United States Supreme Court
MIRANDA v. ARIZONA, (1966)
No. 759
Argued:
Decided: June 13, 1966
[ Footnote * ] Together with No. 760, Vignera v. New York, on certiorari
to the Court of Appeals of New York and No. 761, Westover v. United States, on
certiorari to the United States Court of Appeals for the Ninth Circuit, both
argued February 28 - March 1, 1966; and No. 584, California v. Stewart, on certiorari
to the Supreme Court of California, argued February 28 - March 2, 1966.
In each of these cases the defendant
while in police custody was questioned by police officers, detectives, or a
prosecuting attorney in a room in which he was cut off from the outside world.
None of the defendants was given a full and effective warning of his rights at
the outset of the interrogation process. In all four cases the questioning
elicited oral admissions, and in three of them signed statements as well, which
were admitted at their trials. All defendants were convicted and all
convictions, except in No. 584, were affirmed on appeal. Held:
1.
The prosecution may not use statements, whether exculpatory or inculpatory,
stemming from questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in
any significant way, unless it demonstrates the use of procedural safeguards
effective to secure the Fifth Amendment's privilege against self-incrimination.
Pp. 444-491.
(a)
The atmosphere and environment of incommunicado interrogation as it exists
today is inherently intimidating and works to undermine the privilege against
self-incrimination. Unless adequate preventive measures are taken to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice. Pp. 445-458.
(b)
The privilege against self-incrimination, which has had a long and expansive
historical development, is the essential mainstay of our adversary system and
guarantees to the individual the "right to remain silent unless he chooses
to speak in the unfettered exercise of his own will," during a period of
custodial interrogation [384 U.S. 436,
437] as well as in the
courts or during the course of other official investigations. Pp. 458-465.
(c)
The decision in Escobedo v. Illinois, 378 U.S. 478 ,
stressed the need for protective devices to make the process of police
interrogation conform to the dictates of the privilege. Pp. 465-466.
(d)
In the absence of other effective measures the following procedures to
safeguard the Fifth Amendment privilege must be observed: The person in custody
must, prior to interrogation, be clearly informed that he has the right to
remain silent, and that anything he says will be used against him in court; he
must be clearly informed that he has the right to consult with a lawyer and to
have the lawyer with him during interrogation, and that, if he is indigent, a
lawyer will be appointed to represent him. Pp. 467-473.
(e)
If the individual indicates, prior to or during questioning, that he wishes to
remain silent, the interrogation must cease; if he states that he wants an
attorney, the questioning must cease until an attorney is present. Pp. 473-474.
(f)
Where an interrogation is conducted without the presence of an attorney and a
statement is taken, a heavy burden rests on the Government to demonstrate that
the defendant knowingly and intelligently waived his right to counsel. P. 475.
(g)
Where the individual answers some questions during incustody interrogation he
has not waived his privilege and may invoke his right to remain silent
thereafter. Pp. 475-476.
(h)
The warnings required and the waiver needed are, in the absence of a fully
effective equivalent, prerequisites to the admissibility of any statement,
inculpatory or exculpatory, made by a defendant. Pp. 476-477.
2.
The limitations on the interrogation process required for the protection of the
individual's constitutional rights should not cause an undue interference with
a proper system of law enforcement, as demonstrated by the procedures of the
FBI and the safeguards afforded in other jurisdictions. Pp. 479-491.
3.
In each of these cases the statements were obtained under circumstances that
did not meet constitutional standards for protection of the privilege against
self-incrimination. Pp. 491-499.
98 Ariz. 18, 401 P.2d 721; 15 N. Y.
2d 970, 207 N. E. 2d 527; 16 N. Y. 2d 614, 209 N. E. 2d 110; 342 F.2d 684,
reversed; 62 Cal. 2d 571, 400 P.2d 97, affirmed. [384 U.S. 436, 438]
John J. Flynn argued the cause for
petitioner in No. 759. With him on the brief was John P. Frank. Victor M. Earle
III argued the cause and filed a brief for petitioner in No. 760. F. Conger
Fawcett argued the cause and filed a brief for petitioner in No. 761. Gordon
Ringer, Deputy Attorney General of California, argued the cause for petitioner
in No. 584. With him on the briefs were Thomas C. Lynch, Attorney General, and
William E. James, Assistant Attorney General.
Gary K. Nelson, Assistant Attorney
General of Arizona, argued the cause for respondent in No. 759. With him on the
brief was Darrell F. Smith, Attorney General. William I. Siegel argued the
cause for respondent in No. 760. With him on the brief was Aaron E. Koota.
Solicitor General Marshall argued the cause for the United States in No. 761.
With him on the brief were Assistant Attorney General Vinson, Ralph S.
Spritzer, Nathan Lewin, Beatrice Rosenberg and Ronald L. Gainer. William A.
Norris, by appointment of the Court, 382 U.S. 952 ,
argued the cause and filed a brief for respondent in No. 584.
Telford Taylor, by special leave of
Court, argued the cause for the State of New York, as amicus curiae, in all
cases. With him on the brief were Louis J. Lefkowitz, Attorney General of New
York, Samuel A. Hirshowitz, First Assistant Attorney General, and Barry Mahoney
and George D. Zuckerman, Assistant Attorneys General, joined by the Attorneys
General for their respective States and jurisdictions as follows: Richmond M.
Flowers of Alabama, Darrell F. Smith of Arizona, Bruce Bennett of Arkansas,
Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of
Florida, Arthur K. Bolton of Georgia, Allan G. Shepard of Idaho, William G.
Clark of Illinois, Robert C. Londerholm of Kansas, Robert Matthews of Kentucky,
Jack P. F. [384 U.S. 436, 439] Gremillion of Louisiana, Richard J. Dubord
of Maine, Thomas B. Finan of Maryland, Norman H. Anderson of Missouri, Forrest
H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of
North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon,
Walter E. Alessandroni of Pennsylvania, J. Joseph Nugent of Rhode Island,
Daniel R. McLeod of South Carolina, Waggoner Carr of Texas, Robert Y. Button of
Virginia, John J. O'Connell of Washington, C. Donald Robertson of West
Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and
Francisco Corneiro of the Virgin Islands.
Duane R. Nedrud, by special leave of
Court, argued the cause for the National District Attorneys Association, as
amicus curiae, urging affirmance in Nos. 759 and 760, and reversal in No. 584.
With him on the brief was Marguerite D. Oberto.
Anthony G. Amsterdam, Paul J.
Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf filed a brief for
the American Civil Liberties Union, as amicus curiae, in all cases.
MR. CHIEF JUSTICE WARREN delivered
the opinion of the Court.
The cases before us raise questions
which go to the roots of our concepts of American criminal jurisprudence: the
restraints society must observe consistent with the Federal Constitution in
prosecuting individuals for crime. More specifically, we deal with the
admissibility of statements obtained from an individual who is subjected to
custodial police interrogation and the necessity for procedures which assure
that the individual is accorded his privilege under the Fifth Amendment to the
Constitution not to be compelled to incriminate himself. [384 U.S. 436, 440]
We dealt with certain phases of this
problem recently in Escobedo v. Illinois, 378 U.S. 478 (1964).
There, as in the four cases before us, law enforcement officials took the
defendant into custody and interrogated him in a police station for the purpose
of obtaining a confession. The police did not effectively advise him of his
right to remain silent or of his right to consult with his attorney. Rather,
they confronted him with an alleged accomplice who accused him of having
perpetrated a murder. When the defendant denied the accusation and said "I
didn't shoot Manuel, you did it," they handcuffed him and took him to an
interrogation room. There, while handcuffed and standing, he was questioned for
four hours until he confessed. During this interrogation, the police denied his
request to speak to his attorney, and they prevented his retained attorney, who
had come to the police station, from consulting with him. At his trial, the
State, over his objection, introduced the confession against him. We held that
the statements thus made were constitutionally inadmissible.
This case has been the subject of
judicial interpretation and spirited legal debate since it was decided two
years ago. Both state and federal courts, in assessing its implications, have
arrived at varying conclusions. 1 A wealth of scholarly material has been written tracing
its ramifications and underpinnings. 2 Police and prosecutor [384 U.S. 436, 441] have speculated on its
range and desirability. 3 We granted certiorari in these cases, 382 U.S. 924, 925 , 937, in order further to explore some facets of the problems, thus
exposed, of applying the privilege against self-incrimination to in-custody
interrogation, and to give [384 U.S.
436, 442] concrete
constitutional guidelines for law enforcement agencies and courts to follow.
We start
here, as we did in Escobedo, with the premise that our holding is not an
innovation in our jurisprudence, but is an application of principles long
recognized and applied in other settings. We have undertaken a thorough
re-examination of the Escobedo decision and the principles it announced, and we
reaffirm it. That case was but an explication of basic rights that are
enshrined in our Constitution - that "No person . . . shall be compelled
in any criminal case to be a witness against himself," and that "the
accused shall . . . have the Assistance of Counsel" - rights which were
put in jeopardy in that case through official overbearing. These precious
rights were fixed in our Constitution only after centuries of persecution and
struggle. And in the words of Chief Justice Marshall, they were secured
"for ages to come, and . . . designed to approach immortality as nearly as
human institutions can approach it," Cohens v. Virginia, 6 Wheat. 264, 387
(1821).
Over 70
years ago, our predecessors on this Court eloquently stated:
"The
maxim nemo tenetur seipsum accusare had its origin in a protest against the
inquisitorial and manifestly unjust methods of interrogating accused persons,
which [have] long obtained in the continental system, and, until the expulsion
of the Stuarts from the British throne in 1688, and the erection of additional
barriers for the protection of the people against the exercise of arbitrary
power, [were] not uncommon even in England. While the admissions or confessions
of the prisoner, when voluntarily and freely made, have always ranked high in
the scale of incriminating evidence, if an accused person be asked to explain
his apparent connection with a crime under investigation, the ease with which
the [384 U.S. 436, 443] questions put to him may assume an
inquisitorial character, the temptation to press the witness unduly, to
browbeat him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident in many of
the earlier state trials, notably in those of Sir Nicholas Throckmorton, and
Udal, the Puritan minister, made the system so odious as to give rise to a demand
for its total abolition. The change in the English criminal procedure in that
particular seems to be founded upon no statute and no judicial opinion, but
upon a general and silent acquiescence of the courts in a popular demand. But,
however adopted, it has become firmly embedded in English, as well as in
American jurisprudence. So deeply did the iniquities of the ancient system
impress themselves upon the minds of the American colonists that the States,
with one accord, made a denial of the right to question an accused person a
part of their fundamental law, so that a maxim, which in England was a mere
rule of evidence, became clothed in this country with the impregnability of a
constitutional enactment." Brown v. Walker, 161 U.S. 591, 596 -597
(1896).
In stating
the obligation of the judiciary to apply these constitutional rights, this
Court declared in Weems v. United States, 217 U.S. 349, 373 (1910):
".
. . our contemplation cannot be only of what has been but of what may be. Under
any other rule a constitution would indeed be as easy of application as it
would be deficient in efficacy and power. Its general principles would have
little value and be converted by precedent into impotent and lifeless formulas.
Rights declared in words might be lost in reality. And this has been
recognized. The [384 U.S. 436, 444] meaning and vitality of the Constitution
have developed against narrow and restrictive construction."
This was
the spirit in which we delineated, in meaningful language, the manner in which
the constitutional rights of the individual could be enforced against overzealous
police practices. It was necessary in Escobedo, as here, to insure that what
was proclaimed in the Constitution had not become but a "form of
words," Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920),
in the hands of government officials. And it is in this spirit, consistent with
our role as judges, that we adhere to the principles of Escobedo today.
Our
holding will be spelled out with some specificity in the pages which follow but
briefly stated it is this: the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. 4 As for the
procedural safeguards to be employed, unless other fully effective means are
devised to inform accused persons of their right of silence and to assure a
continuous opportunity to exercise it, the following measures are required.
Prior to any questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the [384 U.S. 436, 445]
process that he wishes to consult with an attorney before speaking there
can be no questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered some questions or
volunteered some statements on his own does not deprive him of the right to
refrain from answering any further inquiries until he has consulted with an
attorney and thereafter consents to be questioned.
I.
The constitutional issue we decide in each of these cases is
the admissibility of statements obtained from a defendant questioned while in
custody or otherwise deprived of his freedom of action in any significant way.
In each, the defendant was questioned by police officers, detectives, or a
prosecuting attorney in a room in which he was cut off from the outside world.
In none of these cases was the defendant given a full and effective warning of
his rights at the outset of the interrogation process. In all the cases, the
questioning elicited oral admissions, and in three of them, signed statements
as well which were admitted at their trials. They all thus share salient
features - incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statements without full warnings of
constitutional rights.
An understanding of the nature and setting of this
in-custody interrogation is essential to our decisions today. The difficulty in
depicting what transpires at such interrogations stems from the fact that in
this country they have largely taken place incommunicado. From extensive
factual studies undertaken in the early 1930's, including the famous Wickersham
Report to Congress by a Presidential Commission, it is clear that police
violence and the "third degree" flourished at that time. 5 [384
U.S. 436, 446] In a series of cases decided by this Court long
after these studies, the police resorted to physical brutality - beating,
hanging, whipping - and to sustained and protracted questioning incommunicado
in order to extort confessions. 6 The Commission on Civil Rights in
1961 found much evidence to indicate that "some policemen still resort to
physical force to obtain confessions," 1961 Comm'n on Civil Rights Rep.,
Justice, pt. 5, 17. The use of physical brutality and violence is not,
unfortunately, relegated to the past or to any part of the country. Only
recently in Kings County, New York, the police brutally beat, kicked and placed
lighted cigarette butts on the back of a potential witness under interrogation
for the purpose of securing a statement incriminating a third party. People v.
Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857, 257 N. Y. S. 2d 931 (1965). 7 [384
U.S. 436, 447]
The examples given above are undoubtedly the exception now,
but they are sufficiently widespread to be the object of concern. Unless a
proper limitation upon custodial interrogation is achieved - such as these
decisions will advance - there can be no assurance that practices of this
nature will be eradicated in the foreseeable future. The conclusion of the
Wickersham Commission Report, made over 30 years ago, is still pertinent:
"To the contention that the
third degree is necessary to get the facts, the reporters aptly reply in the
language of the present Lord Chancellor of England (Lord Sankey): `It is not
admissible to do a great right by doing a little wrong. . . . It is not
sufficient to do justice by obtaining a proper result by irregular or improper
means.' Not only does the use of the third degree involve a flagrant violation
of law by the officers of the law, but it involves also the dangers of false
confessions, and it tends to make police and prosecutors less zealous in the
search for objective evidence. As the New York prosecutor quoted in the report
said, `It is a short cut and makes the police lazy and unenterprising.' Or, as
another official quoted remarked: `If you use your fists, you [384 U.S. 436, 448]
are not so likely to use your wits.' We agree with the conclusion
expressed in the report, that `The third degree brutalizes the police, hardens
the prisoner against society, and lowers the esteem in which the administration
of justice is held by the public.'" IV National Commission on Law
Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931).
Again we stress that the modern practice of in-custody
interrogation is psychologically rather than physically oriented. As we have
stated before, "Since Chambers v. Florida, 309 U.S.
227 , this Court has recognized that
coercion can be mental as well as physical, and that the blood of the accused
is not the only hallmark of an unconstitutional inquisition." Blackburn v.
Alabama, 361 U.S.
199, 206 (1960). Interrogation still takes
place in privacy. Privacy results in secrecy and this in turn results in a gap
in our knowledge as to what in fact goes on in the interrogation rooms. A
valuable source of information about present police practices, however, may be
found in various police manuals and texts which document procedures employed
with success in the past, and which recommend various other effective tactics. 8 These [384 U.S. 436, 449]
texts are used by law enforcement agencies themselves as guides. 9 It should be noted that these texts
professedly present the most enlightened and effective means presently used to
obtain statements through custodial interrogation. By considering these texts
and other data, it is possible to describe procedures observed and noted around
the country.
The officers are told by the manuals that the
"principal psychological factor contributing to a successful interrogation
is privacy - being alone with the person under interrogation." 10 The efficacy of this tactic has been
explained as follows:
"If at all practicable, the
interrogation should take place in the investigator's office or at least in a
room of his own choice. The subject should be deprived of every psychological
advantage. In his own home he may be confident, indignant, or recalcitrant. He
is more keenly aware of his rights and [384
U.S. 436, 450] more
reluctant to tell of his indiscretions or criminal behavior within the walls of
his home. Moreover his family and other friends are nearby, their presence
lending moral support. In his own office, the investigator possesses all the
advantages. The atmosphere suggests the invincibility of the forces of the
law." 11
To highlight the isolation and unfamiliar surroundings, the
manuals instruct the police to display an air of confidence in the suspect's
guilt and from outward appearance to maintain only an interest in confirming
certain details. The guilt of the subject is to be posited as a fact. The
interrogator should direct his comments toward the reasons why the subject
committed the act, rather than court failure by asking the subject whether he
did it. Like other men, perhaps the subject has had a bad family life, had an
unhappy childhood, had too much to drink, had an unrequited desire for women.
The officers are instructed to minimize the moral seriousness of the offense, 12 to cast blame on the victim or on
society. 13 These tactics are designed to put
the subject in a psychological state where his story is but an elaboration of
what the police purport to know already - that he is guilty. Explanations to
the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an
interrogator should possess are patience and perseverance. [384 U.S. 436, 451]
One writer describes the efficacy of these characteristics in this
manner:
"In the preceding paragraphs
emphasis has been placed on kindness and stratagems. The investigator will,
however, encounter many situations where the sheer weight of his personality
will be the deciding factor. Where emotional appeals and tricks are employed to
no avail, he must rely on an oppressive atmosphere of dogged persistence. He
must interrogate steadily and without relent, leaving the subject no prospect
of surcease. He must dominate his subject and overwhelm him with his inexorable
will to obtain the truth. He should interrogate for a spell of several hours
pausing only for the subject's necessities in acknowledgment of the need to
avoid a charge of duress that can be technically substantiated. In a serious
case, the interrogation may continue for days, with the required intervals for
food and sleep, but with no respite from the atmosphere of domination. It is
possible in this way to induce the subject to talk without resorting to duress
or coercion. The method should be used only when the guilt of the subject
appears highly probable." 14
The manuals suggest that the suspect be offered legal
excuses for his actions in order to obtain an initial admission of guilt. Where
there is a suspected revenge-killing, for example, the interrogator may say:
"Joe, you probably didn't go
out looking for this fellow with the purpose of shooting him. My guess is,
however, that you expected something from him and that's why you carried a gun
- for your own protection. You knew him for what he was, no good. Then when you
met him he probably started using foul, abusive language and he gave some
indication [384 U.S. 436, 452] that he was about to pull a gun on you, and
that's when you had to act to save your own life. That's about it, isn't it,
Joe?" 15
Having then obtained the admission of shooting, the
interrogator is advised to refer to circumstantial evidence which negates the
self-defense explanation. This should enable him to secure the entire story.
One text notes that "Even if he fails to do so, the inconsistency between
the subject's original denial of the shooting and his present admission of at
least doing the shooting will serve to deprive him of a self-defense `out' at
the time of trial." 16
When the techniques described above prove unavailing, the
texts recommend they be alternated with a show of some hostility. One ploy
often used has been termed the "friendly-unfriendly" or the
"Mutt and Jeff" act:
". . . In this technique, two
agents are employed. Mutt, the relentless investigator, who knows the subject
is guilty and is not going to waste any time. He's sent a dozen men away for
this crime and he's going to send the subject away for the full term. Jeff, on
the other hand, is obviously a kindhearted man. He has a family himself. He has
a brother who was involved in a little scrape like this. He disapproves of Mutt
and his tactics and will arrange to get him off the case if the subject will
cooperate. He can't hold Mutt off for very long. The subject would be wise to
make a quick decision. The technique is applied by having both investigators
present while Mutt acts out his role. Jeff may stand by quietly and demur at
some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not
present in the room." 17 [384
U.S. 436, 453]
The interrogators sometimes are instructed to induce a
confession out of trickery. The technique here is quite effective in crimes
which require identification or which run in series. In the identification
situation, the interrogator may take a break in his questioning to place the subject
among a group of men in a line-up. "The witness or complainant (previously
coached, if necessary) studies the line-up and confidently points out the
subject as the guilty party." 18 Then the questioning resumes
"as though there were now no doubt about the guilt of the subject." A
variation on this technique is called the "reverse line-up":
"The accused is placed in a line-up,
but this time he is identified by several fictitious witnesses or victims who
associated him with different offenses. It is expected that the subject will
become desperate and confess to the offense under investigation in order to
escape from the false accusations." 19
The manuals also contain instructions for police on how to
handle the individual who refuses to discuss the matter entirely, or who asks
for an attorney or relatives. The examiner is to concede him the right to
remain silent. "This usually has a very undermining effect. First of all,
he is disappointed in his expectation of an unfavorable reaction on the part of
the interrogator. Secondly, a concession of this right to remain silent
impresses [384 U.S. 436, 454] the subject with the apparent fairness of
his interrogator." 20 After this psychological
conditioning, however, the officer is told to point out the incriminating
significance of the suspect's refusal to talk:
"Joe, you have a right to
remain silent. That's your privilege and I'm the last person in the world
who'll try to take it away from you. If that's the way you want to leave this,
O. K. But let me ask you this. Suppose you were in my shoes and I were in yours
and you called me in to ask me about this and I told you, `I don't want to
answer any of your questions.' You'd think I had something to hide, and you'd
probably be right in thinking that. That's exactly what I'll have to think
about you, and so will everybody else. So let's sit here and talk this whole
thing over." 21
Few will persist in their initial
refusal to talk, it is said, if this monologue is employed correctly.
In the event that the subject wishes
to speak to a relative or an attorney, the following advice is tendered:
"[T]he
interrogator should respond by suggesting that the subject first tell the truth
to the interrogator himself rather than get anyone else involved in the matter.
If the request is for an attorney, the interrogator may suggest that the
subject save himself or his family the expense of any such professional
service, particularly if he is innocent of the offense under investigation. The
interrogator may also add, `Joe, I'm only looking for the truth, and if you're
telling the truth, that's it. You can handle this by yourself.'" 22 [384 U.S. 436, 455]
From
these representative samples of interrogation techniques, the setting
prescribed by the manuals and observed in practice becomes clear. In essence,
it is this: To be alone with the subject is essential to prevent distraction
and to deprive him of any outside support. The aura of confidence in his guilt
undermines his will to resist. He merely confirms the preconceived story the
police seek to have him describe. Patience and persistence, at times relentless
questioning, are employed. To obtain a confession, the interrogator must
"patiently maneuver himself or his quarry into a position from which the
desired objective may be attained." 23
When
normal procedures fail to produce the needed result, the police may resort to
deceptive stratagems such as giving false legal advice. It is important to keep
the subject off balance, for example, by trading on his insecurity about
himself or his surroundings. The police then persuade, trick, or cajole him out
of exercising his constitutional rights.
Even without employing brutality,
the "third degree" or the specific stratagems described above, the
very fact of custodial interrogation exacts a heavy toll on individual liberty
and trades on the weakness of individuals. 24 [384 U.S. 436, 456]
This fact may be illustrated simply by referring to three confession
cases decided by this Court in the Term immediately preceding our Escobedo
decision. In Townsend v. Sain, 372 U.S. 293 (1963), the defendant was a
19-year-old heroin addict, described as a "near mental defective,"
id., at 307-310. The defendant in Lynumn v. Illinois, 372 U.S. 528 (1963), was a woman who confessed to
the arresting officer after being importuned to "cooperate" in order
to prevent her children from being taken by relief authorities. This Court as
in those cases reversed the conviction of a defendant in Haynes v. Washington, 373 U.S. 503 (1963), whose persistent request
during his interrogation was to phone his wife or attorney. 25 In other
settings, these individuals might have exercised their constitutional rights.
In the incommunicado police-dominated atmosphere, they succumbed.
In the cases before us today, given this background, we
concern ourselves primarily with this interrogation atmosphere and the evils it
can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant
and took him to a special interrogation room where they secured a confession.
In No. 760, Vignera v. New York, the defendant made oral admissions to the police
after interrogation in the afternoon, and then signed an inculpatory statement
upon being questioned by an assistant district attorney later the same evening.
In No. 761, Westover v. United States, the defendant was handed over to the
Federal Bureau of Investigation by [384
U.S. 436, 457] local
authorities after they had detained and interrogated him for a lengthy period,
both at night and the following morning. After some two hours of questioning,
the federal officers had obtained signed statements from the defendant. Lastly,
in No. 584, California v. Stewart, the local police held the defendant five
days in the station and interrogated him on nine separate occasions before they
secured his inculpatory statement.
In these cases, we might not find the defendants' statements
to have been involuntary in traditional terms. Our concern for adequate
safeguards to protect precious Fifth Amendment rights is, of course, not
lessened in the slightest. In each of the cases, the defendant was thrust into
an unfamiliar atmosphere and run through menacing police interrogation
procedures. The potentiality for compulsion is forcefully apparent, for
example, in Miranda, where the indigent Mexican defendant was a seriously
disturbed individual with pronounced sexual fantasies, and in Stewart, in which
the defendant was an indigent Los Angeles Negro who had dropped out of school
in the sixth grade. To be sure, the records do not evince overt physical
coercion or patent psychological ploys. The fact remains that in none of these
cases did the officers undertake to afford appropriate safeguards at the outset
of the interrogation to insure that the statements were truly the product of
free choice.
It is obvious that such an interrogation environment is
created for no purpose other than to subjugate the individual to the will of
his examiner. This atmosphere carries its own badge of intimidation. To be
sure, this is not physical intimidation, but it is equally destructive of human
dignity. 26 The current practice of
incommunicado interrogation is at odds with one of our [384
U.S. 436, 458] Nation's most cherished principles - that the
individual may not be compelled to incriminate himself. Unless adequate
protective devices are employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly be the product
of his free choice.
From the foregoing, we can readily perceive an intimate
connection between the privilege against self-incrimination and police
custodial questioning. It is fitting to turn to history and precedent
underlying the Self-Incrimination Clause to determine its applicability in this
situation.
II.
We sometimes forget how long it has taken to establish the
privilege against self-incrimination, the sources from which it came and the
fervor with which it was defended. Its roots go back into ancient times. 27 Perhaps [384 U.S. 436, 459]
the critical historical event shedding light on its origins and
evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who
was made to take the Star Chamber Oath in 1637. The oath would have bound him
to answer to all questions posed to him on any subject. The Trial of John
Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and
declaimed the proceedings, stating:
"Another fundamental right I
then contended for, was, that no man's conscience ought to be racked by oaths
imposed, to answer to questions concerning himself in matters criminal, or
pretended to be so." Haller & Davies, The Leveller Tracts 1647-1653,
p. 454 (1944).
On account of the Lilburn Trial, Parliament abolished the
inquisitorial Court of Star Chamber and went further in giving him generous
reparation. The lofty principles to which Lilburn had appealed during his trial
gained popular acceptance in England. 28 These sentiments worked their way
over to the Colonies and were implanted after great struggle into the Bill of
Rights. 29 Those who framed our Constitution
and the Bill of Rights were ever aware of subtle encroachments on individual
liberty. They knew that "illegitimate and unconstitutional practices get
their first footing . . . by silent approaches and slight deviations from legal
modes of procedure." Boyd v. United States, 116 U.S.
616, 635 (1886).
The privilege was elevated to constitutional status and has always been
"as broad as the mischief [384
U.S. 436, 460] against
which it seeks to guard." Counselman v. Hitchcock, 142 U.S.
547, 562 (1892). We
cannot depart from this noble heritage.
Thus we may view the historical development of the privilege
as one which groped for the proper scope of governmental power over the
citizen. As a "noble principle often transcends its origins," the
privilege has come rightfully to be recognized in part as an individual's substantive
right, a "right to a private enclave where he may lead a private life.
That right is the hallmark of our democracy." United States v. Grunewald,
233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd, 353 U.S.
391 (1957). We
have recently noted that the privilege against self-incrimination - the
essential mainstay of our adversary system - is founded on a complex of values,
Murphy v. Waterfront Comm'n, 378 U.S.
52, 55 -57, n. 5
(1964); Tehan v. Shott, 382 U.S.
406, 414 -415, n.
12 (1966). All these policies point to one overriding thought: the
constitutional foundation underlying the privilege is the respect a government
- state or federal - must accord to the dignity and integrity of its citizens.
To maintain a "fair state-individual balance," to require the government
"to shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton
rev. 1961), to respect the inviolability of the human personality, our
accusatory system of criminal justice demands that the government seeking to
punish an individual produce the evidence against him by its own independent
labors, rather than by the cruel, simple expedient of compelling it from his
own mouth. Chambers v. Florida, 309 U.S.
227, 235 -238 (1940).
In sum, the privilege is fulfilled only when the person is guaranteed the right
"to remain silent unless he chooses to speak in the unfettered exercise of
his own will." Malloy v. Hogan, 378 U.S.
1, 8 (1964).
The question in these cases is whether the privilege is
fully applicable during a period of custodial interrogation. [384 U.S. 436, 461]
In this Court, the privilege has consistently been accorded a liberal
construction. Albertson v. SACB, 382 U.S.
70, 81 (1965);
Hoffman v. United States, 341 U.S.
479, 486 (1951);
Arndstein v. McCarthy, 254 U.S.
71, 72 -73
(1920); Counselman v. Hitchock, 142 U.S.
547, 562 (1892). We
are satisfied that all the principles embodied in the privilege apply to
informal compulsion exerted by law-enforcement officers during in-custody
questioning. An individual swept from familiar surroundings into police
custody, surrounded by antagonistic forces, and subjected to the techniques of
persuasion described above cannot be otherwise than under compulsion to speak.
As a practical matter, the compulsion to speak in the isolated setting of the
police station may well be greater than in courts or other official
investigations, where there are often impartial observers to guard against
intimidation or trickery. 30
This question, in fact, could have been taken as settled in
federal courts almost 70 years ago, when, in Bram v. United States, 168 U.S.
532, 542 (1897),
this Court held:
"In criminal trials, in the
courts of the United States, wherever a question arises whether a confession is
incompetent because not voluntary, the issue is controlled by that portion of
the Fifth Amendment . . . commanding that no person `shall be compelled in any
criminal case to be a witness against himself.'"
In Bram, the Court reviewed the British and American history
and case law and set down the Fifth Amendment standard for compulsion which we
implement today:
"Much of the confusion which
has resulted from the effort to deduce from the adjudged cases what [384 U.S. 436, 462] would be a sufficient quantum of proof to
show that a confession was or was not voluntary, has arisen from a
misconception of the subject to which the proof must address itself. The rule
is not that in order to render a statement admissible the proof must be
adequate to establish that the particular communications contained in a
statement were voluntarily made, but it must be sufficient to establish that
the making of the statement was voluntary; that is to say, that from the
causes, which the law treats as legally sufficient to engender in the mind of
the accused hope or fear in respect to the crime charged, the accused was not
involuntarily impelled to make a statement, when but for the improper
influences he would have remained silent. . . ." 168 U.S.,
at 549 . And see,
id., at 542.
The Court has adhered to this reasoning. In 1924, Mr. Justice
Brandeis wrote for a unanimous Court in reversing a conviction resting on a
compelled confession, Wan v. United States, 266 U.S. 1
. He
stated:
"In the federal courts, the requisite
of voluntariness is not satisfied by establishing merely that the confession
was not induced by a promise or a threat. A confession is voluntary in law if,
and only if, it was, in fact, voluntarily made. A confession may have been
given voluntarily, although it was made to police officers, while in custody,
and in answer to an examination conducted by them. But a confession obtained by
compulsion must be excluded whatever may have been the character of the
compulsion, and whether the compulsion was applied in a judicial proceeding or
otherwise. Bram v. United States, 168 U.S.
532 ." 266 U.S.,
at 14 -15.
In addition to the expansive historical development of the
privilege and the sound policies which have nurtured [384 U.S. 436, 463]
its evolution, judicial precedent thus clearly establishes its
application to incommunicado interrogation. In fact, the Government concedes
this point as well established in No. 761, Westover v. United States, stating:
"We have no doubt . . . that it is possible for a suspect's Fifth
Amendment right to be violated during in-custody questioning by a
law-enforcement officer." 31
Because of the adoption by Congress of Rule 5 (a) of the
Federal Rules of Criminal Procedure, and this Court's effectuation of that Rule
in McNabb v. United States, 318 U.S.
332 (1943),
and Mallory v. United States, 354 U.S.
449 (1957), we
have had little occasion in the past quarter century to reach the
constitutional issues in dealing with federal interrogations. These supervisory
rules, requiring production of an arrested person before a commissioner
"without unnecessary delay" and excluding evidence obtained in default
of that statutory obligation, were nonetheless responsive to the same
considerations of Fifth Amendment policy that unavoidably face us now as to the
States. In McNabb, 318 U.S.,
at 343 -344, and
in Mallory, 354 U.S.,
at 455 -456, we
recognized both the dangers of interrogation and the appropriateness of
prophylaxis stemming from the very fact of interrogation itself. 32
Our decision in Malloy v. Hogan, 378 U.S. 1
(1964), necessitates
an examination of the scope of the privilege in state cases as well. In Malloy,
we squarely held the [384 U.S. 436,
464] privilege applicable
to the States, and held that the substantive standards underlying the privilege
applied with full force to state court proceedings. There, as in Murphy v.
Waterfront Comm'n, 378 U.S.
52 (1964),
and Griffin v. California, 380 U.S.
609 (1965), we
applied the existing Fifth Amendment standards to the case before us. Aside
from the holding itself, the reasoning in Malloy made clear what had already become
apparent - that the substantive and procedural safeguards surrounding
admissibility of confessions in state cases had become exceedingly exacting,
reflecting all the policies embedded in the privilege, 378 U.S.,
at 7 -8. 33 The voluntariness doctrine in the
state cases, as Malloy indicates, encompasses all interrogation practices which
are likely to exert such pressure upon an individual as to disable him from [384 U.S. 436, 465] making a free and rational choice. 34 The implications of this proposition
were elaborated in our decision in Escobedo v. Illinois, 378 U.S.
478 , decided
one week after Malloy applied the privilege to the States.
Our holding there stressed the fact that the police had not
advised the defendant of his constitutional privilege to remain silent at the
outset of the interrogation, and we drew attention to that fact at several
points in the decision, 378 U.S.,
at 483 , 485,
491. This was no isolated factor, but an essential ingredient in our decision.
The entire thrust of police interrogation there, as in all the cases today, was
to put the defendant in such an emotional state as to impair his capacity for
rational judgment. The abdication of the constitutional privilege - the choice
on his part to speak to the police - was not made knowingly or competently
because of the failure to apprise him of his rights; the compelling atmosphere
of the in-custody interrogation, and not an independent decision on his part,
caused the defendant to speak.
A different phase of the Escobedo decision was significant
in its attention to the absence of counsel during the questioning. There, as in
the cases today, we sought a protective device to dispel the compelling
atmosphere of the interrogation. In Escobedo, however, the police did not
relieve the defendant of the anxieties which they had created in the
interrogation rooms. Rather, they denied his request for the assistance of
counsel, 378 U.S.,
at 481 , 488,
491. 35 This heightened his dilemma, and [384 U.S. 436, 466] made his later
statements the product of this compulsion. Cf. Haynes v. Washington, 373 U.S.
503, 514 (1963).
The denial of the defendant's request for his attorney thus undermined his
ability to exercise the privilege - to remain silent if he chose or to speak
without any intimidation, blatant or subtle. The presence of counsel, in all
the cases before us today, would be the adequate protective device necessary to
make the process of police interrogation conform to the dictates of the
privilege. His presence would insure that statements made in the
government-established atmosphere are not the product of compulsion.
It was in this manner that Escobedo explicated another facet
of the pre-trial privilege, noted in many of the Court's prior decisions: the
protection of rights at trial. 36 That counsel is present when
statements are taken from an individual during interrogation obviously enhances
the integrity of the fact-finding processes in court. The presence of an
attorney, and the warnings delivered to the individual, enable the defendant
under otherwise compelling circumstances to tell his story without fear,
effectively, and in a way that eliminates the evils in the interrogation
process. Without the protections flowing from adequate warnings and the rights
of counsel, "all the careful safeguards erected around the giving of
testimony, whether by an accused or any other witness, would become empty
formalities in a procedure where the most compelling possible evidence of
guilt, a confession, would have already been obtained at the unsupervised
pleasure of the police." Mapp v. Ohio, 367 U.S.
643, 685 (1961)
(HARLAN, J., dissenting). Cf. Pointer v. Texas, 380 U.S.
400 (1965). [384 U.S. 436, 467]
III.
Today, then, there can be no doubt that the Fifth Amendment
privilege is available outside of criminal court proceedings and serves to
protect persons in all settings in which their freedom of action is curtailed in
any significant way from being compelled to incriminate themselves. We have
concluded that without proper safeguards the process of in-custody
interrogation of persons suspected or accused of crime contains inherently
compelling pressures which work to undermine the individual's will to resist
and to compel him to speak where he would not otherwise do so freely. In order
to combat these pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be adequately and
effectively apprised of his rights and the exercise of those rights must be
fully honored.
It is impossible for us to foresee the potential
alternatives for protecting the privilege which might be devised by Congress or
the States in the exercise of their creative rule-making capacities. Therefore
we cannot say that the Constitution necessarily requires adherence to any
particular solution for the inherent compulsions of the interrogation process
as it is presently conducted. Our decision in no way creates a constitutional
straitjacket which will handicap sound efforts at reform, nor is it intended to
have this effect. We encourage Congress and the States to continue their
laudable search for increasingly effective ways of protecting the rights of the
individual while promoting efficient enforcement of our criminal laws. However,
unless we are shown other procedures which are at least as effective in
apprising accused persons of their right of silence and in assuring a
continuous opportunity to exercise it, the following safeguards must be
observed.
At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and [384 U.S. 436, 468]
unequivocal terms that he has the right to remain silent. For those
unaware of the privilege, the warning is needed simply to make them aware of it
- the threshold requirement for an intelligent decision as to its exercise.
More important, such a warning is an absolute prerequisite in overcoming the
inherent pressures of the interrogation atmosphere. It is not just the
subnormal or woefully ignorant who succumb to an interrogator's imprecations,
whether implied or expressly stated, that the interrogation will continue until
a confession is obtained or that silence in the face of accusation is itself
damning and will bode ill when presented to a jury. 37 Further, the warning will show the individual
that his interrogators are prepared to recognize his privilege should he choose
to exercise it.
The Fifth Amendment privilege is so fundamental to our
system of constitutional rule and the expedient of giving an adequate warning
as to the availability of the privilege so simple, we will not pause to inquire
in individual cases whether the defendant was aware of his rights without a
warning being given. Assessments of the knowledge the defendant possessed,
based on information [384 U.S. 436,
469] as to his age,
education, intelligence, or prior contact with authorities, can never be more
than speculation; 38 a warning is a clearcut fact. More
important, whatever the background of the person interrogated, a warning at the
time of the interrogation is indispensable to overcome its pressures and to
insure that the individual knows he is free to exercise the privilege at that
point in time.
The warning of the right to remain silent must be
accompanied by the explanation that anything said can and will be used against
the individual in court. This warning is needed in order to make him aware not
only of the privilege, but also of the consequences of forgoing it. It is only
through an awareness of these consequences that there can be any assurance of
real understanding and intelligent exercise of the privilege. Moreover, this
warning may serve to make the individual more acutely aware that he is faced
with a phase of the adversary system - that he is not in the presence of
persons acting solely in his interest.
The circumstances surrounding in-custody interrogation can
operate very quickly to overbear the will of one merely made aware of his
privilege by his interrogators. Therefore, the right to have counsel present at
the interrogation is indispensable to the protection of the Fifth Amendment
privilege under the system we delineate today. Our aim is to assure that the
individual's right to choose between silence and speech remains unfettered
throughout the interrogation process. A once-stated warning, delivered by those
who will conduct the interrogation, cannot itself suffice to that end among
those who most require knowledge of their rights. A mere [384 U.S. 436, 470]
warning given by the interrogators is not alone sufficient to accomplish
that end. Prosecutors themselves claim that the admonishment of the right to
remain silent without more "will benefit only the recidivist and the
professional." Brief for the National District Attorneys Association as
amicus curiae, p. 14. Even preliminary advice given to the accused by his own
attorney can be swiftly overcome by the secret interrogation process. Cf.
Escobedo v. Illinois, 378 U.S.
478, 485 , n. 5.
Thus, the need for counsel to protect the Fifth Amendment privilege comprehends
not merely a right to consult with counsel prior to questioning, but also to
have counsel present during any questioning if the defendant so desires.
The presence of counsel at the interrogation may serve
several significant subsidiary functions as well. If the accused decides to
talk to his interrogators, the assistance of counsel can mitigate the dangers
of untrustworthiness. With a lawyer present the likelihood that the police will
practice coercion is reduced, and if coercion is nevertheless exercised the
lawyer can testify to it in court. The presence of a lawyer can also help to
guarantee that the accused gives a fully accurate statement to the police and
that the statement is rightly reported by the prosecution at trial. See Crooker
v. California, 357 U.S.
433, 443 -448
(1958) (DOUGLAS, J., dissenting).
An individual need not make a pre-interrogation request for
a lawyer. While such request affirmatively secures his right to have one, his
failure to ask for a lawyer does not constitute a waiver. No effective waiver
of the right to counsel during interrogation can be recognized unless
specifically made after the warnings we here delineate have been given. The
accused who does not know his rights and therefore does not make a request [384 U.S. 436, 471] may be the person who most needs counsel.
As the California Supreme Court has aptly put it:
"Finally, we must recognize
that the imposition of the requirement for the request would discriminate
against the defendant who does not know his rights. The defendant who does not
ask for counsel is the very defendant who most needs counsel. We cannot
penalize a defendant who, not understanding his constitutional rights, does not
make the formal request and by such failure demonstrates his helplessness. To
require the request would be to favor the defendant whose sophistication or
status had fortuitously prompted him to make it." People v. Dorado, 62
Cal. 2d 338, 351, 398 P.2d 361, 369-370, 42 Cal. Rptr. 169, 177-178 (1965)
(Tobriner, J.).
In Carnley v. Cochran, 369 U.S.
506, 513 (1962), we
stated: "[I]t is settled that where the assistance of counsel is a
constitutional requisite, the right to be furnished counsel does not depend on
a request." This proposition applies with equal force in the context of
providing counsel to protect an accused's Fifth Amendment privilege in the face
of interrogation. 39 Although the role of counsel at
trial differs from the role during interrogation, the differences are not
relevant to the question whether a request is a prerequisite.
Accordingly we hold that an individual held for
interrogation must be clearly informed that he has the right to consult with a
lawyer and to have the lawyer with him during interrogation under the system
for protecting the privilege we delineate today. As with the warnings of the
right to remain silent and that anything stated can be used in evidence against
him, this warning is an absolute prerequisite to interrogation. No amount of [384 U.S. 436, 472] circumstantial evidence that the person may
have been aware of this right will suffice to stand in its stead: Only through
such a warning is there ascertainable assurance that the accused was aware of
this right.
If an individual indicates that he wishes the assistance of
counsel before any interrogation occurs, the authorities cannot rationally
ignore or deny his request on the basis that the individual does not have or
cannot afford a retained attorney. The financial ability of the individual has
no relationship to the scope of the rights involved here. The privilege against
self-incrimination secured by the Constitution applies to all individuals. The
need for counsel in order to protect the privilege exists for the indigent as
well as the affluent. In fact, were we to limit these constitutional rights to
those who can retain an attorney, our decisions today would be of little
significance. The cases before us as well as the vast majority of confession
cases with which we have dealt in the past involve those unable to retain
counsel. 40 While authorities are not required
to relieve the accused of his poverty, they have the obligation not to take
advantage of indigence in the administration of justice. 41 Denial [384
U.S. 436, 473] of counsel to the indigent at the time of
interrogation while allowing an attorney to those who can afford one would be
no more supportable by reason or logic than the similar situation at trial and
on appeal struck down in Gideon v. Wainwright, 372 U.S.
335 (1963),
and Douglas v. California, 372 U.S.
353 (1963).
In order fully to apprise a person interrogated of the
extent of his rights under this system then, it is necessary to warn him not
only that he has the right to consult with an attorney, but also that if he is
indigent a lawyer will be appointed to represent him. Without this additional
warning, the admonition of the right to consult with counsel would often be
understood as meaning only that he can consult with a lawyer if he has one or
has the funds to obtain one. The warning of a right to counsel would be hollow
if not couched in terms that would convey to the indigent - the person most
often subjected to interrogation - the knowledge that he too has a right to
have counsel present. 42 As with the warnings of the right to
remain silent and of the general right to counsel, only by effective and
express explanation to the indigent of this right can there be assurance that
he was truly in a position to exercise it. 43
Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, [384 U.S. 436, 474]
at any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease. 44 At this point he has shown that he
intends to exercise his Fifth Amendment privilege; any statement taken after
the person invokes his privilege cannot be other than the product of compulsion,
subtle or otherwise. Without the right to cut off questioning, the setting of
in-custody interrogation operates on the individual to overcome free choice in
producing a statement after the privilege has been once invoked. If the
individual states that he wants an attorney, the interrogation must cease until
an attorney is present. At that time, the individual must have an opportunity
to confer with the attorney and to have him present during any subsequent
questioning. If the individual cannot obtain an attorney and he indicates that
he wants one before speaking to police, they must respect his decision to
remain silent.
This does not mean, as some have suggested, that each police
station must have a "station house lawyer" present at all times to
advise prisoners. It does mean, however, that if police propose to interrogate
a person they must make known to him that he is entitled to a lawyer and that
if he cannot afford one, a lawyer will be provided for him prior to any
interrogation. If authorities conclude that they will not provide counsel
during a reasonable period of time in which investigation in the field is
carried out, they may refrain from doing so without violating the person's
Fifth Amendment privilege so long as they do not question him during that time.
[384 U.S. 436, 475]
If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or appointed counsel.
Escobedo v. Illinois, 378 U.S.
478, 490 , n. 14.
This Court has always set high standards of proof for the waiver of
constitutional rights, Johnson v. Zerbst, 304 U.S.
458 (1938),
and we re-assert these standards as applied to in-custody interrogation. Since
the State is responsible for establishing the isolated circumstances under
which the interrogation takes place and has the only means of making available
corroborated evidence of warnings given during incommunicado interrogation, the
burden is rightly on its shoulders.
An express statement that the individual is willing to make
a statement and does not want an attorney followed closely by a statement could
constitute a waiver. But a valid waiver will not be presumed simply from the
silence of the accused after warnings are given or simply from the fact that a
confession was in fact eventually obtained. A statement we made in Carnley v.
Cochran, 369 U.S.
506, 516 (1962), is
applicable here:
"Presuming waiver from a silent
record is impermissible. The record must show, or there must be an allegation
and evidence which show, that an accused was offered counsel but intelligently
and understandingly rejected the offer. Anything less is not waiver."
See also Glasser v. United States, 315 U.S.
60 (1942).
Moreover, where in-custody interrogation is involved, there is no room for the
contention that the privilege is waived if the individual answers some
questions or gives [384 U.S. 436, 476] some information on his own prior to
invoking his right to remain silent when interrogated. 45
Whatever the testimony of the authorities as to waiver of
rights by an accused, the fact of lengthy interrogation or incommunicado
incarceration before a statement is made is strong evidence that the accused
did not validly waive his rights. In these circumstances the fact that the
individual eventually made a statement is consistent with the conclusion that
the compelling influence of the interrogation finally forced him to do so. It
is inconsistent with any notion of a voluntary relinquishment of the privilege.
Moreover, any evidence that the accused was threatened, tricked, or cajoled
into a waiver will, of course, show that the defendant did not voluntarily
waive his privilege. The requirement of warnings and waiver of rights is a
fundamental with respect to the Fifth Amendment privilege and not simply a
preliminary ritual to existing methods of interrogation.
The warnings required and the waiver necessary in accordance
with our opinion today are, in the absence of a fully effective equivalent,
prerequisites to the admissibility of any statement made by a defendant. No
distinction can be drawn between statements which are direct confessions and
statements which amount to "admissions" of part or all of an offense.
The privilege against self-incrimination protects the individual from being
compelled to incriminate himself in any manner; it does not distinguish degrees
of incrimination. Similarly, [384 U.S.
436, 477] for precisely
the same reason, no distinction may be drawn between inculpatory statements and
statements alleged to be merely "exculpatory." If a statement made
were in fact truly exculpatory it would, of course, never be used by the
prosecution. In fact, statements merely intended to be exculpatory by the
defendant are often used to impeach his testimony at trial or to demonstrate
untruths in the statement given under interrogation and thus to prove guilt by
implication. These statements are incriminating in any meaningful sense of the
word and may not be used without the full warnings and effective waiver
required for any other statement. In Escobedo itself, the defendant fully
intended his accusation of another as the slayer to be exculpatory as to
himself.
The principles announced today deal with the protection
which must be given to the privilege against self-incrimination when the
individual is first subjected to police interrogation while in custody at the
station or otherwise deprived of his freedom of action in any significant way.
It is at this point that our adversary system of criminal proceedings
commences, distinguishing itself at the outset from the inquisitorial system
recognized in some countries. Under the system of warnings we delineate today
or under any other system which may be devised and found effective, the
safeguards to be erected about the privilege must come into play at this point.
Our decision is not intended to hamper the traditional
function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S.
478, 492 . When an
individual is in custody on probable cause, the police may, of course, seek out
evidence in the field to be used at trial against him. Such investigation may
include inquiry of persons not under restraint. General on-the-scene
questioning as to facts surrounding a crime or other general questioning of
citizens in the fact-finding process is not affected by our holding. It is an
act of [384 U.S. 436, 478] responsible citizenship for individuals to
give whatever information they may have to aid in law enforcement. In such
situations the compelling atmosphere inherent in the process of in-custody
interrogation is not necessarily present. 46
In dealing with statements obtained through interrogation,
we do not purport to find all confessions inadmissible. Confessions remain a
proper element in law enforcement. Any statement given freely and voluntarily
without any compelling influences is, of course, admissible in evidence. The
fundamental import of the privilege while an individual is in custody is not
whether he is allowed to talk to the police without the benefit of warnings and
counsel, but whether he can be interrogated. There is no requirement that
police stop a person who enters a police station and states that he wishes to
confess to a crime, 47 or a person who calls the police to
offer a confession or any other statement he desires to make. Volunteered
statements of any kind are not barred by the Fifth Amendment and their
admissibility is not affected by our holding today.
To summarize, we hold that when an individual is taken into
custody or otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning, the privilege against
self-incrimination is jeopardized. Procedural safeguards must be employed to [384 U.S. 436, 479] protect the privilege, and unless other
fully effective means are adopted to notify the person of his right of silence
and to assure that the exercise of the right will be scrupulously honored, the
following measures are required. He must be warned prior to any questioning
that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the interrogation. After such
warnings have been given, and such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer questions or
make a statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a result of
interrogation can be used against him. 48
IV.
A recurrent argument made in these cases is that society's
need for interrogation outweighs the privilege. This argument is not unfamiliar
to this Court. See, e. g., Chambers v. Florida, 309 U.S.
227, 240 -241
(1940). The whole thrust of our foregoing discussion demonstrates that the
Constitution has prescribed the rights of the individual when confronted with
the power of government when it provided in the Fifth Amendment that an
individual cannot be compelled to be a witness against himself. That right
cannot be abridged. As Mr. Justice Brandeis once observed:
"Decency, security and liberty
alike demand that government officials shall be subjected to the same [384 U.S. 436, 480] rules of conduct that are commands to the
citizen. In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the whole
people by its example. Crime is contagious. If the Government becomes a
lawbreaker, it breeds contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in the administration of the
criminal law the end justifies the means . . . would bring terrible
retribution. Against that pernicious doctrine this Court should resolutely set
its face." Olmstead v. United States, 277 U.S.
438, 485 (1928)
(dissenting opinion). 49
In this connection, one of our country's distinguished
jurists has pointed out: "The quality of a nation's civilization can be
largely measured by the methods it uses in the enforcement of its criminal
law." 50
If the individual desires to exercise his privilege, he has
the right to do so. This is not for the authorities to decide. An attorney may
advise his client not to talk to police until he has had an opportunity to
investigate the case, or he may wish to be present with his client during any
police questioning. In doing so an attorney is merely exercising the good
professional judgment he has been taught. This is not cause for considering the
attorney a menace to law enforcement. He is merely carrying out what he is sworn
to do under his oath - to protect to the extent of his ability the rights of
his [384 U.S. 436, 481] client. In fulfilling this responsibility
the attorney plays a vital role in the administration of criminal justice under
our Constitution.
In announcing these principles, we are not unmindful of the
burdens which law enforcement officials must bear, often under trying
circumstances. We also fully recognize the obligation of all citizens to aid in
enforcing the criminal laws. This Court, while protecting individual rights,
has always given ample latitude to law enforcement agencies in the legitimate
exercise of their duties. The limits we have placed on the interrogation
process should not constitute an undue interference with a proper system of law
enforcement. As we have noted, our decision does not in any way preclude police
from carrying out their traditional investigatory functions. Although
confessions may play an important role in some convictions, the cases before us
present graphic examples of the overstatement of the "need" for
confessions. In each case authorities conducted interrogations ranging up to
five days in duration despite the presence, through standard investigating
practices, of considerable evidence against each defendant. 51 Further examples are chronicled in
our prior cases. See, e. g., Haynes v. Washington, 373 U.S.
503, 518 -519
(1963); Rogers v. Richmond, 365 U.S.
534, 541 (1961);
Malinski v. New York, 324 U.S.
401, 402 (1945). 52 [384
U.S. 436, 482]
It is also urged that an unfettered right to detention for
interrogation should be allowed because it will often redound to the benefit of
the person questioned. When police inquiry determines that there is no reason
to believe that the person has committed any crime, it is said, he will be
released without need for further formal procedures. The person who has committed
no offense, however, will be better able to clear himself after warnings with
counsel present than without. It can be assumed that in such circumstances a
lawyer would advise his client to talk freely to police in order to clear
himself.
Custodial interrogation, by contrast, does not necessarily
afford the innocent an opportunity to clear themselves. A serious consequence
of the present practice of the interrogation alleged to be beneficial for the
innocent is that many arrests "for investigation" subject large
numbers of innocent persons to detention and interrogation. In one of the cases
before us, No. 584, California v. Stewart, police held four persons, who were
in the defendant's house at the time of the arrest, in jail for five days until
defendant confessed. At that time they were finally released. Police stated
that there was "no evidence to connect them with any crime."
Available statistics on the extent of this practice where it is condoned
indicate that these four are far from alone in being subjected to arrest,
prolonged detention, and interrogation without the requisite probable cause. 53 [384
U.S. 436, 483]
Over the years the Federal Bureau of Investigation has
compiled an exemplary record of effective law enforcement while advising any
suspect or arrested person, at the outset of an interview, that he is not
required to make a statement, that any statement may be used against him in
court, that the individual may obtain the services of an attorney of his own
choice and, more recently, that he has a right to free counsel if he is unable
to pay. 54 A letter received from the Solicitor
General in response to a question from the Bench makes it clear that the
present pattern of warnings and respect for the [384 U.S. 436, 484]
rights of the individual followed as a practice by the FBI is consistent
with the procedure which we delineate today. It states:
"At the oral argument of the
above cause, Mr. Justice Fortas asked whether I could provide certain
information as to the practices followed by the Federal Bureau of
Investigation. I have directed these questions to the attention of the Director
of the Federal Bureau of Investigation and am submitting herewith a statement
of the questions and of the answers which we have received.
"`(1) When an individual is
interviewed by agents of the Bureau, what warning is given to him?
"`The standard warning long
given by Special Agents of the FBI to both suspects and persons under arrest is
that the person has a right to say nothing and a right to counsel, and that any
statement he does make may be used against him in court. Examples of this
warning are to be found in the Westover case at 342 F.2d 684 (1965), and
Jackson v. U.S., 337 F.2d 136 (1964), cert. den. 380 U.S.
935 .
"`After passage of the Criminal
Justice Act of 1964, which provides free counsel for Federal defendants unable
to pay, we added to our instructions to Special Agents the requirement that any
person who is under arrest for an offense under FBI jurisdiction, or whose arrest
is contemplated following the interview, must also be advised of his right to
free counsel if he is unable to pay, and the fact that such counsel will be
assigned by the Judge. At the same time, we broadened the right to counsel
warning [384 U.S. 436, 485] to read counsel of his own choice, or
anyone else with whom he might wish to speak.
"`(2) When is the warning
given?
"`The FBI warning is given to a
suspect at the very outset of the interview, as shown in the Westover case,
cited above. The warning may be given to a person arrested as soon as
practicable after the arrest, as shown in the Jackson case, also cited above,
and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. 379 U.S.
933 , but in
any event it must precede the interview with the person for a confession or
admission of his own guilt.
"`(3) What is the Bureau's
practice in the event that (a) the individual requests counsel and (b) counsel
appears?
"`When the person who has been
warned of his right to counsel decides that he wishes to consult with counsel
before making a statement, the interview is terminated at that point, Shultz v.
U.S., 351 F.2d 287 (1965). It may be continued, however, as to all matters other
than the person's own guilt or innocence. If he is indecisive in his request
for counsel, there may be some question on whether he did or did not waive
counsel. Situations of this kind must necessarily be left to the judgment of
the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 (1965), the
Agent's conclusion that the person arrested had waived his right to counsel was
upheld by the courts.
"`A person being interviewed
and desiring to consult counsel by telephone must be permitted to do so, as
shown in Caldwell v. U.S., 351 F.2d 459 (1965). When counsel appears in person,
he is permitted to confer with his client in private. [384 U.S. 436, 486]
"`(4) What is the Bureau's
practice if the individual requests counsel, but cannot afford to retain an
attorney?
"`If any person being
interviewed after warning of counsel decides that he wishes to consult with
counsel before proceeding further the interview is terminated, as shown above.
FBI Agents do not pass judgment on the ability of the person to pay for
counsel. They do, however, advise those who have been arrested for an offense
under FBI jurisdiction, or whose arrest is contemplated following the
interview, of a right to free counsel if they are unable to pay, and the
availability of such counsel from the Judge.'" 55
The practice of the FBI can readily be emulated by state and
local enforcement agencies. The argument that the FBI deals with different crimes
than are dealt with by state authorities does not mitigate the significance of
the FBI experience. 56
The experience in some other countries also suggests that
the danger to law enforcement in curbs on interrogation is overplayed. The
English procedure since 1912 under the Judges' Rules is significant. As
recently [384 U.S. 436, 487] strengthened, the Rules require that a
cautionary warning be given an accused by a police officer as soon as he has
evidence that affords reasonable grounds for suspicion; they also require that
any statement made be given by the accused without questioning by police. 57 [384
U.S. 436, 488] The right of the individual to consult with an
attorney during this period is expressly recognized. 58
The safeguards present under Scottish law may be even
greater than in England. Scottish judicial decisions bar use in evidence of
most confessions obtained through police interrogation. 59 In India, confessions made to police
not in the presence of a magistrate have been excluded [384 U.S. 436, 489]
by rule of evidence since 1872, at a time when it operated under British
law. 60 Identical provisions appear in the
Evidence Ordinance of Ceylon, enacted in 1895. 61 Similarly, in our country the
Uniform Code of Military Justice has long provided that no suspect may be
interrogated without first being warned of his right not to make a statement
and that any statement he makes may be used against him. 62 Denial of the right to consult
counsel during interrogation has also been proscribed by military tribunals. 63 There appears to have been no marked
detrimental effect on criminal law enforcement in these jurisdictions as a
result of these rules. Conditions of law enforcement in our country are
sufficiently similar to permit reference to this experience as assurance that
lawlessness will not result from warning an individual of his rights or
allowing him to exercise them. Moreover, it is consistent with our legal system
that we give at least as much protection to these rights as is given in the
jurisdictions described. We deal in our country with rights grounded in a
specific requirement of the Fifth Amendment of the Constitution, [384 U.S. 436, 490]
whereas other jurisdictions arrived at their conclusions on the basis of
principles of justice not so specifically defined. 64
It is also urged upon us that we withhold decision on this
issue until state legislative bodies and advisory groups have had an
opportunity to deal with these problems by rule making. 65 We have already pointed out that the
Constitution does not require any specific code of procedures for protecting
the privilege against self-incrimination during custodial interrogation.
Congress and the States are free to develop their own safeguards for the
privilege, so long as they are fully as effective as those described above in
informing accused persons of their right of silence and in affording a
continuous opportunity to exercise it. In any event, however, the issues
presented are of constitutional dimensions and must be determined by the
courts. The admissibility of a statement in the face of a claim that it was
obtained in violation of the defendant's constitutional rights is an issue the
resolution of which has long since been undertaken by this Court. See Hopt v.
Utah, 110 U.S.
574 (1884).
Judicial solutions to problems of constitutional dimension have evolved decade
by decade. As courts have been presented with the need to enforce
constitutional rights, they have found means of doing so. That was our
responsibility when Escobedo was before us and it is our [384 U.S. 436, 491]
responsibility today. Where rights secured by the Constitution are
involved, there can be no rule making or legislation which would abrogate them.
V.
Because of the nature of the problem and because of its
recurrent significance in numerous cases, we have to this point discussed the
relationship of the Fifth Amendment privilege to police interrogation without
specific concentration on the facts of the cases before us. We turn now to
these facts to consider the application to these cases of the constitutional
principles discussed above. In each instance, we have concluded that statements
were obtained from the defendant under circumstances that did not meet
constitutional standards for protection of the privilege.
No. 759. Miranda v. Arizona.
On March 13, 1963, petitioner, Ernesto Miranda, was arrested
at his home and taken in custody to a Phoenix police station. He was there
identified by the complaining witness. The police then took him to
"Interrogation Room No. 2" of the detective bureau. There he was
questioned by two police officers. The officers admitted at trial that Miranda
was not advised that he had a right to have an attorney present. 66 Two hours later, the [384 U.S. 436, 492]
officers emerged from the interrogation room with a written confession
signed by Miranda. At the top of the statement was a typed paragraph stating
that the confession was made voluntarily, without threats or promises of
immunity and "with full knowledge of my legal rights, understanding any
statement I make may be used against me." 67
At his trial before a jury, the written confession was
admitted into evidence over the objection of defense counsel, and the officers
testified to the prior oral confession made by Miranda during the
interrogation. Miranda was found guilty of kidnapping and rape. He was
sentenced to 20 to 30 years' imprisonment on each count, the sentences to run
concurrently. On appeal, the Supreme Court of Arizona held that Miranda's
constitutional rights were not violated in obtaining the confession and
affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In reaching its decision,
the court emphasized heavily the fact that Miranda did not specifically request
counsel.
We reverse. From the testimony of the officers and by the
admission of respondent, it is clear that Miranda was not in any way apprised
of his right to consult with an attorney and to have one present during the
interrogation, nor was his right not to be compelled to incriminate himself
effectively protected in any other manner. Without these warnings the
statements were inadmissible. The mere fact that he signed a statement which
contained a typed-in clause stating that he had "full knowledge" of
his "legal rights" does not approach the knowing and intelligent
waiver required to relinquish constitutional rights. Cf. Haynes v. Washington, 373 U.S.
503 , [384 U.S. 436, 493] 512-513 (1963); Haley v. Ohio, 332 U.S.
596, 601 (1948)
(opinion of MR. JUSTICE DOUGLAS).
No. 760. Vignera v. New York.
Petitioner, Michael Vignera, was picked up by New York
police on October 14, 1960, in connection with the robbery three days earlier
of a Brooklyn dress shop. They took him to the 17th Detective Squad
headquarters in Manhattan. Sometime thereafter he was taken to the 66th
Detective Squad. There a detective questioned Vignera with respect to the
robbery. Vignera orally admitted the robbery to the detective. The detective
was asked on cross-examination at trial by defense counsel whether Vignera was warned
of his right to counsel before being interrogated. The prosecution objected to
the question and the trial judge sustained the objection. Thus, the defense was
precluded from making any showing that warnings had not been given. While at
the 66th Detective Squad, Vignera was identified by the store owner and a
saleslady as the man who robbed the dress shop. At about 3 p. m. he was
formally arrested. The police then transported him to still another station,
the 70th Precinct in Brooklyn, "for detention." At 11 p. m. Vignera
was questioned by an assistant district attorney in the presence of a hearing
reporter who transcribed the questions and Vignera's answers. This verbatim
account of these proceedings contains no statement of any warnings given by the
assistant district attorney. At Vignera's trial on a charge of first degree
robbery, the detective testified as to the oral confession. The transcription
of the statement taken was also introduced in evidence. At the conclusion of
the testimony, the trial judge charged the jury in part as follows:
"The law doesn't say that the
confession is void or invalidated because the police officer didn't advise the
defendant as to his rights. Did you hear what [384 U.S. 436, 494]
I said? I am telling you what the law of the State of New York is."
Vignera was found guilty of first degree robbery. He was
subsequently adjudged a third-felony offender and sentenced to 30 to 60 years'
imprisonment. 68 The conviction was affirmed without
opinion by the Appellate Division, Second Department, 21 App. Div. 2d 752, 252
N. Y. S. 2d 19, and by the Court of Appeals, also without opinion, 15 N. Y. 2d
970, 207 N. E. 2d 527, 259 N. Y. S. 2d 857, remittitur amended, 16 N. Y. 2d
614, 209 N. E. 2d 110, 261 N. Y. S. 2d 65. In argument to the Court of Appeals,
the State contended that Vignera had no constitutional right to be advised of
his right to counsel or his privilege against self-incrimination.
We reverse. The foregoing indicates that Vignera was not
warned of any of his rights before the questioning by the detective and by the
assistant district attorney. No other steps were taken to protect these rights.
Thus he was not effectively apprised of his Fifth Amendment privilege or of his
right to have counsel present and his statements are inadmissible.
No. 761. Westover v. United States.
At approximately 9:45 p. m. on March 20, 1963, petitioner,
Carl Calvin Westover, was arrested by local police in Kansas City as a suspect
in two Kansas City robberies. A report was also received from the FBI that he
was wanted on a felony charge in California. The local authorities took him to
a police station and placed him in a line-up on the local charges, and at about
11:45 p. m. he was booked. Kansas City police interrogated Westover [384 U.S. 436, 495] on the night of his arrest. He denied any
knowledge of criminal activities. The next day local officers interrogated him
again throughout the morning. Shortly before noon they informed the FBI that
they were through interrogating Westover and that the FBI could proceed to
interrogate him. There is nothing in the record to indicate that Westover was
ever given any warning as to his rights by local police. At noon, three special
agents of the FBI continued the interrogation in a private interview room of
the Kansas City Police Department, this time with respect to the robbery of a
savings and loan association and a bank in Sacramento, California. After two or
two and one-half hours, Westover signed separate confessions to each of these
two robberies which had been prepared by one of the agents during the
interrogation. At trial one of the agents testified, and a paragraph on each of
the statements states, that the agents advised Westover that he did not have to
make a statement, that any statement he made could be used against him, and
that he had the right to see an attorney.
Westover was tried by a jury in federal court and convicted
of the California robberies. His statements were introduced at trial. He was
sentenced to 15 years' imprisonment on each count, the sentences to run
consecutively. On appeal, the conviction was affirmed by the Court of Appeals
for the Ninth Circuit. 342 F.2d 684.
We reverse. On the facts of this case we cannot find that
Westover knowingly and intelligently waived his right to remain silent and his
right to consult with counsel prior to the time he made the statement. 69 At the [384
U.S. 436, 496] time the FBI agents began questioning Westover, he
had been in custody for over 14 hours and had been interrogated at length
during that period. The FBI interrogation began immediately upon the conclusion
of the interrogation by Kansas City police and was conducted in local police
headquarters. Although the two law enforcement authorities are legally distinct
and the crimes for which they interrogated Westover were different, the impact
on him was that of a continuous period of questioning. There is no evidence of
any warning given prior to the FBI interrogation nor is there any evidence of
an articulated waiver of rights after the FBI commenced its interrogation. The
record simply shows that the defendant did in fact confess a short time after
being turned over to the FBI following interrogation by local police. Despite
the fact that the FBI agents gave warnings at the outset of their interview,
from Westover's point of view the warnings came at the end of the interrogation
process. In these circumstances an intelligent waiver of constitutional rights
cannot be assumed.
We do not suggest that law enforcement authorities are
precluded from questioning any individual who has been held for a period of
time by other authorities and interrogated by them without appropriate
warnings. A different case would be presented if an accused were taken into
custody by the second authority, removed both in time and place from his
original surroundings, and then adequately advised of his rights and given an
opportunity to exercise them. But here the FBI interrogation was conducted
immediately following the state interrogation in the same police station - in
the same compelling surroundings. Thus, in obtaining a confession from Westover
[384 U.S. 436, 497] the federal authorities were the
beneficiaries of the pressure applied by the local in-custody interrogation. In
these circumstances the giving of warnings alone was not sufficient to protect
the privilege.
No. 584. California v. Stewart.
In the course of investigating a series of purse-snatch
robberies in which one of the victims had died of injuries inflicted by her
assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police
as the endorser of dividend checks taken in one of the robberies. At about 7:15
p. m., January 31, 1963, police officers went to Stewart's house and arrested
him. One of the officers asked Stewart if they could search the house, to which
he replied, "Go ahead." The search turned up various items taken from
the five robbery victims. At the time of Stewart's arrest, police also arrested
Stewart's wife and three other persons who were visiting him. These four were
jailed along with Stewart and were interrogated. Stewart was taken to the University
Station of the Los Angeles Police Department where he was placed in a cell.
During the next five days, police interrogated Stewart on nine different
occasions. Except during the first interrogation session, when he was
confronted with an accusing witness, Stewart was isolated with his
interrogators.
During the ninth interrogation session, Stewart admitted
that he had robbed the deceased and stated that he had not meant to hurt her.
Police then brought Stewart before a magistrate for the first time. Since there
was no evidence to connect them with any crime, the police then released the
other four persons arrested with him.
Nothing in the record specifically indicates whether Stewart
was or was not advised of his right to remain silent or his right to counsel.
In a number of instances, [384 U.S.
436, 498] however, the
interrogating officers were asked to recount everything that was said during
the interrogations. None indicated that Stewart was ever advised of his rights.
Stewart was charged with kidnapping to commit robbery, rape,
and murder. At his trial, transcripts of the first interrogation and the
confession at the last interrogation were introduced in evidence. The jury
found Stewart guilty of robbery and first degree murder and fixed the penalty
as death. On appeal, the Supreme Court of California reversed. 62 Cal. 2d 571,
400 P.2d 97, 43 Cal. Rptr. 201. It held that under this Court's decision in
Escobedo, Stewart should have been advised of his right to remain silent and of
his right to counsel and that it would not presume in the face of a silent
record that the police advised Stewart of his rights. 70
We affirm. 71 In dealing with custodial
interrogation, we will not presume that a defendant has been effectively
apprised of his rights and that his privilege against self-incrimination has
been adequately safeguarded on a record that does not show that any warnings
have been given or that any effective alternative has been employed. Nor can a
knowing and intelligent waiver of [384
U.S. 436, 499] these
rights be assumed on a silent record. Furthermore, Stewart's steadfast denial
of the alleged offenses through eight of the nine interrogations over a period
of five days is subject to no other construction than that he was compelled by
persistent interrogation to forgo his Fifth Amendment privilege.
Therefore, in accordance with the foregoing, the judgments
of the Supreme Court of Arizona in No. 759, of the New York Court of Appeals in
No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 are
reversed. The judgment of the Supreme Court of California in No. 584 is
affirmed.
It is so ordered.
Footnotes
[ Footnote 1 ] Compare United States v. Childress, 347 F.2d 448 (C. A. 7th
Cir. 1965), with Collins v. Beto, 348 F.2d 823 (C. A. 5th Cir. 1965). Compare
People v. Dorado, 62 Cal. 2d 338, 398 P.2d 361, 42 Cal. Rptr. 169 (1964) with
People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33 (1964).
[ Footnote 2 ] See, e. g., Enker & Elsen,
Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois, 49
Minn. L. Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police
Interrogation, 25 Ohio St. L. J. 449 (1964); Kamisar, Equal Justice in the
Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in
Our Time 1 (1965); Dowling, Escobedo and [384
U.S. 436, 441] Beyond: The
Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J. Crim. L., C.
& P. S. 143, 156 (1965).
The
complex problems also prompted discussions by jurists. Compare Bazelon, Law,
Morality, and Civil Liberties, 12 U. C. L. A. L. Rev. 13 (1964), with Friendly,
The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929
(1965).
[
Footnote
3 ]
For example, the Los Angeles Police Chief stated that "If the police are
required . . . to . . . establish that the defendant was apprised of his
constitutional guarantees of silence and legal counsel prior to the uttering of
any admission or confession, and that he intelligently waived these guarantees
. . . a whole Pandora's box is opened as to under what circumstances . . . can
a defendant intelligently waive these rights. . . . Allegations that modern
criminal investigation can compensate for the lack of a confession or admission
in every criminal case is totally absurd!" Parker, 40 L. A. Bar Bull. 603,
607, 642 (1965). His prosecutorial counterpart, District Attorney Younger,
stated that "[I]t begins to appear that many of these seemingly
restrictive decisions are going to contribute directly to a more effective,
efficient and professional level of law enforcement." L. A. Times, Oct. 2,
1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy,
stated of Escobedo: "What the Court is doing is akin to requiring one
boxer to fight by Marquis of Queensbury rules while permitting the other to
butt, gouge and bite." N. Y. Times, May 14, 1965, p. 39. The former United
States Attorney for the District of Columbia, David C. Acheson, who is
presently Special Assistant to the Secretary of the Treasury (for Enforcement),
and directly in charge of the Secret Service and the Bureau of Narcotics,
observed that "Prosecution procedure has, at most, only the most remote
causal connection with crime. Changes in court decisions and prosecution
procedure would have about the same effect on the crime rate as an aspirin
would have on a tumor of the brain." Quoted in Herman, supra, n. 2, at
500, n. 270. Other views on the subject in general are collected in Weisberg,
Police Interrogation of Arrested Persons: A Skeptical View, 52 J. Crim. L., C.
& P. S. 21 (1961).
[ Footnote 4 ] This is what we meant in Escobedo
when we spoke of an investigation which had focused on an accused.
[ Footnote 5
]
See, for example, IV National Commission on Law Observance and Enforcement,
Report on Lawlessness in Law Enforcement (1931) [384 U.S. 436, 446]
[Wickersham Report]; Booth, Confessions, and Methods Employed in Procuring
Them, 4 So. Calif. L. Rev. 83 (1930); Kauper, Judicial Examination of the
Accused - A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932). It is
significant that instances of third-degree treatment of prisoners almost
invariably took place during the period between arrest and preliminary
examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to
Contemporary Social Problems, 3 U. Chi. L. Rev. 345, 357 (1936). See also
Foote, Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw. U. L.
Rev. 16 (1957).
[ Footnote 6
]
Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Ward v. Texas, 316 U.S. 547 (1942); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Leyra v. Denno, 347 U.S. 556 (1954). See also Williams v. United
States, 341 U.S. 97 (1951).
[ Footnote 7
]
In addition, see People v. Wakat, 415 Ill. 610, 114 N. E. 2d 706 (1953); Wakat
v. Harlib, 253 F.2d 59 (C. A. 7th Cir. 1958) (defendant suffering from broken
bones, multiple bruises and injuries sufficiently serious to require eight
months' medical treatment after being manhandled by five policemen); Kier v.
State, 213 Md. 556, 132 A. 2d 494 (1957) (police doctor told accused, who was [384 U.S. 436, 447] strapped to a chair completely nude, that
he proposed to take hair and skin scrapings from anything that looked like
blood or sperm from various parts of his body); Bruner v. People, 113 Colo.
194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived
of food for 15 hours, forced to submit to a lie detector test when he wanted to
go to the toilet); People v. Matlock, 51 Cal. 2d 682, 336 P.2d 505 (1959)
(defendant questioned incessantly over an evening's time, made to lie on cold
board and to answer questions whenever it appeared he was getting sleepy).
Other cases are documented in American Civil Liberties Union, Illinois
Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary
Examination and "The Third Degree," 2 Baylor L. Rev. 131 (1950);
Sterling, Police Interrogation and the Psychology of Confession, 14 J. Pub. L.
25 (1965).
[ Footnote 8
]
The manuals quoted in the text following are the most recent and representative
of the texts currently available. Material of the same nature appears in Kidd,
Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics
for the Crime Investigator 97-115 (1952). Studies concerning the observed
practices of the police appear in LaFave, Arrest: The Decision To Take a
Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for
Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U. L.
Q. 331; Barrett, Police Practices and the Law - From Arrest to Release or
Charge, 50 Calif. L. Rev. 11 (1962); Sterling, supra, n. 7, at 47-65.
[ Footnote 9
]
The methods described in Inbau & Reid, Criminal Interrogation and
Confessions (1962), are a revision and enlargement of material presented in
three prior editions of a predecessor text, Lie Detection and Criminal
Interrogation (3d ed. 1953). The authors and their associates are officers of
the Chicago Police Scientific Crime Detection Laboratory and have had extensive
experience in writing, lecturing and speaking to law enforcement authorities
over a 20-year period. They say that the techniques portrayed in their manuals
reflect their experiences and are the most effective psychological stratagems
to employ during interrogations. Similarly, the techniques described in O'Hara,
Fundamentals of Criminal Investigation (1956), were gleaned from long service
as observer, lecturer in police science, and work as a federal criminal
investigator. All these texts have had rather extensive use among law
enforcement agencies and among students of police science, with total sales and
circulation of over 44,000.
[ Footnote
10 ]
Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.
[ Footnote
11 ]
O'Hara, supra, at 99.
[ Footnote
12 ]
Inbau & Reid, supra, at 34-43, 87. For example, in Leyra v. Denno, 347 U.S. 556 (1954), the
interrogator-psychiatrist told the accused, "We do sometimes things that
are not right, but in a fit of temper or anger we sometimes do things we aren't
really responsible for," id., at 562, and again, "We know that
morally you were just in anger. Morally, you are not to be condemned,"
id., at 582.
[ Footnote
13 ]
Inbau & Reid, supra, at 43-55.
[ Footnote
14 ]
O'Hara, supra, at 112.
[ Footnote
15 ]
Inbau & Reid, supra, at 40.
[ Footnote
16 ]
Ibid.
[ Footnote
17 ]
O'Hara, supra, at 104, Inbau & Reid, supra, at 58-59. See Spano v. New
York, 360 U.S. 315 (1959). A variant on the technique [384 U.S. 436, 453] of creating hostility is one of engendering
fear. This is perhaps best described by the prosecuting attorney in Malinski v.
New York, 324 U.S. 401, 407 (1945): "Why this talk about
being undressed? Of course, they had a right to undress him to look for bullet
scars, and keep the clothes off him. That was quite proper police procedure.
That is some more psychology - let him sit around with a blanket on him,
humiliate him there for a while; let him sit in the corner, let him think he is
going to get a shellacking."
[ Footnote
18 ]
O'Hara, supra, at 105-106.
[ Footnote
19 ]
Id., at 106.
[ Footnote
20 ]
Inbau & Reid, supra, at 111.
[ Footnote
21 ] Ibid.
[ Footnote 22 ] Inbau & Reid, supra, at 112.
[ Footnote 23 ] Inbau & Reid, Lie Detection
and Criminal Interrogation 185 (3d ed. 1953).
[
Footnote
24 ]
Interrogation procedures may even give rise to a false confession. The most
recent conspicuous example occurred in New York, in 1964, when a Negro of
limited intelligence confessed to two brutal murders and a rape which he had
not committed. When this was discovered, the prosecutor was reported as saying:
"Call it what you want - brain-washing, hypnosis, fright. They made him
give an untrue confession. The only thing I don't believe is that Whitmore was
beaten." N. Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances,
similar events had occurred. N. Y. Times, Oct. 20, 1964, p. 22, col. 1; N. Y.
Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the
Innocent (1932); Frank & Frank, Not Guilty (1957).
[ Footnote 25 ] In the fourth confession case
decided by the Court in the 1962 Term, Fay v. Noia, 372 U.S. 391 (1963), our disposition made it
unnecessary to delve at length into the facts. The facts of the defendant's
case there, however, paralleled those of his co-defendants, whose confessions
were found to have resulted from continuous and coercive interrogation for 27
hours, with denial of requests for friends or attorney. See United States v.
Murphy, 222 F.2d 698 (C. A. 2d Cir. 1955) (Frank, J.); People v. Bonino, 1 N.
Y. 2d 752, 135 N. E. 2d 51 (1956).
[ Footnote
26 ]
The absurdity of denying that a confession obtained under these circumstances
is compelled is aptly portrayed by an example in Professor [384 U.S. 436, 458]
Sutherland's recent article, Crime and Confession, 79 Harv. L. Rev. 21,
37 (1965):
"Suppose
a well-to-do testatrix says she intends to will her property to Elizabeth. John
and James want her to bequeath it to them instead. They capture the testatrix,
put her in a carefully designed room, out of touch with everyone but themselves
and their convenient `witnesses,' keep her secluded there for hours while they
make insistent demands, weary her with contradictions of her assertions that
she wants to leave her money to Elizabeth, and finally induce her to execute
the will in their favor. Assume that John and James are deeply and correctly
convinced that Elizabeth is unworthy and will make base use of the property if
she gets her hands on it, whereas John and James have the noblest and most
righteous intentions. Would any judge of probate accept the will so procured as
the `voluntary' act of the testatrix?"
[ Footnote
27 ]
Thirteenth century commentators found an analogue to the privilege grounded in
the Bible. "To sum up the matter, the principle that no man is to be
declared guilty on his own admission is a divine decree." Maimonides,
Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c.
18, § 6, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and
Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).
[ Footnote
28 ]
See Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 9-11
(1949); 8 Wigmore, Evidence 289-295 (McNaughton rev. 1961). See also Lowell,
The Judicial Use of Torture, Parts I and II, 11 Harv. L. Rev. 220, 290 (1897).
[ Footnote
29 ]
See Pittman, The Colonial and Constitutional History of the Privilege Against
Self-Incrimination in America, 21 Va. L. Rev. 763 (1935); Ullmann v. United
States, 350 U.S. 422, 445 -449 (1956) (DOUGLAS, J.,
dissenting).
[ Footnote
30 ]
Compare Brown v. Walker, 161 U.S. 591 (1896); Quinn v. United States, 349 U.S. 155 (1955).
[ Footnote
31 ]
Brief for the United States, p. 28. To the same effect, see Brief for the
United States, pp. 40-49, n. 44, Anderson v. United States, 318 U.S. 350 (1943); Brief for the United States,
pp. 17-18, McNabb v. United States, 318 U.S. 332 (1943).
[ Footnote
32 ]
Our decision today does not indicate in any manner, of course, that these rules
can be disregarded. When federal officials arrest an individual, they must as always
comply with the dictates of the congressional legislation and cases thereunder.
See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale
and Rescue, 47 Geo. L. J. 1 (1958).
[ Footnote
33 ]
The decisions of this Court have guaranteed the same procedural protection for
the defendant whether his confession was used in a federal or state court. It
is now axiomatic that the defendant's constitutional rights have been violated
if his conviction is based, in whole or in part, on an involuntary confession,
regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544 (1961); Wan v. United States, 266 U.S. 1 (1924). This is so even if there is
ample evidence aside from the confession to support the conviction, e. g.,
Malinski v. New York, 324 U.S. 401, 404 (1945); Bram v. United States, 168 U.S. 532, 540 -542 (1897). Both state and federal
courts now adhere to trial procedures which seek to assure a reliable and
clear-cut determination of the voluntariness of the confession offered at
trial, Jackson v. Denno, 378 U.S. 368 (1964); United States v. Carignan, 342 U.S. 36, 38 (1951); see also Wilson v. United
States, 162 U.S. 613, 624 (1896). Appellate review is
exacting, see Haynes v. Washington, 373 U.S. 503 (1963); Blackburn v. Alabama, 361 U.S. 199 (1960). Whether his conviction was
in a federal or state court, the defendant may secure a post-conviction hearing
based on the alleged involuntary character of his confession, provided he meets
the procedural requirements, Fay v. Noia, 372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). In addition, see Murphy v.
Waterfront Comm'n, 378 U.S. 52 (1964).
[ Footnote
34 ]
See Lisenba v. California, 314 U.S. 219, 241 (1941); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Malinski v. New York, 324 U.S. 401 (1945); Spano v. New York, 360 U.S. 315 (1959); Lynumn v. Illinois, 372 U.S. 528 (1963); Haynes v. Washington, 373 U.S. 503 (1963).
[ Footnote
35 ]
The police also prevented the attorney from consulting with his client.
Independent of any other constitutional proscription, this action constitutes a
violation of the Sixth Amendment right to the assistance of counsel and
excludes any statement obtained in its [384
U.S. 436, 466] wake. See
People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628, 243 N. Y. S. 2d 841
(1963) (Fuld, J.).
[ Footnote
36 ]
In re Groban, 352 U.S. 330, 340 -352 (1957) (BLACK, J., dissenting);
Note, 73 Yale L. J. 1000, 1048-1051 (1964); Comment, 31 U. Chi. L. Rev. 313,
320 (1964) and authorities cited.
[ Footnote
37 ]
See p. 454, supra. Lord Devlin has commented:
"It
is probable that even today, when there is much less ignorance about these
matters than formerly, there is still a general belief that you must answer all
questions put to you by a policeman, or at least that it will be the worse for
you if you do not." Devlin, The Criminal Prosecution in England 32 (1958).
In accord
with our decision today, it is impermissible to penalize an individual for
exercising his Fifth Amendment privilege when he is under police custodial
interrogation. The prosecution may not, therefore, use at trial the fact that
he stood mute or claimed his privilege in the face of accusation. Cf. Griffin
v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1, 8 (1964); Comment, 31 U. Chi. L. Rev.
556 (1964); Developments in the Law - Confessions, 79 Harv. L. Rev. 935,
1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562 (1897).
[ Footnote
38 ]
Cf. Betts v. Brady, 316 U.S. 455 (1942), and the recurrent inquiry
into special circumstances it necessitated. See generally, Kamisar, Betts v.
Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.
L. Rev. 219 (1962).
[ Footnote
39 ]
See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio
St. L. J. 449, 480 (1964).
[ Footnote
40 ]
Estimates of 50-90% indigency among felony defendants have been reported.
Pollock, Equal Justice in Practice, 45 Minn. L. Rev. 737, 738-739 (1961);
Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in
Courts of Criminal Jurisdiction in New York State, 14 Buffalo L. Rev. 428, 433
(1965).
[ Footnote
41 ]
See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal
Procedure, in Criminal Justice in Our Time 1, 64-81 (1965). As was stated in
the Report of the Attorney General's Committee on Poverty and the
Administration of Federal Criminal Justice 9 (1963):
"When
government chooses to exert its powers in the criminal area, its obligation is
surely no less than that of taking reasonable measures to eliminate those
factors that are irrelevant to just administration of the law but which,
nevertheless, may occasionally affect determinations of the accused's liability
or penalty. While government [384 U.S.
436, 473] may not be
required to relieve the accused of his poverty, it may properly be required to
minimize the influence of poverty on its administration of justice."
[ Footnote
42 ]
Cf. United States ex rel. Brown v. Fay, 242 F. Supp. 273, 277 (D.C. S. D. N. Y.
1965); People v. Witenski, 15 N. Y. 2d 392, 207 N. E. 2d 358, 259 N. Y. S. 2d
413 (1965).
[ Footnote
43 ]
While a warning that the indigent may have counsel appointed need not be given
to the person who is known to have an attorney or is known to have ample funds
to secure one, the expedient of giving a warning is too simple and the rights
involved too important to engage in ex post facto inquiries into financial
ability when there is any doubt at all on that score.
[ Footnote
44 ]
If an individual indicates his desire to remain silent, but has an attorney
present, there may be some circumstances in which further questioning would be
permissible. In the absence of evidence of overbearing, statements then made in
the presence of counsel might be free of the compelling influence of the
interrogation process and might fairly be construed as a waiver of the
privilege for purposes of these statements.
[ Footnote
45 ]
Although this Court held in Rogers v. United States, 340 U.S. 367 (1951), over strong dissent, that a
witness before a grand jury may not in certain circumstances decide to answer
some questions and then refuse to answer others, that decision has no
application to the interrogation situation we deal with today. No legislative
or judicial fact-finding authority is involved here, nor is there a possibility
that the individual might make self-serving statements of which he could make
use at trial while refusing to answer incriminating statements.
[ Footnote
46 ]
The distinction and its significance has been aptly described in the opinion of
a Scottish court:
"In
former times such questioning, if undertaken, would be conducted by police
officers visiting the house or place of business of the suspect and there
questioning him, probably in the presence of a relation or friend. However
convenient the modern practice may be, it must normally create a situation very
unfavorable to the suspect." Chalmers v. H. M. Advocate, 1954. Sess. Cas.
66, 78 (J. C.).
[ Footnote
47 ]
See People v. Dorado, 62 Cal. 2d 338, 354, 398 P.2d 361, 371, 42 Cal. Rptr.
169, 179 (1965).
[ Footnote
48 ]
In accordance with our holdings today and in Escobedo v. Illinois, 378 U.S. 478, 492 , Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. Lagay, 357 U.S. 504 (1958) are not to be followed.
[ Footnote
49 ]
In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of
course, do not intend to pass on the constitutional questions involved in the
Olmstead case.
[ Footnote
50 ]
Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26
(1956).
[ Footnote
51 ]
Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills
from the bank robbed were found in Westover's car. Articles stolen from the
victim as well as from several other robbery victims were found in Stewart's
home at the outset of the investigation.
[ Footnote
52 ]
Dealing as we do here with constitutional standards in relation to statements
made, the existence of independent corroborating evidence produced at trial is,
of course, irrelevant to our decisions. Haynes v. Washington, 373 U.S. 503, 518 -519 (1963); Lynumn v. [384 U.S. 436, 482]
Illinois, 372 U.S. 528, 537 -538 (1963); Rogers v. Richmond, 365 U.S. 534, 541 (1961); Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
[ Footnote
53 ]
See, e. g., Report and Recommendations of the [District of Columbia]
Commissioners' Committee on Police Arrests for Investigation (1962); American
Civil Liberties Union, Secret Detention by the Chicago Police (1959). An
extreme example of this practice occurred in the District of Columbia in 1958.
Seeking three "stocky" young Negroes who had robbed a restaurant,
police rounded up 90 persons of that general description. Sixty-three were held
overnight [384 U.S. 436, 483] before being released for lack of evidence.
A man not among the 90 arrested was ultimately charged with the crime.
Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a
Subcommittee of the Senate Judiciary Committee on H. R. 11477, S. 2970, S.
3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.
[ Footnote
54 ]
In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation,
stated:
"Law
enforcement, however, in defeating the criminal, must maintain inviolate the
historic liberties of the individual. To turn back the criminal, yet, by so
doing, destroy the dignity of the individual, would be a hollow victory.
. . . . .
"We
can have the Constitution, the best laws in the land, and the most honest
reviews by courts - but unless the law enforcement profession is steeped in the
democratic tradition, maintains the highest in ethics, and makes its work a
career of honor, civil liberties will continually - and without end - be
violated. . . . The best protection of civil liberties is an alert, intelligent
and honest law enforcement agency. There can be no alternative.
.
. . . .
".
. . Special Agents are taught that any suspect or arrested person, at the
outset of an interview, must be advised that he is not required to make a
statement and that any statement given can be used against him in court.
Moreover, the individual must be informed that, if he desires, he may obtain
the services of an attorney of his own choice."
Hoover,
Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L. Rev. 175,
177-182 (1952).
[ Footnote
55 ]
We agree that the interviewing agent must exercise his judgment in determining
whether the individual waives his right to counsel. Because of the
constitutional basis of the right, however, the standard for waiver is
necessarily high. And, of course, the ultimate responsibility for resolving
this constitutional question lies with the courts.
[ Footnote
56 ]
Among the crimes within the enforcement jurisdiction of the FBI are kidnapping,
18 U.S.C. 1201 (1964 ed.), white slavery, 18 U.S.C. 2421-2423 (1964 ed.), bank
robbery, 18 U.S.C. 2113 (1964 ed.), interstate transportation and sale of
stolen property, 18 U.S.C. 2311-2317 (1964 ed.), all manner of conspiracies, 18
U.S.C. 371 (1964 ed.), and violations of civil rights, 18 U.S.C. 241-242 (1964
ed.). See also 18 U.S.C. 1114 (1964 ed.) (murder of officer or employee of the
United States).
[ Footnote
57 ]
1964. Crim. L. Rev., at 166-170. These Rules provide in part:
"II.
As soon as a police officer has evidence which would afford reasonable grounds
for suspecting that a person has committed an offence, he shall caution that
person or cause him to be cautioned before putting to him any questions, or
further questions, relating to that offence.
"The
caution shall be in the following terms:
"`You
are not obliged to say anything unless you wish to do so but what you say may
be put into writing and given in evidence.'
"When
after being cautioned a person is being questioned, or elects to make a
statement, a record shall be kept of the time and place at which any such
questioning or statement began and ended and of the persons present.
.
. . . .
"III.
. . .
.
. . . .
"(b)
It is only in exceptional cases that questions relating to the offence should
be put to the accused person after he has been charged or informed that he may
be prosecuted.
.
. . . .
"IV.
All written statements made after caution shall be taken in the following
manner:
"(a)
If a person says that he wants to make a statement he shall be told that it is
intended to make a written record of what he says.
"He
shall always be asked whether he wishes to write down himself what he wants to
say; if he says that he cannot write or that he would like someone to write it
for him, a police officer may offer to write the statement for him. . . .
"(b)
Any person writing his own statement shall be allowed to do so without any
prompting as distinct from indicating to him what matters are material.
. . . . .
"(d)
Whenever a police officer writes the statement, he shall take down the exact
words spoken by the person making the statement, without putting any questions
other than such as may be needed to [384
U.S. 436, 488] make the
statement coherent, intelligible and relevant to the material matters: he shall
not prompt him."
The prior
Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958).
Despite
suggestions of some laxity in enforcement of the Rules and despite the fact
some discretion as to admissibility is invested in the trial judge, the Rules
are a significant influence in the English criminal law enforcement system.
See, e. g., 1964. Crim. L. Rev., at 182; and articles collected in 1960. Crim.
L. Rev., at 298-356.
[ Footnote
58 ]
The introduction to the Judges' Rules states in part:
"These
Rules do not affect the principles
.
. . . .
"(c)
That every person at any stage of an investigation should be able to
communicate and to consult privately with a solicitor. This is so even if he is
in custody provided that in such a case no unreasonable delay or hindrance is
caused to the processes of investigation or the administration of justice by
his doing so . . . ." 1964. Crim. L. Rev., at 166-167.
[ Footnote
59 ]
As stated by the Lord Justice General in Chalmers v. H. M. Advocate, 1954.
Sess. Cas. 66, 78 (J. C.):
"The
theory of our law is that at the stage of initial investigation the police may
question anyone with a view to acquiring information which may lead to the
detection of the criminal; but that, when the stage has been reached at which
suspicion, or more than suspicion, has in their view centred upon some person
as the likely perpetrator of the crime, further interrogation of that person
becomes very dangerous, and, if carried too far, e. g., to the point of
extracting a confession by what amounts to cross-examination, the evidence of
that confession will almost certainly be excluded. Once the accused has been
apprehended and charged he has the statutory right to a private interview with
a solicitor and to be brought before a magistrate with all convenient speed so
that he may, if so advised, emit a declaration in presence of his solicitor
under conditions which safeguard him against prejudice."
[ Footnote
60 ]
"No confession made to a police officer shall be proved as against a
person accused of any offence." Indian Evidence Act 25.
"No
confession made by any person whilst he is in the custody of a police officer
unless it be made in the immediate presence of a Magistrate, shall be proved as
against such person." Indian Evidence Act 26. See 1 Ramaswami &
Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing
effect of police pressure or inducement, the Indian Supreme Court has
invalidated a confession made shortly after police brought a suspect before a
magistrate, suggesting: "[I]t would, we think, be reasonable to insist
upon giving an accused person at least 24 hours to decide whether or not he
should make a confession." Sarwan Singh v. State of Punjab, 44 All India
Rep. 1957, Sup. Ct. 637, 644.
[ Footnote
61 ]
I Legislative Enactments of Ceylon 211 (1958).
[ Footnote
62 ]
10 U.S.C. 831 (b) (1964 ed.).
[ Footnote
63 ]
United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354
(1957).
[ Footnote
64 ]
Although no constitution existed at the time confessions were excluded by rule
of evidence in 1872, India now has a written constitution which includes the
provision that "No person accused of any offence shall be compelled to be
a witness against himself." Constitution of India, Article 20 (3). See
Tope, The Constitution of India 63-67 (1960).
[ Footnote
65 ]
Brief for United States in No. 761, Westover v. United States, pp. 44-47; Brief
for the State of New York as amicus curiae, pp. 35-39. See also Brief for the
National District Attorneys Association as amicus curiae, pp. 23-26.
[ Footnote
66 ]
Miranda was also convicted in a separate trial on an unrelated robbery charge
not presented here for review. A statement introduced at that trial was
obtained from Miranda during the same interrogation which resulted in the
confession involved here. At the robbery trial, one officer testified that
during the interrogation he did not tell Miranda that anything he said would be
held against him or that he could consult with an attorney. The other officer
stated that they had both told Miranda that anything he said would be used
against him and that he was not required by law to tell them anything.
[ Footnote
67 ]
One of the officers testified that he read this paragraph to Miranda.
Apparently, however, he did not do so until after Miranda had confessed orally.
[ Footnote
68 ]
Vignera thereafter successfully attacked the validity of one of the prior
convictions, Vignera v. Wilkins, Civ. 9901 (D.C. W. D. N. Y. Dec. 31, 1961)
(unreported), but was then resentenced as a second-felony offender to the same
term of imprisonment as the original sentence. R. 31-33.
[ Footnote
69 ]
The failure of defense counsel to object to the introduction of the confession
at trial, noted by the Court of Appeals and emphasized by the Solicitor
General, does not preclude our consideration of the issue. Since the trial was
held prior to our decision in Escobedo and, of course, prior to our decision
today making the [384 U.S. 436, 496] objection available, the failure to object
at trial does not constitute a waiver of the claim. See, e. g., United States
ex rel. Angelet v. Fay, 333 F.2d 12, 16 (C. A. 2d Cir. 1964), aff'd, 381 U.S. 654 (1965). Cf. Ziffrin, Inc. v. United
States, 318 U.S. 73, 78 (1943).
[ Footnote
70 ]
Because of this disposition of the case, the California Supreme Court did not
reach the claims that the confession was coerced by police threats to hold his
ailing wife in custody until he confessed, that there was no hearing as
required by Jackson v. Denno, 378 U.S. 368 (1964), and that the trial judge
gave an instruction condemned by the California Supreme Court's decision in
People v. Morse, 60 Cal. 2d 631, 388 P.2d 33, 36 Cal. Rptr. 201 (1964).
[ Footnote
71 ]
After certiorari was granted in this case, respondent moved to dismiss on the
ground that there was no final judgment from which the State could appeal since
the judgment below directed that he be retried. In the event respondent was
successful in obtaining an acquittal on retrial, however, under California law
the State would have no appeal. Satisfied that in these circumstances the
decision below constituted a final judgment under 28 U.S.C. 1257 (3) (1964
ed.), we denied the motion. 383 U.S. 903 .
MR.
JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the
result in No. 584.
It is with
regret that I find it necessary to write in these cases. However, I am unable
to join the majority because its opinion goes too far on too little, while my
dissenting brethren do not go quite far enough. Nor can I join in the Court's
criticism of the present practices of police and investigatory agencies as to
custodial interrogation. The materials it refers to as "police
manuals" 1 are, as I read them, merely writings
in this field by professors and some police officers. Not one is shown by the
record here to be the official manual of any police department, much less in
universal use in crime detection. Moreover, the examples of police brutality
mentioned by the Court 2
are rare exceptions to the thousands of cases [384 U.S. 436, 500]
that appear every year in the law reports. The police agencies - all the
way from municipal and state forces to the federal bureaus - are responsible
for law enforcement and public safety in this country. I am proud of their
efforts, which in my view are not fairly characterized by the Court's opinion.
I.
The
ipse dixit of the majority has no support in our cases. Indeed, the Court
admits that "we might not find the defendants' statements [here] to have
been involuntary in traditional terms." Ante, p. 457. In short, the Court
has added more to the requirements that the accused is entitled to consult with
his lawyer and that he must be given the traditional warning that he may remain
silent and that anything that he says may be used against him. Escobedo v.
Illinois, 378 U.S. 478, 490 -491 (1964). Now, the Court fashions
a constitutional rule that the police may engage in no custodial interrogation
without additionally advising the accused that he has a right under the Fifth
Amendment to the presence of counsel during interrogation and that, if he is
without funds, counsel will be furnished him. When at any point during an
interrogation the accused seeks affirmatively or impliedly to invoke his rights
to silence or counsel, interrogation must be forgone or postponed. The Court
further holds that failure to follow the new procedures requires inexorably the
exclusion of any statement by the accused, as well as the fruits thereof. Such
a strict constitutional specific inserted at the nerve center of crime
detection may well kill the patient. 3 [384 U.S. 436, 501] Since there is at this
time a paucity of information and an almost total lack of empirical knowledge
on the practical operation of requirements truly comparable to those announced
by the majority, I would be more restrained lest we go too far too fast.
II.
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 [384 U.S. 436, 502] the contrary. Indeed, even in Escobedo the
Court never hinted that an affirmative "waiver" was a prerequisite to
questioning; that the burden of proof as to waiver was on the prosecution; that
the presence of counsel - absent a waiver - during interrogation was required;
that a waiver can be withdrawn at the will of the accused; that counsel must be
furnished during an accusatory stage to those unable to pay; nor that
admissions and exculpatory statements are "confessions." To require
all those things at one gulp should cause the Court to choke over more cases
than Crooker v. California, 357 U.S. 433 (1958), and Cicenia v. Lagay, 357 U.S. 504 (1958), which it expressly overrules today.
The rule prior to today - as Mr.
Justice Goldberg, the author of the Court's opinion in Escobedo, stated it in
Haynes v. Washington - depended upon "a totality of circumstances
evidencing an involuntary . . . admission of guilt." 373 U.S., at 514 . And he concluded:
"Of
course, detection and solution of crime is, at best, a difficult and arduous
task requiring determination and persistence on the part of all responsible
officers charged with the duty of law enforcement. And, certainly, we do not
mean to suggest that all interrogation of witnesses and suspects is
impermissible. Such questioning is undoubtedly an essential tool in effective
law enforcement. The line between proper and permissible police conduct and
techniques and methods offensive to due process is, at best, a difficult one to
draw, particularly in cases such as this where it is necessary to make fine
judgments as to the effect of psychologically coercive pressures and
inducements on the mind and will of an accused. . . . We are here impelled to
the conclusion, from all of the facts presented, that the bounds of due process
have been exceeded." Id., at 514-515. [384
U.S. 436, 503]
III.
I would continue to follow that
rule. Under the "totality of circumstances" rule of which my Brother
Goldberg spoke in Haynes, I would consider in each case whether the police
officer prior to custodial interrogation added the warning that the suspect
might have counsel present at the interrogation and, further, that a court
would appoint one at his request if he was too poor to employ counsel. In the
absence of warnings, the burden would be on the State to prove that counsel was
knowingly and intelligently waived or that in the totality of the
circumstances, including the failure to give the necessary warnings, the
confession was clearly voluntary.
Rather than employing the arbitrary
Fifth Amendment rule 4 which the Court lays down I would
follow the more pliable dictates of the Due Process Clauses of the Fifth and
Fourteenth Amendments which we are accustomed to administering and which we
know from our cases are effective instruments in protecting persons in police
custody. In this way we would not be acting in the dark nor in one full sweep
changing the traditional rules of custodial interrogation which this Court has
for so long recognized as a justifiable and proper tool in balancing individual
rights against the rights of society. It will be soon enough to go further when
we are able to appraise with somewhat better accuracy the effect of such a
holding.
I would affirm the convictions in Miranda v. Arizona, No.
759; Vignera v. New York, No. 760; and Westover v. United States, No. 761. In
each of those cases I find from the circumstances no warrant for reversal. In [384 U.S. 436, 504] California v. Stewart, No. 584, I would
dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. 1257 (3)
(1964 ed.); but if the merits are to be reached I would affirm on the ground
that the State failed to fulfill its burden, in the absence of a showing that appropriate
warnings were given, of proving a waiver or a totality of circumstances showing
voluntariness. Should there be a retrial, I would leave the State free to
attempt to prove these elements.
[ Footnote 1
]
E. g., Inbau & Reid, Criminal Interrogation and Confessions (1962); O'Hara,
Fundamentals of Criminal Investigation (1956); Dienstein, Technics for the
Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police
Interrogation (1940).
[ Footnote 2 ] As developed by my Brother HARLAN,
post, pp. 506-514, such cases, with the exception of the long-discredited
decision in Bram v. United States, 168
U.S. 532 (1897),
were adequately treated in terms of due process.
[ Footnote
3 ] The Court points to England, Scotland, Ceylon and India as
having equally rigid rules. As my Brother HARLAN points out, post, pp. 521-523,
the Court is mistaken in this regard, for it overlooks counterbalancing
prosecutorial advantages. Moreover, the requirements of the Federal Bureau of
Investigation do not appear from the Solicitor General's letter, ante, pp.
484-486, to be as strict as [384 U.S.
436, 501] those imposed
today in at least two respects: (1) The offer of counsel is articulated only as
"a right to counsel"; nothing is said about a right to have counsel
present at the custodial interrogation. (See also the examples cited by the
Solicitor General, Westover v. United States, 342 F.2d 684, 685 (1965)
("right to consult counsel"); Jackson v. United States, 337 F.2d 136,
138 (1964) (accused "entitled to an attorney").) Indeed, the practice
is that whenever the suspect "decides that he wishes to consult with
counsel before making a statement, the interview is terminated at that point .
. . . When counsel appears in person, he is permitted to confer with his client
in private." This clearly indicates that the FBI does not warn that
counsel may be present during custodial interrogation. (2) The Solicitor
General's letter states: "[T]hose who have been arrested for an offense
under FBI jurisdiction, or whose arrest is contemplated following the
interview, [are advised] of a right to free counsel if they are unable to pay,
and the availability of such counsel from the Judge." So phrased, this warning
does not indicate that the agent will secure counsel. Rather, the statement may
well be interpreted by the suspect to mean that the burden is placed upon
himself and that he may have counsel appointed only when brought before the
judge or at trial - but not at custodial interrogation. As I view the FBI
practice, it is not as broad as the one laid down today by the Court.
[
Footnote 4 ] In my
view there is "no significant support" in our cases for the holding
of the Court today that the Fifth Amendment privilege, in effect, forbids
custodial interrogation. For a discussion of this point see the dissenting
opinion of my Brother WHITE, post, pp. 526-531.
MR. JUSTICE HARLAN, whom MR. JUSTICE
STEWART and MR. JUSTICE WHITE join, dissenting.
I believe the decision of the Court
represents poor constitutional law and entails harmful consequences for the
country at large. How serious these consequences may prove to be only time can
tell. But the basic flaws in the Court's justification seem to me readily
apparent now once all sides of the problem are considered.
I.
INTRODUCTION.
At the outset, it is well to note
exactly what is required by the Court's new constitutional code of rules for
confessions. The foremost requirement, upon which later admissibility of a
confession depends, is that a fourfold warning be given to a person in custody
before he is questioned, namely, that he has a right to remain silent, that
anything he says may be used against him, that he has a right to have present
an attorney during the questioning, and that if indigent he has a right to a
lawyer without charge. To forgo these rights, some affirmative statement of
rejection is seemingly required, and threats, tricks, or cajolings to obtain
this waiver are forbidden. If before or during questioning the suspect seeks to
invoke his right to remain silent, interrogation must be forgone or cease; a
request for counsel [384 U.S. 436, 505]
brings about the same
result until a lawyer is procured. Finally, there are a miscellany of minor
directives, for example, the burden of proof of waiver is on the State,
admissions and exculpatory statements are treated just like confessions,
withdrawal of a waiver is always permitted, and so forth. 1
While the fine points of this scheme
are far less clear than the Court admits, the tenor is quite apparent. The new
rules are not designed to guard against police brutality or other unmistakably
banned forms of coercion. Those who use third-degree tactics and deny them in
court are equally able and destined to lie as skillfully about warnings and
waivers. Rather, the thrust of the new rules is to negate all pressures, to
reinforce the nervous or ignorant suspect, and ultimately to discourage any
confession at all. The aim in short is toward "voluntariness" in a
utopian sense, or to view it from a different angle, voluntariness with a
vengeance.
To incorporate this notion into the
Constitution requires a strained reading of history and precedent and a
disregard of the very pragmatic concerns that alone may on occasion justify
such strains. I believe that reasoned examination will show that the Due Process
Clauses provide an adequate tool for coping with confessions and that, even if
the Fifth Amendment privilege against self-incrimination be invoked, its
precedents taken as a whole do not sustain the present rules. Viewed as a
choice based on pure policy, these new rules prove to be a highly debatable, if
not one-sided, appraisal of the competing interests, imposed over widespread
objection, at the very time when judicial restraint is most called for by the
circumstances. [384 U.S. 436, 506]
II.
CONSTITUTIONAL PREMISES.
It is most fitting to begin an
inquiry into the constitutional precedents by surveying the limits on
confessions the Court has evolved under the Due Process Clause of the
Fourteenth Amendment. This is so because these cases show that there exists a
workable and effective means of dealing with confessions in a judicial manner;
because the cases are the baseline from which the Court now departs and so
serve to measure the actual as opposed to the professed distance it travels;
and because examination of them helps reveal how the Court has coasted into its
present position.
The earliest confession cases in
this Court emerged from federal prosecutions and were settled on a
nonconstitutional basis, the Court adopting the common-law rule that the
absence of inducements, promises, and threats made a confession voluntary and
admissible. Hopt v. Utah, 110 U.S. 574 ; Pierce v. United States, 160 U.S. 355 . While a later case said the Fifth Amendment privilege
controlled admissibility, this proposition was not itself developed in
subsequent decisions. 2 The Court
did, however, heighten the test of admissibility in federal trials to one of
voluntariness "in fact," Wan v. [384
U.S. 436, 507] United
States, 266 U.S. 1, 14 (quoted, ante, p. 462), and then by and large left federal
judges to apply the same standards the Court began to derive in a string of
state court cases.
This new line of decisions, testing
admissibility by the Due Process Clause, began in 1936 with Brown v.
Mississippi, 297 U.S. 278 , and must now embrace somewhat more than 30 full opinions
of the Court. 3 While the
voluntariness rubric was repeated in many instances, e. g., Lyons v. Oklahoma, 322 U.S. 596 , the Court never pinned it down to a single meaning but on
the contrary infused it with a number of different values. To travel quickly
over the main themes, there was an initial emphasis on reliability, e. g., Ward
v. Texas, 316 U.S. 547 , supplemented by concern over the legality and fairness of
the police practices, e. g., Ashcraft v. Tennessee, 322 U.S. 143 , in an "accusatorial" system of law enforcement,
Watts v. Indiana, 338 U.S. 49, 54 , and eventually by close attention to the individual's
state of mind and capacity for effective choice, e. g., Gallegos v. Colorado, 370 U.S. 49 . The outcome was a continuing re-evaluation on the facts of
each case of how much pressure on the suspect was permissible. 4 [384 U.S. 436, 508]
Among the criteria often taken into
account were threats or imminent danger, e. g., Payne v. Arkansas, 356 U.S. 560 , physical deprivations such as lack of sleep or food, e.
g., Reck v. Pate, 367 U.S. 433 , repeated or extended interrogation, e. g., Chambers v.
Florida, 309 U.S. 227 , limits on access to counsel or friends, Crooker v.
California, 357 U.S. 433 ; Cicenia v. Lagay, 357 U.S. 504 , length and illegality of detention under state law, e. g.,
Haynes v. Washington, 373 U.S. 503 , and individual weakness or incapacities, Lynumn v.
Illinois, 372 U.S. 528 . Apart from direct physical coercion, however, no single
default or fixed combination of defaults guaranteed exclusion, and synopses of
the cases would serve little use because the overall gauge has been steadily
changing, usually in the direction of restricting admissibility. But to mark
just what point had been reached before the Court jumped the rails in Escobedo
v. Illinois, 378 U.S. 478 , it is worth capsulizing the then-recent case of Haynes v.
Washington, 373 U.S. 503 . There, Haynes had been held some 16 or more hours in
violation of state law before signing the disputed confession, had received no
warnings of any kind, and despite requests had been refused access to his wife
or to counsel, the police indicating that access would be allowed after a
confession. Emphasizing especially this last inducement and rejecting some
contrary indicia of voluntariness, the Court in a 5-to-4 decision held the
confession inadmissible.
There are several relevant lessons
to be drawn from this constitutional history. The first is that with over 25
years of precedent the Court has developed an elaborate, sophisticated, and
sensitive approach to admissibility of confessions. It is "judicial"
in its treatment of one case at a time, see Culombe v. Connecticut, 367 U.S. 568, 635 (concurring opinion of THE CHIEF JUSTICE), flexible in its
ability to respond to the endless mutations of fact presented, and ever more
familiar to the lower courts. [384 U.S.
436, 509] Of course,
strict certainty is not obtained in this developing process, but this is often
so with constitutional principles, and disagreement is usually confined to that
borderland of close cases where it matters least.
The second point is that in practice
and from time to time in principle, the Court has given ample recognition to
society's interest in suspect questioning as an instrument of law enforcement.
Cases countenancing quite significant pressures can be cited without
difficulty, 5 and the
lower courts may often have been yet more tolerant. Of course the limitations
imposed today were rejected by necessary implication in case after case, the
right to warnings having been explicitly rebuffed in this Court many years ago.
Powers v. United States, 223 U.S. 303 ; Wilson v. United States, 162 U.S. 613 . As recently as Haynes v. Washington, 373 U.S. 503, 515 , the Court openly acknowledged that questioning of
witnesses and suspects "is undoubtedly an essential tool in effective law
enforcement." Accord, Crooker v. California, 357 U.S. 433, 441 .
Finally, the cases disclose that the
language in many of the opinions overstates the actual course of decision. It
has been said, for example, that an admissible confession must be made by the
suspect "in the unfettered exercise of his own will," Malloy v.
Hogan, 378 U.S. 1, 8 , and that "a prisoner is not `to be made the deluded
instrument of his own conviction,'" Culombe v. Connecticut, 367 U.S. 568, 581 (Frankfurter, J., announcing the Court's judgment and an
opinion). Though often repeated, such principles are rarely observed in full
measure. Even the word "voluntary" may be deemed somewhat [384 U.S. 436, 510] misleading, especially when one considers
many of the confessions that have been brought under its umbrella. See, e. g.,
supra, n. 5. The tendency to overstate may be laid in part to the flagrant
facts often before the Court; but in any event one must recognize how it has
tempered attitudes and lent some color of authority to the approach now taken
by the Court.
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 [384 U.S. 436, 511] Even those who would readily enlarge the
privilege must concede some linguistic difficulties since the Fifth Amendment
in terms proscribes only compelling any person "in any criminal case to be
a witness against himself." Cf. Kamisar, Equal Justice in the Gatehouses
and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1,
25-26 (1965).
Though weighty, I do not say these
points and similar ones are conclusive, for, as the Court reiterates, the
privilege embodies basic principles always capable of expansion. 7 Certainly
the privilege does represent a protective concern for the accused and an
emphasis upon accusatorial rather than inquisitorial values in law enforcement,
although this is similarly true of other limitations such as the grand jury
requirement and the reasonable doubt standard. Accusatorial values, however,
have openly been absorbed into the due process standard governing confessions;
this indeed is why at present "the kinship of the two rules [governing
confessions and self-incrimination] is too apparent for denial."
McCormick, Evidence 155 (1954). Since extension of the general principle has
already occurred, to insist that the privilege applies as such serves only to carry
over inapposite historical details and engaging rhetoric and to obscure the
policy choices to be made in regulating confessions.
Having decided that the Fifth
Amendment privilege does apply in the police station, the Court reveals that
the privilege imposes more exacting restrictions than does the Fourteenth
Amendment's voluntariness test. 8 [384 U.S. 436, 512] It then emerges from a
discussion of Escobedo that the Fifth Amendment requires for an admissible
confession that it be given by one distinctly aware of his right not to speak
and shielded from "the compelling atmosphere" of interrogation. See
ante, pp. 465-466. From these key premises, the Court finally develops the
safeguards of warning, counsel, and so forth. I do not believe these premises
are sustained by precedents under the Fifth Amendment. 9
The more important premise is that
pressure on the suspect must be eliminated though it be only the subtle
influence of the atmosphere and surroundings. The Fifth Amendment, however, has
never been thought to forbid all pressure to incriminate one's self in the
situations covered by it. On the contrary, it has been held that failure to
incriminate one's self can result in denial of removal of one's case from state
to federal court, Maryland v. Soper, 270 U.S. 9 ; in refusal of a military commission, Orloff v. Willoughby,
345 U.S. 83 ; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz,
176 F.2d 210; and in numerous other adverse consequences. See 8 Wigmore,
Evidence 2272, at 441-444, n. 18 (McNaughton rev. 1961); Maguire, Evidence of
Guilt 2.062 (1959). This is not to say that short of jail or torture any
sanction is permissible in any case; policy and history alike may impose sharp
limits. See, e. g., [384 U.S. 436, 513]
Griffin v. California, 380 U.S. 609 . However, the Court's unspoken assumption that any pressure
violates the privilege is not supported by the precedents and it has failed to
show why the Fifth Amendment prohibits that relatively mild pressure the Due
Process Clause permits.
The Court appears similarly wrong in
thinking that precise knowledge of one's rights is a settled prerequisite under
the Fifth Amendment to the loss of its protections. A number of lower federal
court cases have held that grand jury witnesses need not always be warned of
their privilege, e. g., United States v. Scully, 225 F.2d 113, 116, and Wigmore
states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence
2269 (McNaughton rev. 1961). Cf. Henry v. Mississippi, 379 U.S. 443, 451 -452 (waiver of constitutional rights by counsel despite
defendant's ignorance held allowable). No Fifth Amendment precedent is cited
for the Court's contrary view. There might of course be reasons apart from
Fifth Amendment precedent for requiring warning or any other safeguard on
questioning but that is a different matter entirely. See infra, pp. 516-517.
A closing word must be said about
the Assistance of Counsel Clause of the Sixth Amendment, which is never
expressly relied on by the Court but whose judicial precedents turn out to be
linchpins of the confession rules announced today. To support its requirement
of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst, 304 U.S. 458 , ante, p. 475; appointment of counsel for the indigent
suspect is tied to Gideon v. Wainwright, 372 U.S. 335 , and Douglas v. California, 372 U.S. 353 , ante, p. 473; the silent-record doctrine is borrowed from
Carnley v. Cochran, 369 U.S. 506 , ante, p. 475, as is the right to an express offer of
counsel, ante, p. 471. All these cases imparting glosses to the Sixth Amendment
concerned counsel at trial or on appeal. While the Court finds no pertinent
difference between judicial proceedings and police interrogation, I believe [384 U.S. 436, 514] the differences are so vast as to
disqualify wholly the Sixth Amendment precedents as suitable analogies in the
present cases. 10
The only attempt in this Court to
carry the right to counsel into the station house occurred in Escobedo, the
Court repeating several times that that stage was no less "critical"
than trial itself. See 378 U.S., 485-488. This is hardly persuasive when we
consider that a grand jury inquiry, the filing of a certiorari petition, and
certainly the purchase of narcotics by an undercover agent from a prospective
defendant may all be equally "critical" yet provision of counsel and
advice on that score have never been thought compelled by the Constitution in
such cases. The sound reason why this right is so freely extended for a
criminal trial is the severe injustice risked by confronting an untrained
defendant with a range of technical points of law, evidence, and tactics
familiar to the prosecutor but not to himself. This danger shrinks markedly in
the police station where indeed the lawyer in fulfilling his professional
responsibilities of necessity may become an obstacle to truthfinding. See
infra, n. 12. The Court's summary citation of the Sixth Amendment cases here
seems to me best described as "the domino method of constitutional
adjudication . . . wherein every explanatory statement in a previous opinion is
made the basis for extension to a wholly different situation." Friendly,
supra, n. 10, at 950.
III.
POLICY CONSIDERATIONS.
Examined as an expression of public
policy, the Court's new regime proves so dubious that there can be no due [384 U.S. 436, 515] compensation for its weakness in
constitutional law. The foregoing discussion has shown, I think, how mistaken
is the Court in implying that the Constitution has struck the balance in favor
of the approach the Court takes. Ante, p. 479. Rather, precedent reveals that
the Fourteenth Amendment in practice has been construed to strike a different
balance, that the Fifth Amendment gives the Court little solid support in this
context, and that the Sixth Amendment should have no bearing at all. Legal
history has been stretched before to satisfy deep needs of society. In this
instance, however, the Court has not and cannot make the powerful showing that
its new rules are plainly desirable in the context of our society, something
which is surely demanded before those rules are engrafted onto the Constitution
and imposed on every State and county in the land.
Without at all subscribing to the
generally black picture of police conduct painted by the Court, I think it must
be frankly recognized at the outset that police questioning allowable under due
process precedents may inherently entail some pressure on the suspect and may
seek advantage in his ignorance or weaknesses. The atmosphere and questioning
techniques, proper and fair though they be, can in themselves exert a tug on
the suspect to confess, and in this light "[t]o speak of any confessions
of crime made after arrest as being `voluntary' or `uncoerced' is somewhat
inaccurate, although traditional. A confession is wholly and incontestably
voluntary only if a guilty person gives himself up to the law and becomes his own
accuser." Ashcraft v. Tennessee, 322 U.S. 143, 161 (Jackson, J., dissenting). Until today, the role of the
Constitution has been only to sift out undue pressure, not to assure
spontaneous confessions. 11 [384 U.S. 436, 516]
The Court's new rules aim to offset
these minor pressures and disadvantages intrinsic to any kind of police interrogation.
The rules do not serve due process interests in preventing blatant coercion
since, as I noted earlier, they do nothing to contain the policeman who is
prepared to lie from the start. The rules work for reliability in confessions
almost only in the Pickwickian sense that they can prevent some from being
given at all. 12 In short,
the benefit of this new regime is simply to lessen or wipe out the inherent
compulsion and inequalities to which the Court devotes some nine pages of
description. Ante, pp. 448-456.
What the Court largely ignores is
that its rules impair, if they will not eventually serve wholly to frustrate,
an instrument of law enforcement that has long and quite reasonably been
thought worth the price paid for it. 13 There can
be little doubt that the Court's new code would markedly decrease the number of
confessions. To warn the suspect that he may remain silent and remind him that
his confession may be used in court are minor obstructions. To require also an
express waiver by the suspect and an end to questioning whenever he demurs [384 U.S. 436, 517] must heavily handicap questioning. And to
suggest or provide counsel for the suspect simply invites the end of the
interrogation. See, supra, n. 12.
How much harm this decision will
inflict on law enforcement cannot fairly be predicted with accuracy. Evidence
on the role of confessions is notoriously incomplete, see Developments, supra,
n. 2, at 941-944, and little is added by the Court's reference to the FBI
experience and the resources believed wasted in interrogation. See infra, n.
19, and text. We do know that some crimes cannot be solved without confessions,
that ample expert testimony attests to their importance in crime control, 14 and that the
Court is taking a real risk with society's welfare in imposing its new regime
on the country. The social costs of crime are too great to call the new rules
anything but a hazardous experimentation.
While passing over the costs and
risks of its experiment, the Court portrays the evils of normal police
questioning in terms which I think are exaggerated. Albeit stringently confined
by the due process standards interrogation is no doubt often inconvenient and
unpleasant for the suspect. However, it is no less so for a man to be arrested
and jailed, to have his house searched, or to stand trial in court, yet all
this may properly happen to the most innocent given probable cause, a warrant,
or an indictment. Society has always paid a stiff price for law and order, and
peaceful interrogation is not one of the dark moments of the law.
This brief statement of the
competing considerations seems to me ample proof that the Court's preference is
highly debatable at best and therefore not to be read into [384 U.S. 436, 518]
the Constitution. However, it may make the analysis more graphic to
consider the actual facts of one of the four cases reversed by the Court.
Miranda v. Arizona serves best, being neither the hardest nor easiest of the
four under the Court's standards. 15
On March 3, 1963, an 18-year-old
girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on
the morning of March 13, petitioner Miranda was arrested and taken to the
police station. At this time Miranda was 23 years old, indigent, and educated
to the extent of completing half the ninth grade. He had "an emotional
illness" of the schizophrenic type, according to the doctor who eventually
examined him; the doctor's report also stated that Miranda was "alert and
oriented as to time, place, and person," intelligent within normal limits,
competent to stand trial, and sane within the legal definition. At the police
station, the victim picked Miranda out of a lineup, and two officers then took
him into a separate room to interrogate him, starting about 11:30 a. m. Though
at first denying his guilt, within a short time Miranda gave a detailed oral
confession and then wrote out in his own hand and signed a brief statement
admitting and describing the crime. All this was accomplished in two hours or
less without any force, threats or promises and - I will assume this though the
record is uncertain, ante, 491-492 and nn. 66-67 - without any effective warnings
at all.
Miranda's oral and written
confessions are now held inadmissible under the Court's new rules. One is
entitled to feel astonished that the Constitution can be read to produce this
result. These confessions were obtained [384
U.S. 436, 519] during
brief, daytime questioning conducted by two officers and unmarked by any of the
traditional indicia of coercion. They assured a conviction for a brutal and
unsettling crime, for which the police had and quite possibly could obtain
little evidence other than the victim's identifications, evidence which is
frequently unreliable. There was, in sum, a legitimate purpose, no perceptible
unfairness, and certainly little risk of injustice in the interrogation. Yet
the resulting confessions, and the responsible course of police practice they
represent, are to be sacrificed to the Court's own finespun conception of
fairness which I seriously doubt is shared by many thinking citizens in this
country. 16
The tenor of judicial opinion also
falls well short of supporting the Court's new approach. Although Escobedo has
widely been interpreted as an open invitation to lower courts to rewrite the
law of confessions, a significant heavy majority of the state and federal
decisions in point have sought quite narrow interpretations. 17 Of [384 U.S. 436, 520] the courts that have
accepted the invitation, it is hard to know how many have felt compelled by
their best guess as to this Court's likely construction; but none of the state
decisions saw fit to rely on the state privilege against self-incrimination,
and no decision at all has gone as far as this Court goes today. 18
It is also instructive to compare
the attitude in this case of those responsible for law enforcement with the
official views that existed when the Court undertook three major revisions of
prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U.S. 458 , Mapp v. Ohio, 367 U.S. 643 , and Gideon v. Wainwright, 372 U.S. 335 . In Johnson, which established that appointed counsel must
be offered the indigent in federal criminal trials, the Federal Government all
but conceded the basic issue, which had in fact been recently fixed as
Department of Justice policy. See Beaney, Right to Counsel 29-30, 36-42 (1955).
In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment
violations, more than half of the States had themselves already adopted some
such rule. See 367 U.S., at 651 . In Gideon, which extended Johnson v. Zerbst to the States,
an amicus brief was filed by 22 States and Commonwealths urging that course;
only two States besides that of the respondent came forward to protest. See 372 U.S., at 345 . By contrast, in this case new restrictions on police [384 U.S. 436, 521] questioning have been opposed by the United
States and in an amicus brief signed by 27 States and Commonwealths, not
including the three other States which are parties. No State in the country has
urged this Court to impose the newly announced rules, nor has any State chosen
to go nearly so far on its own.
The Court in closing its general
discussion invokes the practice in federal and foreign jurisdictions as lending
weight to its new curbs on confessions for all the States. A brief resume will
suffice to show that none of these jurisdictions has struck so one-sided a
balance as the Court does today. Heaviest reliance is placed on the FBI
practice. Differing circumstances may make this comparison quite untrustworthy,
19 but in any
event the FBI falls sensibly short of the Court's formalistic rules. For
example, there is no indication that FBI agents must obtain an affirmative
"waiver" before they pursue their questioning. Nor is it clear that
one invoking his right to silence may not be prevailed upon to change his mind.
And the warning as to appointed counsel apparently indicates only that one will
be assigned by the judge when the suspect appears before him; the thrust of the
Court's rules is to induce the suspect to obtain appointed counsel before
continuing the interview. See ante, pp. 484-486. Apparently American military
practice, briefly mentioned by the Court, has these same limits and is still
less favorable to the suspect than the FBI warning, making no mention of
appointed counsel. Developments, supra, n. 2, at 1084-1089.
The law of the foreign countries
described by the Court also reflects a more moderate conception of the rights
of [384 U.S. 436, 522] the accused as against those of society
when other data are considered. Concededly, the English experience is most
relevant. In that country, a caution as to silence but not counsel has long
been mandated by the "Judges' Rules," which also place other somewhat
imprecise limits on police cross-examination of suspects. However, in the
court's discretion confessions can be and apparently quite frequently are
admitted in evidence despite disregard of the Judges' Rules, so long as they
are found voluntary under the common-law test. Moreover, the check that exists
on the use of pretrial statements is counterbalanced by the evident
admissibility of fruits of an illegal confession and by the judge's often-used
authority to comment adversely on the defendant's failure to testify. 20
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 [384 U.S. 436, 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.
In closing this necessarily truncated discussion of policy
considerations attending the new confession rules, some reference must be made
to their ironic untimeliness. There is now in progress in this country a
massive re-examination of criminal law enforcement procedures on a scale never
before witnessed. Participants in this undertaking include a Special Committee
of the American Bar Association, under the chairmanship of Chief Judge Lumbard
of the Court of Appeals for the Second Circuit; a distinguished study group of
the American Law Institute, headed by Professors Vorenberg and Bator of the
Harvard Law School; and the President's Commission on Law Enforcement and
Administration of Justice, under the leadership of the Attorney General of the
United States. 22 Studies
are also being conducted by the District of Columbia Crime Commission, the Georgetown
Law Center, and by others equipped to do practical research. 23 There are also signs that
legislatures in some of the States may be preparing to re-examine the problem
before us. 24
[384 U.S.
436, 524]
It
is no secret that concern has been expressed lest long-range and lasting
reforms be frustrated by this Court's too rapid departure from existing
constitutional standards. Despite the Court's disclaimer, the practical effect
of the decision made today must inevitably be to handicap seriously sound
efforts at reform, not least by removing options necessary to a just compromise
of competing interests. Of course legislative reform is rarely speedy or
unanimous, though this Court has been more patient in the past. 25 But the
legislative reforms when they come would have the vast advantage of empirical
data and comprehensive study, they would allow experimentation and use of
solutions not open to the courts, and they would restore the initiative in
criminal law reform to those forums where it truly belongs.
IV.
CONCLUSIONS.
All four of the cases involved here
present express claims that confessions were inadmissible, not because of
coercion in the traditional due process sense, but solely because of lack of
counsel or lack of warnings concerning counsel and silence. For the reasons
stated in this opinion, I would adhere to the due process test and reject the
new requirements inaugurated by the Court. On this premise my disposition of
each of these cases can be stated briefly.
In two of the three cases coming
from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No.
760), the confessions were held admissible and no other errors worth comment
are alleged by petitioners. [384 U.S.
436, 525] I would affirm
in these two cases. The other state case is California v. Stewart (No. 584),
where the state supreme court held the confession inadmissible and reversed the
conviction. In that case I would dismiss the writ of certiorari on the ground
that no final judgment is before us, 28 U.S.C. 1257 (1964 ed.); putting aside
the new trial open to the State in any event, the confession itself has not
even been finally excluded since the California Supreme Court left the State
free to show proof of a waiver. If the merits of the decision in Stewart be
reached, then I believe it should be reversed and the case remanded so the
state supreme court may pass on the other claims available to respondent.
In the federal case, Westover v.
United States (No. 761), a number of issues are raised by petitioner apart from
the one already dealt with in this dissent. None of these other claims appears
to me tenable, nor in this context to warrant extended discussion. It is urged
that the confession was also inadmissible because not voluntary even measured
by due process standards and because federal-state cooperation brought the
McNabb-Mallory rule into play under Anderson v. United States, 318 U.S. 350 . However, the facts alleged fall well short of coercion in
my view, and I believe the involvement of federal agents in petitioner's arrest
and detention by the State too slight to invoke Anderson. I agree with the
Government that the admission of the evidence now protested by petitioner was
at most harmless error, and two final contentions - one involving weight of the
evidence and another improper prosecutor comment - seem to me without merit. I
would therefore affirm Westover's conviction.
In conclusion: Nothing in the letter
or the spirit of the Constitution or in the precedents squares with the
heavy-handed and one-sided action that is so precipitously [384 U.S. 436, 526]
taken by the Court in the name of fulfilling its constitutional
responsibilities. The foray which the Court makes today brings to mind the wise
and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion): "This Court is forever adding new
stories to the temples of constitutional law, and the temples have a way of
collapsing when one story too many is added."
[ Footnote 1 ] My
discussion in this opinion is directed to the main questions decided by the
Court and necessary to its decision; in ignoring some of the collateral points,
I do not mean to imply agreement.
[ Footnote 2 ] The case
was Bram v. United States, 168 U.S. 532 (quoted, ante, p. 461). Its historical premises were
afterwards disproved by Wigmore, who concluded "that no assertions could
be more unfounded." 3 Wigmore, Evidence 823, at 250, n. 5 (3d ed. 1940).
The Court in United States v. Carignan, 342 U.S. 36, 41 , declined to choose between Bram and Wigmore, and Stein v.
New York, 346 U.S. 156, 191 , n. 35, cast further doubt on Bram. There are, however,
several Court opinions which assume in dicta the relevance of the Fifth
Amendment privilege to confessions. Burdeau v. McDowell, 256 U.S. 465, 475 ; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347 . On Bram and the federal confession cases generally, see
Developments in the Law - Confessions, 79 Harv. L. Rev. 935, 959-961 (1966).
[ Footnote 3 ] Comment,
31 U. Chi. L. Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state
coerced-confession cases had been decided by this Court, apart from per
curiams. Spano v. New York, 360 U.S. 315, 321 , n. 2, collects 28 cases.
[ Footnote 4 ] Bator
& Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66
Col. L. Rev. 62, 73 (1966): "In fact, the concept of involuntariness seems
to be used by the courts as a shorthand to refer to practices which are
repellent to civilized standards of decency or which, under the circumstances,
are thought to apply a degree of pressure to an individual which unfairly
impairs his capacity to make a rational choice." See Herman, The Supreme
Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 452-458
(1964); Developments, supra, n. 2, at 964-984.
[ Footnote 5 ] See the
cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant
example is Stroble v. California, 343 U.S. 181 , in which the suspect was kicked and threatened after his
arrest, questioned a little later for two hours, and isolated from a lawyer
trying to see him; the resulting confession was held admissible.
[ Footnote 6 ] Among
the examples given in 8 Wigmore, Evidence 2266, at 401 (McNaughton rev. 1961),
are these: the privilege applies to any witness, civil or criminal, but the
confession rule protects only criminal defendants; the privilege deals only
with compulsion, while the confession rule may exclude statements obtained by
trick or promise; and where the privilege has been nullified - as by the
English Bankruptcy Act - the confession rule may still operate.
[ Footnote 7 ]
Additionally, there are precedents and even historical arguments that can be
arrayed in favor of bringing extra-legal questioning within the privilege. See
generally Maguire, Evidence of Guilt 2.03, at 15-16 (1959).
[ Footnote 8 ] This, of
course, is implicit in the Court's introductory announcement that "[o]ur
decision in Malloy v. Hogan, 378 U.S. 1 (1964) [extending the Fifth Amendment privilege to the
States] necessitates [384 U.S. 436,
512] an examination of the
scope of the privilege in state cases as well." Ante, p. 463. It is also
inconsistent with Malloy itself, in which extension of the Fifth Amendment to
the States rested in part on the view that the Due Process Clause restriction
on state confessions has in recent years been "the same standard" as
that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S., at 7 .
[ Footnote 9 ] I lay
aside Escobedo itself; it contains no reasoning or even general conclusions
addressed to the Fifth Amendment and indeed its citation in this regard seems
surprising in view of Escobedo's primary reliance on the Sixth Amendment.
[ Footnote 10 ] Since
the Court conspicuously does not assert that the Sixth Amendment itself
warrants its new police-interrogation rules, there is no reason now to draw out
the extremely powerful historical and precedential evidence that the Amendment
will bear no such meaning. See generally Friendly, The Bill of Rights as a Code
of Criminal Procedure, 53 Calif. L. Rev. 929, 943-948 (1965).
[ Footnote 11 ] See
supra, n. 4, and text. Of course, the use of terms like voluntariness involves
questions of law and terminology quite as much as questions of fact. See
Collins v. Beto, 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg,
supra, n. 4, at 72-73.
[ Footnote 12 ] The
Court's vision of a lawyer "mitigat[ing] the dangers of
untrustworthiness" (ante, p. 470) by witnessing coercion and assisting
accuracy in the confession is largely a fancy; for if counsel arrives, there is
rarely going to be a police station confession. Watts v. Indiana, 338 U.S. 49, 59 (separate opinion of Jackson, J.): "[A]ny lawyer worth
his salt will tell the suspect in no uncertain terms to make no statement to
police under any circumstances." See Enker & Elsen, Counsel for the
Suspect, 49 Minn. L. Rev. 47, 66-68 (1964).
[ Footnote 13 ] This
need is, of course, what makes so misleading the Court's comparison of a
probate judge readily setting aside as involuntary the will of an old lady
badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26. With
wills, there is no public interest save in a totally free choice; with
confessions, the solution of crime is a countervailing gain, however the
balance is resolved.
[ Footnote 14 ] See, e.
g., the voluminous citations to congressional committee testimony and other
sources collected in Culombe v. Connecticut, 367 U.S. 568, 578 -579 (Frankfurter, J., announcing the Court's judgment and
an opinion).
[ Footnote 15 ] In
Westover, a seasoned criminal was practically given the Court's full complement
of warnings and did not heed them. The Stewart case, on the other hand,
involves long detention and successive questioning. In Vignera, the facts are
complicated and the record somewhat incomplete.
[ Footnote 16 ]
"[J]ustice, though due to the accused, is due to the accuser also. The
concept of fairness must not be strained till it is narrowed to a filament. We
are to keep the balance true." Snyder v. Massachusetts, 291 U.S. 97, 122 (Cardozo, J.).
[ Footnote 17 ] A narrow
reading is given in: United States v. Robinson, 354 F.2d 109 (C. A. 2d Cir.);
Davis v. North Carolina, 339 F.2d 770 (C. A. 4th Cir.); Edwards v. Holman, 342
F.2d 679 (C. A. 5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d
837 (C. A. 7th Cir.); People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33;
State v. Fox, ___ Iowa ___, 131 N. W. 2d 684; Rowe v. Commonwealth, 394 S. W.
2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A. 2d 418; State v. Howard,
383 S. W. 2d 701 (Mo.); Bean v. State, ___ Nev. ___, 398 P.2d 251; State v.
Hodgson, 44 N. J. 151, 207 A. 2d 542; People v. Gunner, 15 N. Y. 2d 226, 205 N.
E. 2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A. 2d 288;
Browne v. State, 24 Wis. 2d 491, 131 N. W. 2d 169.
An ample reading is given in: United
States ex rel. Russo v. New Jersey, 351 F.2d 429 (C. A. 3d Cir.); Wright v. Dickson,
[384 U.S. 436, 520] 336 F.2d 878 (C. A. 9th Cir.); People v.
Dorado, 62 Cal. 2d 338, 398 P.2d 361; State v. Dufour, ___ R. I. ___, 206 A. 2d
82; State v. Neely, 239 Ore. 487, 395 P.2d 557, modified, 398 P.2d 482.
The cases in both categories are
those readily available; there are certainly many others.
[ Footnote 18 ] For
instance, compare the requirements of the catalytic case of People v. Dorado,
62 Cal. 2d 338, 398 P.2d 361, with those laid down today. See also Traynor, The
Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi.
L. Rev. 657, 670.
[ Footnote 19 ] The
Court's obiter dictum notwithstanding, ante, p. 486, there is some basis for
believing that the staple of FBI criminal work differs importantly from much
crime within the ken of local police. The skill and resources of the FBI may
also be unusual.
[ Footnote 20 ] For
citations and discussion covering each of these points, see Developments,
supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n. 12, at 80 & n.
94.
[ Footnote 21 ] On comment, see Hardin, Other
Answers: Search and Seizure, Coerced Confession, and Criminal Trial in
Scotland, 113 U. Pa. L. Rev. 165, 181 and nn. 96-97 (1964). Other examples are
less stringent search and seizure rules and no automatic exclusion for
violation of them, id., at 167-169; guilt based on majority jury verdicts, id.,
at 185; and pre-trial discovery of evidence on both sides, id., at 175.
[ Footnote
22 ] Of particular relevance is the
ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first
tentative draft. While the ABA and National Commission studies have wider
scope, the former is lending its advice to the ALI project and the executive
director of the latter is one of the reporters for the Model Code.
[ Footnote 23 ]
See Brief for the United States in Westover, p. 45. The N. Y. Times, June 3,
1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded
$1,100,000 for a five-year study of arrests and confessions in New York.
[ Footnote
24 ] The New York Assembly recently
passed a bill to require certain warnings before an admissible confession is
taken, though the rules are less strict than are the Court's. N. Y. Times, May
24, 1966, p. 35 (late city ed.).
[
Footnote 25 ] The Court waited 12 years after Wolf v. Colorado, 338 U.S. 25 ,
declared privacy against improper state intrusions to be constitutionally
safeguarded before it concluded in Mapp v. Ohio, 367 U.S. 643 ,
that adequate state remedies had not been provided to protect this interest so
the exclusionary rule was necessary.
MR. JUSTICE WHITE, with whom MR.
JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
I.
The proposition that the privilege
against self-incrimination forbids in-custody interrogation without the
warnings specified in the majority opinion and without a clear waiver of
counsel has no significant support in the history of the privilege or in the
language of the Fifth Amendment. As for the English authorities and the
common-law history, the privilege, firmly established in the second half of the
seventeenth century, was never applied except to prohibit compelled judicial
interrogations. The rule excluding coerced confessions matured about 100 years
later, "[b]ut there is nothing in the reports to suggest that the theory
has its roots in the privilege against self-incrimination. And so far as the
cases reveal, the privilege, as such, seems to have been given effect only in
judicial proceedings, including the preliminary examinations by authorized
magistrates." Morgan, The Privilege Against Self-Incrimination, 34 Minn.
L. Rev. 1, 18 (1949).
Our own constitutional provision
provides that no person "shall be compelled in any criminal case to be a
witness against himself." These words, when "[c]onsidered in the
light to be shed by grammar and the dictionary . . . appear to signify simply
that nobody shall be [384 U.S. 436,
527] compelled to give
oral testimony against himself in a criminal proceeding under way in which he
is defendant." Corwin, The Supreme Court's Construction of the
Self-Incrimination Clause, 29 Mich. L. Rev. 1, 2. And there is very little in
the surrounding circumstances of the adoption of the Fifth Amendment or in the
provisions of the then existing state constitutions or in state practice which
would give the constitutional provision any broader meaning. Mayers, The
Federal Witness' Privilege Against Self-Incrimination: Constitutional or
Common-Law? 4 American Journal of Legal History 107 (1960). Such a
construction, however, was considerably narrower than the privilege at common
law, and when eventually faced with the issues, the Court extended the
constitutional privilege to the compulsory production of books and papers, to
the ordinary witness before the grand jury and to witnesses generally. Boyd v.
United States, 116 U.S. 616 ,
and Counselman v. Hitchcock, 142 U.S. 547 .
Both rules had solid support in common-law history, if not in the history of
our own constitutional provision.
A few years later the Fifth
Amendment privilege was similarly extended to encompass the then
well-established rule against coerced confessions: "In criminal trials, in
the courts of the United States, wherever a question arises whether a
confession is incompetent because not voluntary, the issue is controlled by
that portion of the Fifth Amendment to the Constitution of the United States,
commanding that no person `shall be compelled in any criminal case to be a
witness against himself.'" Bram v. United States, 168 U.S.
532, 542 . Although this view has found approval in other cases, Burdeau v.
McDowell, 256 U.S.
465, 475 ; Powers v. United States, 223 U.S.
303, 313 ; Shotwell v. United States, 371 U.S.
341, 347 , it has also been questioned, see Brown v. Mississippi, 297 U.S.
278, 285 ; United States v. Carignan, [384
U.S. 436, 528] 342 U.S. 36,
41 ; Stein v. New York, 346 U.S.
156, 191 , n. 35, and finds scant support in either the English or American
authorities, see generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence
823 (3d ed. 1940), at 249 ("a confession is not rejected because of any
connection with the privilege against self-crimination"), and 250, n. 5
(particularly criticizing Bram); 8 Wigmore, Evidence 2266, at 400-401
(McNaughton rev. 1961). Whatever the source of the rule excluding coerced
confessions, it is clear that prior to the application of the privilege itself
to state courts, Malloy v. Hogan, 378 U.S. 1 ,
the admissibility of a confession in a state criminal prosecution was tested by
the same standards as were applied in federal prosecutions. Id., at 6-7, 10.
Bram, however, itself rejected the
proposition which the Court now espouses. The question in Bram was whether a
confession, obtained during custodial interrogation, had been compelled, and if
such interrogation was to be deemed inherently vulnerable the Court's inquiry
could have ended there. After examining the English and American authorities,
however, the Court declared that:
"In
this court also it has been settled that the mere fact that the confession is
made to a police officer, while the accused was under arrest in or out of
prison, or was drawn out by his questions, does not necessarily render the
confession involuntary, but, as one of the circumstances, such imprisonment or
interrogation may be taken into account in determining whether or not the
statements of the prisoner were voluntary." 168 U.S.,
at 558 .
In this respect the Court was wholly
consistent with prior and subsequent pronouncements in this Court.
Thus prior to Bram the Court, in
Hopt v. Utah, 110 U.S.
574, 583 -587, had upheld the admissibility of a [384 U.S. 436, 529]
confession made to police officers following arrest, the record being
silent concerning what conversation had occurred between the officers and the
defendant in the short period preceding the confession. Relying on Hopt, the
Court ruled squarely on the issue in Sparf and Hansen v. United States, 156 U.S. 51,
55 :
"Counsel
for the accused insist that there cannot be a voluntary statement, a free open
confession, while a defendant is confined and in irons under an accusation of
having committed a capital offence. We have not been referred to any authority
in support of that position. It is true that the fact of a prisoner being in
custody at the time he makes a confession is a circumstance not to be
overlooked, because it bears upon the inquiry whether the confession was
voluntarily made or was extorted by threats or violence or made under the
influence of fear. But confinement or imprisonment is not in itself sufficient
to justify the exclusion of a confession, if it appears to have been voluntary,
and was not obtained by putting the prisoner in fear or by promises. Wharton's
Cr. Ev. 9th ed. 661, 663, and authorities cited."
Accord, Pierce v. United States, 160 U.S.
355, 357 .
And in Wilson v. United States, 162 U.S.
613, 623 , the Court had considered the significance of custodial
interrogation without any antecedent warnings regarding the right to remain
silent or the right to counsel. There the defendant had answered questions posed
by a Commissioner, who had failed to advise him of his rights, and his answers
were held admissible over his claim of involuntariness. "The fact that [a
defendant] is in custody and manacled does not necessarily render his statement
involuntary, nor is that necessarily the effect of popular excitement shortly
preceding. . . . And it is laid down [384
U.S. 436, 530] that it is
not essential to the admissibility of a confession that it should appear that
the person was warned that what he said would be used against him, but on the
contrary, if the confession was voluntary, it is sufficient though it appear
that he was not so warned."
Since Bram, the admissibility of
statements made during custodial interrogation has been frequently reiterated.
Powers v. United States, 223 U.S. 303 ,
cited Wilson approvingly and held admissible as voluntary statements the
accused's testimony at a preliminary hearing even though he was not warned that
what he said might be used against him. Without any discussion of the presence
or absence of warnings, presumably because such discussion was deemed
unnecessary, numerous other cases have declared that "[t]he mere fact that
a confession was made while in the custody of the police does not render it
inadmissible," McNabb v. United States, 318 U.S.
332, 346 ; accord, United States v. Mitchell, 322 U.S. 65 ,
despite its having been elicited by police examination, Wan v. United States, 266 U.S. 1,
14 ; United States v. Carignan, 342 U.S. 36,
39 . Likewise, in Crooker v. California, 357 U.S.
433, 437 , the Court said that "the bare fact of police `detention and
police examination in private of one in official state custody' does not render
involuntary a confession by the one so detained." And finally, in Cicenia
v. Lagay, 357
U.S. 504 , a confession obtained by police interrogation after arrest was
held voluntary even though the authorities refused to permit the defendant to
consult with his attorney. See generally Culombe v. Connecticut, 367 U.S.
568, 587 -602 (opinion of Frankfurter, J.); 3 Wigmore, Evidence 851, at 313
(3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842).
Only a tiny minority of our judges
who have dealt with the question, including today's majority, have considered
in-custody interrogation, without more, to be a violation of the Fifth
Amendment. And this Court, as [384 U.S.
436, 531] every member
knows, has left standing literally thousands of criminal convictions that
rested at least in part on confessions taken in the course of interrogation by
the police after arrest.
II.
That the Court's holding today is
neither compelled nor even strongly suggested by the language of the Fifth
Amendment, is at odds with American and English legal history, and involves a
departure from a long line of precedent does not prove either that the Court
has exceeded its powers or that the Court is wrong or unwise in its present
reinterpretation of the Fifth Amendment. It does, however, underscore the
obvious - that the Court has not discovered or found the law in making today's
decision, nor has it derived it from some irrefutable sources; what it has done
is to make new law and new public policy in much the same way that it has in
the course of interpreting other great clauses of the Constitution. 1 This is what the Court historically has done.
Indeed, it is what it must do and will continue to do until and unless there is
some fundamental change in the constitutional distribution of governmental
powers.
But if the Court is here and now to
announce new and fundamental policy to govern certain aspects of our affairs,
it is wholly legitimate to examine the mode of this or any other constitutional
decision in this Court and to inquire into the advisability of its end product
in terms of the long-range interest of the country. At the very least the
Court's text and reasoning should withstand analysis and be a fair exposition
of the constitutional provision which its opinion interprets. Decisions [384 U.S. 436, 532] like these cannot rest alone on syllogism,
metaphysics or some ill-defined notions of natural justice, although each will
perhaps play its part. In proceeding to such constructions as it now announces,
the Court should also duly consider all the factors and interests bearing upon
the cases, at least insofar as the relevant materials are available; and if the
necessary considerations are not treated in the record or obtainable from some
other reliable source, the Court should not proceed to formulate fundamental
policies based on speculation alone.
III.
First, we may inquire what are the
textual and factual bases of this new fundamental rule. To reach the result
announced on the grounds it does, the Court must stay within the confines of
the Fifth Amendment, which forbids self-incrimination only if compelled. Hence
the core of the Court's opinion is that because of the "compulsion
inherent in custodial surroundings, no statement obtained from [a] defendant
[in custody] can truly be the product of his free choice," ante, at 458,
absent the use of adequate protective devices as described by the Court. However,
the Court does not point to any sudden inrush of new knowledge requiring the
rejection of 70 years' experience. Nor does it assert that its novel conclusion
reflects a changing consensus among state courts, see Mapp v. Ohio, 367 U.S. 643 ,
or that a succession of cases had steadily eroded the old rule and proved it
unworkable, see Gideon v. Wainwright, 372 U.S. 335 .
Rather than asserting new knowledge, the Court concedes that it cannot truly
know what occurs during custodial questioning, because of the innate secrecy of
such proceedings. It extrapolates a picture of what it conceives to be the norm
from police investigatorial manuals, published in 1959 and 1962 or earlier,
without any attempt to allow for adjustments in police practices that may [384 U.S. 436, 533] have occurred in the wake of more recent
decisions of state appellate tribunals or this Court. But even if the
relentless application of the described procedures could lead to involuntary
confessions, it most assuredly does not follow that each and every case will
disclose this kind of interrogation or this kind of consequence. 2 Insofar as appears from the Court's opinion, it
has not examined a single transcript of any police interrogation, let alone the
interrogation that took place in any one of these cases which it decides today.
Judged by any of the standards for empirical investigation utilized in the
social sciences the factual basis for the Court's premise is patently
inadequate.
Although in the Court's view
in-custody interrogation is inherently coercive, the Court says that the
spontaneous product of the coercion of arrest and detention is still to be
deemed voluntary. An accused, arrested on probable cause, may blurt out a
confession which will be admissible despite the fact that he is alone and in
custody, without any showing that he had any notion of his right to remain
silent or of the consequences of his admission. Yet, under the Court's rule, if
the police ask him a single question such as "Do you have anything to
say?" or "Did you kill your wife?" his response, if there is
one, has somehow been compelled, even if the accused has [384 U.S. 436, 534]
been clearly warned of his right to remain silent. Common sense informs
us to the contrary. While one may say that the response was
"involuntary" in the sense the question provoked or was the occasion
for the response and thus the defendant was induced to speak out when he might
have remained silent if not arrested and not questioned, it is patently unsound
to say the response is compelled.
Today's result would not follow even
if it were agreed that to some extent custodial interrogation is inherently
coercive. See Ashcraft v. Tennessee, 322 U.S.
143, 161 (Jackson, J., dissenting). The test has been whether the totality
of circumstances deprived the defendant of a "free choice to admit, to
deny, or to refuse to answer," Lisenba v. California, 314 U.S.
219, 241 , and whether physical or psychological coercion was of such a
degree that "the defendant's will was overborne at the time he
confessed," Haynes v. Washington, 373 U.S.
503, 513 ; Lynumn v. Illinois, 372 U.S.
528, 534 . The duration and nature of incommunicado custody, the presence
or absence of advice concerning the defendant's constitutional rights, and the
granting or refusal of requests to communicate with lawyers, relatives or
friends have all been rightly regarded as important data bearing on the basic inquiry.
See, e. g., Ashcraft v. Tennessee, 322 U.S. 143 ;
Haynes v. Washington, 373 U.S. 503 .
3 [384 U.S.
436, 535] But it has never been suggested, until today, that such
questioning was so coercive and accused persons so lacking in hardihood that
the very first response to the very first question following the commencement
of custody must be conclusively presumed to be the product of an overborne
will.
If the rule announced today were
truly based on a conclusion that all confessions resulting from custodial
interrogation are coerced, then it would simply have no rational foundation.
Compare Tot v. United States, 319 U.S.
463, 466 ; United States v. Romano, 382 U.S. 136 .
A fortiori that would be true of the extension of the rule to exculpatory
statements, which the Court effects after a brief discussion of why, in the
Court's view, they must be deemed incriminatory but without any discussion of
why they must be deemed coerced. See Wilson v. United States, 162 U.S.
613, 624 . Even if one were to postulate that the Court's concern is not
that all confessions induced by police interrogation are coerced but rather
that some such confessions are coerced and present judicial procedures are
believed to be inadequate to identify the confessions that are coerced and
those that are not, it would still not be essential to impose the rule that the
Court has now fashioned. Transcripts or observers could be required, specific
time limits, tailored to fit the cause, could be imposed, or other devices
could be utilized to reduce the chances that otherwise indiscernible coercion
will produce an inadmissible confession.
On the other hand, even if one
assumed that there was an adequate factual basis for the conclusion that all
confessions obtained during in-custody interrogation are the product of
compulsion, the rule propounded by [384
U.S. 436, 536] the Court
would still be irrational, for, apparently, it is only if the accused is also
warned of his right to counsel and waives both that right and the right against
self-incrimination that the inherent compulsiveness of interrogation
disappears. But if the defendant may not answer without a warning a question
such as "Where were you last night?" without having his answer be a
compelled one, how can the Court ever accept his negative answer to the question
of whether he wants to consult his retained counsel or counsel whom the court
will appoint? And why if counsel is present and the accused nevertheless
confesses, or counsel tells the accused to tell the truth, and that is what the
accused does, is the situation any less coercive insofar as the accused is
concerned? The Court apparently realizes its dilemma of foreclosing questioning
without the necessary warnings but at the same time permitting the accused,
sitting in the same chair in front of the same policemen, to waive his right to
consult an attorney. It expects, however, that the accused will not often waive
the right; and if it is claimed that he has, the State faces a severe, if not
impossible burden of proof.
All of this makes very little sense
in terms of the compulsion which the Fifth Amendment proscribes. That amendment
deals with compelling the accused himself. It is his free will that is
involved. Confessions and incriminating admissions, as such, are not forbidden
evidence; only those which are compelled are banned. I doubt that the Court
observes these distinctions today. By considering any answers to any
interrogation to be compelled regardless of the content and course of
examination and by escalating the requirements to prove waiver, the Court not only
prevents the use of compelled confessions but for all practical purposes
forbids interrogation except in the presence of counsel. That is, instead of
confining itself to protection of the right against compelled [384 U.S. 436, 537]
self-incrimination the Court has created a limited Fifth Amendment right
to counsel - or, as the Court expresses it, a "need for counsel to protect
the Fifth Amendment privilege . . . ." Ante, at 470. The focus then is not
on the will of the accused but on the will of counsel and how much influence he
can have on the accused. Obviously there is no warrant in the Fifth Amendment
for thus installing counsel as the arbiter of the privilege.
In sum, for all the Court's
expounding on the menacing atmosphere of police interrogation procedures, it
has failed to supply any foundation for the conclusions it draws or the
measures it adopts.
IV.
Criticism of the Court's opinion,
however, cannot stop with a demonstration that the factual and textual bases
for the rule it propounds are, at best, less than compelling. Equally relevant
is an assessment of the rule's consequences measured against community values.
The Court's duty to assess the consequences of its action is not satisfied by
the utterance of the truth that a value of our system of criminal justice is
"to respect the inviolability of the human personality" and to
require government to produce the evidence against the accused by its own
independent labors. Ante, at 460. More than the human dignity of the accused is
involved; the human personality of others in the society must also be
preserved. Thus the values reflected by the privilege are not the sole
desideratum; society's interest in the general security is of equal weight.
The obvious underpinning of the
Court's decision is a deep-seated distrust of all confessions. As the Court
declares that the accused may not be interrogated without counsel present,
absent a waiver of the right to counsel, and as the Court all but admonishes
the lawyer to [384 U.S. 436, 538] advise the accused to remain silent, the
result adds up to a judicial judgment that evidence from the accused should not
be used against him in any way, whether compelled or not. This is the not so
subtle overtone of the opinion - that it is inherently wrong for the police to
gather evidence from the accused himself. And this is precisely the nub of this
dissent. I see nothing wrong or immoral, and certainly nothing
unconstitutional, in the police's asking a suspect whom they have reasonable
cause to arrest whether or not he killed his wife or in confronting him with
the evidence on which the arrest was based, at least where he has been plainly
advised that he may remain completely silent, see Escobedo v. Illinois, 378 U.S.
478, 499 (dissenting opinion). Until today, "the admissions or
confessions of the prisoner, when voluntarily and freely made, have always
ranked high in the scale of incriminating evidence." Brown v. Walker, 161 U.S.
591, 596 ; see also Hopt v. Utah, 110 U.S.
574, 584 -585. Particularly when corroborated, as where the police have
confirmed the accused's disclosure of the hiding place of implements or fruits
of the crime, such confessions have the highest reliability and significantly
contribute to the certitude with which we may believe the accused is guilty.
Moreover, it is by no means certain that the process of confessing is injurious
to the accused. To the contrary it may provide psychological relief and enhance
the prospects for rehabilitation.
This is not to say that the value of
respect for the inviolability of the accused's individual personality should be
accorded no weight or that all confessions should be indiscriminately admitted.
This Court has long read the Constitution to proscribe compelled confessions, a
salutary rule from which there should be no retreat. But I see no sound basis,
factual or otherwise, and the Court gives none, for concluding that the present
rule against the receipt of coerced confessions is inadequate for the [384 U.S. 436, 539] task of sorting out inadmissible evidence
and must be replaced by the per se rule which is now imposed. Even if the new
concept can be said to have advantages of some sort over the present law, they
are far outweighed by its likely undesirable impact on other very relevant and
important interests.
The most basic function of any
government is to provide for the security of the individual and of his
property. Lanzetta v. New Jersey, 306 U.S.
451, 455 . These ends of society are served by the criminal laws which for
the most part are aimed at the prevention of crime. Without the reasonably
effective performance of the task of preventing private violence and
retaliation, it is idle to talk about human dignity and civilized values.
The modes by which the criminal laws
serve the interest in general security are many. First the murderer who has
taken the life of another is removed from the streets, deprived of his liberty
and thereby prevented from repeating his offense. In view of the statistics on
recidivism in this country 4 and of the number of instances [384 U.S. 436, 540] in which apprehension occurs
only after repeated offenses, no one can sensibly claim that this aspect of the
criminal law does not prevent crime or contribute significantly to the personal
security of the ordinary citizen.
Secondly, the swift and sure
apprehension of those who refuse to respect the personal security and dignity
of their neighbor unquestionably has its impact on others who might be
similarly tempted. That the criminal law is wholly or partly ineffective with a
segment of the population or with many of those who have been apprehended and
convicted is a very faulty basis for concluding that it is not effective with
respect to the great bulk of our citizens or for thinking that without the
criminal laws, [384 U.S. 436, 541] or in the absence of their enforcement, there
would be no increase in crime. Arguments of this nature are not borne out by
any kind of reliable evidence that I have seen to this date.
Thirdly, the law concerns itself
with those whom it has confined. The hope and aim of modern penology, fortunately,
is as soon as possible to return the convict to society a better and more
law-abiding man than when he left. Sometimes there is success, sometimes
failure. But at least the effort is made, and it should be made to the very
maximum extent of our present and future capabilities.
The rule announced today will
measurably weaken the ability of the criminal law to perform these tasks. It is
a deliberate calculus to prevent interrogations, to reduce the incidence of
confessions and pleas of guilty and to increase the number of trials. 5 Criminal trials, no [384 U.S. 436, 542]
matter how efficient the police are, are not sure bets for the
prosecution, nor should they be if the evidence is not forthcoming. Under the
present law, the prosecution fails to prove its case in about 30% of the
criminal cases actually tried in the federal courts. See Federal Offenders:
1964, supra, note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders: 1963,
supra, note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra,
note 4, at 2 (Table 1). But it is something else again to remove from the
ordinary criminal case all those confessions which heretofore have been held to
be free and voluntary acts of the accused and to thus establish a new
constitutional barrier to the ascertainment of truth by the judicial process.
There is, in my view, every reason to believe that a good many criminal
defendants who otherwise would have been convicted on what this Court has
previously thought to be the most satisfactory kind of evidence will now, under
this new version of the Fifth Amendment, either not be tried at all or will be
acquitted if the State's evidence, minus the confession, is put to the test of
litigation.
I have no desire whatsoever to share
the responsibility for any such impact on the present criminal process.
In some unknown number of cases the
Court's rule will return a killer, a rapist or other criminal to the streets
and to the environment which produced him, to repeat his crime whenever it
pleases him. As a consequence, there will not be a gain, but a loss, in human
dignity. The real concern is not the unfortunate consequences of this new
decision on the criminal law as an abstract, disembodied series of
authoritative proscriptions, but the impact on those who rely on the public
authority for protection and who without it can only engage in violent
self-help with guns, knives and the help of their neighbors similarly inclined.
There is, of [384 U.S. 436, 543] course, a saving factor: the next victims
are uncertain, unnamed and unrepresented in this case.
Nor can this decision do other than
have a corrosive effect on the criminal law as an effective device to prevent
crime. A major component in its effectiveness in this regard is its swift and
sure enforcement. The easier it is to get away with rape and murder, the less
the deterrent effect on those who are inclined to attempt it. This is still
good common sense. If it were not, we should posthaste liquidate the whole law
enforcement establishment as a useless, misguided effort to control human
conduct.
And what about the accused who has
confessed or would confess in response to simple, noncoercive questioning and
whose guilt could not otherwise be proved? Is it so clear that release is the
best thing for him in every case? Has it so unquestionably been resolved that
in each and every case it would be better for him not to confess and to return
to his environment with no attempt whatsoever to help him? I think not. It may
well be that in many cases it will be no less than a callous disregard for his
own welfare as well as for the interests of his next victim.
There is another aspect to the
effect of the Court's rule on the person whom the police have arrested on
probable cause. The fact is that he may not be guilty at all and may be able to
extricate himself quickly and simply if he were told the circumstances of his
arrest and were asked to explain. This effort, and his release, must now await
the hiring of a lawyer or his appointment by the court, consultation with
counsel and then a session with the police or the prosecutor. Similarly, where
probable cause exists to arrest several suspects, as where the body of the
victim is discovered in a house having several residents, compare Johnson v.
State, 238 Md. 140, 207 A. 2d 643 (1965), cert. denied, 382 U.S. 1013
, it will often [384 U.S. 436, 544]
be true that a suspect may
be cleared only through the results of interrogation of other suspects. Here
too the release of the innocent may be delayed by the Court's rule.
Much of the trouble with the Court's
new rule is that it will operate indiscriminately in all criminal cases,
regardless of the severity of the crime or the circumstances involved. It
applies to every defendant, whether the professional criminal or one committing
a crime of momentary passion who is not part and parcel of organized crime. It
will slow down the investigation and the apprehension of confederates in those
cases where time is of the essence, such as kidnapping, see Brinegar v. United
States, 338
U.S. 160, 183 (Jackson, J., dissenting); People v. Modesto, 62 Cal. 2d 436,
446, 398 P.2d 753, 759 (1965), those involving the national security, see
United States v. Drummond, 354 F.2d 132, 147 (C. A. 2d Cir. 1965) (en banc)
(espionage case), pet. for cert. pending, No. 1203, Misc., O. T. 1965; cf.
Gessner v. United States, 354 F.2d 726, 730, n. 10 (C. A. 10th Cir. 1965)
(upholding, in espionage case, trial ruling that Government need not submit
classified portions of interrogation transcript), and some of those involving
organized crime. In the latter context the lawyer who arrives may also be the
lawyer for the defendant's colleagues and can be relied upon to insure that no
breach of the organization's security takes place even though the accused may
feel that the best thing he can do is to cooperate.
At the same time, the Court's per se
approach may not be justified on the ground that it provides a "bright
line" permitting the authorities to judge in advance whether interrogation
may safely be pursued without jeopardizing the admissibility of any information
obtained as a consequence. Nor can it be claimed that judicial time and effort,
assuming that is a relevant consideration, [384
U.S. 436, 545] will be
conserved because of the ease of application of the new rule. Today's decision
leaves open such questions as whether the accused was in custody, whether his
statements were spontaneous or the product of interrogation, whether the
accused has effectively waived his rights, and whether nontestimonial evidence
introduced at trial is the fruit of statements made during a prohibited
interrogation, all of which are certain to prove productive of uncertainty
during investigation and litigation during prosecution. For all these reasons,
if further restrictions on police interrogation are desirable at this time, a
more flexible approach makes much more sense than the Court's constitutional
straitjacket which forecloses more discriminating treatment by legislative or
rule-making pronouncements.
Applying the traditional standards
to the cases before the Court, I would hold these confessions voluntary. I
would therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584.
[ Footnote 1 ] Of course the Court does not deny that it is departing
from prior precedent; it expressly overrules Crooker and Cicenia, ante, at 479,
n. 48, and it acknowledges that in the instant "cases we might not find
the defendants' statements to have been involuntary in traditional terms,"
ante, at 457.
[ Footnote 2 ] In fact, the type of sustained interrogation described by
the Court appears to be the exception rather than the rule. A survey of 399
cases in one city found that in almost half of the cases the interrogation
lasted less than 30 minutes. Barrett, Police Practices and the Law - From
Arrest to Release or Charge, 50 Calif. L. Rev. 11, 41-45 (1962). Questioning
tends to be confused and sporadic and is usually concentrated on confrontations
with witnesses or new items of evidence, as these are obtained by officers
conducting the investigation. See generally LaFave, Arrest: The Decision to
Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment
Procedure, Commentary 5.01, at 170, n. 4 (Tent. Draft No. 1, 1966).
[ Footnote 3 ] By contrast, the Court indicates that in applying this new
rule it "will not pause to inquire in individual cases whether the
defendant was aware of his rights without a warning being given." Ante, at
468. The reason given is that assessment of the knowledge of the defendant
based on information as to age, education, intelligence, or prior contact with
authorities can never be more than speculation, while a warning is a clear-cut
fact. But the officers' claim that they gave the requisite warnings may be
disputed, and facts respecting the defendant's prior experience may be
undisputed and be of such a nature as to virtually preclude any doubt that the
defendant knew of his rights. See United States v. Bolden, 355 F.2d 453 [384 U.S. 436, 535] (C. A. 7th Cir. 1965), petition for cert.
pending No. 1146, O. T. 1965 (Secret Service agent); People v. Du Bont, 235
Cal. App. 2d 844, 45 Cal. Rptr. 717, pet. for cert. pending No. 1053, Misc., O.
T. 1965 (former police officer).
[ Footnote 4 ] Precise statistics on the extent of recidivism are
unavailable, in part because not all crimes are solved and in part because
criminal records of convictions in different jurisdictions are not brought
together by a central data collection agency. Beginning in 1963, however, the
Federal Bureau of Investigation began collating data on "Careers in
Crime," which it publishes in its Uniform Crime Reports. Of 92,869
offenders processed in 1963 and 1964, 76% had a prior arrest record on some
charge. Over a period of 10 years the group had accumulated 434,000 charges.
FBI, Uniform Crime Reports - 1964, 27-28. In 1963 and 1964 between 23% and 25%
of all offenders sentenced in 88 federal district courts (excluding the
District Court for the District of Columbia) whose criminal records were
reported had previously been sentenced to a term of imprisonment of 13 months
or more. Approximately an additional 40% had a prior record less than prison
(juvenile record, probation record, etc.). Administrative Office of the United
States Courts, Federal Offenders in the United States District Courts: 1964, x,
36 (hereinafter cited as Federal Offenders: 1964); Administrative [384 U.S. 436, 540]
Office of the United States Courts, Federal Offenders in the United
States District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders:
1963). During the same two years in the District Court for the District of
Columbia between 28% and 35% of those sentenced had prior prison records and
from 37% to 40% had a prior record less than prison. Federal Offenders: 1964,
xii, 64, 66; Administrative Office of the United States Courts, Federal
Offenders in the United States District Court for the District of Columbia:
1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).
A similar picture is obtained if one
looks at the subsequent records of those released from confinement. In 1964,
12.3% of persons on federal probation had their probation revoked because of
the commission of major violations (defined as one in which the probationer has
been committed to imprisonment for a period of 90 days or more, been placed on
probation for over one year on a new offense, or has absconded with felony
charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9%
of those who had been mandatorily released after service of a portion of their
sentence likewise committed major violations. Reports of the Proceedings of the
Judicial Conference of the United States and Annual Report of the Director of
the Administrative Office of the United States Courts: 1965, 138. See also
Mandel et al., Recidivism Studied and Defined, 56 J. Crim. L., C. & P. S.
59 (1965) (within five years of release 62.33% of sample had committed offenses
placing them in recidivist category).
[ Footnote 5 ] Eighty-eight federal district courts (excluding the
District Court for the District of Columbia) disposed of the cases of 33,381
criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of
the remaining cases, 89.9% were terminated by convictions upon pleas of guilty
and 10.1% were dismissed. Stated differently, approximately 90% of all
convictions resulted from guilty pleas. Federal Offenders: 1964, supra, note 4,
3-6. In the District Court for the District of Columbia a higher percentage,
27%, went to trial, and the defendant pleaded guilty in approximately 78% of
the cases terminated prior to trial. Id., at 58-59. No reliable statistics are
available concerning the percentage of cases in which guilty pleas are induced
because of the existence of a confession or of physical evidence unearthed as a
result of a confession. Undoubtedly the number of such cases is substantial.
Perhaps of equal significance is the
number of instances of known crimes which are not solved. In 1964, only
388,946, or 23.9% of 1,626,574 serious known offenses were cleared. The
clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI,
Uniform Crime Reports - 1964, 20-22, 101. Those who would replace interrogation
as an investigatorial tool by modern scientific investigation techniques
significantly overestimate the effectiveness of present procedures, even when
interrogation is included. [384 U.S.
436, 546]