MIRANDA v.
384
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.
[*440]
We dealt with certain phases of this problem recently in Escobedo
v.
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. n1 A wealth of scholarly material has been
written tracing its ramifications and underpinnings. n2 Police and
prosecutor [*441] have speculated on its range and
desirability. n3 We granted [**1611] certiorari in these cases, 382
n1 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
n2 See, e. g., Enker & Elsen, Counsel for
the Suspect: Massiah v. United States and Escobedo v. Illinois,
49 Minn. L. Rev. 47 (1964); Herman, The Supreme Court and Restrictions on
Police Interrogation, 25 Ohio St. L. J. 449 (1964); Kamisar, Equal Justice in
the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice
in Our Time 1 (1965); Dowling, Escobedo and Beyond: The Need for a Fourteenth
Amendment Code of Criminal Procedure, 56 J. Crim. L. C. & P. S. 143, 156
(1965).
The complex problems also prompted discussions by
jurists. Compare Bazelon, Law, Morality,
and Civil Liberties, 12 U. C. L. A. L. Rev. 13 (1964), with Friendly, The Bill
of Rights as a Code of Criminal Procedure, 53
n3 For example, the Los Angeles Police Chief stated
that "If the police are required . . . to . . . establish that the
defendant was apprised of his constitutional guarantees of silence and legal
counsel prior to the uttering of any admission or confession, and that he
intelligently waived these guarantees . . . a whole Pandora's box is opened as
to under what circumstances . . . can a defendant intelligently waive these
rights. . . . Allegations that modern
criminal investigation can compensate for the lack of a confession or admission
in every criminal case is totally absurd!" Parker, 40 L. A. Bar Bull. 603,
607, 642 (1965). His prosecutorial counterpart, District Attorney Younger,
stated that "It begins to appear that many of these seemingly restrictive
decisions are going to contribute directly to a more effective, efficient and
professional level of law enforcement." L. A. Times, Oct. 2, 1965, p.
1. The former Police Commissioner of
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.
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 [*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 [***706]
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.
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 [**1612]
by precedent into impotent and lifeless formulas. Rights declared in words might be lost in
reality. And this has been
recognized. The [*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.
[***HR1] [***HR2A]
[***HR3] [***HR4] [***HR5A]
[***HR6A] 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.
n4 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 [***707] 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 [*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.
n4 This is what we meant in Escobedo when we
spoke of an investigation which had focused on an accused.
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 [**1613]
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. n5
[*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. n6 The [***708]
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). n7
n5 See, for example, IV National Commission on Law
Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931)
[Wickersham Report]; Booth, Confessions, and Methods Employed in Procuring
Them, 4 So. Calif. L. Rev. 83 (1930); Kauper, Judicial Examination of the
Accused -- A Remedy for the Third Degree, 30
n6 Brown v.
n7 In addition, see People v. Wakat, 415
Ill. 610, 114 N. E. 2d 706 (1953); Wakat v. Harlib, 253 F.2d 59
(C. A. 7th Cir. 1958) (defendant suffering from broken bones, multiple bruises
and injuries sufficiently serious to require eight months' medical treatment
after being manhandled by five policemen); Kier v. State, 213 Md.
556, 132 A. 2d 494 (1957) (police doctor told accused, who was strapped to a
chair completely nude, that he proposed to take hair and skin scrapings from
anything that looked like blood or sperm from various parts of his body); Bruner
v. People, 113 Colo. 194, 156 P. 2d 111 (1945) (defendant held in
custody over two months, deprived of food for 15 hours, forced to submit to a
lie detector test when he wanted to go to the toilet); People v. Matlock,
51 Cal. 2d 682, 336 P. 2d 505 (1959) (defendant questioned incessantly over an
evening's time, made to lie on cold board and to answer questions whenever it
appeared he was getting sleepy). Other
cases are documented in American Civil Liberties Union, Illinois Division,
Secret Detention by the Chicago Police (1959); Potts, The Preliminary
Examination and "The Third Degree," 2 Baylor L. Rev. 131 (1950);
Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L.
25 (1965).
[*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 [**1614] 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
[***HR7] 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.
n8 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.
n9 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.
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." n10 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
[*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." n11
n10 Inbau & Reid, Criminal Interrogation and
Confessions (1962), at 1.
n11 O'Hara, supra, at 99.
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 [***710]
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, n12
to cast blame on the victim or on society. n13 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.
n12 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.
n13 Inbau & Reid, supra, at 43-55.
The texts thus stress that the
major qualities an interrogator should possess are patience and
perseverance. [*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 [**1616]
the subject appears highly probable." n14
n14 O'Hara, supra, at 112.
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 [*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?" n15
Having then obtained the admission of shooting, the interrogator is
advised to refer to circumstantial evidence which negates the self-defense [***711]
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." n16
n15 Inbau & Reid, supra, at 40.
n16 Ibid.
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." n17
n17 O'Hara, supra, at 104, Inbau & Reid, supra,
at 58-59. See Spano v.
[*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." n18 Then the
questioning resumes "as though there were now no doubt about the
guilt [**1617] 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." n19
n18 O'Hara, supra, at 105-106.
n19
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
[***712] the part of the
interrogator. Secondly, a concession of this right to remain silent
impresses [*454] the subject with the apparent fairness of his
interrogator." n20 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." n21
Few will persist in their initial refusal to talk, it is said, if this
monologue is employed correctly.
n20 Inbau & Reid, supra, at 111.
n21 Ibid.
In the event that the subject
wishes to speak to a relative or an attorney, the following advice is tendered:
"The interrogator should respond by suggesting that the subject
first tell the truth to the interrogator himself rather than get anyone else
involved in the matter. If the request
is for an attorney, the interrogator may suggest that the subject save himself
or his family the expense of any such professional service, particularly if he
is innocent of the offense under investigation.
The interrogator may also add, 'Joe, I'm only looking for the truth, and
if you're telling the truth, that's it.
You can handle this by yourself.'" n22
n22 Inbau & Reid, supra, at 112.
[*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." n23 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.
n23 Inbau & Reid, Lie Detection and Criminal
Interrogation 185 (3d ed. 1953).
Even without employing brutality,
the "third degree" or the specific stratagems [**1618]
described above, the very fact of custodial interrogation exacts a heavy
toll on individual liberty and trades on the weakness of individuals. n24 [*456]
This fact may be [***713] 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.
n24 Interrogation procedures may even give rise to a
false confession. The most recent conspicuous example occurred in
n25 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
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.
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 [**1619] 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 [***714]
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.
[***HR8A] [***HR9]
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. n26 The
current practice of incommunicado interrogation is at odds with one of our [*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.
[***HR8B]
n26 The absurdity of denying that aconfession obtained
under these circumstances is compelled is aptly portrayed by an example in
Professor Sutherland's recent article, Crime and Confession, 79 Harv. L. Rev.
21, 37 (1965):
"Suppose a well-to-do testatrix says she intends
to will her property to
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. n27
Perhaps [*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).
n27 Thirteenth century commentators found an analogue
to the privilege grounded in the Bible.
"To sum up the matter, the principle that no man is to be declared
guilty on his own admission is a divine decree." Maimonides, Mishneh Torah
(Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, para. 6,
III Yale Judaica Series 52-53. See also
Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53
(Winter 1956).
[***HR10] On
[***715] 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 [**1620]
during his trial gained popular acceptance in England. n28 These
sentiments worked their way over to the Colonies and were implanted after great
struggle into the Bill of Rights. n29 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 [*460]
against which it seeks to guard." Counselman v. Hitchcock,
142 U.S. 547, 562 (1892). We cannot depart from this noble heritage.
n28 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).
n29 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).
[***HR11] [***HR12]
[***HR13] [***HR14] 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).
[***HR15] [***HR16]
The question in these cases is whether the privilege is fully applicable
during a period of [***716] custodial interrogation. [*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. Hitchcock, 142 U.S. 547, 562 (1892). We are satisfied that all the
principles embodied in the privilege apply to informal compulsion exerted
by [**1621] 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. n30
n30 Compare Brown v. Walker, 161 U.S.
591 (1896); Quinn v. United States, 349 U.S. 155 (1955).
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
[*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
[***717] 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
[*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 [**1622]
Amendment right to be violated during in-custody questioning by a
law-enforcement officer." n31
n31 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).
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. n32
n32 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).
[***HR17A] [***HR18A]
[***HR19] 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
[*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. n33
The [***718] voluntariness
[**1623] 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 [*465] making a free and rational choice. n34 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.
[***HR17B] [***HR18B]
n33 The decisions of this Court have guaranteed the
same procedural protection for the defendant whether hisconfession 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).
n34 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).
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.
[***HR20A] [***HR21]
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. n35 This heightened
his dilemma, and [*466] made his later statements the [***719]
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.
[***HR20B]
n35 The police also prevented the attorney from
consulting with his client. Independent
of any other constitutional proscription, this action constitutes a violation
of the Sixth Amendment right to the assistance of counsel and excludes any
statement obtained in its wake. SeePeople
v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, 243 N. Y. S. 2d 841
(1963) (Fuld, J.).
[***HR22] 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. n36 That counsel is
present when [**1624] 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).
n36 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.
[*467]
III.
[***HR23] 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. [***720] 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.
[***HR24A] [***HR25A]
At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and [*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. n37 Further,
[**1625] the warning will show
the individual that his interrogators are prepared to recognize his privilege
should he choose to exercise it.
[***HR24B] [***HR25B]
n37 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).
[***HR26] 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 [*469]
as to his age, education, intelligence, or prior contact with
authorities, can never be more than speculation; n38 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.
n38 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).
The warning of the right to remain
silent must be accompanied by the explanation that anything said can and will
be used against [***721] 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.
[***HR27] 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 [*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 [**1626]
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).
[***HR28] 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 [*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
[***722] 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.).
[***HR29]
In Carnley v. Cochran, 369 U.S. 506, 513 (1962), we
stated: "It is settled that where the assistance of counsel is a
constitutional requisite, the right to be furnished counsel does not depend on
a request." This proposition applies with equal force in the context of
providing counsel to protect an accused's Fifth Amendment privilege in the face
of interrogation. n39 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.
n39 See Herman, The Supreme Court and Restrictions on
Police Interrogation, 25 Ohio St. L. J. 449, 480 (1964).
[***HR2B] [***HR30]
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 [*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.
[***HR31] [***HR32]
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 [**1627] 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.
n40 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. n41 Denial
[*473] of counsel to the indigent
at the time of interrogation while allowing an attorney to those [***723]
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).
n40 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).
n41 See Kamisar, Equal Justice in the Gatehouses and
Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1,
64-81 (1965). As was stated in the
Report of the Attorney General's Committee on Poverty and the Administration of
Federal Criminal Justice 9 (1963):
"When government chooses to exert its powers in
the criminal area, its obligation is surely no less than that of taking
reasonable measures to eliminate those factors that are irrelevant to just
administration of the law but which, nevertheless, may occasionally affect
determinations of the accused's liability or penalty. While government may not be required to
relieve the accused of his poverty, it may properly be required to minimize the
influence of poverty on its administration of justice."
[***HR33] [***HR34A]
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. n42 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. n43
n42 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).
[***HR34B]
n43 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.
[***HR5B] [***HR35A]
[***HR36] [***HR37] Once warnings have been given, the subsequent
procedure is clear. If the individual
indicates in any manner, [*474] at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must cease. n44 At this [**1628]
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.
[***HR35B]
n44 If an individual indicates his desire to remain
silent, but has an attorney present, there may be some circumstances in which
furtherquestioning 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.
[***HR38] This
[***724] 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.
[*475]
[***HR39] 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.
[***HR40] [***HR41]
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,
[***HR6B] there is no room for the contention that the
privilege is waived if the individual answers some questions or gives [*476]
some information on his own prior to invoking his right to remain silent
when interrogated. n45
n45 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.
[***HR42] [***HR43]
Whatever [**1629] the testimony of the authorities as to waiver
of rights by an accused, the fact of lengthy interrogation or incommunicado
incarceration before a statement
[***725] 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.
[***HR44] [***HR45]
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,
[*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.
[***HR46] 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.
[***HR47] 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 [*478]
responsible citizenship for individuals to give whatever information
they may [***726] have to aid in [**1630]
law enforcement. In such situations the compelling atmosphere inherent
in the process of in-custody interrogation is not necessarily present. n46
n46 The distinction and its significance has been
aptly described in the opinion of a Scottish court:
"In former times such questioning, if undertaken,
would be conducted by police officers visiting the house or place of business
of the suspect and there questioning him, probably in the presence of a
relation or friend. However convenient
the modern practice may be, it must normally create a situation very
unfavourable to the suspect." Chalmers v. H. M. Advocate,
[1954] Sess. Cas. 66, 78 (J. C.).
[***HR48] [***HR49]
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, n47 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.
n47 See People v. Dorado, 62 Cal. 2d
338, 354, 398 P. 2d 361, 371, 42 Cal. Rptr. 169, 179 (1965).
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 [*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. n48
n48 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.
IV.
[***HR50] 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 [***727] 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 [**1631]
be subjected to the same [*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). n49
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."
n50
n49 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.
n50 Schaefer, Federalism and State Criminal Procedure,
70 Harv. L. Rev. 1, 26 (1956).
[***HR51] 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 [*481] client.
In fulfilling this responsibility the attorney plays a vital role in the
administration of criminal justice under our Constitution.
[***HR52] 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 [***728] presence, through standard investigating
practices, of considerable evidence against each defendant. n51 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). n52
n51 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.
n52 Dealing as we do here with constitutional
standards in relation to statements made, the existence of independent
corroborating evidence produced at trial is, of course, irrelevant to our
decisions. Haynes v. Washington,
373 U.S. 503, 518-519 (1963); Lynumn v. Illinois, 372 U.S. 528,
537-538 (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961); Blackburn
v. Alabama, 361 U.S. 199, 206 (1960).
[*482]
It [**1632] 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.
n53
n53 See, e. g., Report and Recommendations of
the [District of Columbia] Commissioners' Committee on Police Arrests for
Investigation (1962); American Civil Liberties Union, Secret Detention by the
Chicago Police (1959). An extreme
example of this practice occurred in the District of Columbia in 1958. Seeking three "stocky" young
Negroes who had robbed a restaurant, police rounded up 90 persons of that
general description. Sixty-three were
held overnight before being released for lack of evidence. A man not among the 90 arrested was
ultimately charged with the crime.
Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a
Subcommittee of the Senate Judiciary Committee on H. R. 11477, S. 2970, S. 3325,
and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.
[*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 [***729]
of his own choice and, more recently, that he has a right to free
counsel if he is unable to pay. n54 A
[**1633] 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 [*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.
''TH'(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 [*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 [***730] (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 [**1634]
appears in person, he is permitted to confer with his client in private.
[*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.'" n55
n54 In 1952, J. Edgar Hoover, Director of the Federal
Bureau of Investigation, stated:
"Law enforcement, however, in defeating the
criminal, must maintain inviolate the historic liberties of the
individual. To turn back the criminal,
yet, by so doing, destroy the dignity of the individual, would be a hollow
victory.
. . . .
"We can have the Constitution, the best laws in
the land, and the most honest reviews by courts -- but unless the law
enforcement profession is steeped in the democratic tradition, maintains the
highest in ethics, and makes its work a career of honor, civil liberties will
continually -- and without end -- be violated. . . . The best protection of civil liberties is an
alert, intelligent and honest law enforcement agency. There can be no alternative.
. . . .
". . . Special Agents are taught that any suspect
or arrested person, at the outset of an interview, must be advised that he is
not required to make a statement and that any statement given can be used
against him in court. Moreover, the
individual must be informed that, if he desires, he may obtain the services of
an attorney of his own choice."
Hoover, Civil Liberties and Law Enforcement: The Role
of the FBI, 37 Iowa L. Rev. 175, 177-182 (1952).
[***HR53]
n55 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.
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. n56
n56 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).
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
[*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 [***731]
without questioning by police. n57
[*488] The right of the
individual to [**1635] consult with an attorney during this period
is expressly recognized. n58
n57 [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
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.
n58 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.
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. n59 In
India, confessions made to police not in the presence of a magistrate have been
excluded [*489] [***732]
by rule of evidence since 1872, at a time when it operated under British
law. n60 Identical provisions appear in the Evidence Ordinance of Ceylon,
enacted in 1895. n61 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. n62 Denial of the right to consult counsel
during interrogation has also been proscribed by military tribunals. n63 [**1636]
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, [*490]
whereas other jurisdictions arrived at their conclusions on the basis of
principles of justice not so specifically defined. n64
n59 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 centered 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."
n60 "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: "It would, we think, be reasonable to insist upon giving an
accused person at least 24 hours to decide whether or not he should make a
confession." Sarwan Singh v. State of Punjab, 44 All India
Rep. 1957, Sup. Ct. 637, 644.
n61 I Legislative Enactments of Ceylon 211 (1958).
n62 10 U. S. C. §
831 (b) (1964 ed.).
n63 United States v. Rose, 24 CMR 251
(1957); United States v. Gunnels, 23 CMR 354 (1957).
n64 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).
[***HR54] [***HR55]
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. n65 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 [***733]
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 [*491] responsibility today. Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would abrogate them.
n65 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.
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 [**1637] not advised that he had a right to have an
attorney present. n66 Two hours later, the
[*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." n67
n66 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.
n67 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.
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.
[***HR56] [***HR57]
We reverse. From the [***734]
testimony of the officers and by the admission of respondent, it is
clear that Miranda was not in any way apprised of his right to consult with an
attorney and to have one present during the interrogation, nor was his right
not to be compelled to incriminate himself effectively protected in any other
manner. Without these warnings the
statements were inadmissible. The mere
fact that he signed a statement which contained a typed-in clause stating that
he had "full knowledge" of his "legal rights" does not
approach the knowing and intelligent waiver required to relinquish
constitutional rights. Cf. Haynes
v. Washington, 373 U.S. 503, 512-513
[*493] (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 [**1638] 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 [*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.
n68 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 [***735]
had no constitutional right to be advised of his right to counsel or his
privilege against self-incrimination.
n68 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.
[***HR58] 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 [*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.
[**1639]
[***HR59] [***HR60]
[***HR61A] 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. n69 At
the [*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 [***736] 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.
[***HR61B]
n69 The failure of defense counsel to object to the
introduction of theconfession at trial, noted by the Court of Appeals and
emphasized by the Solicitor General, does not preclude our consideration of the
issue. Since the trial was held prior to
our decision in Escobedo and, of course, prior to our decision today
making the objection available, the failure to object at trial does not
constitute a waiver of the claim. See, e.
g., United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (C. A. 2d
Cir. 1964), aff'd, 381 U.S. 654 (1965). Cf. Ziffrin, Inc. v. United
States, 318 U.S. 73, 78 (1943).
[***HR62] 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 [*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.
[**1640]
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 [***737]
silent or his right to counsel. In a number of instances, [*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. n70
n70 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).
[***HR63A] [***HR64]
[***HR65] [***HR66]
We affirm. n71 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 [*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.
[***HR63B]
n71 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.
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.
CONCURBY:
CLARK (In Part)
DISSENTBY:
CLARK (In Part); HARLAN; WHITE
DISSENT:
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
[**1641] dissenting brethren do not
go quite far enough. Nor can I join in
the Court's [***738] criticism of the present practices of police
and investigatory agencies as to custodial interrogation. The materials it
refers to as "police manuals" n1 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 n2 are rare exceptions to the thousands
of cases [*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.
n1 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).
n2 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.
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. n3
[*501] Since there [***739]
is at [**1642] 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.
n3 The Court points to England, Scotland, Ceylon and
India as having equally rigid rules. As
my Brother HARLAN points out, post, pp. 521-523, the Court is mistaken
in this regard, for it overlooks counterbalancing prosecutorial
advantages. Moreover, the requirements
of the Federal Bureau of Investigation do not appear from the Solicitor
General's letter, ante, pp. 484-486, to be as strict as those imposed
today in at least two respects: (1) The offer of counsel is articulated only as
"a right to counsel"; nothing is said about a right to have counsel
present at the custodial interrogation. (See also 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: "Those who have
been arrested for an offense under FBI jurisdiction, or whose arrest is
contemplated following the interview, [are advised] of a right to free counsel if
they are unable to pay, and the availability of such counsel from the
Judge." So phrased, this warning does not indicate that the agent will
secure counsel. Rather, the statement
may well be interpreted by the suspect to mean that the burden is placed upon
himself and that he may have counsel appointed only when brought before the
judge or at trial -- but not at custodial interrogation. As I view the FBI
practice, it is not as broad as the one laid down today by the Court.
II.
Custodial interrogation has long
been recognized as "undoubtedly an essential tool in effective law
enforcement." Haynes v. Washington, 373 U.S. 503, 515
(1963). Recognition of this fact should put us on guard against the
promulgation of doctrinaire rules.
Especially is this true where the Court finds that "the
Constitution has prescribed" its 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
[*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.
[*503]
[***740] 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
[**1643] the necessary warnings,
the confession was clearly voluntary.
Rather than employing the
arbitrary Fifth Amendment rule n4 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.
n4 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.
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
[*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.
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 four-fold 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 [***741] 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 [*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. n1
n1 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.
While the fine points of this scheme
are far less clear than the Court admits, the tenor is quite apparent. The new
[**1644] 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.
[*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 [***742]
Fifth Amendment privilege controlled admissibility, this proposition was
not itself developed in subsequent decisions. n2 The Court did, however,
heighten the test of admissibility in federal trials to one of voluntariness
"in fact," Wan v.
[*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.
n2 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).
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 [**1645] the Court. n3 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. n4
n3 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.
n4 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.
[*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; [***743] 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 [**1646]
(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. [*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, n5 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.
n5 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.
Finally, the cases disclose that
the language in many of the opinions overstates the actual course of
decision. [***744] 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 [*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.
I turn now to the Court's asserted
reliance on the Fifth Amendment, an approach which I frankly regard as a trompe
l'oeil. The Court's opinion in my
view reveals no adequate basis for extending the Fifth Amendment's privilege
against self-incrimination to the police station. Far more important, it fails
to show that the Court's new rules are well supported, let alone compelled, by
Fifth Amendment precedents. Instead, the
new rules actually derive from quotation and analogy drawn from precedents
under the Sixth Amendment, which should properly have no bearing on police
interrogation.
The Court's opening contention,
that the Fifth Amendment governs police station confessions, is perhaps not an
impermissible extension of the law but it has little to commend itself in the
present circumstances. Historically, the
privilege against self-incrimination did not bear at all on the use of
extra-legal confessions, for which distinct standards evolved; indeed,
"the history of the two principles is wide apart, differing by one
hundred years in origin, and derived through separate [**1647]
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. n6
[*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).
n6 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.
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. n7 Certainly
the privilege does represent a protective concern for the accused and an
emphasis upon [***745] 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.
n7 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).
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. n8 [*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. n9
n8 This, of course, is implicit in the Court's
introductory announcement that "our decision in Malloy v. Hogan,
378 U.S. 1 (1964) [extending the Fifth Amendment privilege to the States]
necessitates an examination of the scope of the privilege in state cases as
well." Ante, p. 463. It is
also inconsistent with Malloy itself, in which extension of the Fifth
Amendment to the States rested in part on the view that the Due Process Clause
restriction on state confessions has in recent years been "the same
standard" as that imposed in federal prosecutions assertedly by the Fifth
Amendment. 378 U.S., at 7.
n9 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.
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 [**1648]
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., [*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.
[***746]
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 [*514]
the differences are so vast as to disqualify wholly the Sixth Amendment
precedents as suitable analogies in the present cases. n10
n10 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).
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 [**1649] 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
[***747] 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 [*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 "to
speak of any confessions of crime made after arrest as being 'voluntary' or
'uncoerced' is somewhat inaccurate, although traditional. A confession is wholly and incontestably
voluntary only if a guilty person gives himself up to the law and becomes his
own accuser." Ashcraft v. Tennessee, 322 U.S. 143, 161
(Jackson, J., dissenting). Until today,
the role of the Constitution has been only to sift out undue pressure,
not to assure spontaneous confessions. n11
n11 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.
[*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. n12 [**1650] In short,
[***748] 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.
n12 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.): "Any
lawyer worth his salt will tell the suspect in no uncertain terms to make no
statement to police under any circumstances." See Enker & Elsen,
Counsel for the Suspect, 49 Minn. L. Rev. 47, 66-68 (1964).
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. n13 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 [*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.
n13 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.
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, n14 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.
n14 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).
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 [*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. n15
n15 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.
On March 3, 1963, an
18-year-old [***749] 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
[**1651] 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 [*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. n16
n16 "Justice, though due to the accused, is due
to the accuser also. The concept of
fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." Snyder
v. Massachusetts, 291 U.S. 97, 122 (Cardozo, J.).
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. n17 Of
[*520] the courts that have
accepted the invitation, it
[***750] 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
[**1652] has gone as far as this
Court goes today. n18
n17 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,
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.
n18 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.
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 [*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, n19 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 [***751]
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.
n19 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.
The law of the foreign countries
described by the Court also reflects a more moderate conception of the rights
of [*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 [**1653] 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. n20
n20 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.
India, Ceylon and Scotland are the
other examples chosen by the Court. In
India and Ceylon the general ban on police-adduced confessions cited by the
Court is subject to a major exception: if evidence is uncovered by police
questioning, it is fully admissible at trial along with the confession itself,
so far as it relates to the evidence and is not blatantly coerced. See Developments, supra, n. 2, at
1106-1110; Reg. v. Ramasamy [1965] A. C. 1 (P. C.). Scotland's limits on interrogation do measure
up to the Court's; however, restrained comment at trial on the defendant's
failure to take the stand is allowed the judge, and in many other respects
Scotch law redresses the prosecutor's disadvantage in ways not permitted in
this country. n21 The Court ends its survey by imputing [*523]
added strength to our privilege against self-incrimination since, by contrast
to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today
taken with constitutional history and precedent, few will find this emphasis
persuasive.
n21 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.
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 [***752] Commission on Law Enforcement and
Administration of Justice, under the leadership of the Attorney General of the
United States. n22 Studies are also being conducted by the District of Columbia
Crime Commission, the Georgetown Law Center, and by others equipped to do
practical research. n23 There are also signs that legislatures in some of the
States may be preparing to re-examine the problem before us. n24
n22 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.
n23 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.
n24 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.).
[*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 [**1654] 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. n25 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.
n25 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.
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. [*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 [***753] 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 [*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 [**1655]
constitutional law, and the temples have a way of collapsing when one
story too many is added."
MR. JUSTICE WHITE, with whom MR.
JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
I.
The proposition that the privilege
against self-incrimination forbids in-custody interrogation without the
warnings specified in the majority opinion and without a clear waiver of
counsel has no significant support in the history of the privilege or in the
language of the Fifth Amendment. As for the English authorities and the
common-law history, the privilege, firmly established in the second half of the
seventeenth century, was never applied except to prohibit compelled judicial
interrogations. The rule excluding coerced confessions matured about 100 years
later, "but there is nothing in the reports to suggest that the theory has
its roots in the privilege against self-incrimination. And so far as the cases
reveal, the privilege, as such, seems to have been given effect only in
judicial proceedings, including the preliminary examinations by authorized
magistrates." Morgan, The Privilege Against Self-Incrimination, 34 Minn.
L. Rev. 1, 18 (1949).
Our own constitutional provision provides
that no person "shall be compelled in any criminal case to be a witness
against himself." These words, when "considered in the light to be
shed by grammar and the dictionary . . . appear to signify simply that nobody
shall be [*527] compelled to give oral testimony against
himself in a criminal proceeding under way in which he is defendant." [***754]
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, [*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 [**1656]
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
[***755] 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 [*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 [*530]
that it is not essential to the admissibility of a confession [**1657]
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 [***756]
unnecessary, numerous other cases have declared that "the mere fact
that a confession was made while in the custody of the police does not render
it inadmissible," McNabb v. United States, 318 U.S. 332,
346; accord, United States v. Mitchell, 322 U.S. 65, despite its
having been elicited by police examination, Wan v. United States,
266 U.S. 1, 14; United States v. Carignan, 342 U.S. 36, 39.
Likewise, in Crooker v. California, 357 U.S. 433, 437, the Court
said that "the bare fact of police 'detention and police examination in
private of one in official state custody' does not render involuntary a
confession by the one so detained." And finally, in Cicenia v. Lagay,
357 U.S. 504, a confession obtained by police interrogation after arrest was
held voluntary even though the authorities refused to permit the defendant to
consult with his attorney. See generally
Culombe v. Connecticut, 367 U.S. 568, 587-602 (opinion of
Frankfurter, J.); 3 Wigmore, Evidence §
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 [*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. n1 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.
n1 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.
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 [**1658] 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. [***757]
Decisions [*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 [*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. n2 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.
n2 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).
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 [***758]
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 [**1659]
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 [*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. n3 [*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.
n3 By contrast, the Court indicates that in applying
this new rule it "will not pause to inquire in individual cases whether
the defendant was aware of his rights without a warning being given." Ante,
at 468. The reason given is that
assessment of the knowledge of the defendant based on information as to age,
education, intelligence, or prior contact with authorities can never be more
than speculation, while a warning is a clear-cut fact. But the officers' claim that they gave the
requisite warnings may be disputed, and facts respecting the defendant's prior
experience may be undisputed and be of such a nature as to virtually preclude
any doubt that the defendant knew of his rights. See United States v. Bolden,
355 F.2d 453 (C. A. 7th Cir. 1965), petition for cert. pending No. 1146, O. T.
1965 (Secret Service agent); People v. Du Bont, 235 Cal. App. 2d
844, 45 Cal. Rptr. 717, pet. for cert. pending No. 1053, Misc., O. T. 1965
(former police officer).
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 [***759]
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 [**1660]
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
[*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 [*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 [***760]
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. [**1661] 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 [*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 [***761] 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 [*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 n4 and of the number of
instances [*540] [**1662]
in which apprehension
[***762] 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.
n4 Precise statistics on the extent of recidivism are
unavailable, in part because not all crimes are solved and in part because
criminal records of convictions in different jurisdictions are not brought
together by a central data collection agency.
Beginning in 1963, however, the Federal Bureau of Investigation began
collating data on "Careers in Crime," which it publishes in its
Uniform Crime Reports. Of 92,869
offenders processed in 1963 and 1964, 76% had a prior arrest record on some
charge. Over a period of 10 years the
group had accumulated 434,000 charges.
FBI, Uniform Crime Reports -- 1964, 27-28. In 1963 and 1964 between 23% and 25% of all
offenders sentenced in 88 federal district courts (excluding the District Court
for the District of Columbia) whose criminal records were reported had
previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior
record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States
Courts, Federal Offenders in the United States District Courts: 1964, x, 36
(hereinafter cited as Federal Offenders: 1964); Administrative Office of the
United States Courts, Federal Offenders in the United States District Courts:
1963, 25-27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District
Court for the District of Columbia between 28% and 35% of those sentenced had
prior prison records and from 37% to 40% had a prior record less than
prison. Federal Offenders: 1964, xii, 64,
66; Administrative Office of the United States Courts, Federal Offenders in the
United States District Court for the District of Columbia: 1963, 8, 10
(hereinafter cited as District of Columbia Offenders: 1963).
A similar picture is obtained if one looks at the
subsequent records of those released from confinement. In 1964, 12.3% of persons on federal
probation had their probation revoked because of the commission of major
violations (defined as one in which the probationer has been committed to
imprisonment for a period of 90 days or more, been placed on probation for over
one year on a new offense, or has absconded with felony charges
outstanding). Twenty-three and
two-tenths percent of parolees and 16.9% of those who had been mandatorily
released after service of a portion of their sentence likewise committed major
violations. Reports of the Proceedings
of the Judicial Conference of the United States and Annual Report of the
Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al., Recidivism Studied
and Defined, 56 J. Crim. L., C. & P. S. 59 (1965) (within five years of
release 62.33% of sample had committed offenses placing them in recidivist
category).
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, [*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. n5 Criminal trials, [**1663]
no [*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, [***763]
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.
n5 Eighty-eight federal district courts (excluding the
District Court for the
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.
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 [*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 [**1664] 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 [*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
[***764] 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, [*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.
[**1665] Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. ***