Escobedo v. Illinois

Mr. Justice Harlan,

dissenting.

I would affirm the judgment of the Supreme Court of Illinois on the basis of Cicenia v. Lagay, 357 U. S. 504 , *493 decided by this Court only six years ago. Like my Brother White, post, p. 495, I think the rule announced today is most ill-conceived and that it seriously and unjustifiably fetters perfectly legitimate methods of criminal law enforcement.

Mr. Justice Stewart,

dissenting.

I think this case is directly controlled by Cicenia v. Lagay, 357 U. S. 504 , and I would therefore affirm the judgment.

Massiah v. United States, 377 U. S. 201 , is not in point here. In that case a federal grand jury had indicted Massiah. He had retained a lawyer and entered a formal plea of not guilty. Under our system of federal justice an indictment and arraignment are followed by a trial, at which the Sixth Amendment guarantees the defendant the assistance of counsel. * But Massiah was released on bail, and thereafter agents of the Federal Government deliberately elicited incriminating statements from him in the absence of his lawyer. We held that the use of these statements against him at his trial denied him the basic protections of the Sixth Amendment guarantee. Putting to one side the fact that the case now before us is not a federal case, the vital fact remains that this case does not involve the deliberate interrogation of a defendant after the initiation of judicial proceedings against him. The Court disregards this basic differenbe between the present case and Massiah’s, with the bland assertion that “that fact should make no difference.” Ante, p. 485.

It is “that fact,” I submit, which makes all the difference. Under our system of criminal justice the institution of formal, meaningful judicial proceedings, by way of indictment, information, or arraignment, marks the *494 point at which a criminal investigation has ended and adversary proceedings have commenced. It is at this point that the constitutional guarantees attach which pertain to a criminal trial. Among those guarantees are the right to a speedy trial, the right of confrontation, and the right to trial by jury. Another is the guarantee of the assistance of counsel. Gideon v. Wainwright, 372 U. S. 335 ; Hamilton v. Alabama, 368 U. S. 52 ; White v. Maryland, 373 U. S. 59 .

The confession which the Court today holds inadmissible was a voluntary one. It was given during the course of a perfectly legitimate police investigation of an unsolved murder. The Court says that what happened during this investigation “affected” the trial. I had always supposed that the whole purpose of a police investigation of a murder was to “affect” the trial of the murderer, and that it would be only an incompetent, unsuccessful, or corrupt investigation which would not do so. The Court further says that the Illinois police officers did not advise the petitioner of his “constitutional rights” before he confessed to the murder. This Court has never held that the Constitution requires the police to give any “advice” under circumstances such as these.

Supported by no stronger authority than its own rhetoric, the Court today converts a routine police investigation of an unsolved murder into a distorted analogue of a judicial trial. It imports into this investigation constitutional concepts historically applicable only after the onset of formal prosecutorial proceedings. By doing so, I think the Court perverts those precious constitutional guarantees, and frustrates the vital interests of society in preserving the legitimate and proper function of honest and purposeful police investigation.

Like my Brother ClaRK, I cannot escape the logic of my Brother White’s conclusions as to the extraordinary implications which emanate from the Court’s opinion in *495 this case, and I share their views as to the untold and highly unfortunate impact today’s decision may have upon the fair administration of criminal justice. I can only hope we have completely misunderstood what the Court has said.

Mr. Justice White,

with whom Mr. Justice Clark and Mr. Justice Stewart join,

dissenting.

In Massiah v. United States, 377 U. S. 201 , the Court held that as of the date of the indictment the prosecution is disentitled to secure admissions from the accused. The Court now moves that date back to the time when the prosecution begins to “focus” on the accused. Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainright, 372 U. S. 335 ; Griffin v. Illinois, 351 U. S. 12 ; Douglas v. California, 372 U. S. 353 , or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U. S. 506 . At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel. The decision is thus another major step in the direction of the goal which the Court seemingly has in mind — to bar from evidence all admissions obtained from an individual suspected of crime, whether involuntarily made or not. It does of course put us one step “ahead” of the English judges who have had the good sense to leave the matter a discretionary one with the trial court. * I reject this step and *496 the invitation to go farther which the Court has now issued.

By abandoning the voluntary-involuntary test for admissibility of confessions, the Court seems driven by the notion that it is uncivilized law enforcement to use an accused’s own admissions against him at his trial. It attempts to find a home for this new and nebulous rule of due process by attaching it to the right to counsel guaranteed in the federal system by the Sixth Amendment and binding upon the States by virtue of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, supra. The right to counsel now not only entitles the accused to counsel’s advice and aid in preparing for trial but stands as an impenetrable barrier to any interrogation once the accused has become a suspect. From that very moment apparently his right to counsel attaches, a rule wholly unworkable and impossible to administer unless police cars are equipped with public defenders and undercover agents and police informants have defense counsel at their side. I would not abandon the Court’s prior cases defining with some care and analysis the circumstances requiring the presence or aid of counsel and substitute the amorphous and wholly unworkable principle that counsel is constitutionally required whenever he would or could be helpful. Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59 ; Gideon v. *497 Wainwright, supra. These cases dealt with the requirement of counsel at proceedings in which definable rights could be won or lost, not with stages where probative evidence might be obtained. Under this new approach one might just as well argue that a potential defendant is constitutionally entitled to a lawyer before, not after, he commits a crime, since it is then that crucial incriminating evidence is put within the reach of the Government by the would-be accused. Until now there simply has been no right guaranteed by the Federal Constitution to be free from the use at trial of a voluntary admission made prior to indictment.

It is incongruous to assume that the provision for counsel in the Sixth Amendment was meant to amend or supersede the self-incrimination provision of the Fifth Amendment, which is now applicable to the States. Malloy v. Hogan, 378 U. S. 1 . That amendment addresses itself to the very issue of incriminating admissions of an accused and resolves it by proscribing only compelled statements. Neither the Framers, the constitutional language, a century of decisions of this Court nor Professor Wigmore provides an iota of support for the idea that an accused has an absolute constitutional right not to answer even in the absence of compulsion — the constitutional right not to incriminate himself by making voluntary disclosures.

Today’s decision cannot be squared with other provisions of the Constitution which, in my view, define the system of criminal justice this Court is empowered to administer. The Fourth Amendment permits upon probable cause even compulsory searches of the suspect and his possessions and the use of the fruits of the search at trial, all in the absence of counsel. The Fifth Amendment and state constitutional provisions authorize, indeed require, inquisitorial grand jury proceedings at which a potential defendant, in the absence of counsel, *498 is shielded against no more than compulsory incrimination. Mulloney v. United States, 79 F. 2d 566, 578 (C. A. 1st Cir.); United States v. Benjamin, 120 F. 2d 521, 522 (C. A. 2d Cir.); United States v. Scully, 225 F. 2d 113, 115 (C. A. 2d Cir.); United States v. Gilboy, 160 F. Supp. 442 (D. C. M. D. Pa.). A grand jury witness, who may be a suspect, is interrogated and his answers, at least until today, are admissible in evidence at trial. And these provisions have been thought of as constitutional safeguards to persons suspected of an offense. Furthermore, until now, the Constitution has permitted the accused to be fingerprinted and to be identified in a line-up or in the courtroom itself.

The Court chooses to ignore these matters and to rely on the virtues and morality of a system of criminal law enforcement which does not depend on the “confession.” No such judgment is to be found in the Constitution. It might be appropriate for a legislature to provide that a suspect should not be consulted during a criminal investigation ; that an accused should never be called before a grand jury to answer, even if he wants to, what may well be incriminating questions; and that no person, whether he be a suspect, guilty criminal or innocent bystander, should be put to the ordeal of responding to orderly non-compulsory inquiry by the State. But this is not the system our Constitution requires. The only “inquisitions” the Constitution forbids are those which compel incrimination. Escobedo’s statements were not compelled and the Court does not hold that they were.

This new American judges’ rule, which is to be applied in both federal and state courts, is perhaps thought to be a necessary safeguard against the possibility of extorted confessions. To this extent it reflects a deep-seated distrust of law enforcement officers everywhere, unsupported by relevant data or current material based upon our own *499 experience. Obviously law enforcement officers can make mistakes and exceed their authority, as today’s decision shows that even judges can do, but I have somewhat more faith than the Court evidently has in the ability and desire of prosecutors and of the power of the appellate courts to discern and correct such violations of the law.

The Court may be concerned with a narrower matter: the unknowing defendant who responds to police questioning because he mistakenly believes that he must and that his admissions will not be used against him. But this worry hardly calls for the broadside the Court has now fired. The failure to inform an accused that he need not answer and that his answers may be used against him is very relevant indeed to whether the disclosures are compelled. Cases in this Court, to say the least, have never placed a premium on ignorance of constitutional rights. If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him. When the accused has not been informed of his rights at all the Court characteristically and properly looks very closely at the surrounding circumstances. See Ward v. Texas, 316 U. S. 547 ; Haley v. Ohio, 332 U. S. 596 ; Payne v. Arkansas, 356 U. S. 560 . I would continue to do so. But in this case Danny Escobedo knew full well that he did not have to answer and knew full well that his lawyer had advised him not to answer.

I do not suggest for a moment that law enforcement will be destroyed by the rule announced today. The need for peace and order is too insistent for that. But it will be crippled and its task made a great deal more difficult, all in my opinion, for unsound, unstated reasons, which can find no home in any of the provisions of the Constitution.

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

“[I]t seeems from reported cases that the judges have given up enforcing their own rules, for it is no longer the practice to exclude evidence obtained by questioning in custody. ... A traditional principle of ‘fairness’ to criminals, which has quite possibly lost some of *496 the reason for its existence, is maintained in words while it is disregarded in fact. . . .

“The reader may be expecting at this point a vigorous denunciation of the police and of the judges, and a plea for a return to the Judges’ Rules as interpreted in 1930. What has to be considered, however, is whether these Rules are a workable part of the machinery of justice. Perhaps the truth is that the Rules have been abandoned, by tacit consent, just because they are 'an unreasonable restriction upon the activities of the police in bringing criminals to book.” Williams, Questioning by the Police: Some Practical Considerations, [1960] Crim. L. Rev. 325, 331-332. See also [1964] Crim. L. Rev. 161-182.