# Petition for Writ of Certiorari — Pennsylvania v. Ware > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0594%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 406 U.S. 910 ## Text rN THE No. COMMONWEALTH OF PENNSYLVANIA. oa Peitoner, ay : PAUL D. WARE, 3 | _° Respondent. — = > PETITION F OR WRIT OF CERTIORARI TO THE SUPREME COURT neal PENNSYLVANIA. _ JAMES T. RANNEY, '. Assistant District Attorney, MILTon M. STEIN, : Assistant District Attorney, Chief, Appeais Division, James D. CRAWFORD, Deputy District Attorney, RicHArD A. SPRAGUE, First Assistant District Attorney, ' ARLEN SPECTER, District. Attorney: aie . . Room 666, City Hall : 3 ie 7 ' Philadelphia, Pa. 19107 ; 7 Huntzinger Printing Corp., Appellate Printers, Camden, N. J. <> ‘a I,-The Pennsylvania Supreme Court Has heen. - erly Held That Decisions of This Court Compel It To Apply Miranda v.. Arizona, 384 U. S. 436 (1966), To a Case: Where the Questioning Oc- curred Before the Miranda Decision (Although the Trial Was Fortuitously Delayed Until After Miranda) Since: 1. The “Trial-Date” ‘selina in ‘Johinnein Vv. New Jersey, 384 U. S. 719 (1966), was Inad- _ vertent, Unrequired by the Facts of That Case ~ and Not Involved in stata or: oe of That Case; Even if This Language Had Been a Considered Choice Between a “Trial-Date” and’ an “Ac- tivity-Date” Cut-Off Rule for Retroactivity Purposes, it Has Never Been Suggested by Any Court that.a “Trial-Date” Rule of Pro- spectivity is Constitutionally Required; . In Later Cases Where This Court Eventually Did Make a Considered: Choice Between a “Trial-Date” ‘Rule and an “Activity-Date” Rule for Setting a Retroactivity Cut-Off Date, This Court Has Consistently Adopted an “Ac- tivity-Date” Rule; and \ - INDEX ; PAGE . Opinions Below .:..... [Sweucisewee tas SAS ae ARBRE 2 Jurisdiction av icacc tr iauiener es yer Fa as Questions Presented ....... Di iciece neat se wake nice. a Constitutional and Statutory Provisions Inyolved ciao am Statement of the-Case ............. Tae ences ene Reasons for ‘Griniine SE WIE Gisigac heeiseeee ks 13 ¥ PERLE EI i a aa _ INDEX ee | PAGE 4. An “Activity-Date” Rule is Eminently Prefer- — _ able in View of (a) the Purposes of Miranda, ‘Which Would in No Way be Furthered by Ap- plying its Strictures to a 1963 Confession; (b) the Reliance by Police Officers-(the Very . Persons Who Must Enforce the Law on a Day- » to-Day Basis) on Pre-Miranda Law; and (c) tHe: Demoralizing Effect of Setting Free a ‘Confessed Four-Time Murderer Needlessly ‘and Continuing the Release of Countless Other Confessed Criminals Due to the Anoma- lous “TTIRI-DIM” BUMS... oss cnn scccevenses 13 II. As a Result of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. C. Sec. 3501 (b), Respondent’s Clearly Voluntary Confessions, Should Properly Be Admissible At His Trial ... 27 CIES rere ees Pe a De ice WBE aso "Appendix Pee ee errr eee foie hee recs ree .. & A. Opinion and Order of the en D. Donald Jamie- son, Court of Common Pleas, entered December TA EE ck Eee bed das ede aWeWasd weaee G ore B. = and Order of the Hon. Robert N. C. Nix,. ' . Jr., Court of Common Pleas, entered June 19, . es Perr yee eee Pe TT Te ee eee ee ee ee ws “ae | C. Opinion and Order of the Hon. Robert N. C. ‘Nix, Jr., Court of Common Pleas, entered November 13, 1970 ...........-.. FIA RIS AA SS oes 44 _D. Opinion and. a ilaiaiienn of the Pennsylvania Su- preme Court, filed December. 20, 1971 mates. ae E. Selected Portions of Committee Report, P. . 90- ‘351, Title II, 1968 U. S. Code Congressional and Administrative News 2112 .......2...--0.-00:. 76 _ INDEX TABLE sani CITATIONS PENNSYLVANIA CASES: : ; PAGE Commonwealth v. Bennett, 439 Pa. 34 (1970) ....16,29 Commonwealth v. Bordner, 432 Pa. 405 (1968) .... 15 - Commonwealth v. Davis, 440 Pa. 3S CSR)... .. 16 Commonwealth v. Dixon, 432 Pa. 423 (1968)'....... 15 Commonwealth v. Leaming, 432 Pa. 326 (1968) .... 15 " Commonwealth v. Robinson, 428 Pa. 458 (1968) ... 15 Commonwealth v. Schmidt, 423 Pa. 432 (1966) .... 16 Commonwealth v. Singleton, 439 Pa. 185 (1970).... 16 . Commonwealth v. Sites, 427 Pa. 486 (1967) va . Commonwealth v. Ware, 438 Pa. 517 (1970) ....... 16. - Commonwealth v. Ware, —— Pa. —— (1971) ..... 16 Commonwealth v. Williams, 432 Pa. 597 (1968) ..15, 16 Commonwealth v. Willman, 434 Pa. 489 (1969) .:.. 16 Commonwealth v. Yount, 435 Pa. 276 (1969) ... 2 ne ee FEDERAL CASEs: . ore . Baines v. United States, 426 F. 2d 833 (5th Cir. 1970) -17 Bivens: v. Six Unknown Named Agents of Federal * Bureau of Narcotics, 403 U. S. 388 bee 31 Bloom v. Illinois, 391 U. S. 194 (1968) ........ ons ae Bolling v. Sharpe, 347 U. S. 497 (1954) ........... 29 “Camacho v. United States, 407 F. 2d 39 (9th Cir. 1969) ..... Reece Fy pear ere Bee OR ee ee 17- Chimel v. California, 395 U. S. 752 (1969) ......-.. 19 » Coolidge v. New: Hampshire, 403 U. S. 443 (1971) .. 31 - PROUT TESTaRR eMNY MERE bee Po ; PAGE Desist v, Uritted States, 394 U.S. 244 (1969) 19, 20, 22, 23 DeStefano v. Woods, 392:U. S. 631 (1968) ..:...... 21 Duncan v. Louisiana, 391 U. S: 145 (1968) ...2.... 21 ‘Escobedo v. Illinois, 378: U. S. 478 (1964), ...15, 17, 18, 22 Evans v. United States, 375 F. 2d 355 (8th Cir. 1967) 17 Frazier v. Cupp, 394 U.S. 731 (1969) ..... Lares 15 Gilbert v. California, 388 U. S. 263 (1967) .......... 20 Griffin v. California, 380 U. S. 609 (1965) ...../..... 20 Griffith v. Jones, 283 F. Supp. 794 (N. D. Ga. 1967)... 17 Groshart. v. United’ States, 392. F. 2d 172 (9th Cir. an ee ae ee ee Ae Grasso v. United States, 390 US S. 62 1968) . ee eron 21° Harris v. New York, —— U: S. —, 91 S. Ct. 643 is cae Jenkins v: Delaware, 395 U. S. 213 (1969) 15, 16, 19, 23, 24 eee ‘New Jersey, 384 U. S. 719 (1966)... .13, 14, 15, - 16,17, 18, 19, 24, 25, 26 Katz v. United States, 389 U. S. 347 (1967) ........ 20 _Linkletter v. Walker, 381 U. S. 618 (1965).. .15, 16, 19, 24 Mackey v. United States, —— U. S. —, 91S. Ct. °1160.(1971) ..... fe COE Seles ee roar Un Cetin "91 Marchetti v. United States, 390 U. S. 39 (1968) ..... 21 _ Miranda v. Arizona, 384 U.S. 436 (1966) .....2, 5, 7, 9, 11, 13, 14, 15, 16, 17, 18, 19, 21, ‘22, — 23, 24, 25, 26, 27, 28, 29, 30, 31 Q’ Connor Vv. Ohio, 385 U. S. 92 (1966) .... que eae ee 20 Posey v. United States, 416 F. 2d 545 (5th Cir. 1969) ‘Price v. Georgia, 398 U. S. 323 (1970) ......... sewee BL A CEE ala — : Rochin v. California, 342. U. S. 165.(2962) 2. 31 Rolland.v. People of State of Michigan, 320 F. Supp. 1195 (E. D. Mich. 1970) ........ SC heeaea ss boc 17 Rowe v. “Peyton, 383 F. 2d: 709 (4th Cir, 1967); aid, 391 U. S. o4 (1968) 5: ak ALARA Dheeed ee wae ee 20 . Sheer v. United States, 414 F. 2d 22 (5th Cir. 1969) Smith v. Peyton, 295 F. Supp. 137 (Ww. D. Va. 1968) 17 ‘Stovall v. Denno, 388 U. S. 293 (1967) ....... 16, 19; 20 United States v. Chaplin, 435 F. 2d 320 (2d Cir. 1970) VW United States \ Vv. Dickerson 413 F. 2d 1111 (7th >. ar WOR ee ee Se 2 Ak 200 United States v. Fox, 403 F. 2d 97 (2d Cir. 1968) . 16° - United States y. Vanterpoal, 394 F. 2d 697 (2d Cir, ; oe oe ee es 16 . United States v. Wade? 388 U. S. 218 (1967) ...... i _ United States v. White, 417 F. 2d 89 (2d Cir. 1969) .. 26 Williams -v. United States, —— U.S. —, 91. S. Ct, - Bea {2.3 PE re Ne OTHER os Clark V. Smith, 1648. E. od 790 (Ga. 1968) Se nheete Cee . Commonwealth v. Bujnowski, 267 N. E. 2d 924 (Mass. . App. 1971) ..... wee aot eas a ees 17 Flowers v. State, 168 N, W. 2d 843 (Wis. 1969) ak 18 Guyette v. State, 438 P. 2d 244 (Nev. 1968) ..... ae "Mora v. People, 481 P. 729 (Colo. 1971) .....:.....0 17 ’ Penn vy. Commonwealth, 169 S. E. 2d 427 (Va. 1969).. 18° People v. Kilduff, 276 N. Y. S. 2d 814 (N. Y. Co. Ct. er te aE Sern ae nee 18 INDEX - we wre , PAGE “People v:P P, 233 N.E. 2d 255 (N.Y. Ae. 1967) ..... 18 " People v. Peacock, 287 N.Y. S. 2d 166 (N. Y. App. . 1968)... ele eeeetee eevee, oesebenecatsess 18 People v. Tucker, 172 N. W. 24.712 (Mich. App. 1969), 18 ________People v. Welborn, 82 Cal. Rptr. 845 (Cal. App. 1969) 17 -: . State v. Anderson, 229 So. 2d 329 (La. 1969) ........ - wet : State v. Brown, —— A. 2d —-, 279 A. 2d 554 (Conn. RE ieee oe ampere me pepe ae, 90. State v. “ButlerS249 N. E. 2a 818 (Ohio 1969) ....... 18 State v. Gannites, 221 A. 2d 620 (R. I. 1966) ........ 19 State v. Knott, 249 A. 2d 421 (R.1: 1969) ..0......0. 18 " State v. Lewis, 164 S. E. 2d 177 (N. C. 1968),........ 18 State v. Mendes, 210 A. 2d 50 (R. I. 1964)... eee 19 State v. Travis, 231 A. 2d 205 (N. J. 1967)... satned 18, 26 '\” State v. Wong, 430 P. 2d 330 (Hawaii 1967) ..-...... 17 Young v. State, 234 So. 2d 341 (Fla. 1970) .......... 17° ~ MISCELLANEOUS: Fairchild, Limitation of New J testis Law to * Prospective Effect Only: “Prospective Overrul- — ing” or “Sunbursting,” 51 Marg. L. Rev. 254 CHOSE © 6 _ FINDINGS OF FACT. e While walking his beat on September 27, 1963, at -approximately 12:30 P. M., Officer Parks was informed that _ a woman was looking for a policeman. He proceeded to the “+ 3200 block.of Dakota Street where he met the woman who - described to him a man who had ee to enter her © home (N. T. 12). 2. As Officer Parks jail down the street he heard . another woman scream—‘He’s here again.”—from the sec- ond story window of a home .at 2301 North 32nd Street. . '. As Officer Parks entered that home he came upon the de- fendant Paul Douglas Ware, who was leaving and he ; grabbed Ware as. the woman screamed—“That-him!” Ware told the policeman that. he was there for a ae job -° and that he was a- Roman Catholic (N. T. 12-13). 3. Officer Parks called for a wagon and todk Ware to _ the 22nd, District, arriving at approximately 1:00 P.M. (N. T..14). After consulting with his superior, mentioning - the resemblance of Ware to the description on a wanted circular for the Gandy murde, Parks took Ware to the — North Céntral. Detective . Division, located in _ the same building, at 1:10 P.M. (N. T. 14-16). a. was at. the home for a cleaning job (N. T. '16-18;. 27-30). —e = 4:00 P.M., September. 27, 1963, Wate wine taken by 6. Ware was turned over to Sergeant William Greeh of | ’ the ‘Homicide Division Headquarters in the P. A. B. He was aware that Ware was a Possible suspect. in the Gandy homicide which was his assigned case. Green placed Ware in an interview. room (N.-T. 32-33). 7. The first and all subsequent interrogations of Ware in the P. A. B: occurred in interview rooms which are bare cubicles, approximately nine feet by nine feet, containing | a table and two chairs with a two-way mirror window. _ one wall for observation from the hallway into ‘the room . (N..T.33), ¢ him for about one hour to an hour and a quarter concern- ing the. Gandy homicide. Ware denied any knowledge of _ the crime (N. T. 34-35). Rees soak _ 9. Between 6:00 P.M. and 6:25 P.M., Sergeant Green | took Ware to the Mobile Crime Detection Unit also in the P. A. B.. where Ware was fingerprinted (N. T. 35-36). ° ‘to whether they were the scene. he was describing: On identifying each of the four, Wafe ‘initialed ws pictures . (N. T. 167). | 40. Between 4:02 A.M. and 4:05 A.M. after the entire process of interrogation and statement taking was complete, Ware was taken into the large main room where a full length photograph (C-PTS8) was taken of him (N. Z- 168-169). ‘41. Between 4:05 AM. and. 5: 30 A.M. Ware was.driven | around and he directed the police ‘to each of the four crime «| | - scenes and arco them (N. 'T. 170- sights i 42. At . 30 AM. the police c caravan arrived at the 23rd | |. District from its tour of the crime scenes. . Mr. Richard © Sprague of the Office of the District Attorney desired to speak to Ware concerning the charges and police treat- | ment of the defendant. Ware insisted on the presence of’ a member of his own race and ‘Sgt. Johnson, who had no - previous contact with the case, was brought in. Sprague - informed Ware that he was being charged with the mur- . der of the four people and inquired of his treatment by ’ the police. Ware said that he understood the charges and that he had been treated without force, abuse or violence and that the statements were not the product of force, threats or promises AN. ‘T. 172-174; 207; 212). 43. At 5:35 A.M. Ware was slated on'the charges in the = Police District and at 5:40 A. M. Detectives Krimmel, 56 : _ Roberts and Kinsey’. took Ware from .the police station for ° ~ return to Holmesburg Prison mm, T. 175): ‘es 44. Dr. Bernard Willis of Farview State Hospital, where. e ‘Ware has been.committed since-December of 1963, testified. . that he could not with certainty:give an opinion as to Ware's mental condition at the time the statements were . : given. He did feel that Ware had been suffering from some = ee mental disorder’ at that time, but not as sérious as when _ __ » he first examined Ware in December of 1963. ' He described ' _ the situation, as one of rapid deterioration. In answer to ; questions by’ the Court, Dr. Willis expressed the opinion ) that Ware would have realized he was under suspicion for serious offenses, that he would at least have had intel- — lectual appreciation of the fact that admissions on his part - could be used by the authorities agdirist him, and that: his illness, whatever it was, probably had no degree of com- pulsion with it that would make —_ act e cgpnst his own interests (N.T. 170-137). angina 1. The Statements Both Oral and Written Were Made ; Voluntarily. : It has been long recognized that the fourteenth amiend- * ment to the United States Constitution prohibits the use of an involuntarily given confession to convict a defendant. ’ Fikes v. Alabama, 352 U. S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 | (1957); Watts v.-Indiana, 338 U.S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801 (1949); Brown v. State of Mississippi, 297 U. S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936). _The United States ’. Supreme Court has undertaken to réview the voluntariness of confessions used in state presecutions since Brown v. State of Mississippi, supra, in 1936. “The standard of vol- untariness which has evolved under the Due Process Clause of the Fourteenth Amendment is the same general standard which ap; vlied in federal prosécutions—a standard grounded in the policies of the privilege against self-incrimination.” Malloy v. Hogan, 378 U,, S. 1, 6-8, 84 S.-Ct. 1489, 1492-3, 12.. L. Ed. 2d 653 (1964) ; Davis v. State of North Carolina, 384 _ U.S. 737, 740, 86.S. Ct. 1761, 1764, 16 L. Ed.2d 895 (1966). Ours being an accusatory not an-inquisitorial system, the concern is not primarily that the involuntary ‘statement ______will -be-untrue,but that the right of the individual not to >on convict himself out of his own mouth may be violated. _ Miranda, supra; Chambers v. State of Florida, 309 U. S.— 227, 235-8, 60 S. Ct. 472, 476-7, 84 L. Ed. 716 (1940). With this orientation toward the problem, the inquiry is centered on the suspect, and on the police only so far as - their -conduct affects the méntal and physical state of the ~ suspect. Thus, ‘any given police activity, be it shockingly. - ~. . improper or scrupulously circumspect, is not the sole meas- ure of voluntariness of the confession. Malloy v. Hogan, _ supra; Bram v. United States, 158 U. S. 532, 18 S. Ct. 183, . 42 L. Ed. 568 (i1897)- The focus is the state of the suspect, which is the result of many factors of which police con- duct is only one. In making this subjective determination of voluntariness the range of judicial inquiry is broad and the judgment must be based upon consideration of the totality of the circwmstances. Reck v. Pate, 367 U. S. 433, 81 S.°Ct. 1541, 6 L. Ed. 2d 948 (1961); Bla kburn v. Ala- bama, 361 U. S. 199, 206, 80 S. Ct. 274, 280, 4 L. Ed. 2d 242 . (1960); Fikes v. Alabama, supra; Commonwealth ex rel. Corbin v. Myers, 423 Pa. 243, 223 A. 2d 738 (1966); Com- monwealth v. Cheeks, 423 Pa. 67, 223 A. 2d 291 (1966); Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A. 2d 628 (1966); Commonwealth v. Brown, 309 Pa. 515, 164 A. 2d 726 (1933). “The nature of the question presentéd is such that ‘no single litmus-paper test for constitutionally impermissible interrogation has been evolved : . .’ Culombe v: Connecticut, 367 U. S. 568, 601, 81 S. Ct. 1860, 1878, 6 L. Ed. 2d 1037, 1057 (1961).” Commonwealth ex rel. Gaito v. . Maroney, supta. Thus, the ultimate factual determination 58 - is a conclusion as to whether any one, or all the factors together, resulted in the overbearing of the suspect’s will such that the confession was-not the result ‘of a free and ~ voluntary self-determination to speak. Lynuman v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963); Malloy v. Hogan, supra; Townsend v. Sain, 372 U. S. 293,83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Columbe v. Connecticut, supra; Rogers v. Richmond, 365.U. S. 534; 81 S. Ct. 735, 5 L. Ed. 2d. 760 (1961); Blackburn v. Alabama, supra; Bram. v. United. States, supra; Commonwealth ex vat. Gaito v. Maroney, supra. The court is' free to consider any factor which it believes might have had some effect on the physical and mental _ State of the suspect at the time the confession was made. ‘The cases reveal a- wide range of the potentially infinite number of factors which might contribute to the atmos- phere, environment, or, as the courts have called it, the -. totality of circumstances in which the statement was made.. Among them are: whether the suspect was warned of his constitutional rights; the length of the interrogation period both as to continuous hours in one day and as to the num- ber of days in which interrogation occurs; physical abuse by the authorities; granting of sufficient nourishment, water, rest and sleep and access to sanitary facilities; the num- ber of police officers performing the interrogation and the environment of the questioning, such as size and lighting of the room; the presence of or opportunity to see-friends, relatives or legal counsel; the making of threats or promises such as withholding rest or rights or.assuring that a rela- tive will be-left out of it, until a confession is made; the existent mental and physical health of the suspect at the . time of the confession; the psychological tactics and ae _ sures applied by the authorities. . . A review of the testimony elicited at the suppression . hearing yields a ‘picture of the “totality of the circum- stances” in this case. At no time was Ware effectively | warned of his constitutional rights (F. F. 4, 8, 12, 13; 24). oe 59° . At no time were any threats, promises or other improper influences brought to bear upon Ware. ‘At all times Ware . ducted the interrogation. (F. F. 24). There were four days: during which interrogation occurred Spaced out over a six day period with a combined total of approximately | ' twenty hours of questioning. A large proportion of the time was consumed by Ware’s own rambling monologues’ concerning his beliefs. .No single uninterrupted period of quest to transmit a letter to an aunt was promptly satisfied (F. F. 21). Nothing adverse about his physical condition act against his wil] (F. F. 44). ‘The totality of circumstances in this Case, as outlined in the previous paragraph, does indicate the kind. of potential for compulsion which concerned the Supreme Court in — Yi al ba 60 bility of a confession, but was not in itself conclusive. Davis , v. North Carolina, supra; Johnson v. State of New Jersey, - | 384 U: S. 719, 86 S. Ct. 1772, 16. L. Ed. 2d 1772 (1966); © r Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963); Spano v. New York, 360 U. S. 315, bd S. Ct. 1202, 3 L. Ed. ~ 1265 ( aoe d. Sanne v. " ex rel uated + v. “Cavell, 493 Pa. "280, 293 A. "2d 852 (1966); Commonwealth ex rel. Corbin v:. Myers,’ supra; Commonwealth v. Cheeks, supra. No case has ever decided _ the voluntariness issue solely on the basis of the absence of the warnings. Miranda has made that factor absolutely ‘controlling for all. cases covered by that decision but did so as a prophylactic measure. The intent was not to de- clare that the existence of that factor was enough to de- clare the statement involuntary. The court there said that the confessions it was invalidating therein might well be voluntary in the traditional sense. Thus, in considering’ the voluntariness of a confession aside from the Miranda rule, the absence of warnings is merely one of the many factors in the panoramic view. . “There is no doubt that the mental state of the accused is a.relevant factor in determining voluntariness, as it bears - on his ability to resist questioning.” Commonwealth v. Walker, 433 Pa. 124, 127, 249 A. 2d 283, 286 (1969). Condi- tions of interrogation hot alone negating voluntariness may’ be sufficient when combined with a mental state of the accused which makes him susceptible to pressure which would not overcome the will of a man ‘of normal mental ‘faculties. In Blackburn v. Alabama, supra, the accused . was subjected to the pressures of an interrogation for a sustained period of eight or nine hours in a tiny room filled with police officers without the benefit of the presence of a friend, relative or legal counsel. ‘The evidence estab- lished the strongest probability that Blackburn was insane and incompetent at the time of the confession. This Court was most concerned and sensitive to-the factor of Ware’s 61 es wee \ mental state as it related to the conditions of his interro- gation and ultimately tp the voluntariness of his confession. However, the record is devoid of testimony which might allow us to find that Ware’s admittedly -defective mental state had any effect on his ability to resist questioning or that it caused him to be particularly susceptible to the pres- ‘ his ability to understand the consequences of his making sent any such testimony it had available but limited itself to the cross-examination of Dr. Willis which indicated that the mental defect present in Ware would not have impaired the confessions and would not have caused him to act’ con- _trary to his own will or personal interest (F. F. 43), We must decide the issue only on the basis of the testimony before us and we find that the record is insufficient to sup- port a finding that the mental state of Paul Ware was a substantial factor tending to show that the confessions were. involuntary. In this case we find that the totality of circumstances indicates that the confessions were ‘voluntary. The con- ditions under which Ware was interrogated seem eminently fair and far from the extreme treatment evident_in cases where the courts have invalidated confessions.*? All police interrogations take place in what the Miranda court called a “police dominated atmosphere”, but here, where only one officer did the questioning, the suspect was allowed to speak at length, third degree methods were not employed, and the periods of interrogation were of reasonable length, the situation was not one which ‘the courts have traditionally found as one overbearing the will of the suspect. *? Contrast this situation to that in Fikes v. Alabama, supra, where the accused was removed to a prison eighty miles from his home and his father and lawyer refused permission to see him; to Lynumn v. Illinois, supra, where the accused was coerced by the threat that her children would be taken from her; and _to Haynes v. Washington, supra, where the accused was denied his persistent requests to con- tact his wife or attorney. eT rae een a susasueh veslivins was 62 e circl Wmstances” “we must conclude that the statements, both oral and written, ‘ were voluntary. 2. The Miranda - Decision Is Not. Applicable to: the Case. At Bar. Having determined the statements of this defendant dur- ing custodial ; interrogation to have been voluntary it. is Ee scant fs | carmenmentteaiionsc(Boin ia sight Serie faly Qawali _now incumbent upon us to determine the applicability of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). - The Supreme Court of the United States departed from the Blackstonian view that all constitutional decisions must apply retroactively to all who still have standing to liti- gate the issue and determined that in criminal litigation as to rules of procedure reaching constitutional stature “the - Court may in_the interest of justice_make the rule—pre-—— spective where the exigencies of the situation require such an application.” Linkletter v. Walker, 381 U. S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965); Téhan v. Shott, 382 U. S. 406, 15 L. Ed--2d-453;- 86 S.Ct. 459 (1966). In Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966), the Court, in affirming the right to deny retro- activity stated: “We stress that the choice between retroactivity and nonretroactivity in no way: turns on the value of the constitutional guarantee involved . . . we do not dis- parage a constitutional guarantee in any manner by declining to apply it retroactively.” (384 U.S. to 728). In making the determination as to whether the new rule is to be given retroactive application the Court in Link- letter, supra, suggested that the factors to be considered are: (a) the degree to which the new rule affects.the relia- bility of the fact finding process; (b) the reliance of law enforcement officials; and (c) the effect on the administra- . . 3 63 tion of justice. In Desist v. U. S., 394 U. S. 244, 22 L. Ed. . 2d 248, 89 S. Ct. 1030 (1969), the Court observed: The criteria guiding resolution of the question impli- cate: (a) the purpose to be served by the new stan- . dards; (b) the extent of the reliance by law enforce- ment authorities on the old standards, and (c). the effect on the administration of justice of a retroactive application of the new standards.. Foremost among these factors is the purpose.to be served by the new constitutional: rule. (394 U. S. at 249.) 4 At a later point in the’ame decision, the Court stated: _It is to be noted also that we have relied heavily on the factors of the extent of reliance and consequent burden on the administration of justice only where the purpose of the rule in question did not clearly _ ~ favor either retroactivity or prospectivity. atl U. S. at 251.) 9 2 The Johnson court; reflecting u upon the first element of — that the purpose of the Miranda rule did not clearly favor retroactivity. In the light ¢ of these various considerations, we con- clude that Escobedo and Miranda, like Mapp v. Ohio, supra, and Griffin v. California, supra, should not be ri . applied retroactively. (384 U. S. at 732.) The considerations were that “while Escobedo and Miranda guard against the possibility of unrealiable statements in 4 _ every instance of in-custody interrogation, they encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious , coercion.” The Court stressed that “our case law on coerced confessions is available for persons whose trials have al- ready been completed.” . The Court concluded . that al- though Miranda provided new safeguards “the nonretro- activity of these decisions will not preclude persons whose _ trials have already been completed from invoking the same safeguards as part of an involuntariness claim.” wiatBibes ‘i PT AC SI LEBER ELEN ABLES MALE EGE SBD. BOLE ALPEN LEEUW PEE BAAD TRAN Ea A PDMS " 64 In considering the reliance by law enforcement authori- ties the Court was of the view that this too would sug- . gest that the new rule should not be applied retroactively: _ Prior to Escobedo and Miranda, however, we had ex- pressly declined to condemn an entire process of in- custody interrogation solely because of such conduct by the police. Law enforcement agencies fairly relied ‘on these prior cases, now no-longer binding, in obtain- ing incriminating statements during the intervening years preceding Escobedo and Miranda. - U. S. at 731.) (Citations omitted. ) The Court was also of the view that retroactive application _ of the new rules would seriously disrupt the administration | of our criminal laws. Having concluded after weighing the accepted standards that the decision should not be given retroactive applica- _ tion our instant problem would have been resolved if the ' Court consistent with this reasoning had determined to — give the new rules purely prospective effect (limiting their benefits to future defendants excluding even the defend- ants in the case in which the rule was announced). This possibility was eliminated by the Miranda decision itself which bestowed the protection ofthe new rule upon the © party litigant. After deciding that Miranda would not ap-. ply to cases still on direct appeal when it was decided, the Court ruled that its application should commence: with trials begun after the decision was announced. Despite the eloquent and persuasive logic of the ‘majority .of the Johnson Court in demonstrating the propriety of their de- cision to refuse retroactive application, experience has re- vealed that the selection of the date of trial as the crucial moment produced a significant retroactive aspect. The defense and the amicus would urge us to look no further and accept Johnson as a mandate to apply Miranda to all matters where the trial commenced after that decision had been announced. Such specious reasoning would only lead to the transformation of an initially wise and fair de- 65 cision into an untenable and arbitrary rule. It.would be_ most unjust and intellectually dishonest to ascribe to the Johnson Court a blanket approval of retroactivity to-those cases yet to be tried when the entire decision was devoted to a scholarly and meticulous explanation why Miranda should be denied retroactive application. It is our view . that Johnson’s holding simply stated that Miranda doesn’t _apply to trials“beginning prior to June 1966. We must — reject the contention that it supports the proposition that requires its application in all trials subsequent to that date. _ Some explanation of the decision to select the trial as the operative event is found in the majority opinion in Jenkins v. Delaware, 395 U. S. 213, 23 L. Ed. 2d 253, 89 S. Ct. 1677 (1969). On the other hand, we could have adopted the ap- proach we took in Stovall and Desist and made the point of initial reliance, the moment the defendant is interrogated, the operative event. But, in an effort to extend the protection of Miranda to as many defend- ants as was consistent with society’s legitimate concern’ that convictions already validly obtained not be need- lessly aborted, we selected the commencement of the trial. (395 U. S. at 219.) ‘The Court was apparently reassured as to the “wisdom of their’selection laboring under the view that the commis- ~ sion and investigation of a crime would be sufficiently proximate to the commencement of the trial that, where necessary, evidentiary substitutes could be obtained by reopening the investigation. While it is quite true that the Court envisioned certain incongruent results from their selection of the trial date, it is equally true that they were then referring to the possi- bility that one defendant might benefit from the new rule - while another may not “solely because of the fortuities _ that determine the progress of their cases from initial in- vestigation and arrest to final judgment.” As the Court - had previously indicated in Johnson its willingness to deny the benefit of the new rule to all sprung from its view that ESR Fe SI he i 5 FR SS Weg NPT CR gpa LS 66 og, | prior « case law as it. had developed provided adequate r re-_ dress for persons who would not | receive the protections of the new edict. Here, our concern is not the disparity of treatment .of . defendants who commit criminal acts contemporaneously, . but rather the complete frustration of law enforcement ' Officers who elicit incriminating: statements relying on the | law then existent. As the Johnson Court recognized that - there was. adequate safeguards to protect the defendant who was not protected by.the new rule that same court realized the havoc the storm of retroactivity would work on the administration of our. criminal laws Liar v. New Jersey, supra, at 731). The defense and the amicus cite the following. passage as support for their view, that thete should be blanket coverage for trials after the stated date.. _ ‘ In-short, petitioner’s concern for what he rerers to as “visible imperfection in a judicial’ process” merely highlights the problems inherent in prospective de- cision making, ie., some defendants benefit from the new rule while others do not, solely because of the progress of their cases from initial investigation and arrest to final judgment. The resulting incongruities ’ must be balanced against the impetus the technique provides for the. implemeniation of long overdue re- forms, which otherwise. could not be praceneny ef- fected. (395 U. S. at’ 217-218.) — To construe this language as meaning that the Court had weighed all of the distortions that might result from the _ selection of the trial as the operative date.and balanced it « as suggested in Linkletter and Desist, and then determined that Miranda must apply in all instances in trials after the effective date is a clear distortion of the obvious intend- - ment of the words. This language means simply that the Court had discounted the fact that certain defendants would receive protection and others would not in light © -of the need for the new rules and also their desire not to disturb completed trials. ek aes 67 This Court finds that neither Jenkins nor Johnson passed . upon the applicability of Miranda to trials where delay has — resulted in removing the possibility of obtaining substitute . evidence and its application would completely frustrate the attempt to prosecute the felon. We are not shaken in this Opinion by the Jenkins Court’s recognition that there would be exceptions where the commission and investigation of crime would not be sufficiently proximate to the com- mencement of the trial to allow for the reopening of the investigation. The recognition of a situation is obviously not'synonymous with its acceptance. It is a non-sequitur to conclude that, because the Court anticipated that there would in some instances be cases where delay would create — an injustice, this necessarily requires the conclusion that thé Court accepted this result. In the context in which this particular statement was made the Court was attempt- ing to emphasize the lack of disruption to the administra- tion of justice rather than consider those situations where delay had created a problem. Attempting by torturing the language of Johnson and Jenkins to. find a specific answer — to our’present concern is quite similar to the vain efforts of many courts prior to the Jenkins decision to find the answer concerning retrials‘from the language of Johnson. There being no U. S. Supreme Court pronouncement on the subject and from our investigation no other controlling or compelling appellate decisions on point, we must now decide the cause attempting to find direction from the gen- _ eral philosophy the Supreme Court has provided in this | area. Accepting the Supreme Court’s finding that the pur- pose of the rule in question favors prospectivity.we must conclude whether there is any reason or policy that should dictate the applicability of the new rule to the instant case. Here, a number of years have intervened between arrest and investigation and the commencement of trial. The | possibility of reopening the’ investigations and obtaining | evidentiary substitutes is non-existent. The application . of the new rule in this instance would in effect release the defendant albeit his clear involvement in four separate murder-robberies. .We cannot at this juncture ignore the fact that the delay was tn no-.way occasioned by law enforcement agents. Even though we accept that the defendant cannot be held accountable for an act of God it is significant in determining — the effect upon the administration of justice and the effeet of law enforcement officials’ reliance to note that the delay. was not the fault of those officials. In Jenkins, the Court attempted to explain its departure from its basic premise that the new rule should be for the benefit of “future defendants” stating that the scope of retroactivity was iimited to instances where there would be no betrayal of reliance or frustration of the 2dministra- tion of justice. A retroactive application in the instant factual situation would produce the opposite result. We feel compelled. from the logic of Johnson and Jenkins to conclude that the philosophy of these decisions is incom- patible with the result urged here by the defense. Further, we have been given no logical reason or policy considera- tion to alter our view. The Court in both Johnson and Jenkins expressed its confidence tn the case law prior to Miranda to afford protection to the defendant against the coerced and involuntary confession. We share this belief. Applying Miranda in this instance would provide a dam- aging blow to the atiministration of justice and completely ignore the welfare and the safety of the citizens of this community. For the reasons set forth in this opinion, it is our holding that the confessions were voluntarily made and are not barred by Miranda. ORDER. ae . ya . AND NOW, to wit, this 13th day of November, 1970, it fs ORDERED and DECREED that defendant’s Appli- cation to Supprtes his written and oral statements is denied. BY THE COURT: NIX, J. ." APPENDIX D. .+ 4 IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DistRIct =e : No. 247 January Term, CoMMONWEALTH OF PENNSYLVANIA 1971. Aaigeth teat, Ges Cates vy... | of the Court of Com-” mon Pleas of Philadel- phia, Trial Divisfon, _ Paut D. Ware, = \\ Criminal. Section at . Nos. 328, 343, 345, 349 Appellant Jof December Term, 1963. 70 OPINION OF THE COURT. ROBERTS, J. _* Filed: December 20, 1971 The Commonwealth in this appeal calls upon this Court to hold the federal constitutional standards of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602 (1966), inapplicable to.a 1963 confession sought to be introduced in a post- : Miranda trial. This contention must be rejected. It ignores - ‘ the controlling and unambiguous pronouncements of the . United States Supreme Court concerning the extent of Miranda’s retroactivity: These pronouncements have been scrupulously. followed not only by an unbroken line of de- cisions of this Court’ but also by virtually every other court in the nation which has dealt with the issue.* The procedural’ history of the present appeal is as fol- lows: On October 3, 1963, appellant Paul Ware confessed to the commission of four murders. The statements were elicited from’ him in the course of custodial interrogation and were not preceded by the warnings of constitutional rights mandated by Miranda. A murder indictment was . returned against appellant in December of 1963, but fur- ther prosecution was postponed as a result of his com- mitment to Farwiew State Hospital pursuant to a court © order declaring him to be mentally incompetent to stand In July of 1967, appellant was found to have regained his competency, and his case was listed for trial. However, on -May 23, 1968, the Philadelphia Court of Common Pleas ordered the 1963 confessions suppressed for the reason that they had been-obtained in circumstances violative of Miranda. In light of the suppression order and the absence of other independent evidence of appellant’s guilt, the Com- " 1 See cases cited page 4, infra. 2 See cases cited footnote 5, infra. . _ monwealth petitioned for the entry of a nolle prosequi. Ap- pellant offered no objection, and the court approved the nolle prosequi. ‘On August 11, 1969, more than one year after the original suppression order and nine months after the entry of the nolle proséqui, the Commonwealth changed its position and moved for removal of the nolle prosequi. The motion was granted over appellant’s objection, and the Commonwealth - then petitioned the court to vacate its prior suppression order and allow a rehearing of the matter. This request was likewise granted over objection, and a~-suppressi hearing was held on June 25 and June 26, 1970. On No- "vember 13, 1970, the court of common. pleas held that the confessions were admissible in evidence notwithstanding the conceded absence of Miranda warnings. This appeal followed.* ‘The Paints argues in defense of the trial court’s suppression order that the standards of Miranda should not apply to a confession obtained prior to the date of that de- cision. We need not, however, respond to the Common- wealth’s view as to what “should be”: to put it quite simply, the matter is no longer an open question. ‘ In Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772 (1966), the United States Supreme Court was squarely confrontéd with the question whether and to what extent This interlocutory appeal was allowed pursuant to Section 501 (b) | ' Of the Appellate Court Jurisdiction Act of 1970, P. L. ——, No. 223, art. V, 17 P. S. §211.501(b). Section 501(b) provides in pertinent part as follows: “When a court or administrative agency, in making an inter- locutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the matter, it shall so state in such order. The appellate court may thereupon in its dis- cretion permit an appeal to be taken from such order.” ~ The certification required by Section 501(b) was made by the court of common pleas on December 1, 1970 upon the joint es at of - appellant and the Commonwealth. dl apse Geel Reger fe Bmw” 72 Miranda should be accorded retroactive application. After carefully analyzing the material considerations,* the Court concluded: “We hold further that Miranda applies only to cases © ' in which the trial began after the date of our decision one week ago.” Id., at 721, 86 S. Ct. at 1775. We cannot imagine how the Supreme Court could pos- a -have spoken more definitively. That Court made it Clear that the-date of trial is the operative event, and that therefore the Miranda standards must be applied to all post-Miranda trials, including those cases such as the pres- jen one_involving_pre-Miranda confessions. This Court Fendciieled a — one's il has not only faithfully honored the United States Supreme Court’s clear directive, see Commonwealth v. Davis, 440 Pa. 123, 270 A. 2d 199 (1970); Commonwealth v. Singletbn, 439 Pa. 185, 266 A. 2d 753 (1970); Commonwealth v. Ben- nett, 439 Pa. 34, 264 A..2d 706 (1970); Commonwealth v. Ware, 438 Pa. 517, 265 A. 2d 790 (1970); Commonwealth v. Yount, 435 Pa. 276, 256 A. 2d 464 (1969), cert. denied, 397 U. S. 918, 90 S. Ct. 918 (1970); Commonwealth v. Wil- liams, 432 Pa. 557, 248 A. 2d 301 (1968); Commonwealth v. _ Bordner, 432 Pa. 405, 247 A. 2d 612 (1968); Commonwealth v. Leaming, 432 Pa. 326, 247 A. 2d 590 (1968); Common- wealth v. Robinson, 428 Pa. 458, 239 A. 2d 308 (1968); | Commonwealth v. Sites, 427 Pa. 486, 235 A. 2d 387 (1967),° 4“We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon - prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda.” 384 U.S. at 727, 86 S. Ct. at 1777. 5 Nor, we might add, has our ‘interpretation of Johnson been unique. See Posey v. United States, 416 F. 2d 545, 549 (5th Cir. 1969); Sheer v. United States, 414 F. 2d 122 (5th Cir. 1969); Comacho v. United States, 407 F. 2d 39 (9th Cir. 1969); United States v. Fox, 403 F. 2d 97 (2d Cir. © 1968); United States v. Vanterpool, 394 F. 2d 697 (2d Cir: 1968); - Groshart v. United States, 392 F. 2d 172 (9th Cir. 1968); Evans v. United States, 375 F. 2d 355 (8th Cir. 1967); Rolland v. Michigan, 320 F. Supp. 1195 (E. D. Mich. 1970); Griffith v. Jones, 283 F. Supp. 794 73 but we adopt the Johnson position as a matter of state law. The Commonwealth would have us abandon the fore- going state and federal case law on the ground that the trial date language in Johnson was merely “ill-considered” and “inadvertent” dicta. We are unpersuaded. In the first place, a state-court is not free.to ignore the dictates of the United States Supreme Court on federal con- stitutional matters because of its own conclusion that those dictates are “ill-considered.” Even if this or any other — court should disagree with the views of the United States. Supreme Court on a particular constitutional issue, those views are’ binding. See, e.g., Commonwealth_v. Williams, 432 Pa. 557, 568 n. 8, 248 A. 2d 301, 307 n. 8 (1968). In the second place, we do not believe that the Supreme Court was speaking “inadvertently” when it stated five separate times in Johnson that Miranda should apply to all post-Miranda trials. Any possible doubts in this regard 5 ; — (N. D. Ga. 1967); Commonwealth v. Bujnowski, 267 N. E. 2d 924 (Mass. App. 1971); Young v. State, 234 So. 2d 341 (Fla. 1970); State v. Anderson, 229 So. 2d 329 (La. 1969); State v. Butler, 249 N. E. 2d 818 (Ohio 1969); State v.. Knott, 249 A. 2d 421 (R. I. 1969); Guyette v. State, 438 P. 2d 244 (Nev. 1968); People v. Peacock, 287 N. Y. S. 2d 166 (N. Y. App. 1968); State v. Wong, 430 P. 2d 330 (Hawaii 1967); contra State v. Lewis, 164 S. E. 2d 177 (N. c. 1968) (semble); Clark v. Smith, 164 S. E. 2d 790 (Ga. 1968). 6 “We hold further that Miranda applies only to cases in which - the trial began after the date of our decision one week ago.” * Sd - * * * * * * s a “All of the reasons set forth above for making Escobedo and Miranda nonretroactive suggest that these decisions should apply only rah trials begun after the decisions were announced.” * * = > = * ?. es untill application only to trials begun after the. stand- ards were announced is particularly appropriate here.” ” a > _ * . = = ; 2 * + _ “In light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced.” = s * * . = - - = s “ .. and these guidelines [of Miranda] are therefore available only to persons whose trials had not begun as of June 13, 1966.” 384 U. S. at 721, 732, 733, 734, 86 S. Ct. at 1775,°1780, 1781. (Emphasis added.) REE OY OPES Se he 74 should have been forever put to rest by the Supreme Court’s subsequent decision in Jenkins v. Delaware, 395 U. S. 213, 89 S. Ct. 1677 (1969), which further clarified and ety ; reaffirmed the principles of Johnson: is [W]e could have . . . made the point of initial reliance, the moment the defendant is interrogated the operative event. But in an effort to extend the protection of Miranda to as many defendants as was consistent with society’s legitimate concern that convictions already - validly obtained not be needlessly aborted, we selected the commencement of the trial.”’. Id. at 219, 89 S: Ct. at 1680-81. - Finally, we must reject the Commonwealth’s claim that Johnson has been overruled sub silentio by the Supreme Court’s more recent retroactivity cases fixing the date of the alleged constitutional violation rather than the date of trial as the operative cut-off date.’ There are of course “occasional situations in which subsequent Supreme Court -opinions have so eroded an older case, without explicitly overruling it, as to warrant a subordinate court in pur- suing what it conceives to be a clearly defined new lead from the Supreme Court to.a conclusion inconsistent with an older Supreme Court case.” Rowe v. Peyton, 383 F. 2d 709, 714 (4th Cir. 1967). But this is certainly not such a situation.: Johnson’s trial date rule has been reaffirmed by the Supreme Court as recently as April 5, 1971. See Mackey v. United States; 401 U. S. 667, ——, 91 S. Ct. 1160, 1164 (1971); Williams v. United States, 401 U. S. 646, —— n. 7, 91 S. Ct. 1148, 1153 n. 7 (1971). Therefore we are without constitutional authority to adopt a test for the Tetroactivity of Miranda which is inconsistent with: John- son. Additionally, we are in agreement with the rationale 7 See, e.g., Williams v. United States, 401 U. S. 646, 91 S. Ct. 1148 (1971), holding Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034 (1968), applicable to searches conducted after the date of Chimel: Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 (1967), holding United . Stdtes v. Wade, 383 U. S. 218, 87 S. Ct. 1926 (1967), applicable only to cases where the lineup occurred after the decision in Wade. 79 of Johnson, and we affirm it as a matier’of state law. Cf. Commonwealth v. Blackman, —— Pa. ——, —~ A. ad —— (1971). The order of the Philadelphia Court of Common Pleas is reversed. MR. CHIEF JUSTICE BELL did not participate in the Coenaeation or. decision of this case. MR. JUSTICE POMEROY did not participate in the con- sideration or decision of this- case. MR. J USTICE JONES concurs in the result. MR. JUSTICE O’BRIEN joins the Opinion of the Court and files a Concurring Opinion. | ? _—_ IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT . CoMMoNWEALTH oF Pen NSYLVANIA Yee hae January Term, Appellee Appeal from the Order of the Court of Com- Vv. - * >mon Pleas, Criminal Trial Division, - of PauL D. WaRE Philadelphia at Nos. 328, 343, 345, 349 of Appellant / December Term, 1963. Bg Or eee el 16 CONCURRING OPINION. O'BRIEN, J. : - Filed: Deeb 2 1971 -. I concur in the opinion of the majority and join in that | opinion. In addition, however, I believe that the Common- wealth has followed a procedure in this matter which pre- — cludes any result other than the one arrived at by the majority. As indicated in ‘the majority opinion, the Philadelphia Court of Common Pleas entered its suppression order on May 23, 1968. Since the Commonwealth had no other in- dependent evidence of appellant’s guilt; the effect of the suppression order was to put the Commonwealth ott of court and the order was, therefore, as indicated by many, many cases, appealable. If the district attorney was un- -happy. with the suppression order, the proper course of. action for him was to appeal that order within the time 2 allowed for such appeals. He did not do so. Instead, nearly fifteen months later, he chose to request a rehearing of the suppression orcaer in the trial court. I do not believe that we can countenance such procedures, and in my view the _ district attorney’s failure to appeal the suppression order within the statutory time period precludes any further —— consideration of that order. APPENDIX “E.” The Omnibus Crime Control and Safe Streets Act was passed after extensive congressional hearings which con- tained testimony, statistics, and other data showing: the unduly restrictive effects on law enforcement officers re- sulting from the Miranda decision: Statistical evidence further indicates the harmful effects of the Miranda decision. ‘During the subcom- 77 mittee hearings, Arlen Specter, district attorney of the City of Philadelphia, revealed a study on the effects _of Miranda conducted by his office. The results indi- ' cated that prior to the Escobedo case, 90 percent of the suspects ‘would make a statement, often not incrimi-_ nating on their face, but valuable in investigating the crime. After Escobedo, only 80 percent would give statements. After the second circuit Russo case, only 68 percent of suspects would give statements. Then came the Miranda case in June 1966. For a period after Miranda, out of 5,220 suspects arrested for serious crimes, 3,095 refused to give a statement. This is a percentage of only 41 percent who would give state- ments, a decrease of 49 percent since Escobedo. These Statistics are inclined to become more alarming as more criminals become more familiar with Miranda. Aaron Koota, district: attorney for Kings County, __N. Y., conducted a similar survey, indicating that prior _ to Miranda, approximately 10 percent of the suspects . involved in serious crimes refused to make statements or confessions to police. “After Miranda, 41 percent re- ' fused to make statements or confessions. Specifically, between June and September of 1966, Mr. Koota re- vealed that: 130 of 316 suspects refused to make any statement at all. In only 30 of. these 130 cases did Mr. Koota have sufficient evidence to prosectite apart from the confession. Mr. Koota was unequivocal . in stating that confessions are helpful in securing con- victions. sees Charles E. Moylan, Jr., State’s attorney for the city of Baltimore, Md., reports more disturbing statistics. Mr. Moylan said: | , . * ** [W]e used to get * *-* (confessions) in 20 to 25 percent of our cases, and now we are getting * * * (them) in 2 percent of our cases. The confession as a law-enforcement instrument has been Virtually eliminated (hearings, p. 622). ‘ SEB ol ON Mie yh tear ta OI bp Shai helt a ! x 3 ; | - 4 3 5 78 Mr. Moylan noted that the Miranda case has en- couraged criminals, discouraged the police, and disap- pointed the public that depends on the courts for pro- tection. Frank S. Hogan, New York County district attorney, reported similar findings. In the 6.months prior to the Miranda case, 49 percent of the nonhomicide felony ‘defendants in New York County made incriminating statements. In the 6 months after the decision, only 15 percent of the defendants gave incriminating state- ‘ ments. Mr. Hogan characterized it as being most harm- ful to efforts to convict criminals who roam our streets ’ and assault our citizens. * BS * The committee is convinced from the mass of evi- dence heard by the subcommittee, much of. which is printed in the transcript of hearings, that the rigid and inflexible requirements of the majority opinion in the Miranda case are unreasonable, unrealistic, and extremely harmful to law enforcement. Instance after instance are documented in the transcript where the most. vicious criminals have gone unpunished, even. though they had voluntarily gonfessed their guilt. The transcript and ‘subcommittee files contain testimony and statements from district attorneys, police chiefs, and other law enforcement officers in cities and towns all over the country, demonstrating beyond doubt the devastating effect upon the rights of society of. the Miranda decision. The unsoundness of the majority opinion was forcefully shown ‘by the four dissenting justices, who also predicted .the dire consequences of overruling what theretofore had been the law of the land, confirmed in 1896 in Wilson v. U. S., 16 S. Ct. 895, 162 U. S. 613, and in 1912 in Powers v. U. S.; 32 S. Ct. 281, 223 U. S. 303, and in other more recent Su- preme Court decisions. : 79 The Supreme Court ‘itself Suggests that Congress is free to enact legislation in this field. The Court’s in- vitation for Congress to act could stem from a wide- spread notion that Congress is better able to cope with. the problem of confessions than is the Court. Senator Bible, in testifying before the subcommittee, observed that experience has.taught that» Court decisions are - too inexact to deal with postarrest problems. The Honorable J. ‘Appeal Lumbard, Chief Judge of the , U. S. Court of Appeals for the Second Circuit agrees. He states: - In my opinion, it is most important that the Con- gress should take some action in the important areas I have. vole The legislative process permits a wide variety|of views to be screened and testi- mony can: be taken from those who know fhe facts and those who ‘bear the responsibility for forcement. : ) } The legislative process is far better calculated. to set standards and rules by statute than is the process of announcing principles through court decision in particular cases| where the facts are limited. The’ legislative process is better adapted to seeing the situation in all its aspects and establishing a system ° and rules which can govern a multitude of different cases. daoee . , | Judges seldom; have before them all‘those who are best informed regarding practical problems and the difficulties in living with any proposed change in the law. Judges usually are advised only. by the parties in the case; the. parties want to win the case . -wider application. As-I said before, it is because the Congress and | the legislatures of the States have taken so little action in the field of criminal justice that the courts have more and more chosen to lay down rules which have’ the force f law until changed, and which all j . law en- | and do not always care about general principles of Wee > too frequently come to us in the form of new consti- tutional principles which then can be modified only by constitutional amendment (hearings, p. 184). Mr. Specter expresses a similar view. He pointed | out that the subcommittee hearings make it possible for Congress to examine all the of human ex- ience that must be taken into account in solving the problem of confessions. The courts, in consider- ing only the limited facts and issues of each particular case do not have the opportunity to evaluate all these ‘factors. Passage of this bill with all of its legislative history—the record of the subcommittee hearings and _all of the underlying social policies bearing on this issue and taken into account by Congress—will furnish an excellent record that will hopefully make an im- pression gn some of the Supreme Court Justices. . . . The committee is of the view that the legislation proposed in section 701 of title II would be an effec- tive way of protecting the rights of the individual and _ would promote efficient enforcement of our criminal * laws. By the express provisions of the proposed legis- lation the trial judge must take into consideration all the surrounding circumstances in determining the issue of voluntariness, including specifically enumerated factors which historically enter into such a determina- tion. Whether or not the arrested person was informed - of or knew his rights before questioning is but one of the factors. There is the added safeguard that the jury must be instructed to give the confession or state- ment the weight that they feel it warrants under all the circumstances. The committee feels that society is entitled to the use of confe:sions and incriminating statements which are admitted only after passing the tests of both court and jury under the above-described safeguards. The committee also feels that a civilized society could not be more fair to persons accused of crime, as the ‘constitutional ‘rights of defendants in : 81 criminal cases would be fully protected and respected by the safeguards in this proposed legislation. _ The committee is aware that a few have expressed the view that legislation by Congress restoring the vol- untariness. test to the admissibility of confessions and incriminating statements would be declared unconsti- tutional, on the ground that the provisions do not measure up to the rigid standards set forth in the majority opinion in Miranda. The committee, how- ever, is aware also that the overwhelming weight of the testimony adduced by the subcommittee supported the passage of these provisions of the bill, and that the vast majority of the witnesses expressed no doubt as to the constitutionality of the legislation. The com- mittee is also a that the opinions of the four dis- senting Justices indicate that neither of them would consider these provisions unconstitutional. Justice Harlan, it will be recalled, said the majority opinion “represents poor constitutional law,” and that “it would be shared by few.” The committee feels that it is obvious from the opin- ion of Justice Harlan and other dissenting Justices (excerpts from which are heretofore quoted in this report) that the overwhelming weight of judicial opin- ion in this country is that the voluntariness test does not offend the Constitution or deprive a defendant of - any constitutional right. No one can predict with any assurance what the Supreme Court might at some fu- ture date decide if these provisions are enacted. The cormmmittee has concluded that this approach to the balancing of the rights of society and the rights of the individual served us well over the years, that it is. constitutional and that Congress should adopt it. After all, the Miranda decision itself was by a bare majority of one, and with. increasing frequency the Supreme - Court has reversed itself. The committee feels that by the time the issue of constitutionality would reach the Supreme Court, the probability rather is that this legis- lation would be upheld. Committee Report, P. L. 90-351, Title II, 1968.U. S. Code Congressional and Administrative Laws, pp. 2112-29, 2132-38. . ay c F : é = - . Ps . . - “ - . * " : ’ * 5 ‘ . ad Z e . * ; : a - . ad > — = rf - : - 3 é . - . . ~ : ee a - ad i dh j . a 5 . ths ; - vy ° . > ’ . * : _ . - - .- . ~~ - a » cae . had F * 4 . i . x 4 : - : ‘ . * : e: ; , : : " * .- ” R - vs AJ .- e . - ° ° ; 3 ; 4 z - - ~* - ; es .- ad ag od ; 4 me . - a a r ¥ , > - *- 2 . a *, . nf ‘ . “ * , : * 7 ys : > ‘ . - * . . ° * ; . ; : . e , : . . a a : ae" . - “ e * aad . . . - r . . 4 * . . ‘ * . . . ‘ . . > Pt . * ig : . _ . . .- 7 * . » * . : . . . .* * . : ms es + © ‘ . . e . . . 7 _ i, . ' : : . ‘ . — R . . * é . - . mm ° : . . . , 7 ; .* &®°* ; . . ee . ° * . ” ? : e . *«* : . ‘ .* * . . . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0594%3A1. Public record. Not legal advice.