSION OBTAINED BY POLICE
INTERROGATION AFTER ARREST WAS HELD VOLUNTARY EVEN THOUGH THE
AUTHORITIES REFUSED TO PERMIT THE DEFENDANT TO CONSULT WITH HIS
ATTORNEY. SEE GENERALLY CULOMBE V. CONNECTICUT, 367 U.S. 568, 587-602
(OPINION OF FRANKFURTER, J.); 3 WIGMORE, EVIDENCE SEC. 851, AT 313 (3D
ED. 1940); SEE ALSO JOY, ADMISSIBILITY OF CONFESSIONS 38, 46 (1842).
ONLY A TINY MINORITY OF OUR JUDGES WHO HAVE DEALT WITH THE QUESTION,
INCLUDING TODAY'S MAJORITY, HAVE CONSIDERED IN-CUSTODY INTERROGATION,
WITHOUT MORE, TO BE A VIOLATION OF THE FIFTH AMENDMENT. AND THIS
COURT, AS EVERY MEMBER KNOWS, HAS LEFT STANDING LITERALLY THOUSANDS OF
CRIMINAL CONVICTIONS THAT RESTED AT LEAST IN PART ON CONFESSIONS TAKEN
IN THE COURSE OF INTERROGATION BY THE POLICE AFTER ARREST.
II.
THAT THE COURT'S HOLDING TODAY IS NEITHER COMPELLED NOR EVEN STRONGLY
SUGGESTED BY THE LANGUAGE OF THE FIFTH AMENDMENT, IS AT ODDS WITH
AMERICAN AND ENGLISH LEGAL HISTORY, AND INVOLVES A DEPARTURE FROM A
LONG LINE OF PRECEDENT DOES NOT PROVE EITHER THAT THE COURT HAS
EXCEEDED ITS POWERS OR THAT THE COURT IS WRONG OR UNWISE IN ITS PRESENT
REINTERPRETATION OF THE FIFTH AMENDMENT. IT DOES, HOWEVER, UNDERSCORE
THE OBVIOUS - THAT THE COURT HAS NOT DISCOVERED OR FOUND THE LAW IN
MAKING TODAY'S DECISION, NOR HAS IT DERIVED IT FROM SOME IRREFUTABLE
SOURCES; WHAT IT HAS DONE IS TO MAKE NEW LAW AND NEW PUBLIC POLICY IN
MUCH THE SAME WAY THAT IT HAS IN THE COURSE OF INTERPRETING OTHER GREAT
CLAUSES OF THE CONSTITUTION. (FN1) THIS IS WHAT THE COURT
HISTORICALLY HAS DONE. INDEED, IT IS WHAT IT MUST DO AND WILL CONTINUE
TO DO UNTIL AND UNLESS THERE IS SOME FUNDAMENTAL CHANGE IN THE
CONSTITUTIONAL DISTRIBUTION OF GOVERNMENTAL POWERS.
BUT IF THE COURT IS HERE AND NOW TO ANNOUNCE NEW AND FUNDAMENTAL
POLICY TO GOVERN CERTAIN ASPECTS OF OUR AFFAIRS, IT IS WHOLLY
LEGITIMATE TO EXAMINE THE MODE OF THIS OR ANY OTHER CONSTITUTIONAL
DECISION IN THIS COURT AND TO INQUIRE INTO THE ADVISABILITY OF ITS END
PRODUCT IN TERMS OF THE LONG-RANGE INTEREST OF THE COUNTRY. AT THE
VERY LEAST THE COURT'S TEXT AND REASONING SHOULD WITHSTAND ANALYSIS AND
BE A FAIR EXPOSITION OF THE CONSTITUTIONAL PROVISION WHICH ITS OPINION
INTERPRETS. DECISIONS LIKE THESE CANNOT REST ALONE ON SYLLOGISM,
METAPHYSICS OR SOME ILL-DEFINED NOTIONS OF NATURAL JUSTICE, ALTHOUGH
EACH WILL PERHAPS PLAY ITS PART. IN PROCEEDING TO SUCH CONSTRUCTIONS
AS IT NOW ANNOUNCES, THE COURT SHOULD ALSO DULY CONSIDER ALL THE
FACTORS AND INTERESTS BEARING UPON THE CASES, AT LEAST INSOFAR AS THE
RELEVANT MATERIALS ARE AVAILABLE; AND IF THE NECESSARY CONSIDERATIONS
ARE NOT TREATED IN THE RECORD OR OBTAINABLE FROM SOME OTHER RELIABLE
SOURCE, THE COURT SHOULD NOT PROCEED TO FORMULATE FUNDAMENTAL POLICIES
BASED ON SPECULATION ALONE.
III.
FIRST, WE MAY INQUIRE WHAT ARE THE TEXTUAL AND FACTUAL BASES OF THIS
NEW FUNDAMENTAL RULE. TO REACH THE RESULT ANNOUNCED ON THE GROUNDS IT
DOES, THE COURT MUST STAY WITHIN THE CONFINES OF THE FIFTH AMENDMENT,
WHICH FORBIDS SELF-INCRIMINATION ONLY IF COMPELLED. HENCE THE CORE OF
THE COURT'S OPINION IS THAT BECAUSE OF THE "COMPULSION INHERENT IN
CUSTODIAL SURROUNDINGS, NO STATEMENT OBTAINED FROM A DEFENDANT IN
CUSTODY CAN TRULY BE THE PRODUCT OF HIS FREE CHOICE," ANTE, AT 458,
ABSENT THE USE OF ADEQUATE PROTECTIVE DEVICES AS DESCRIBED BY THE
COURT. HOWEVER, THE COURT DOES NOT POINT TO ANY SUDDEN INRUSH OF NEW
KNOWLEDGE REQUIRING THE REJECTION OF 70 YEARS' EXPERIENCE. NOR DOES IT
ASSERT THAT ITS NOVEL CONCLUSION REFLECTS A CHANGING CONSENSUS AMONG
STATE COURTS, SEE MAPP V. OHIO, 367 U.S. 643, OR THAT A SUCCESSION OF
CASES HAD STEADILY ERODED THE OLD RULE AND PROVED IT UNWORKABLE, SEE
GIDEON V. WAINWRIGHT, 372 U.S. 335. RATHER THAN ASSERTING NEW
KNOWLEDGE, THE COURT CONCEDES THAT IT CANNOT TRULY KNOW WHAT OCCURS
DURING CUSTODIAL QUESTIONING, BECAUSE OF THE INNATE SECRECY OF SUCH
PROCEEDINGS. IT EXTRAPOLATES A PICTURE OF WHAT IT CONCEIVES TO BE THE
NORM FROM POLICE INVESTIGATORIAL MANUALS, PUBLISHED IN 1959 AND 1962 OR
EARLIER, WITHOUT ANY ATTEMPT TO ALLOW FOR ADJUSTMENTS IN POLICE
PRACTICES THAT MAY HAVE OCCURRED IN THE WAKE OF MORE RECENT DECISIONS
OF STATE APPELLATE TRIBUNALS OR THIS COURT. BUT EVEN IF THE RELENTLESS
APPLICATION OF THE DESCRIBED PROCEDURES COULD LEAD TO THE INVOLUNTARY
CONFESSIONS, IT MUST ASSUREDLY DOES NOT FOLLOW THAT EACH AND EVERY CASE
WILL DISCLOSE THIS KIND OF INTERROGATION OR THIS KIND OF CONSEQUENCE.
(FN2) INSOFAR AS APPEARS FROM THE COURT'S OPINION, IT HAS NOT EXAMINED
A SINGLE TRANSCRIPT OF ANY POLICE INTERROGATION, LET ALONE THE
INTERROGATION THAT TOOK PLACE IN ANY ONE OF THESE CASES WHICH IT
DECIDES TODAY. JUDGED BY ANY OF THE STANDARDS FOR EMPIRICAL
INVESTIGATION UTILIZED IN THE SOCIAL SCIENCES THE FACTUAL BASIS FOR THE
COURT'S PREMISE IS PATENTLY INADEQUATE.
ALTHOUGH IN THE COURT'S VIEW IN-CUSTODY INTERROGATION IS INHERENTLY
COERCIVE, THE COURT SAYS THAT THE SPONTANEOUS PRODUCT OF THE COERCION
OF ARREST AND DETENTION IS STILL TO BE DEEMED VOLUNTARY. AN ACCUSED,
ARRESTED ON PROBABLE CAUSE, MAY BLURT OUT A CONFESSION WHICH WILL BE
ADMISSIBLE DESPITE THE FACT THAT HE IS ALONE AND IN CUSTODY, WITHOUT
ANY SHOWING THAT HE HAD ANY NOTION OF HIS RIGHT TO REMAIN SILENT OR OF
THE CONSEQUENCES OF HIS ADMISSION. YET, UNDER THE COURT'S RULE, IF THE
POLICE ASK HIM A SINGLE QUESTION SUCH AS "DO YOU HAVE ANYTHING TO
SAY?" OR "DID YOU KILL YOUR WIFE?" HIS RESPONSE, IF THERE IS ONE, HAS
SOMEHOW BEEN COMPELLED, EVEN IF THE ACCUSED HAS BEEN CLEARLY WARNED OF
HIS RIGHT TO REMAIN SILENT. COMMON SENSE INFORMS US TO THE CONTRARY.
WHILE ONE MAY SAY THAT THE RESPONSE WAS "INVOLUNTARY" IN THE SENSE THE
QUESTION PROVOKED OR WAS THE OCCASION FOR THE RESPONSE AND THUS THE
DEFENDANT WAS INDUCED TO SPEAK OUT WHEN HE MIGHT HAVE REMAINED SILENT
IF NOT ARRESTED AND NOT QUESTIONED, IT IS PATENTLY UNSOUND TO SAY THE
RESPONSE IS COMPELLED.
TODAY'S RESULT WOULD NOT FOLLOW EVEN IF IT WERE AGREED THAT TO SOME
EXTENT CUSTODIAL INTERROGATION IS INHERENTLY COERCIVE. SEE ASHCRAFT V.
TENNESSEE, 322 U.S. 143, 161 (JACKSON, J., DISSENTING). THE TEST HAS
BEEN WHETHER THE TOTALITY OF CIRCUMSTANCES DEPRIVED THE DEFENDANT OF A
"FREE CHOICE TO ADMIT, TO DENY, OR TO REFUSE TO ANSWER," LISENBA V.
CALIFORNIA, 314 U.S. 219, 241, AND WHETHER PHYSICAL OR PSYCHOLOGICAL
COERCION WAS OF SUCH A DEGREE THAT "THE DEFENDANT'S WILL WAS OVERBORNE
AT THE TIME HE CONFESSED," HAYNES V. WASHINGTON, 373 U.S. 503, 513;
LYNUMN V. ILLINOIS, 372 U.S. 528, 534. THE DURATION AND NATURE OF
INCOMMUNICADO CUSTODY, THE PRESENCE OR ABSENCE OF ADVICE CONCERNING THE
DEFENDANT'S CONSTITUTIONAL RIGHTS, AND THE GRANTING OR REFUSAL OF
REQUESTS TO COMMUNICATE WITH LAWYERS, RELATIVES OR FRIENDS HAVE ALL
BEEN RIGHTLY REGARDED AS IMPORTANT DATA BEARING ON THE BASIC INQUIRY.
SEE, E.G., ASHCRAFT V. TENNESSEE, 322 U.S. 143; HAYNES V. WASHINGTON,
373 U.S. 503. (FN3) BUT IT HAS NEVER BEEN SUGGESTED, UNTIL TODAY,
THAT SUCH QUESTIONING WAS SO COERCIVE AND ACCUSED PERSONS SO LACKING IN
HARDIHOOD THAT THE VERY FIRST RESPONSE TO THE VERY FIRST QUESTION
FOLLOWING THE COMMENCEMENT OF CUSTODY MUST BE CONCLUSIVELY PRESUMED TO
BE THE PRODUCT OF AN OVERBORNE WILL.
IF THE RULE ANNOUNCED TODAY WERE TRULY BASED ON A CONCLUSION THAT ALL
CONFESSIONS RESULTING FROM CUSTODIAL INTERROGATION ARE COERCED, THEN IT
WOULD SIMPLY HAVE NO RATIONAL FOUNDATION. COMPARE TOT V. UNITED
STATES, 319 U.S. 463, 466; UNITED STATES V. ROMANO, 382 U.S. 136. A
FORTIORI THAT WOULD BE TRUE OF THE EXTENSION OF THE RULE TO EXCULPATORY
STATEMENTS, WHICH THE COURT EFFECTS AFTER A BRIEF DISCUSSION OF WHY, IN
THE COURT'S VIEW, THEY MUST BE DEEMED INCRIMINATORY BUT WITHOUT ANY
DISCUSSION OF WHY THEY MUST BE DEEMED COERCED. SEE WILSON V. UNITED
STATES, 162 U.S. 613, 624. EVEN IF ONE WERE TO POSTULATE THAT THE
COURT'S CONCERN IS NOT THAT ALL CONFESSIONS INDUCED BY POLICE
INTERROGATIONS ARE COERCED BUT RATHER THAT SOME SUCH CONFESSIONS ARE
COERCED AND PRESENT JUDICIAL PROCEDURES ARE BELIEVED TO BE INADEQUATE
TO IDENTIFY THE CONFESSIONS THAT ARE COERCED AND THOSE THAT ARE NOT, IT
WOULD STILL NOT BE ESSENTIAL TO IMPOSE THE RULE THAT THE COURT HAS NOW
FASHIONED. TRANSCRIPTS OR OBSERVERS COULD BE REQUIRED, SPECIFIC TIME
LIMITS, TAILORED TO FIT THE CAUSE, COULD BE IMPOSED, OR OTHER DEVICES
COULD BE UTILIZED TO REDUCE THE CHANCES THAT OTHERWISE INDISCERNIBLE
COERCION WILL PRODUCE AN INADMISSIBLE CONFESSION.
ON THE OTHER HAND, EVEN IF ONE ASSUMED THAT THERE WAS AN ADEQUATE
FACTUAL BASIS FOR THE CONCLUSION THAT ALL CONFESSIONS OBTAINED DURING
IN-CUSTODY INTERROGATION ARE THE PRODUCT OF COMPULSION, THE RULE
PROPOUNDED BY THE COURT WOULD STILL BE IRRATIONAL, FOR, APPARENTLY, IT
IS ONLY IF THE ACCUSED IS ALSO WARNED OF HIS RIGHT TO COUNSEL AND
WAIVES BOTH THAT RIGHT AND THE RIGHT AGAINST SELF-INCRIMINATION THAT
THE INHERENT COMPULSIVENESS OF INTERROGATION DISAPPEARS. BUT IF THE
DEFENDANT MAY NOT ANSWER WITHOUT A WARNING A QUESTION SUCH AS "WHERE
WERE YOU LAST NIGHT?" WITHOUT HAVING HIS ANSWER TO BE A COMPELLED ONE,
HOW CAN THE COURT EVER ACCEPT HIS NEGATIVE ANSWER TO THE QUESTION OF
WHETHER HE WANTS TO CONSULT HIS RETAINED COUNSEL OR COUNSEL WHOM THE
COURT WILL APPOINT? AND WHY IF COUNSEL IS PRESENT AND THE ACCUSED
NEVERTHELESS CONFESSES, OR COUNSEL TELLS THE ACCUSED TO TELL THE TRUTH,
AND THAT IS WHAT THE ACCUSED DOES, IS THE SITUATION ANY LESS COERCIVE
INSOFAR AS THE ACCUSED IS CONCERNED? THE COURT APPARENTLY REALIZES ITS
DILEMMA OF FORECLOSING QUESTIONING WITHOUT THE NECESSARY WARNINGS BUT
AT THE SAME TIME PERMITTING THE ACCUSED, SITTING IN THE SAME CHAIR IN
FRONT OF THE SAME POLICEMEN, TO WAIVE HIS RIGHT TO CONSULT AN
ATTORNEY. IT EXPECTS, HOWEVER, THAT THE ACCUSED WILL NOT OFTEN WAIVE
THE RIGHT; AND IF IT IS CLAIMED THAT HE HAS, THE STATE FACES A SEVERE,
IF NOT IMPOSSIBLE BURDEN OF PROOF.
ALL OF THIS MAKES VERY LITTLE SENSE IN TERMS OF THE COMPULSION WHICH
THE FIFTH AMENDMENT PROSCRIBES. THAT AMENDMENT DEALS WITH COMPELLING
THE ACCUSED HIMSELF. IT IS HIS FREE WILL THAT IS INVOLVED.
CONFESSIONS AND INCRIMINATING ADMISSIONS, AS SUCH, ARE NOT FORBIDDEN
EVIDENCE; ONLY THOSE WHICH ARE COMPELLED ARE BANNED. I DOUBT THAT THE
COURT OBSERVES THESE DISTINCTIONS TODAY. BY CONSIDERING ANY ANSWERS TO
ANY INTERROGATION TO BE COMPELLED REGARDLESS OF THE CONTENT AND COURSE
OF EXAMINATION AND BY ESCALATING THE REQUIREMENTS TO PROVE WAIVER, THE
COURT NOT ONLY PREVENTS THE USE OF COMPELLED CONFESSIONS BUT FOR ALL
PRACTICAL PURPOSES FORBIDS INTERROGATION EXCEPT IN THE PRESENCE OF
COUNSEL. THAT IS, INSTEAD OF CONFINING ITSELF TO PROTECTION OF THE
RIGHT AGAINST COMPELLED SELF-INCRIMINATION THE COURT HAS CREATED A
LIMITED FIFTH AMENDMENT RIGHT TO COUNSEL - OR, AS THE COURT EXPRESSES
IT, A "NEED FOR COUNSEL TO PROTECT THE FIFTH AMENDMENT PRIVILEGE ...
." ANTE, AT 470. THE FOCUS THEN IS NOT ON THE WILL OF THE ACCUSED BUT
ON THE WILL OF COUNSEL AND HOW MUCH INFLUENCE HE CAN HAVE ON THE
ACCUSED. OBVIOUSLY THERE IS NO WARRANT IN THE FIFTH AMENDMENT FOR THUS
INSTALLING COUNSEL AS THE ARBITER OF THE PRIVILEGE. IN SUM, FOR ALL
THE COURT'S EXPOUNDING ON THE MENACING ATMOSPHERE OF POLICE
INTERROGATION PROCEDURES, IT HAS FAILED TO SUPPLY ANY FOUNDATION FOR
THE CONCLUSIONS IT DRAWS OR THE MEASURES IT ADOPTS.
IV.
CRITICISM OF THE COURT'S OPINION, HOWEVER, CANNOT STOP WITH A
DEMONSTRATION THAT THE FACTUAL AND TEXTUAL BASES FOR THE RULE IT
PROPOUNDS ARE, AT BEST, LESS THAN COMPELLING. EQUALLY RELEVANT IS AN
ASSESSMENT OF THE RULE'S CONSEQUENCES MEASURED AGAINST COMMUNITY
VALUES. THE COURT'S DUTY TO ASSESS THE CONSEQUENCES OF ITS ACTION IS
NOT SATISFIED BY THE UTTERANCE OF THE TRUTH THAT A VALUE OF OUR SYSTEM
OF CRIMINAL JUSTICE IS "TO RESPECT THE INVIOLABILITY OF THE HUMAN
PERSONALITY" AND TO REQUIRE GOVERNMENT TO PRODUCE THE EVIDENCE AGAINST
THE ACCUSED BY ITS OWN INDEPENDENT LABORS. ANTE, AT 460. MORE THAN
THE HUMAN DIGNITY OF THE ACCUSED IS INVOLVED; THE HUMAN PERSONALITY OF
OTHERS IN THE SOCIETY MUST ALSO BE PRESERVED. THUS THE VALUES
REFLECTED BY THE PRIVILEGE ARE NOT THE SOLE DESIDERATUM; SOCIETY'S
INTEREST IN THE GENERAL SECURITY IS OF EQUAL WEIGHT.
THE OBVIOUS UNDERPINNING OF THE COURT'S DECISION IS A DEEP-SEATED
DISTRUST OF ALL CONFESSIONS. AS THE COURT DECLARES THAT THE ACCUSED
MAY NOT BE INTERROGATED WITHOUT COUNSEL PRESENT, ABSENT A WAIVER OF THE
RIGHT TO COUNSEL, AND AS THE COURT ALL BUT ADMONISHES THE LAWYER TO
ADVISE THE ACCUSED TO REMAIN SILENT, THE RESULT ADDS UP TO A JUDICIAL
JUDGMENT THAT EVIDENCE FROM THE ACCUSED SHOULD NOT BE USED AGAINST HIM
IN ANY WAY, WHETHER COMPELLED OR NOT. THIS IS THE NOT SO SUBTLE
OVERTONE OF THE OPINION - THAT IT IS INHERENTLY WRONG FOR THE POLICE TO
GATHER EVIDENCE FROM THE ACCUSED HIMSELF. AND THIS IS PRECISELY THE
NUB OF THIS DISSENT. I SEE NOTHING WRONG OR IMMORAL, AND CERTAINLY
NOTHING UNCONSTITUTIONAL, IN THE POLICE'S ASKING A SUSPECT WHOM THEY
HAVE REASONABLE CAUSE TO ARREST WHETHER OR NOT HE KILLED HIS WIFE OR IN
CONFRONTING HIM WITH THE EVIDENCE ON WHICH THE ARREST WAS BASED, AT
LEAST WHERE HE HAS BEEN PLAINLY ADVISED THAT HE MAY REMAIN COMPLETELY
SILENT, SEE ESCOBEDO V. ILLINOIS, 378 U.S. 478, 499 (DISSENTING
OPINION). UNTIL TODAY, "THE ADMISSIONS OR CONFESSIONS OF THE PRISONER,
WHEN VOLUNTARILY AND FREELY MADE, HAVE ALWAYS RANKED HIGH ON THE SCALE
OF INCRIMINATING EVIDENCE." BROWN V. WALKER, 161 U.S. 591, 596; SEE
ALSO HOPT V. UTAH, 110 U.S. 574, 584-585. PARTICULARLY WHEN
CORROBORATED, AS WHERE THE POLICE HAVE CONFIRMED THE ACCUSED'S
DISCLOSURE OF THE HIDING PLACE OF THE IMPLEMENTS OR FRUITS OF THE
CRIME, SUCH CONFESSIONS HAVE THE HIGHEST RELIABILITY AND SIGNIFICANTLY
CONTRIBUTE TO THE CERTITUDE WITH WHICH WE MAY BELIEVE THE ACCUSED IS
GUILTY. MOREOVER, IT IS BY NO MEANS CERTAIN THAT THE PROCESS OF
CONFESSING IS INJURIOUS TO THE ACCUSED. TO THE CONTRARY IT MAY PROVIDE
PSYCHOLOGICAL RELIEF AND ENHANCE THE PROSPECTS FOR REHABILITATION.
THIS IS NOT TO SAY THAT THE VALUE OF RESPECT FOR THE INVIOLABILITY OF
THE ACCUSED'S INDIVIDUAL PERSONALITY SHOULD BE ACCORDED NO WEIGHT OR
THAT ALL CONFESSIONS SHOULD BE INDISCRIMINATELY ADMITTED. THIS COURT
HAS LONG READ THE CONSTITUTION TO PROSCRIBE COMPELLED CONFESSIONS, A
SALUTARY RULE FROM WHICH THERE SHOULD BE NO RETREAT. BUT I SEE NO
SOUND BASIS, FACTUAL OR OTHERWISE, AND THE COURT GIVES NONE, FOR
CONCLUDING THAT THE PRESENT RULE AGAINST THE RECEIPT OF COERCED
CONFESSIONS IS INADEQUATE FOR THE TASK OF SORTING OUT INADMISSIBLE
EVIDENCE AND MUST BE REPLACED BY THE PER SE RULE WHICH IS NOW IMPOSED.
EVEN IF THE NEW CONCEPT CAN BE SAID TO HAVE ADVANTAGES OF SOME SORT
OVER THE PRESENT LAW, THEY ARE FAR OUTWEIGHED BY ITS LIKELY UNDESIRABLE
IMPACT ON OTHER VERY RELEVANT AND IMPORTANT INTERESTS.
THE MOST BASIC FUNCTION OF ANY GOVERNMENT IS TO PROVIDE FOR THE
SECURITY OF THE INDIVIDUAL AND OF HIS PROPERTY. LANZETTA V. NEW
JERSEY, 306 U.S. 451, 455. THESE ENDS OF SOCIETY ARE SERVED BY THE
CRIMINAL LAWS WHICH FOR THE MOST PART ARE AIMED AT THE PREVENTION OF
CRIME. WITHOUT THE REASONABLY EFFECTIVE PERFORMANCE OF THE TASK OF
PREVENTING PRIVATE VIOLENCE AND RETALIATION, IT IS IDLE TO TALK ABOUT
HUMAN DIGNITY AND CIVILIZED VALUES.
THE MODES BY WHICH THE CRIMINAL LAWS SERVE THE INTEREST IN GENERAL
SECURITY ARE MANY. FIRST THE MURDERER WHO HAS TAKEN THE LIFE OF
ANOTHER IS REMOVED FROM THE STREETS, DEPRIVED OF HIS LIBERTY AND
THEREBY PREVENTED FROM REPEATING HIS OFFENSE. IN VIEW OF THE
STATISTICS ON RECIDIVISM IN THIS COUNTRY (FN4) AND OF THE NUMBER OF
INSTANCES IN WHICH APPREHENSION OCCURS ONLY AFTER REPEATED OFFENSES, NO
ONE CAN SENSIBLY CLAIM THAT THIS ASPECT OF THE CRIMINAL LAW DOES NOT
PREVENT CRIME OR CONTRIBUTE SIGNIFICANTLY TO THE PERSONAL SECURITY OF
THE ORDINARY CITIZEN.
SECONDLY, THE SWIFT AND SURE APPREHENSION OF THOSE WHO REFUSE TO
RESPECT THE PERSONAL SECURITY AND DIGNITY OF THEIR NEIGHBOR
UNQUESTIONABLY HAS ITS IMPACT ON OTHERS WHO MIGHT BE SIMILARLY
TEMPTED. THAT THE CRIMINAL LAW IS WHOLLY OR PARTLY INEFFECTIVE WITH A
SEGMENT OF THE POPULATION OR WITH MANY OF THOSE WHO HAVE BEEN
APPREHENDED AND CONVICTED IS A VERY FAULTY BASIS FOR CONCLUDING THAT IT
IS NOT EFFECTIVE WITH RESPECT TO THE GREAT BULK OF OUR CITIZENS OR FOR
THINKING THAT WITHOUT THE CRIMINAL LAWS, OR IN THE ABSENCE OF THEIR
ENFORCEMENT, THERE WOULD BE NO INCREASE IN CRIME. ARGUMENTS OF THIS
NATURE ARE NOT BORNE OUT BY ANY KIND OF RELIABLE EVIDENCE THAT I HAVE
SEEN TO THIS DATE.
THIRDLY, THE LAW CONCERNS ITSELF WITH THOSE WHOM IT HAS CONFINED.
THE HOPE AND AIM OF MODERN PENOLOGY, FORTUNATELY, IS AS SOON AS
POSSIBLE TO RETURN THE CONVICT TO SOCIETY A BETTER AND MORE LAW-ABIDING
MAN THAN WHEN HE LEFT. SOMETIMES THERE IS SUCCESS, SOMETIMES FAILURE.
BUT AT LEAST THE EFFORT IS MADE, AND IT SHOULD BE MADE TO THE VERY
MAXIMUM EXTEND OF OUR PRESENT AND FUTURE CAPABILITIES.
THE RULE ANNOUNCED TODAY WILL MEASURABLY WEAKEN THE ABILITY OF THE
CRIMINAL LAW TO PERFORM THESE TASKS. IT IS A DELIBERATE CALCULUS TO
PREVENT INTERROGATIONS, TO REDUCE THE INCIDENCE OF CONFESSIONS AND
PLEAS OF GUILTY AND TO INCREASE THE NUMBER OF TRIALS. (FN5) CRIMINAL
TRIALS, NO MATTER HOW EFFICIENT THE POLICE ARE, ARE NOT SURE BETS FOR
THE PROSECUTION, NOR SHOULD THEY BE IF THE EVIDENCE IS NOT
FORTHCOMING. UNDER THE PRESENT LAW, THE PROSECUTION FAILS TO PROVE ITS
CASE IN ABOUT 30% OF THE CRIMINAL CASES ACTUALLY TRIED IN THE FEDERAL
COURTS. SEE FEDERAL OFFENDERS: 1964, SUPRA, NOTE 4, AT 6 (TABLE 4),
59 (TABLE 1); FEDERAL OFFENDERS: 1963, SUPRA, NOTE 4, AT 5 (TABLE 3);
DISTRICT OF COLUMBIA OFFENDERS: 1963, SUPRA, NOTE 4, AT 2 (TABLE 1).
BUT IT IS SOMETHING ELSE AGAIN TO REMOVE FROM THE ORDINARY CRIMINAL
CASE ALL THOSE CONFESSIONS WHICH HERETOFORE HAVE BEEN HELD TO BE FREE
AND VOLUNTARY ACTS OF THE ACCUSED AND TO THUS ESTABLISH A NEW
CONSTITUTIONAL BARRIER TO THE ASCERTAINMENT OF TRUTH BY THE JUDICIAL
PROCESS. THERE IS, IN MY VIEW, EVERY REASON TO BELIEVE THAT A GOOD
MANY CRIMINAL DEFENDANTS WHO OTHERWISE WOULD HAVE BEEN CONVICTED ON
WHAT THIS COURT HAS PREVIOUSLY THOUGHT TO BE THE MOST SATISFACTORY KIND
OF EVIDENCE, MINUS THE CONFESSION, IS PUT TO THE TEST OF LITIGATION.
I HAVE NO DESIRE WHATSOEVER TO SHARE THE RESPONSIBILITY FOR ANY SUCH
IMPACT ON THE PRESENT CRIMINAL PROCESS.
IN SOME UNKNOWN NUMBER OF CASES THE COURT'S RULE WILL RETURN A
KILLER, A RAPIST OR OTHER CRIMINAL TO THE STREETS AND TO THE
ENVIRONMENT WHICH PRODUCED HIM, TO REPEAT HIS CRIME WHENEVER IT PLEASES
HIM. AS A CONSEQUENCE, THERE WILL NOT BE A GAIN, BUT A LOSS, IN HUMAN
DIGNITY. THE REAL CONCERN IS NOT THE UNFORTUNATE CONSEQUENCES OF THIS
NEW DECISION ON THE CRIMINAL LAW AS AN ABSTRACT, DISEMBODIED SERIES OF
AUTHORATIVE PROSCRIPTIONS, BUT THE IMPACT ON THOSE WHO RELY ON THE
PUBLIC AUTHORITY FOR PROTECTION AND WHO WITHOUT IT CAN ONLY ENGAGE IN
VIOLENT SELF-HELP WITH GUNS, KNIVES AND THE HELP OF THEIR NEIGHBORS
SIMILARLY INCLINED. THERE IS, OF COURSE, A SAVING FACTOR: THE NEXT
VICTIMS ARE UNCERTAIN, UNNAMED AND UNREPRESENTED IN THIS CASE.
NOR CAN THIS DECISION DO OTHER THAN HAVE A CORROSIVE EFFECT ON THE
CRIMINAL LAW AS AN EFFECTIVE DEVICE TO PREVENT CRIME. A MAJOR
COMPONENT IN ITS EFFECTIVENESS IN THIS REGARD IS ITS SWIFT AND SURE
ENFORCEMENT. THE EASIER IT IS TO GET AWAY WITH RAPE AND MURDER, THE
LESS THE DETERRENT EFFECT ON THOSE WHO ARE INCLINED TO ATTEMPT IT.
THIS IS STILL GOOD COMMON SENSE. IF IT WERE NOT, WE SHOULD POSTHASTE
LIQUIDATE THE WHOLE LAW ENFORCEMENT ESTABLISHMENT AS A USELESS,
MISGUIDED EFFORT TO CONTROL HUMAN CONDUCT.
AND WHAT ABOUT THE ACCUSED WHO HAS CONFESSED OR WOULD CONFESS IN
RESPONSE TO SIMPLE, NONCOERCIVE QUESTIONING AND WHOSE GUILT COULD NOT
OTHERWISE BE PROVED? IS IT S CLEAR THAT RELEASE IS THE BEST THING FOR
HIM IN EVERY CASE? HAS IT SO UNQUESTIONABLY BEEN RESOLVED THAT IN EACH
AND EVERY CASE IT WOULD BE BETTER FOR HIM NOT TO CONFESS AND TO RETURN
TO HIS ENVIRONMENT WITH NO ATTEMPT WHATSOEVER TO HELP HIM? I THINK
NOT. IT MAY WELL BE THAT IN MANY CASES IT WILL BE NO LESS THAN A
CALLOUS DISREGARD FOR HIS OWN WELFARE AS WELL AS FOR THE INTERESTS OF
HIS NEXT VICTIM.
THERE IS ANOTHER ASPECT TO THE EFFECT OF THE COURT'S RULE ON THE
PERSON WHOM THE POLICE HAVE ARRESTED ON PROBABLE CAUSE. THE FACT IS
THAT HE MAY NOT BE GUILTY AT ALL AND MAY BE ABLE TO EXTRICATE HIMSELF
QUICKLY AND SIMPLY IF HE WERE TOLD THE CIRCUMSTANCES OF HIS ARREST AND
WERE ASKED TO EXPLAIN. THIS EFFORT, AND HIS RELEASE, MUST NOW AWAIT
THE HIRING OF A LAWYER OR HIS APPOINTMENT BY THE COURT, CONSULTATION
WITH COUNSEL AND THEN A SESSION WITH THE POLICE OR THE PROSECUTOR.
SIMILARLY, WHERE PROBABLE CAUSE EXISTS TO ARREST SEVERAL SUSPECTS, AS
WHERE THE BODY OF THE VICTIM IS DISCOVERED IN A HOUSE HAVING SEVERAL
RESIDENTS, COMPARE JOHNSON V. STATE, 238 MD. 140, 207 A.2D 643 (1965),
CERT. DENIED, 382 U.S. 1013, IT WILL OFTEN BE TRUE THAT A SUSPECT MAY
BE CLEARED ONLY THROUGH THE RESULTS OF INTERROGATION OF OTHER
SUSPECTS. HERE TOO THE RELEASE OF THE INNOCENT MAY BE DELAYED BY THE
COURT'S RULE.
MUCH OF THE TROUBLE WITH THE COURT'S NEW RULE IS THAT IT WILL OPERATE
INDISCRIMINATELY IN ALL CRIMINAL CASES, REGARDLESS OF THE SEVERITY OF
THE CRIME OR THE CIRCUMSTANCES INVOLVED. IT APPLIES TO EVERY
DEFENDANT, WHETHER THE PROFESSIONAL CRIMINAL OR ONE COMMITTING A CRIME
OF MOMENTARY PASSION WHO IS NOT PART AND PARCEL OF ORGANIZED CRIME. IT
WILL SLOW DOWN THE INVESTIGATION AND THE APPREHENSION OF CONFEDERATES
IN THOSE CASES WHERE TIME IS OF THE ESSENCE, SUCH AS KIDNAPPING, SEE
BRINEGAR V. UNITED STATES, 338 U.S. 160, 183 (JACKSON, J., DISSENTING);
PEOPLE V. MODESTO, 62 CAL. 2D 436, 446, 398 P.2D 753, 759 (1965), THOSE
INVOLVING THE NATIONAL SECURITY, SEE UNITED STATES V. DRUMMOND, 354
F.2D 132, 147 (C.A.2D CIR. 1965)(EN BANC)(ESPIONAGE CASE), PET. FOR
CERT. PENDING, NO. 1203, MISC., O.T. 1965; CF. GESSNER V. UNITED
STATES, 354 F.2D 726, 730, N. 10 (C.A. 10TH CIR. 1965)(UPHOLDING, IN
ESPIONAGE CASE, TRIAL RULING THAT GOVERNMENT NEED NOT SUBMIT CLASSIFIED
PORTIONS OF INTERROGATION TRANSCRIPT), AND SOME OF THOSE INVOLVING
ORGANIZED CRIME. IN THE LATTER CONTEXT THE LAWYER WHO ARRIVES MAY ALSO
BE THE LAWYER FOR THE DEFENDANT'S COLLEAGUES AND CAN BE RELIED UPON TO
INSURE THAT NO BREACH OF THE ORGANIZATION'S SECURITY TAKES PLACE EVEN
THOUGH THE ACCUSED MAY FEEL THAT THE BEST THING HE CAN DO IS TO
COOPERATE.
AT THE SAME TIME, THE COURT'S PER SE APPROACH MAY NOT BE JUSTIFIED ON
THE GROUND THAT IT PROVIDES A "BRIGHT LINE" PERMITTING THE AUTHORITIES
TO JUDGE IN ADVANCE WHETHER INTERROGATION MAY SAFELY BE PURSUED WITHOUT
JEOPARDIZING THE ADMISSIBILITY OF ANY INFORMATION OBTAINED AS A
CONSEQUENCE. NOR CAN IT BE CLAIMED THAT JUDICIAL TIME AND EFFORT,
ASSUMING THAT IS A RELEVANT CONSIDERATION, WILL BE CONSERVED BECAUSE OF
THE EASE OF APPLICATION OF THE NEW RULE. TODAY'S DECISION LEAVES OPEN
SUCH QUESTIONS AS WHETHER THE ACCUSED WAS IN CUSTODY, WHETHER HIS
STATEMENTS WERE SPONTANEOUS OR THE PRODUCT OF INTERROGATION, WHETHER
THE ACCUSED HAS EFFECTIVELY WAIVED HIS RIGHTS, AND WHETHER
NONTESTIMONIAL EVIDENCE INTRODUCED AT TRIAL IS THE FRUIT OF STATEMENTS
MADE DURING A PROHIBITED INTERROGATION, ALL OF WHICH ARE CERTAIN TO
PROVE PRODUCTIVE OF UNCERTAINTY DURING INVESTIGATION AND LITIGATION
DURING PROSECUTION. FOR ALL THESE REASONS, IF FURTHER RESTRICTIONS ON
POLICE INTERROGATION ARE DESIRABLE AT THIS TIME, A MORE FLEXIBLE
APPROACH MAKES MUCH MORE SENSE THAN THE COURT'S CONSTITUTIONAL
STRAITJACKET WHICH FORECLOSES MORE DISCRIMINATING TREATMENT BY
LEGISLATIVE OR RULE-MAKING PRONOUNCEMENTS.
APPLYING THE TRADITIONAL STANDARDS TO THE CASES BEFORE THE COURT, I
WOULD HOLD THESE CONFESSIONS VOLUNTARY. I WOULD THEREFORE AFFIRM IN
NOS. 759, 760, AND 761, AND REVERSE IN NO. 584.
FN1 OF COURSE THE COURT DOES NOT DENY THAT IT IS DEPARTING FROM
PRIOR PRECEDENT; IT EXPRESSLY OVERRULES CROOKER AND CICENIA, ANTE, AT
479, N. 48, AND IT ACKNOWLEDGES THAT IN THE INSTANT "CASES WE MIGHT NOT
FIND THE DEFENDANTS' STATEMENTS TO HAVE BEEN INVOLUNTARY IN TRADITIONAL
TERMS," ANTE, AT 457.
FN2 IN FACT, THE TYPE OF SUSTAINED INTERROGATION DESCRIBED BY THE
COURT APPEARS TO BE THE EXCEPTION RATHER THAN THE RULE. A SURVEY OF
399 CASES IN ONE CITY FOUND THAT IN ALMOST HALF OF THE CASES THE
INTERROGATION LASTED LESS THAN 30 MINUTES. BARRETT, POLICE PRACTICES
AND THE LAW - FROM ARREST TO RELEASE OR CHARGE, 50 CALIF. L. REV. 11,
41-45 (1962). QUESTIONING TENDS TO BE CONFUSED AND SPORADIC AND IS
USUALLY CONCENTRATED ON CONFRONTATIONS WITH WITNESSES OR NEW ITEMS OF
EVIDENCE, AS THESE ARE OBTAINED BY OFFICERS CONDUCTING THE
INVESTIGATION. SEE GENERALLY LAFAVE, ARREST: THE DECISION TO TAKE A
SUSPECT INTO CUSTODY 386 (1965); ALI, A MODEL CODE OF PRE-ARRAIGNMENT
PROCEDURE, COMMENTARY SEC. 5.01, AT 170, N. 4 (TENT. DRAFT NO. 1,
1966). FN3 BY CONTRAST, THE COURT INDICATES THAT IN APPLYING THIS
NEW RULE IT "WILL NOT PAUSE TO INQUIRE IN INDIVIDUAL CASES WHETHER THE
DEFENDANT WAS AWARE OF HIS RIGHTS WITHOUT A WARNING BEING GIVEN."
ANTE, AT 468. THE REASON GIVEN IS THAT ASSESSMENT OF THE KNOWLEDGE OF
THE DEFENDANT BASED ON INFORMATION AS TO AGE, EDUCATION, INTELLIGENCE,
OR PRIOR CONTACT WITH AUTHORITIES CAN NEVER BE MORE THAN SPECULATION,
WHILE A WARNING IS A CLEAR-CUT FACT. BUT THE OFFICERS' CLAIM THAT THEY
GAVE THE REQUISITE WARNINGS MAY BE DISPUTED, AND FACTS RESPECTING THE
DEFENDANT'S PRIOR EXPERIENCE MAY BE UNDISPUTED AND BE OF SUCH A NATURE
AS TO VIRTUALLY PRECLUDE ANY DOUBT THAT THE DEFENDANT KNEW OF HIS
RIGHTS. SEE UNITED STATES V. BOLDEN, 355 F.2D 453 (C.A. 7TH CIR.
1965), PETITION FOR CERT. PENDING NO. 1146, O.T. 1965 (SECRET SERVICE
AGENT); PEOPLE V. DU BONT, 235 CAL. APP. 2D 844, 45 CAL. RPTR. 717,
PET. FOR CERT. PENDING NO. 1053, MISC., O.T. 1965 (FORMER POLICE
OFFICER).
FN4 PRECISE STATISTICS ON THE EXTENT OF RECIDIVISM ARE UNAVAILABLE,
IN PART BECAUSE NOT ALL CRIMES ARE SOLVED AND IN PART BECAUSE CRIMINAL
RECORDS OF CONVICTIONS IN DIFFERENT JURISDICTIONS ARE NOT BROUGHT
TOGETHER BY A CENTRAL DATA COLLECTION AGENCY. BEGINNING IN 1963,
HOWEVER, THE FEDERAL BUREAU OF INVESTIGATION BEGAN COLLATING DATA ON
"CAREERS IN CRIME," WHICH IT PUBLISHES IN ITS UNIFORM CRIME REPORTS.
OF 92,869 OFFENDERS PROCESSED IN 1963 AND 1964, 76% HAD A PRIOR ARREST
RECORD ON SOME CHARGE. OVER A PERIOD OF 10 YEARS THE GROUP HAD
ACCUMULATED 434,000 CHARGES. FBI, UNIFORM CRIME REPORTS - 1964, 27
28. IN 1963 AND 1964 BETWEEN 23% AND 25% OF ALL OFFENDERS SENTENCED IN
88 FEDERAL DISTRICT COURTS (EXCLUDING THE DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA) WHOSE CRIMINAL RECORDS WERE REPORTED HAD
PREVIOUSLY BEEN SENTENCED TO A TERM OF IMPRISONMENT OF 13 MONTHS OR
MORE. APPROXIMATELY AN ADDITIONAL 40% HAD A PRIOR RECORD LESS THAN
PRISON (JUVENILE RECORD, PROBATION RECORD, ETC.). ADMINISTRATIVE
OFFICE OF THE UNITED STATES COURTS, FEDERAL OFFENDERS IN THE UNITED
STATES DISTRICT COURTS: 1964, X, 36 (HEREINAFTER CITED AS FEDERAL
OFFENDERS: 1964); ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
FEDERAL OFFENDERS IN THE UNITED STATES DISTRICT COURTS: 1963, 25-27
(HEREINAFTER CITED AS FEDERAL OFFENDERS: 1963). DURING THE SAME TWO
YEARS IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BETWEEN 28%
AND 35% OF THOSE SENTENCED HAD PRIOR PRISON RECORDS AND FROM 37% TO 40%
HAD A PRIOR RECORD LESS THAN PRISON. FEDERAL OFFENDERS: 1964 XII, 64,
66; ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEDERAL
OFFENDERS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA: 1963, 8, 10 (HEREINAFTER CITED AS DISTRICT OF COLUMBIA
OFFENDERS: 1963).
A SIMILAR PICTURE IS OBTAINED IF ONE LOOKS AT THE SUBSEQUENT RECORDS
OF THOSE RELEASED FROM CONFINEMENT. IN 1964, 12.3% OF PERSONS ON
FEDERAL PROBATION HAD THEIR PROBATION REVOKED BECAUSE OF THE COMMISSION
OF MAJOR VIOLATIONS (DEFINED AS ONE IN WHICH THE PROBATIONER HAS BEEN
COMMITTED TO IMPRISONMENT FOR A PERIOD OF 90 DAYS OR MORE, BEEN PLACED
ON PROBATION FOR OVER ONE YEAR ON A NEW OFFENSE, OR HAS ABSCONDED WITH
FELONY CHARGES OUTSTANDING). TWENTY-THREE AND TWO-TENTHS PERCENT OF
PAROLEES AND 16.9% OF THOSE WHO HAD BEEN MANDATORILY RELEASED AFTER
SERVICE OF A PORTION OF THEIR SENTENCE LIKEWISE COMMITTED MAJOR
VIOLATIONS. REPORTS OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES AND ANNUAL REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS: 1965, 138. SEE
ALSO MANDEL ET AL., RECIDIVISM STUDIED AND DEFINED, 56 J. CRIM. L.,
C.&P.S. 59 (1965)(WITHIN FIVE YEARS OF RELEASE 62.33% OF SAMPLE HAD
COMMITTED OFFENSES PLACING THEM IN RECIDIVIST CATEGORY).
FN5 EIGHTY-EIGHT FEDERAL DISTRICT COURTS (EXCLUDING THE DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA) DISPOSED OF THE CASES OF 33,381
CRIMINAL DEFENDANTS IN 1964. ONLY 12.5% OF THOSE CASES WERE ACTUALLY
TRIED. OF THE REMAINING CASES, 89.9% WERE TERMINATED BY CONVICTIONS
UPON PLEAS OF GUILTY AND 10.1% WERE DISMISSED. STATED DIFFERENTLY,
APPROXIMATELY 90% OF ALL CONVICTIONS RESULTED FROM GUILTY PLEAS.
FEDERAL OFFENDERS: 1964, SUPRA, NOTE 4, 3-6. IN THE DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA A HIGHER PERCENTAGE, 27%, WENT TO TRIAL,
AND THE DEFENDANT PLEADED GUILTY IN APPROXIMATELY 78% OF THE CASES
TERMINATED PRIOR TO TRIAL. ID., AT 58-59. NO RELIABLE STATISTICS ARE
AVAILABLE CONCERNING THE PERCENTAGE OF CASES IN WHICH GUILTY PLEAS ARE
INDUCED BECAUSE OF THE EXISTENCE OF A CONFESSION OR OF PHYSICAL
EVIDENCE UNEARTHED AS A RESULT OF A CONFESSION. UNDOUBTEDLY THE NUMBER
OF SUCH CASES IS SUBSTANTIAL.
PERHAPS OF EQUAL SIGNIFICANCE IS THE NUMBER OF INSTANCES OF KNOWN
CRIMES WHICH ARE NOT SOLVED. IN 1964, ONLY 388,946, OR 23.9% OF
1,626,574 SERIOUS KNOWN OFFENSES WERE CLEARED. THE CLEARANCE RATE
RANGED FROM 89.8% FOR HOMICIDES TO 18.7% FOR LARCENY. FBI, UNIFORM
CRIME REPORTS - 1964, 20-22, 101. THOSE WHO WOULD REPLACE
INTERROGATION AS AN INVESTIGATORIAL TOOL BY MODERN SCIENTIFIC
INVESTIGATION TECHNIQUES SIGNIFICANTLY OVERESTIMATE THE EFFECTIVENESS
OF PRESENT PROCEDURES, EVEN WHEN INTERROGATION IS INCLUDED.
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