What are the "Miranda" Rights?
In 1966, the
U.S. Supreme Court decided the historic case of Miranda v. Arizona , declaring that whenever a person is
taken into police custody, before being questioned he or she must be told of
the Fifth Amendment right not to make any self-incriminating statements.
As a result
of Miranda, anyone in police custody must be told four things before being
questioned:
1. You have
the right to remain silent.
2. Anything
you say can and will be used against you in a court of law.
3. You have
the right to an attorney.
4. If you
cannot afford an attorney, one will be appointed for you.
What if the Police Fail to Advise Me of My Miranda Rights?
When police
officers question a suspect in custody without first giving the Miranda warning,
any statement or confession made is presumed to be involuntary, and cannot be
used against the suspect in any criminal case. Any evidence discovered as a
result of that statement or confession will likely also be thrown out of the
case.
For example,
suppose Dan is arrested and, without being read his Miranda rights, is
questioned by police officers about a bank robbery. Unaware that he has the
right to remain silent, Dan confesses to committing the robbery and tells the
police that the money is buried in his backyard. Acting on this information,
the police dig up the money. When Dan's attorney challenges the confession in
court, the judge will likely find it unlawful. This means that, not only will
the confession be thrown out of the case against Dan, but so will the money
itself, because it was discovered solely as a result of the unlawful
confession.
__________________________________________
MIRANDA v. ARIZONA,
384 U.S. 436 (1966)
384 U.S.
436
MIRANDA v. ARIZONA .
CERTIORARI TO THE SUPREME COURT OF ARIZONA .
No. 759.
Argued February 28 - March 1, 1966.
Decided June 13, 1966. *
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 [384 U.S. 436, 437] 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 incustody interrogation he has 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.
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. [384 U.S. 436,
438] John J. Flynn argued the cause for
petitioner in No. 759. With him on the brief was John P. Frank. Victor M. Earle
III argued the cause and filed a brief for petitioner in No. 760. F . Conger Fawcett
argued the cause and filed a brief for petitioner in No. 761. Gordon Ringer,
Deputy Attorney General of California ,
argued the cause for petitioner in No. 584. With him on the briefs were Thomas
C. Lynch, Attorney General, and William E. James, Assistant Attorney General.
Gary K.
Nelson, Assistant Attorney General of Arizona ,
argued the cause for respondent in No. 759. With him on the brief was Darrell
F. Smith, Attorney General. William I. Siegel argued the cause for respondent
in No. 760. With him on the brief was Aaron E. Koota. Solicitor General
Marshall argued the cause for the United States in No. 761. With him
on the brief were Assistant Attorney General Vinson, Ralph S. Spritzer, Nathan
Lewin, Beatrice Rosenberg and Ronald L. Gainer. William A. Norris, by
appointment of the Court, 382 U.S.
952 , argued the cause and filed a brief for respondent in No. 584.
Telford
Taylor, by special leave of Court, argued the cause for the State of New York , as amicus
curiae, in all cases. With him on the brief were Louis J. Lefkowitz, Attorney
General of New York, Samuel A. Hirshowitz, First Assistant Attorney General,
and Barry Mahoney and George D. Zuckerman, Assistant Attorneys General, joined
by the Attorneys General for their respective States and jurisdictions as
follows: Richmond M. Flowers of Alabama, Darrell F. Smith of Arizona, Bruce
Bennett of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware,
Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Allan G. Shepard of
Idaho, William G. Clark of Illinois, Robert C. Londerholm of Kansas, Robert
Matthews of Kentucky, Jack P. F. [384 U.S. 436, 439] Gremillion of Louisiana, Richard J. Dubord
of Maine, Thomas B. Finan of Maryland, Norman H. Anderson of Missouri, Forrest
H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of
North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon,
Walter E. Alessandroni of Pennsylvania, J. Joseph Nugent of Rhode Island,
Daniel R. McLeod of South Carolina, Waggoner Carr of Texas, Robert Y. Button of
Virginia, John J. O'Connell of Washington, C. Donald Robertson of West
Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and
Francisco Corneiro of the Virgin Islands.
Duane R.
Nedrud, by special leave of Court, argued the cause for the National District
Attorneys Association, as amicus curiae, urging affirmance in Nos. 759 and 760,
and reversal in No. 584. With him on the brief was Marguerite D. Oberto.
Anthony G.
Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf
filed a brief for the American Civil Liberties Union, as amicus curiae, in all
cases.
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. [384 U.S. 436,
440]
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. 1 A wealth of scholarly
material has been written tracing its ramifications and underpinnings. 2 Police
and prosecutor [384 U.S.
436, 441] have speculated on its range and desirability.
3 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 [384 U.S.
436, 442] 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 [384 U.S.
436, 443] 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 [384 U.S. 436, 444] 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. 4 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 and at any stage of the [384 U.S. 436,
445] 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 share 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. 5 [384 U.S. 436, 446] 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. 6 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). 7 [384 U.S. 436, 447]
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 [384 U.S.
436, 448] 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. 8 These [384 U.S. 436,
449] texts are used by law enforcement
agencies themselves as guides. 9 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." 10 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 [384 U.S. 436,
450] 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." 11
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, 12 to cast blame on the victim or on society. 13
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 perseverance. [384 U.S.
436, 451] 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."
14
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 [384 U.S. 436, 452] 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?" 15
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." 16
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 very 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 demur at
some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not
present in the room." 17 [384 U.S.
436, 453]
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." 18 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."
19
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
[384 U.S.
436, 454] the subject with the apparent
fairness of his interrogator." 20
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." 21
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: "[T]he 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.'" 22 [384 U.S. 436,
455]
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." 23 When normal procedures fail to produce the needed
result, the police may resort to deceptive stratagems 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 stratagems
described above, the very fact of custodial interrogation exacts a heavy toll
on individual liberty and trades on the weakness of individuals. 24 [384 U.S. 436, 456] 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. 25 In other settings, these
individuals might have exercised their constitutional rights. In the
incommunicado police-dominated atmosphere, they succumbed.
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 [384 U.S. 436,
457] 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 defendants' 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. 26 The current practice
of incommunicado interrogation is at odds with one of our [384 U.S. 436,
458] 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. 27 Perhaps [384 U.S. 436, 459] 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 .
28 These sentiments worked their way over to the Colonies and were implanted
after great struggle into the Bill of Rights. 29 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 [384 U.S.
436, 460] 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. [384 U.S.
436, 461] 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 embodied 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.
30
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 [384 U.S. 436, 462] 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 [384 U.S.
436, 463] 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." 31
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 455 -456, we recognized
both the dangers of interrogation and the appropriateness of prophylaxis
stemming from the very fact of interrogation itself. 32
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 [384 U.S. 436,
464] 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. 33 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 [384 U.S. 436, 465] making a free and rational choice. 34 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. 35 This
heightened his dilemma, and [384 U.S. 436, 466] 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. 36 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). [384 U.S.
436, 467]
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 of 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 [384 U.S. 436, 468] 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.
37 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 [384
U.S.
436, 469] as to his age, education,
intelligence, or prior contact with authorities, can never be more than
speculation; 38 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 [384 U.S. 436,
470] 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 [384 U.S. 436,
471] 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: "[I]t 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. 39 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 [384 U.S.
436, 472] 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. 40 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. 41 Denial [384 U.S. 436, 473] 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. 42 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. 43
Once
warnings have been given, the subsequent procedure is clear. If the individual
indicates in any manner, [384 U.S.
436, 474] at any time prior to or
during questioning, that he wishes to remain silent, the interrogation must
cease. 44 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. [384 U.S. 436,
475]
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 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 [384 U.S. 436, 476] some information on his own prior to
invoking his right to remain silent when interrogated. 45
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, [384 U.S.
436, 477] 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 statement 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 [384 U.S.
436, 478] 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. 46
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, 47 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 [384 U.S. 436, 479] 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. 48
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 [384 U.S. 436,
480] 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). 49
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." 50
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 [384 U.S.
436, 481] 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 practices, of considerable
evidence against each defendant. 51 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). 52 [384 U.S. 436,
482]
It is 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. 53 [384 U.S. 436, 483]
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. 54 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 [384 U.S. 436,
484] 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 [384 U.S. 436, 485] 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. [384 U.S.
436, 486]
"`(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.'" 55
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. 56
The experience in 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 [384 U.S. 436, 487]
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. 57
[384 U.S.
436, 488] The right of the individual
to consult with an attorney during this period is expressly recognized. 58
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. 59
In India ,
confessions made to police not in the presence of a magistrate have been
excluded [384 U.S.
436, 489] by rule of evidence since
1872, at a time when it operated under British law. 60 Identical provisions
appear in the Evidence Ordinance of Ceylon, enacted in 1895. 61 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. 62 Denial of
the right to consult counsel during interrogation has also been proscribed by
military tribunals. 63 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, [384 U.S.
436, 490] whereas other jurisdictions
arrived at their conclusions on the basis of principles of justice not so
specifically defined. 64
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. 65 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 [384 U.S. 436,
491] 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 these facts 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.
66 Two hours later, the [384 U.S.
436, 492] 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."
67
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 , [384 U.S. 436,
493] 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 [384 U.S. 436,
494] 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. 68 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 [384 U.S. 436, 495] 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 warning 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. 69 At the [384 U.S. 436,
496] 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 [384 U.S. 436, 497] 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 then 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, [384 U.S. 436,
498] 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. 70
We affirm. 71 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 [384 U.S. 436, 499] 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.
Footnotes
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).
[ Footnote 2
] 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 [384 U.S. 436, 441] 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).
[ Footnote 3
] 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 "[I]t 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 causal
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).
[ Footnote 4
] This is what we meant in Escobedo when we spoke of an investigation which had
focused on an accused.
[ Footnote 5
] See, for example, IV National Commission on Law Observance and Enforcement,
Report on Lawlessness in Law Enforcement (1931) [384 U.S. 436, 446] [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).
[ Footnote 6 ] 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).
[ Footnote 7
] 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 [384 U.S. 436, 447] 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).
[ Footnote 8
] 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, Technics 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.
[ Footnote 9
] 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 stratagems
to employ during interrogations. Similarly, the techniques described in 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.
[ Footnote 10
] Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.
[ Footnote 11
] O'Hara, supra, at 99.
[ Footnote 12
] 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.
[ Footnote 13
] Inbau & Reid, supra, at 43-55.
[ Footnote 14
] O'Hara, supra, at 112.
[ Footnote 15
] Inbau & Reid, supra, at 40.
[ Footnote 16
] Ibid.
[ Footnote 17
] 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 [384 U.S.
436, 453] 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."
[ Footnote 18
] O'Hara, supra, at 105-106.
[ Footnote 19
] Id. , at
106.
[ Footnote 20
] Inbau & Reid, supra, at 111.
[ Footnote 21
] Ibid.
[ Footnote 22
] Inbau & Reid, supra, at 112.
[ Footnote 23
] Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed. 1953).
[ Footnote 24
] 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).
[ Footnote 25
] 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).
[ Footnote 26
] The absurdity of denying that a confession obtained under these circumstances
is compelled is aptly portrayed by an example in Professor [384 U.S. 436,
458] 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?"
[ Footnote 27
] 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, 6, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and
Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).
[ Footnote 28
] 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).
[ Footnote 29
] 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).
[ Footnote 30
] Compare Brown v. Walker, 161 U.S.
591 (1896); Quinn v. United States ,
349 U.S.
155 (1955).
[ Footnote 31
] 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).
[ Footnote 32
] 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 as 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).
[ Footnote 33
] 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).
[ Footnote 34
] 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).
[ Footnote 35
] 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 [384 U.S. 436, 466] wake. See People v. Donovan, 13 N. Y. 2d
148, 193 N. E. 2d 628, 243 N. Y. S. 2d 841 (1963) (Fuld, J.).
[ Footnote 36
] 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.
[ Footnote 37
] 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).
[ Footnote 38
] 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).
[ Footnote 39
] See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J.
449, 480 (1964).
[ Footnote 40
] 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, Kasanof & 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).
[ Footnote 41
] 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 [384 U.S. 436, 473] 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."
[ Footnote 42
] 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).
[ Footnote 43
] 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.
[ Footnote 44
] 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.
[ Footnote 45
] 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.
[ Footnote 46
] 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
unfavorable to the suspect." Chalmers v. H. M. Advocate, 1954. Sess. Cas.
66, 78 (J. C.).
[ Footnote 47
] See People v. Dorado, 62 Cal. 2d 338, 354,
398 P.2d 361, 371, 42 Cal.
Rptr. 169, 179 (1965).
[ Footnote 48
] In accordance with our holdings today and 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.
[ Footnote 49
] 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.
[ Footnote 50
] Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26
(1956).
[ Footnote 51
] 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.
[ Footnote 52
] 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. [384 U.S. 436, 482]
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).
[ Footnote 53
] 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 [384 U.S. 436,
483] 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.
[ Footnote 54
] 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."
[ Footnote 55
] 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.
[ Footnote 56
] Among the crimes within the enforcement jurisdiction of the FBI are
kidnapping, 18 U.S.C. 1201 (1964 ed.), white slavery, 18 U.S.C. 2421-2423 (1964
ed.), bank robbery, 18 U.S.C. 2113 (1964 ed.), interstate transportation and
sale of stolen property, 18 U.S.C. 2311-2317 (1964 ed.), all manner of
conspiracies, 18 U.S.C. 371 (1964 ed.), and violations of civil rights, 18
U.S.C. 241-242 (1964 ed.). See also 18 U.S.C. 1114 (1964 ed.) (murder of
officer or employee of the United
States ).
[ Footnote 57
] 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 offence, he shall caution that person
or cause him to be cautioned before putting to him any questions, or further
questions, relating to that offence.
"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
offence 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 [384 U.S. 436, 488] 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.
[ Footnote 58
] 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.
[ Footnote 59
] 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."
[ Footnote 60
] "No confession made to a police officer shall be proved as against a
person accused of any offence." Indian Evidence Act 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 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: "[I]t 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 India
Rep. 1957, Sup. Ct.
637, 644.
[ Footnote 61
] I Legislative Enactments of Ceylon
211 (1958).
[ Footnote 62
] 10 U.S.C. 831 (b) (1964 ed.).
[ Footnote 63
] United States v. Rose, 24
CMR 251 (1957); United
States v. Gunnels, 23 CMR 354 (1957).
[ Footnote 64
] 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).
[ Footnote 65
] 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.
[ Footnote 66
] 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.
[ Footnote 67
] 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.
[ Footnote 68
] 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.
[ Footnote 69
] 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 [384 U.S.
436, 496] 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).
[ Footnote 70
] 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, 388 P.2d 33, 36 Cal. Rptr. 201 (1964).
[ Footnote 71
] 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. 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" 1 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 2 are rare exceptions to the thousands of cases [384 U.S. 436,
500] 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. 3
[384 U.S. 436, 501] 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.
ustodial
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 holding 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 [384 U.S. 436, 502] 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. [384 U.S.
436, 503]
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 4 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
[384 U.S. 436, 504] California v.
Stewart, No. 584, I would dismiss the writ of certiorari for want of a final
judgment, 28 U.S.C. 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.
[ Footnote 1
] 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).
[ Footnote 2
] 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.
[ Footnote 3
] 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 [384 U.S. 436, 501] 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 the 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: "[T]hose 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.
[ Footnote 4
] 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 [384 U.S. 436,
505] 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. 1
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. [384 U.S. 436,
506]
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. 2 The Court did, however, heighten the test of admissibility in
federal trials to one of voluntariness "in fact," Wan v. [384 U.S.
436, 507] 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. 3 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. 4 [384 U.S. 436,
508]
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. [384 U.S.
436, 509] 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, 5 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 having 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 [384 U.S.
436, 510] 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 taken by the Court.
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
2266, at 401 (McNaughton rev. 1961). Practice under the two doctrines has also
differed in a number of important respects. 6
[384 U.S.
436, 511] 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. 7 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. 8 [384 U.S. 436, 512] 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. 9
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 2272, at 441-444, n. 18
(McNaughton rev. 1961); Maguire, Evidence of Guilt 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., [384 U.S. 436, 513]
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
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 [384 U.S.
436, 514] the differences are so vast
as to disqualify wholly the Sixth Amendment precedents as suitable analogies in
the present cases. 10
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 that 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 to a wholly different
situation." Friendly, supra, n. 10, at 950.
III. POLICY CONSIDERATIONS.
Examined as
an expression of public policy, the Court's new regime proves so dubious that
there can be no due [384 U.S.
436, 515] 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
"[t]o 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. 11 [384 U.S. 436, 516]
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. 12 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. 13 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 [384
U.S.
436, 517] 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, 14 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 [384 U.S.
436, 518] 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 easiest of the four under the Court's standards. 15
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 [384 U.S. 436,
519] 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. 16
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.
17 Of [384 U.S. 436, 520] the courts
that have 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. 18
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 [384 U.S. 436, 521] 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, 19 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 [384 U.S. 436, 522] 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. 20
In closing
this necessarily 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. 22 Studies are
also being conducted by the District of Columbia Crime Commission, the Georgetown Law Center ,
and by others equipped to do practical research. 23 There are also signs that
legislatures in some of the States may be preparing to re-examine the problem
before us. 24 [384 U.S. 436,
524]
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. 25 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 of 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. [384 U.S.
436, 525] 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. 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 [384 U.S. 436, 526] 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."
[ Footnote 1
] My discussion 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.
[ Footnote 2
] 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 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).
[ Footnote 3
] 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.
[ Footnote 4
] 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.
[ Footnote 5
] 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.
[ Footnote 6
] Among the examples given in 8 Wigmore, Evidence 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.
[ Footnote 7
] 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 2.03, at 15-16 (1959).
[ Footnote 8
] This, of course, is implicit in the Court's introductory announcement that
"[o]ur decision in Malloy v. Hogan, 378
U.S. 1 (1964) [extending the Fifth Amendment privilege to the States]
necessitates [384 U.S.
436, 512] 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 .
[ Footnote 9
] 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.
[ Footnote 10
] 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).
[ Footnote 11
] 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.
[ Footnote 12
] The Court's vision of a lawyer "mitigat[ing] 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.): "[A]ny 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).
[ Footnote 13
] 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 beleaguered 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.
[ Footnote 14
] 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).
[ Footnote 15
] 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.
Footnote 16
] "[J]ustice, 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.).
[ Footnote 17
] 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 751 (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, [384 U.S. 436, 520] 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.
Footnote 18
] 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.
[ Footnote 19
] 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.
[ Footnote 20
] 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.
[ Footnote 21
] 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.
[ Footnote 22
] 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.
[ Footnote 23
] 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 .
[ Footnote 24
] 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.).
[ Footnote 25
] 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, "[b]ut 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
"[c]onsidered in the light to be shed by grammar and the dictionary . . .
appear to signify simply that nobody shall be [384 U.S. 436, 527] 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, [384 U.S. 436, 528] 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 823 (3d ed. 1940), at 249 ("a confession is not rejected
because of any connection with the privilege against self-crimination"),
and 250, n. 5 (particularly criticizing Bram); 8 Wigmore, Evidence 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 [384 U.S. 436, 529]
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. 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 [384 U.S. 436, 530]
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 "[t]he 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 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 [384 U.S. 436, 531] 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. 1 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 [384 U.S. 436, 532] 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 [384 U.S.
436, 533] 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
involuntary confessions, it most assuredly does not follow that each and every
case will disclose this kind of interrogation or this kind of consequence. 2
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 [384 U.S. 436, 534] 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 .
3 [384 U.S. 436, 535] 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 interrogation 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 [384 U.S. 436, 536] 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 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 [384 U.S. 436,
537] 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 [384 U.S. 436, 538] 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 in 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 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 [384 U.S. 436, 539] 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 4 and of the number of
instances [384 U.S. 436, 540] 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, [384 U.S. 436, 541]
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 extent 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. 5 Criminal trials, no [384 U.S. 436, 542] 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 will now,
under this new version of the Fifth Amendment, either not be tried at all or
will be acquitted if the State's 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 authoritative 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 [384 U.S. 436, 543] 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 so
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 [384 U.S. 436, 544] 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, [384 U.S.
436, 545] 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.
[ Footnote 1
] 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.
[ Footnote 2
] 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 5.01, at 170, n. 4 (Tent.
Draft No. 1, 1966).
[ Footnote 3
] 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 [384 U.S. 436, 535]
(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).
[ Footnote 4
] 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 [384 U.S. 436,
540] 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).
[ Footnote 5
] 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. [384 U.S. 436, 546]
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