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MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
MR. JUSTICE CLARK dissenting
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 questioning, and that if indigent he has a right to a lawyer
without charge. To forgo these rights, some affirmative statement
of rejection is seemingly required, and threats, tricks, or cajolings
to obtain this waiver are forbidden. If before or during questioning
the suspect seeks to invoke his right to remain silent, interrogation
must be forgone or cease; a request for counsel brings about the
same result until a lawyer is procured. Finally, there are a miscellany
of minor directives, for example, the burden of proof of waiver
is on the State, admissions and exculpatory statements are treated
just like confessions, withdrawal of a waiver is always permitted,
and so forth. 1
While the fine points of this scheme are far
less clear than the Court admits, the tenor is quite apparent.
The new rules are not designed to guard against police brutality
or other unmistakably banned forms of coercion. Those who use
third-degree tactics and deny them in court are equally able and
destined to lie as skillfully about warnings and waivers. Rather,
the thrust of the new rules is to negate all pressures, to reinforce
the nervous or ignorant suspect, and ultimately to discourage
any confession at all. The aim in short is toward "voluntariness"
in a utopian sense, or to view it from a different angle, voluntariness
with a vengeance.
To incorporate this notion into the Constitution
requires a strained reading of history and precedent and a disregard
of the very pragmatic concerns that alone may on occasion justify
such strains. I believe that reasoned examination will show that
the Due Process Clauses provide an adequate tool for coping with
confessions and that, even if the Fifth Amendment privilege against
self-incrimination be invoked, its precedents taken as a whole
do not sustain the present rules. Viewed as a choice based on
pure policy, these new rules prove to be a highly debatable, if
not one-sided, appraisal of the competing interests, imposed over
widespread objection, at the very time when judicial restraint
is most called for by the circumstances.
II. CONSTITUTIONAL PREMISES.
It is most fitting to begin an inquiry into
the constitutional precedents by surveying the limits on confessions
the Court has evolved under the Due Process Clause of the Fourteenth
Amendment. This is so because these cases show that there exists
a workable and effective means of dealing with confessions in
a judicial manner; because the cases are the baseline from which
the Court now departs and so serve to measure the actual as opposed
to the professed distance it travels; and because examination
of them helps reveal how the Court has coasted into its present
position.
The earliest confession cases in this Court
emerged from federal prosecutions and were settled on a nonconstitutional
basis, the Court adopting the common-law rule that the absence
of inducements, promises, and threats made a confession voluntary
and admissible. Hopt v. Utah, 110 U.S. 574; Pierce v. United States,
160 U.S. 355. While a later case said the Fifth Amendment privilege
controlled admissibility, this proposition was not itself developed
in subsequent decisions. 2
The Court did, however, heighten the test of admissibility in
federal trials to one of voluntariness "in fact," Wan
v. United States, 266 U.S. 1, 14 (quoted, ante, p. 462), and then
by and large left federal judges to apply the same standards the
Court began to derive in a string of state court cases.
This new line of decisions, testing admissibility
by the Due Process Clause, began in 1936 with Brown v. Mississippi,
297 U.S. 278, and must now embrace somewhat more than 30 full
opinions of the Court. 3 While
the voluntariness rubric was repeated in many instances, e. g.,
Lyons v. Oklahoma, 322 U.S. 596, the Court never pinned it down
to a single meaning but on the contrary infused it with a number
of different values. To travel quickly over the main themes, there
was an initial emphasis on reliability, e. g., Ward v. Texas,
316 U.S. 547, supplemented by concern over the legality and fairness
of the police practices, e. g., Ashcraft v. Tennessee, 322 U.S.
143, in an "accusatorial" system of law enforcement,
Watts v. Indiana, 338 U.S. 49, 54, and eventually by close attention
to the individual's state of mind and capacity for effective choice,
e. g., Gallegos v. Colorado, 370 U.S. 49. The outcome was a continuing
re-evaluation on the facts of each case of how much pressure on
the suspect was permissible. 4
Among the criteria often taken into account
were threats or imminent danger, e. g., Payne v. Arkansas, 356
U.S. 560, physical deprivations such as lack of sleep or food,
e. g., Reck v. Pate, 367 U.S. 433, repeated or extended interrogation,
e. g., Chambers v. Florida, 309 U.S. 227, limits on access to
counsel or friends, Crooker v. California, 357 U.S. 433; Cicenia
v. Lagay, 357 U.S. 504, length and illegality of detention under
state law, e. g., Haynes v. Washington, 373 U.S. 503, and individual
weakness or incapacities, Lynumn v. Illinois, 372 U.S. 528. Apart
from direct physical coercion, however, no single default or fixed
combination of defaults guaranteed exclusion, and synopses of
the cases would serve little use because the overall gauge has
been steadily changing, usually in the direction of restricting
admissibility. But to mark just what point had been reached before
the Court jumped the rails in Escobedo v. Illinois, 378 U.S. 478,
it is worth capsulizing the then-recent case of Haynes v. Washington,
373 U.S. 503. There, Haynes had been held some 16 or more hours
in violation of state law before signing the disputed confession,
had received no warnings of any kind, and despite requests had
been refused access to his wife or to counsel, the police indicating
that access would be allowed after a confession. Emphasizing especially
this last inducement and rejecting some contrary indicia of voluntariness,
the Court in a 5-to-4 decision held the confession inadmissible.
There are several relevant lessons to be drawn
from this constitutional history. The first is that with over
25 years of precedent the Court has developed an elaborate, sophisticated,
and sensitive approach to admissibility of confessions. It is
"judicial" in its treatment of one case at a time, see
Culombe v. Connecticut, 367 U.S. 568, 635 (concurring opinion
of THE CHIEF JUSTICE), flexible in its ability to respond to the
endless mutations of fact presented, and ever more familiar to
the lower courts. Of course, strict certainty is not obtained
in this developing process, but this is often so with constitutional
principles, and disagreement is usually confined to that borderland
of close cases where it matters least.
The second point is that in practice and from
time to time in principle, the Court has given ample recognition
to society's interest in suspect questioning as an instrument
of law enforcement. Cases countenancing quite significant pressures
can be cited without difficulty, 5
and the lower courts may often have been yet more tolerant. Of
course the limitations imposed today were rejected by necessary
implication in case after case, the right to warnings having been
explicitly rebuffed in this Court many years ago. Powers v. United
States, 223 U.S. 303; Wilson v. United States, 162 U.S. 613. As
recently as Haynes v. Washington, 373 U.S. 503, 515, the Court
openly acknowledged that questioning of witnesses and suspects
"is undoubtedly an essential tool in effective law enforcement."
Accord, Crooker v. California, 357 U.S. 433, 441.
Finally, the cases disclose that the language
in many of the opinions overstates the actual course of decision.
It has been said, for example, that an admissible confession must
be made by the suspect "in the unfettered exercise of his
own will," Malloy v. Hogan, 378 U.S. 1, 8, and that "a
prisoner is not 'to be made the deluded instrument of his own
conviction,'" Culombe v. Connecticut, 367 U.S. 568, 581 (Frankfurter,
J., announcing the Court's judgment and an opinion). Though often
repeated, such principles are rarely observed in full measure.
Even the word "voluntary" may be deemed somewhat 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 lines of
precedents . . . ." 8 Wigmore, Evidence § 2266, at 401
(McNaughton rev. 1961). Practice under the two doctrines has also
differed in a number of important respects. 6
Even those who would readily enlarge the privilege must concede
some linguistic difficulties since the Fifth Amendment in terms
proscribes only compelling any person "in any criminal case
to be a witness against himself." Cf. Kamisar, Equal Justice
in the Gatehouses and Mansions of American Criminal Procedure,
in Criminal Justice in Our Time 1, 25-26 (1965).
Though weighty, I do not say these points and
similar ones are conclusive, for, as the Court reiterates, the
privilege embodies basic principles always capable of expansion.
7 Certainly the privilege does
represent a protective concern for the accused and an emphasis
upon accusatorial rather than inquisitorial values in law enforcement,
although this is similarly true of other limitations such as the
grand jury requirement and the reasonable doubt standard. Accusatorial
values, however, have openly been absorbed into the due process
standard governing confessions; this indeed is why at present
"the kinship of the two rules [governing confessions and
self-incrimination] is too apparent for denial." McCormick,
Evidence 155 (1954). Since extension of the general principle
has already occurred, to insist that the privilege applies as
such serves only to carry over inapposite historical details and
engaging rhetoric and to obscure the policy choices to be made
in regulating confessions.
Having decided that the Fifth Amendment privilege
does apply in the police station, the Court reveals that the privilege
imposes more exacting restrictions than does the Fourteenth Amendment's
voluntariness test. 8 It then
emerges from a discussion of Escobedo that the Fifth Amendment
requires for an admissible confession that it be given by one
distinctly aware of his right not to speak and shielded from "the
compelling atmosphere" of interrogation. See ante, pp. 465-466.
From these key premises, the Court finally develops the safeguards
of warning, counsel, and so forth. I do not believe these premises
are sustained by precedents under the Fifth Amendment. 9
The more important premise is that pressure
on the suspect must be eliminated though it be only the subtle
influence of the atmosphere and surroundings. The Fifth Amendment,
however, has never been thought to forbid all pressure to incriminate
one's self in the situations covered by it. On the contrary, it
has been held that failure to incriminate one's self can result
in denial of removal of one's case from state to federal court,
Maryland v. Soper, 270 U.S. 9; in refusal of a military commission,
Orloff v. Willoughby, 345 U.S. 83; in denial of a discharge in
bankruptcy, Kaufman v. Hurwitz, 176 F.2d 210; and in numerous
other adverse consequences. See 8 Wigmore, Evidence § 2272,
at 441-444, n. 18 (McNaughton rev. 1961); Maguire, Evidence of
Guilt § 2.062 (1959). This is not to say that short of jail
or torture any sanction is permissible in any case; policy and
history alike may impose sharp limits. See, e. g., Griffin v.
California, 380 U.S. 609. However, the Court's unspoken assumption
that any pressure violates the privilege is not supported by the
precedents and it has failed to show why the Fifth Amendment prohibits
that relatively mild pressure the Due Process Clause permits.
The Court appears similarly wrong in thinking
that precise knowledge of one's rights is a settled prerequisite
under the Fifth Amendment to the loss of its protections. A number
of lower federal court cases have held that grand jury witnesses
need not always be warned of their privilege, e. g., United States
v. Scully, 225 F.2d 113, 116, and Wigmore states this to be the
better rule for trial witnesses. See 8 Wigmore, Evidence §
2269 (McNaughton rev. 1961). Cf. Henry v. Mississippi, 379 U.S.
443, 451-452 (waiver of constitutional rights by counsel despite
defendant's ignorance held allowable). No Fifth Amendment precedent
is cited for the Court's contrary view. There might of course
be reasons apart from Fifth Amendment precedent for requiring
warning or any other safeguard on questioning but that is a different
matter entirely. See infra, pp. 516-517.
A closing word must be said about the Assistance
of Counsel Clause of the Sixth Amendment, which is never expressly
relied on by the Court but whose judicial precedents turn out
to be linchpins of the confession rules announced today. To support
its requirement of a knowing and intelligent waiver, the Court
cites Johnson v. Zerbst, 304 U.S. 458, ante, p. 475; appointment
of counsel for the indigent suspect is tied to Gideon v. Wainwright,
372 U.S. 335, and Douglas v. California, 372 U.S. 353, ante, p.
473; the silent-record doctrine is borrowed from Carnley v. Cochran,
369 U.S. 506, ante, p. 475, as is the right to an express offer
of counsel, ante, p. 471. All these cases imparting glosses to
the Sixth Amendment concerned counsel at trial or on appeal. While
the Court finds no pertinent difference between judicial proceedings
and police interrogation, I believe the differences are so vast
as to disqualify wholly the Sixth Amendment precedents as suitable
analogies in the present cases. 10
The only attempt in this Court to carry the
right to counsel into the station house occurred in Escobedo,
the Court repeating several times that that stage was no less
"critical" than trial itself. See 378 U.S., 485-488.
This is hardly persuasive when we consider that a grand jury inquiry,
the filing of a certiorari petition, and certainly the purchase
of narcotics by an undercover agent from a prospective defendant
may all be equally "critical" yet provision of counsel
and advice on that score have never been thought compelled by
the Constitution in such cases. The sound reason why this right
is so freely extended for a criminal trial is the severe injustice
risked by confronting an untrained defendant with a range of technical
points of law, evidence, and tactics familiar to the prosecutor
but not to himself. This danger shrinks markedly in the police
station where indeed the lawyer in fulfilling his professional
responsibilities of necessity may become an obstacle to truthfinding.
See infra, n. 12. The Court's summary citation of the Sixth Amendment
cases here seems to me best described as "the domino method
of constitutional adjudication . . . wherein every explanatory
statement in a previous opinion is made the basis for extension
to a wholly different situation." Friendly, supra, n. 10,
at 950.
III. POLICY CONSIDERATIONS.
Examined as an expression of public policy,
the Court's new regime proves so dubious that there can be no
due 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. 11
The Court's new rules aim to offset these minor
pressures and disadvantages intrinsic to any kind of police interrogation.
The rules do not serve due process interests in preventing blatant
coercion since, as I noted earlier, they do nothing to contain
the policeman who is prepared to lie from the start. The rules
work for reliability in confessions almost only in the Pickwickian
sense that they can prevent some from being given at all. 12
In short, the benefit of this new regime is simply to lessen or
wipe out the inherent compulsion and inequalities to which the
Court devotes some nine pages of description. Ante, pp. 448-456.
What the Court largely ignores is that its
rules impair, if they will not eventually serve wholly to frustrate,
an instrument of law enforcement that has long and quite reasonably
been thought worth the price paid for it. 13
There can be little doubt that the Court's new code would markedly
decrease the number of confessions. To warn the suspect that he
may remain silent and remind him that his confession may be used
in court are minor obstructions. To require also an express waiver
by the suspect and an end to questioning whenever he demurs must
heavily handicap questioning. And to suggest or provide counsel
for the suspect simply invites the end of the interrogation. See,
supra, note. 12.
How much harm this decision will inflict on
law enforcement cannot fairly be predicted with accuracy. Evidence
on the role of confessions is notoriously incomplete, see Developments,
supra, n. 2, at 941-944, and little is added by the Court's reference
to the FBI experience and the resources believed wasted in interrogation.
See infra, n. 19, and text. We do know that some crimes cannot
be solved without confessions, that ample expert testimony attests
to their importance in crime control, 14
and that the Court is taking a real risk with society's welfare
in imposing its new regime on the country. The social costs of
crime are too great to call the new rules anything but a hazardous
experimentation.
While passing over the costs and risks of its
experiment, the Court portrays the evils of normal police questioning
in terms which I think are exaggerated. Albeit stringently confined
by the due process standards interrogation is no doubt often inconvenient
and unpleasant for the suspect. However, it is no less so for
a man to be arrested and jailed, to have his house searched, or
to stand trial in court, yet all this may properly happen to the
most innocent given probable cause, a warrant, or an indictment.
Society has always paid a stiff price for law and order, and peaceful
interrogation is not one of the dark moments of the law.
This brief statement of the competing considerations
seems to me ample proof that the Court's preference is highly
debatable at best and therefore not to be read into the Constitution.
However, it may make the analysis more graphic to consider the
actual facts of one of the four cases reversed by the Court. Miranda
v. Arizona serves best, being neither the hardest nor easiest
of the four under the Court's standards. 15
On March 3, 1963, an 18-year-old girl was kidnapped
and forcibly raped near Phoenix, Arizona. Ten days later, on the
morning of March 13, petitioner Miranda was arrested and taken
to the police station. At this time Miranda was 23 years old,
indigent, and educated to the extent of completing half the ninth
grade. He had "an emotional illness" of the schizophrenic
type, according to the doctor who eventually examined him; the
doctor's report also stated that Miranda was "alert and oriented
as to time, place, and person," intelligent within normal
limits, competent to stand trial, and sane within the legal definition.
At the police station, the victim picked Miranda out of a lineup,
and two officers then took him into a separate room to interrogate
him, starting about 11:30 a.m. Though at first denying his guilt,
within a short time Miranda gave a detailed oral confession and
then wrote out in his own hand and signed a brief statement admitting
and describing the crime. All this was accomplished in two hours
or less without any force, threats or promises and -- I will assume
this though the record is uncertain, ante, 491-492 and nn. 66-67
-- without any effective warnings at all.
Miranda's oral and written confessions are
now held inadmissible under the Court's new rules. One is entitled
to feel astonished that the Constitution can be read to produce
this result. These confessions were obtained during brief, daytime
questioning conducted by two officers and unmarked by any of the
traditional indicia of coercion. They assured a conviction for
a brutal and unsettling crime, for which the police had and quite
possibly could obtain little evidence other than the victim's
identifications, evidence which is frequently unreliable. There
was, in sum, a legitimate purpose, no perceptible unfairness,
and certainly little risk of injustice in the interrogation. Yet
the resulting confessions, and the responsible course of police
practice they represent, are to be sacrificed to the Court's own
finespun conception of fairness which I seriously doubt is shared
by many thinking citizens in this country. 16
The tenor of judicial opinion also falls well
short of supporting the Court's new approach. Although Escobedo
has widely been interpreted as an open invitation to lower courts
to rewrite the law of confessions, a significant heavy majority
of the state and federal decisions in point have sought quite
narrow interpretations. 17
Of the courts that have accepted the invitation, it is hard to
know how many have felt compelled by their best guess as to this
Court's likely construction; but none of the state decisions saw
fit to rely on the state privilege against self-incrimination,
and no decision at all has gone as far as this Court goes today.
18
It is also instructive to compare the attitude
in this case of those responsible for law enforcement with the
official views that existed when the Court undertook three major
revisions of prosecutorial practice prior to this case, Johnson
v. Zerbst, 304 U.S. 458, Mapp v. Ohio, 367 U.S. 643, and Gideon
v. Wainwright, 372 U.S. 335. In Johnson, which established that
appointed counsel must be offered the indigent in federal criminal
trials, the Federal Government all but conceded the basic issue,
which had in fact been recently fixed as Department of Justice
policy. See Beaney, Right to Counsel 29-30, 36-42 (1955). In Mapp,
which imposed the exclusionary rule on the States for Fourth Amendment
violations, more than half of the States had themselves already
adopted some such rule. See 367 U.S., at 651. In Gideon, which
extended Johnson v. Zerbst to the States, an amicus brief was
filed by 22 States and Commonwealths urging that course; only
two States besides that of the respondent came forward to protest.
See 372 U.S., at 345. By contrast, in this case new restrictions
on police questioning have been opposed by the United States and
in an amicus brief signed by 27 States and Commonwealths, not
including the three other States which are parties. No State in
the country has urged this Court to impose the newly announced
rules, nor has any State chosen to go nearly so far on its own.
The Court in closing its general discussion
invokes the practice in federal and foreign jurisdictions as lending
weight to its new curbs on confessions for all the States. A brief
resume will suffice to show that none of these jurisdictions has
struck so one-sided a balance as the Court does today. Heaviest
reliance is placed on the FBI practice. Differing circumstances
may make this comparison quite untrustworthy, 19
but in any event the FBI falls sensibly short of the Court's formalistic
rules. For example, there is no indication that FBI agents must
obtain an affirmative "waiver" before they pursue their
questioning. Nor is it clear that one invoking his right to silence
may not be prevailed upon to change his mind. And the warning
as to appointed counsel apparently indicates only that one will
be assigned by the judge when the suspect appears before him;
the thrust of the Court's rules is to induce the suspect to obtain
appointed counsel before continuing the interview. See ante, pp.
484-486. Apparently American military practice, briefly mentioned
by the Court, has these same limits and is still less favorable
to the suspect than the FBI warning, making no mention of appointed
counsel. Developments, supra, note 2, at 1084-1089.
The law of the foreign countries described
by the Court also reflects a more moderate conception of the rights
of the accused as against those of society when other data are
considered. Concededly, the English experience is most relevant.
In that country, a caution as to silence but not counsel has long
been mandated by the "Judges' Rules," which also place
other somewhat imprecise limits on police cross-examination of
suspects. However, in the court's discretion confessions can be
and apparently quite frequently are admitted in evidence despite
disregard of the Judges' Rules, so long as they are found voluntary
under the common-law test. Moreover, the check that exists on
the use of pretrial statements is counterbalanced by the evident
admissibility of fruits of an illegal confession and by the judge's
often-used authority to comment adversely on the defendant's failure
to testify. 20
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. 21
The Court ends its survey by imputing added strength to our privilege
against self-incrimination since, by contrast to other countries,
it is embodied in a written Constitution. Considering the liberties
the Court has today taken with constitutional history and precedent,
few will find this emphasis persuasive.
In closing this necessarily truncated discussion
of policy considerations attending the new confession rules, some
reference must be made to their ironic untimeliness. There is
now in progress in this country a massive re-examination of criminal
law enforcement procedures on a scale never before witnessed.
Participants in this undertaking include a Special Committee of
the American Bar Association, under the chairmanship of Chief
Judge Lumbard of the Court of Appeals for the Second Circuit;
a distinguished study group of the American Law Institute, headed
by Professors Vorenberg and Bator of the Harvard Law School; and
the President's Commission on Law Enforcement and Administration
of Justice, under the leadership of the Attorney General of the
United States. 22 Studies
are also being conducted by the District of Columbia Crime Commission,
the Georgetown Law Center, and by others equipped to do practical
research. 23 There are also
signs that legislatures in some of the States may be preparing
to re-examine the problem before us. 24
It is no secret that concern has been expressed
lest long-range and lasting reforms be frustrated by this Court's
too rapid departure from existing constitutional standards. Despite
the Court's disclaimer, the practical effect of the decision made
today must inevitably be to handicap seriously sound efforts at
reform, not least by removing options necessary to a just compromise
of competing interests. Of course legislative reform is rarely
speedy or unanimous, though this Court has been more patient in
the past. 25 But the legislative
reforms when they come would have the vast advantage of empirical
data and comprehensive study, they would allow experimentation
and use of solutions not open to the courts, and they would restore
the initiative in criminal law reform to those forums where it
truly belongs.
IV. CONCLUSIONS.
All four of the cases involved here present
express claims that confessions were inadmissible, not because
of coercion in the traditional due process sense, but solely because
of lack of counsel or lack of warnings concerning counsel and
silence. For the reasons stated in this opinion, I would adhere
to the due process test and reject the new requirements inaugurated
by the Court. On this premise my disposition of each of these
cases can be stated briefly.
In two of the three cases coming from state
courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No.
760), the confessions were held admissible and no other errors
worth comment are alleged by petitioners. I would affirm in these
two cases. The other state case is California v. Stewart (No.
584), where the state supreme court held the confession inadmissible
and reversed the conviction. In that case I would dismiss the
writ of certiorari on the ground that no final judgment is before
us, 28 U. S. C. § 1257 (1964 ed.); putting aside the new
trial open to the State in any event, the confession itself has
not even been finally excluded since the California Supreme Court
left the State free to show proof of a waiver. If the merits of
the decision in Stewart be reached, then I believe it should be
reversed and the case remanded so the state supreme court may
pass on the other claims available to respondent.
In the federal case, Westover v. United States
(No. 761), a number of issues are raised by petitioner apart from
the one already dealt with in this dissent. None of these other
claims appears to me tenable, nor in this context to warrant extended
discussion. It is urged that the confession was also inadmissible
because not voluntary even measured by due process standards and
because federal-state cooperation brought the McNabb-Mallory rule
into play under Anderson v. United States, 318 U.S. 350. However,
the facts alleged fall well short of coercion in my view, and
I believe the involvement of federal agents in petitioner's arrest
and detention by the State too slight to invoke Anderson. I agree
with the Government that the admission of the evidence now protested
by petitioner was at most harmless error, and two final contentions
-- one involving weight of the evidence and another improper prosecutor
comment -- seem to me without merit. I would therefore affirm
Westover's conviction.
In conclusion: Nothing in the letter or the
spirit of the Constitution or in the precedents squares with the
heavy-handed and one-sided action that is so precipitously taken
by the Court in the name of fulfilling its constitutional responsibilities.
The foray which the Court makes today brings to mind the wise
and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette,
319 U.S. 157, 181 (separate opinion): "This Court is forever
adding new stories to the temples of constitutional law, and the
temples have a way of collapsing when one story too many is added."
---- Begin EndNotes ----
1 My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.
2 The case was Bram v. United States, 168 U.S. 532 (quoted, ante, p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded "that no assertions could be more unfounded." 3 Wigmore, Evidence § 823, at 250, n. 5 (3d ed. 1940). The Court in United States v. Carignan, 342 U.S. 36, 41, declined to choose between Bram and Wigmore, and Stein v. New York, 346 U.S. 156, 191, n. 35, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell, 256 U.S. 465, 475; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347. On Bram and the federal confession cases generally, see Developments in the Law -- Confessions, 79 Harv. L. Rev. 935, 959-961 (1966).
3 Comment, 31 U. Chi. L. Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state coerced-confession cases had been decided by this Court, apart from per curiams. Spano v. New York, 360 U.S. 315, 321, n. 2, collects 28 cases.
4 Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col. L. Rev. 62, 73 (1966): "In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice." See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 452-458 (1964); Developments, supra, n. 2, at 964-984.
5 See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. California, 343 U.S. 181, in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible.
6 Among the examples given in 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev. 1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise; and where the privilege has been nullified -- as by the English Bankruptcy Act -- the confession rule may still operate.
7 Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt § 2.03, at 15-16 (1959).
8 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.
9 I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment.
10 Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police-interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 943-948 (1965).
11 See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto, 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra, n. 4, at 72-73.
12 The Court's vision of a lawyer "mitigat[ing] the dangers of untrustworthiness" (ante, p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watts v. Indiana, 338 U.S. 49, 59 (separate opinion of Jackson, J.): "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).
13 This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain, however the balance is resolved.
14 See, e. g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U.S. 568, 578-579 (Frankfurter, J., announcing the Court's judgment and an opinion).
15 In Westover, a seasoned criminal was practically given the Court's full complement of warnings and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the facts are complicated and the record somewhat incomplete.
16 "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.).
17 A narrow
reading is given in: United States v. Robinson, 354 F.2d 109 (C.
A. 2d Cir.); Davis v. North Carolina, 339 F.2d 770 (C. A. 4th
Cir.); Edwards v. Holman, 342 F.2d 679 (C. A. 5th Cir.); United
States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C. A. 7th Cir.);
People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33; State v.
Fox, Iowa , 131 N. W. 2d 684; Rowe v. Commonwealth, 394 S. W.
2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A. 2d 418; State
v. Howard, 383 S. W. 2d 701 (Mo.); Bean v. State, Nev. , 398 P.
2d 251; State v. Hodgson, 44 N. J. 151, 207 A. 2d 542; People
v. Gunner, 15 N. Y. 2d 226, 205 N. E. 2d 852; Commonwealth ex
rel. Linde v. Maroney, 416 Pa. 331, 206 A. 2d 288; Browne v. State,
24 Wis. 2d 491, 131 N. W. 2d 169.
An ample reading is given in: United States
ex rel. Russo v. New Jersey, 351 F.2d 429 (C. A. 3d Cir.); Wright
v. Dickson, 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.
18 For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 670.
19 The Court's obiter dictum notwithstanding, ante, p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual.
20 For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n. 12, at 80 & n. 94.
23 See Brief for the United States in Westover, p. 45. The N. Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $ 1,100,000 for a five-year study of arrests and confessions in New York.
24 The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N. Y. Times, May 24, 1966, p. 35 (late city ed.).
25 The
Court waited 12 years after Wolf v. Colorado, 338 U.S. 25, declared
privacy against improper state intrusions to be constitutionally
safeguarded before it concluded in Mapp v. Ohio, 367 U.S. 643,
that adequate state remedies had not been provided to protect
this interest so the exclusionary rule was necessary.
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