Amicus Curiae Brief — California v. Stewart

Supreme Court brief1965

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_— FEB? 19

im Tas JOHN F. DAVIS,

Supreme Court of the United States

Ocrossr Tgrm, 1965.

PEOPLE OF THE STATE OF CALIFORNIA, Petitioner,

No. 584. Us.

ROY ALLEN STEWART, Respondent.

On Writ of Certiorari to the Supreme Court of the State of California.

ERNEST ARTHUR MIRANDA, Petitioner,

No. 759. vs,

THE STATE OF ARIZONA, Respondent.

On Writ of Certiorari to the Supreme Court of the State of Arizona.

MICHAEL VIGNERA, Petitioner,

No. 760. vs,

PEOPLE OF THE STATE OF NEW YORK, Respondent.

On Writ of Certiorari to the Court of Appeals of the State of New York.

SYLVESTER JOHNSON and STANLEY CASSIDY, Petitioners,

No. 762. vs.

STATE OF NEW JERSEY, Respondent.

On Writ of Certiorari to the Supreme Court of the State of New Jersey.

BRIEF OF NATIONAL DISTRIOT ATTORNEYS

ASSOCIATION, AMICUS OURIAE.

Dvuang R. Neprvup,

Executive Director, National District

Attorneys Association,

Mareovusnitr D. Onerto,

Aasistant Executive Director,

1155 East 60th Street,

Chicago, Tlinois 60637,

Counsel for the National District Attor-

neys Association, Amicus Curiae.

PAGE

Questions PRESENTED ...................cc0c05005., 1

IE OF SI oa iso Cieas onc tecckdbbbe .coeeecgs 2

Summary or ARGUMENT ............................ 3

ARGUMENT—

Confessions (Statements) Are Vital in the Admin-

istration of Criminal Justice in the United

States. The Effect of Admonishment of Right

to Remain Silent and, in Particular, the Right

to Counsel at the Interrogation Stage Will

Materially Affect the Enforcement of Our Crim-

inal Laws. To Give Retrospective Application

to the New Constitutional Standard Proclaimed

in Escobedo v. Illinois Will Diminish and Deter

Effective Law Enforcement. The Need Is for

an Advisory Standard, Not an Exclusionary

Rule.

I. Any Rule Derived From Escobedo v. Thli-

nois Should Be Limited to the Facts of

Se Ree OE eae 2a 9

A. Escobedo Declares a New Constitu-

tional Standard, Differing From Pre-

vious Court Decisions Restricting

Police Investigation ................ 9

B. The Effects of a Required Admonish-

ment Will Inhibit the Interrogation of

Criminal Suspects Without Benefit to

Ce EIN Si veniec cece ccc... 13

C. Confessions Have an Essential Role

and They Satisfy a Useful Purpose in

the Administration of Justice ....... 16

D. The Judges’ Rules and the Dorado In-

terpretation of Escobedo Cannot Be

WE sievncviwiss coke 19

II. As a New Standard Reversing Prior Deci-

sions of This Court, Escobedo v. Illinois

Should Not Be Accorded Retrospective

Application .........cceceeseeerceeeeees 21

III. To Guide Law Enforcement Officers, an

Advisory Standard, as Distinguished From

an Exclusionary Rule, Should Be Devised 23

CORON 5. gc anc acivecees 6680600058 694000 ten 8 Oes %6

Renee... cecnntnacecaes Cacevendentes dentendesss la

ee. te foe Cee: Ge Geek - Be: Baek em | de ow ei ee ee Pe

iii

People v. Bostick, 62 Cal. 2d 820, 402 P. 2d 529 (1965) 22

People v. Chaney, 233 A. C. A. 75, 43 Cal. Rptr. 280

(1965)

Crrations.

Cases.

Angelet v. Fay, 381 U. S. 654 (1965) ................ 7,21

Brown v. Mississippi, 297 U. S. 278 (1936) .......... 10

Cicenia v. Lagay, 357 U. S. 504 (1958) .............. 21

Commonwealth v. Negri, 213 A. 2d 670 (Pa. 1908).....° #

Crooker v. California, 357 U. S. 433 (1958) .......... 9, 21

Douglas v. California, 372 U. S. 353 (1963) .......... 11

Escobedo v. Illinois, 378 U. S. 478 ( a Se 3, 8, 26

Gideon v. Wainwright, 372 U. S. 335 (1968) .......... 11

Griffin v. California, 380 U. S. 609 (1965) ............ 12

Griffin v. Illinois, 351 U. S. 12 (1956) ................ 11

Hamilton vy. Alabama, 368 U. S. 52 ey 11

) Haynes v. Washington, 373 U. S. 503 (1963) .......... 21

In re Lopez, 62 Cal. 2d 368, 398 P. 2d 380 (1965) ...... 21

Jackson v. Denno, 378 U. S. 368 (1964) ..........0... 12

Linkletter v. Walker, 381 U. S. 618 ( BUD Bisennce 7, 11, 21

| Malloy v. Hogan, 378 U. S. 1 MID. Sie Fah can baie es 12

Mapp v. Ohio, 367 U. S. 643 (1961) ............. 3, 5, 9, 11

People v. Benavidez, 233 A. C. A. 346, 43 Cal. Rptr.

We SN CHSC 0s hb sdk Wann dh teknueerdes |) cuecics 22

(1965)

People v. Davis, 62 Cal. 2d 791, 402 P. 2d 142 (1965) 22

People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361 (1965) 4,9

People v. Fork, 233 A. C. A. 860, 43 Cal. Rptr. 804

SSNS ST RTE EE Ta ee ELST PP PE cle PEE ETE 16

PROS cio RE Tea ks 16

People v. Jones, 232 A. C. A. 472, 42 Cal. Rptr. 714

ROI 5 i o'5ic cha Tiln Gk Ley secs dees 16

People v. Lilliock, 62 Cal. 2d 618, 401 P. 2d 4 (1965) .. 22

People v. Reid, 233 A. C. A. 184, 43 Cal. Rptr. 379

LE Ss ak ibn bails ded awd note b a nkanihatene ae ds 22

People v. Roberts, 63 A. C. 79, 403 P. 2d 411 (1965) .... 22

People v. Williams, 235 A. C. A. 474, 45 Cal. Rptr. 427

ELSOE) -cecelabecnde o Udbeadedehsaecdlosseveswieus 16

Russo v. New Jersey, 351 F. 2d 429 (3d Cir. 1965) .... 9

State v. Dufour, 206 A. 2d 82 (R. I. 1965) ..... eae 9

State v. Neely, 239 Ore. 487, 398 P. 2d 482 (1965) .... 9

Tehan v. Shott, 34 U. S. L. Week 4095 (January 19,

BO bc acckon + CRAVEEREMAANA NOS UR dae edeebs ews 7, 21

United States v. Ventresca, 380 U. S. 102 (1965) ...... 11

Watts v. Indiana, 338 U. S. 410 (1948) .............. i0

White v. Maryland, 373 U. S. 59 (1963) .............. 11

Wolf v. Colorado, 338 U. S. 25 (1949) ............ 6,11, 25

Statutes.

Tex. Code Crim. P. art. 727 .....0.cccccececeeeeees 10, 20

Uniform Code of Military Justice, 10 U. S. C. § 831 . .10, 20

Other Authorities.

Borchard, Convicting the Innocent (1932) ............ 18

Cross, Confessions and Cognate Matters: An English

View, 66 Colum. L. Rev. 79, 88 (1966) .............. 20

Devlin, The Criminal Prosecution in England 47

RESIS Rae peered ee WERDEN ALA SE 5, 15

Frank & Frank, Not Guilty (1957) .................. 18

Judges’ Rules, [1964] 1 All E. R. 237 ................. 10

Judges’ Rules, Rule 3(a) [1964] 1 All E. R. 237, 238 .. 20

Ae Oa OE oN brn vc Vueas ved oben ea 20

Robinson, Massiah, Escobedo and Rationales for the

Exclusion of Confessions, 56 J. Crim. L., C. & P. 8.

Ne MAU ko 60 bknc dad adcdakwd beddetinck ces 1J

Sutherland, Crime and Confession, 79 Harv. L. Rev. 21,

et NE Shes bean bap yahabediwcketninS ace duet 23

Williams, Demanding Name and Address, 66 L. Q. Rev.

Sy Ue CUNO: 50 this oo tint vo ceiccddddbedeuascceus 5, 19

IN THE

Supreme Court of the United States

Ooronrn Tram, 1965,

PROPLE OF THE STATE OF CALIFORNIA, Petitioner,

No, 584 #8,

ROY ALLEN STEWART, Respondent,

On Writ of Certiorart to the Supreme Qourt of the State af Caliturnia,

SS ROE RE Ey ETE

ERNEST ARTHUR MIRANDA, Petitioner,

No, 750 ws,

THE STATE OF ARIZONA, Respondent.

On Writ at Certionsrt to the Supreme Court ef the State of Arteona,

MIOCHAKRL VIGNERA, Petitioner,

No, 760 ws,

PEOPLE OF THE STATE OF NEW YORK, Reapondent.

On Writ ef Certlopart to the Qourt of Appeals of the State ef New York,

Pe ERRNO ore Mere

SYLVESTER JOHNSON and STANLEY CASSIDY, Petitioners,

No, 762 eK,

STATE OF NEW JERSEY, Reapondent,

On Writ of Certioniel to the Supreme Court of the State of New Jerey,

eR a

BRIEF OF NATIONAL DISTRICT ATTORNEYS

ASSOCIATION, AMICUS CURIAE. :

ee acre

QUESTIONS PRESENTED.

1, Does the decision in Ascabedo vy, Uineis extend

beyond ita facta to require, before interrogation, ad-

monishment of the accused of hia right to remain silent

and of his right of counsel, with failure to so proceed ex-

cluding from evidence any statement obtained thereby?

2. Does the rule announced in Escobedo v. Illinois have

retrospective application?

INTEREST OF AMICUS.

The National District Attorneys Association is an organi-

zation of state prosecuting attorneys whose members in

their official capacity represent approximately two-thirds

of the population of the United States. It is upon these

state prosecuting attorneys that the responsibility of pre-

senting the overwhelming majority of criminal cases rests.

The express purpose of the Association as amicus curiae

is to delineate the grave concern (and the causes therefor)

of prosecuting attorneys and law enforcement officers, if

not that of all the people, with the adverse affect the Court’s

decision in these matters could have on the preservation of

our free society—its safekeeping for all the people.

It is not for amicus to further discuss, dissect and dis-

tinguish, if possible or necessary, the law. Certainly the

case law, the legal theories and the peculiar facts in the

four matters presented here are thoroughly, indeed profi-

ciently, covered by the parties.

The rules and regulations which have the force of stat-

ute are founded not only upon precedent but upon facts—

and at times, necessarily, upon hypothesis. Therefore, it

is believed that this Association can best serve the Court

through the factual information, gathered by members of

this Association, on the actual use of confessions. This

data is offered for the Court’s consideration in arriving

at its decision on the questions before it.

In addition to the statistical data, it would seem that ©

amicus can assist the Court by outlining the existing and

—

foreseeable difficulties as regards clarification, definition

and retroactivity in application. Accordingly, with the

consent of parties, this brief is respectfully submitted by

the Association as evidence of its concern in and for the

course of criminal justice, the future state of which will

be determined in the matters now before the Court.

SUMMARY OF ARGUMENT.

Re: Interpretation of Escobedo v. Illinois.

Those entrusted by the people with the enforcement and

administration of our criminal laws complain, as overbur-

dened persons do, when short cuts are eliminated from

their repertoire of expedients for effectively and adequately

fulfilling the great burden and responsibility placed upon

them. However, they recognize and accept reasonable rules

which can be followed, though with some difficulty, and

which have benefits far outweighing their inexpediency:

Mapp v. Ohio, 367 U. S. 643 (1961), may well be an ex-

cellent illustration. Unlike Mapp which conclusively con-

demned a practice known to be unconstitutional, an ex-

tended Escobedo v. Illinois, 378 U. S. 478 (1964), introduces

a heretofore unknown standard of constitutionality.

Few would disagree with most of the Supreme Court de-

cisions affecting law enforcement, finding the reversals (in-

cluding Escobedo) correctly decided upon their facts. The

difficulties of effective performance, experienced by those

engaged in the enforcement and administration of our crim-

inal laws (including and even emphasizing the judiciary),

originate in the fact that the rules are promulgated upon

the exceptional case and thereafter are subject to so many

different interpretations. Why a case is allowed to ad-

vance to the appellate stage or why there is not a confes-

sion of error where there is an obvious violation of funda-

mental rights is influenced by local probloms. And yet,

the entire nation may be penalized for the sins of a fow.-

albeit the case is atypical not only for the nation but for

thai locality.

The states have been deseribed as fifty different coun.

tries, Officers vary from state to state, city to city, de.

partment to department, Police officers should not be sub.

jected to symbolism-—personifying evil in our midst, There

are the good and the bad, the qualified and the unqua:

fied, in the same manner as legislators, judges, firemen or

medical doctors, We are a nation of specialists, Police

ofivers, who will be directly affected by any extension of

Escobedo, are specialists, Prosecuting attorneys, trial

judges and basically all appellate judges—although not

specialists in the methodology of crime investigation-——have

worked closely with the problems and have expressed, al:

most unanimously, the opinion that Escobedo should not

be afforded the extreme construction, Those courts which

have ruled otherwise have done so because they believed

the admonishment te be an inevitable Supreme Court com-

mand. Thus, their concern was with avoiding a backlog

of cases from the date of Escotede to its actual claritica-

tion, People v. Dorado, 62 Cal, 888, 398 P. 2d B61 (1965),

Those rules and regulations, which find themselves work-

able not because they are followed but because the popu

lace in the first instance and the trial judges thereafter,

both through misunderstanding and understanding, allow

the standard to go unonforeed, are not a preferred observ:

ance. One of the outstanding criminal law authorities in

‘ngland, if not in the world, expressed this idea of op-

erable-by-default rules in explaining the reason why cor

tain restrictive measures can exist in his country without

hindering police investigations: ‘The law works as well

as it does chiefly becanse the moral authority of the police

enables them to get on without powers.’’ Williams, De-

manding Name and Address, 66 L. Q, Rev. 465, 476 (1950),

To be effective an admonishment must be more than a

ritual, And the benefits received from a properly adminis-

tered warning would not acerue to the innocent nor to the

Culombes, Fikeses, Haleys, Paynes or Recks of our so-

ciety. The beneficiaries are the professional and the re-

cidivist, Without bestowing or acquiring a benefit, the

American people cannot afford to abandon the confession

as a form of evidence,

The objective of the admonishment cannot be to place

a burden which becomes so onerous that it invokes devised

oxtenuation, To resort to circumvention, although not in-

tentionally illegal, nonetheless may markedly devaluate re-

spect for law and order, A rule which can be rationalized

by those who execute it does not offer the solution. The

experience of the English in the use of the Judges’ Rules

is illustrative:

The Rules undoubtedly require the observance of a

very high standard, and it may be a higher standard

than the average policeman was in the first instant nat-

urally inclined to adopt. It is difficult to say what ex-

tent the spirit of the Rules is infringed because, as

L have said i is the generat habit of the police never

to admit to the slightest departure from correctness.

Devin, Tue Crrminat Proseevrton is Exenanp 47

(1960), (Emphasis added.)

A rule for a yule's sake is not the answer,

In balancing the equities, it is obvious that eventually

a point of diminishing returns is reached. The drawbacks

which may result frem an extension of Rscobedo beyond

its facts should be etudied, To establish an absolute ‘en-

forcement-type exclusicuary rule’? can well lead to punish-

ment of the populace rather than the police. Before Mapp

\, Ohie, 367 U.S, G43 (1961), there was a warning to re-

_ Senne

assess given by the Court in Wolf v. Colorado, 338 U.S.

25 (1949). No one can now doubt that the Supreme Court

can and will do as it states. However, crime waits for

no man or court. But man can implement and adjust, given

notice and a reasonable time to do so. Therefore, would

it not be reasonable and proper for the Court to formv-

late a workable standard, without attaching thereto a dog-

matic rule of exclusion? Cannot the state and federal

authorities be given an opportunity to establish working

rules, to increase the quantity and to improve the quality

of their personnel and to otherwise effect the desired re-

sult? Certainly such good faith is being registered by

governmental and private groups now engaged in thes¢

pursuits.

Under the guidance of an opinion by this Court, an ad

visory rule would afford an opportunity to accelerate re

search and to effect changes without the disastrous re

sults of impediment and confusion. One step may wel

destroy that which we know, the other build that whicl

we need. We respectfully request the Court to take th

latter course: the advisory rule. We do not presume t

suggest to the Court a drafted rule. The Judges’ Rule

of England were established as an advisory standard b;

the judges themselves but at the request of the police fo

their guidance. We would ask the same approach be taker

The members of this Association and prosecuting attorney

and law enforcement officers everywhere in this countr

stand ready to assist this Court in any manner which wi

further the objective of the proper enforcement of th

criminal laws for the benefit of all the people.

Re: Retrospective Application.

The effect 0 retroactive application of Escobedo would

involve all of the problems which such a determination

would have had in Mapp, but for Linkletter v. Walker,

381 U. S. 618 (1965) and Angelet v. Fay, 381 U. S. 654

(1965). The arguments presented by this amicus in Link-

letter and Angelet are relevant and even more pertinent

here. The reasoning of Tehan v. Shott, 34 U. S. L. Weex

4095 (Jannary 19, 1966), should be extended to Escobedo

as well.

ARGUMENT.

CONFESSIONS (STATEMENTS) ARE VITAL IN THE AD.

MINISTRATION OF CRIMINAL JUSTICE IN THE UNITED

STATES. THE EFFECT OF ADMONISHMENT OF RIGHT

TO REMAIN SILENT AND, IN PARTICULAR, THE RIGHT

TO COUNSEL AT THE INTERROGATION STAGE WILL

MATERIALLY AFFECT THE ENFORCEMENT OF OUR

CRIMINAL LAWS. TO GIVE RETROSPECTIVE APPLI.

CATION TO THE NEW CONSTITUTIONAL STANDARD

PROCLAIMED IN ESCOBEDO v. ILLINOIS WILL DIMIN.

ISH AND DETER EFFECTIVE LAW ENFORCEMENT.

THE NEED IS FOR AN ADVISORY STANDARD, NOT AN

EXCLUSIONARY RULE.

The issues before the Court stem from Escobedo v.

Illinois, 378 U. 8. 478 (1964), and the requisite clarification

of the five principles laid down by the Court in that deci-

sion: (1) if the investigation is no longer a general inquiry

into an unsolved crime but has begun to focus on a particu-

lar suspect; (2) if the suspect has been taken into police

custody; (3) if the suspect is interrogated in a manner that

lends itself to eliciting incriminating statements; (4) if

the suspect has requested and been denied an opportunity

to consult with his attorney and (5) if the police have not

effectively warned him of his absolute constitutional right

to remain silent, then any statement given by the accused

is of no evidentiary value.

Two constructions of Escobedo have evoived, so-called

the strict interpretation and the liberal interpretation. The

strict interpretation is: Escobedo should be limited to its

facts. If the request of the accused to consult with his attor-

ney is refused, any confession elicited is inadmissible as

being in violation of his right to have present the guiding

hand of counsel—which right he did not intelligently waive.

This is the construction given by the majority of state and

federal courts. The liberal interpretation is: no probative

evidence may be obtained until and unless the accused has

been duly admonished of his absolute right to stand silent

to any and all inquiry, and furthermore, of his right to

consult with an attorney. This is the construction assumed

by a minority of the state and lower federal courts.

Because of population and the consequent number of crimi-

nal cases, the most prominent advocate of this view is

California. People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361

(1965). The two other state courts that have given this

same interpretation are Rhode Island [State v. Dufour,

206 A. 2d 82 (R. I. 1965)] and Oregon [State v. Neely, 239

Ore. 487, 398 P. 2d 482 (1965)]. By having joined with this

minority of state appellate courts, the Third Cireuit Court

of Appeals appears alone among the courts of appeal of

the ten circuits. Russo v. New Jersey, 351 F. 2d 429 (3d

Cir. 1965). Pennsylvania has revised its original construe-

tion in light of Russo. Commonwealth v. Negri, 213 A. 2d

670 (Pa. 1965).

I, ANY RULE DERIVED FROM ESOCOBEDO vy. ILLINOIS

SHOULD BE LIMITED TO THE FACTS OF THAT CASE.

A. Escobedo Declares a New Constitutional Standard,

Differing From Previous Court Decisions Restricting

Police Investigation.

Whatever the purported rule is, it is new. Prior to

Escobedo, the denial of counsel at any stage preceding

arraignment was, at the very most, a factor in the ‘totality

of cireumstances’’ on the issue of voluntariness. Thus,

differing from Mapp v. Ohio, 367 U. S. 643 (1961), and

other cases which concerned fundamental rights, the denial

of counsel, even upon request, was not a violation of any

known constitutional precept. Crooker v. California, 357

U. S. 433 (1958). And so, when we speak of admonishing

J ;

the suspect, the accused or the witness of the right to stand

silent and of the right of counsel at all investi:yatory stages,

we embark on an uncharted constitutional course which

leayes no opportunity for deviation. Either it is or it is

not. It is clear that here there is no stated law, no comfort

of precedent. Escobedo restrictions will affect the FBI and

other federal officers as much as they will state officers.

This is not a case where the federal officers have been

following a procedure for years through the authority of

the Court’s supervisory powers, so that it is now time that

state officers caught up. Admonishment of the right of

counsel has never been required in the United States or

England; the admonishment of right to remain silent has

served only the military [Uniform Code of Military Jus-

tice, 10 U. S. C. $831], the State of Texas [Trx. Cone

Crim, P. art. 727] and in England [ Judges’ Rules, [1964]

1 All K. R, 237).

An analysis of the various leading cases, chronologically

from 1936 with their effect upon law enforcement, the

courts and the prosecuting attorney of the states warrants

consideration here:

Voluntariness. (Beginning with Brown y. Mississippi,

297 U. S. 278 (1986), to date without enumerating each

ease.) Although reasoning may differ on individual cases,

few will question the rule on voluntariness as applied to

the ‘‘totality of cireumstances’’ concept in relation to

voluntariness. It is to be noted that it always has been

understood that ‘‘voluntariness’’ does not mean necessarily

‘*volunteered.’’ Watts v. Indiana, 838 U, S. 410 (1948).

State authorities in general would agree (with one or two

exceptions) with the Supreme Court that on the facts, the

cases should have been reversed. None of these cases

typifies state cases, and, of course, all involve a rather

sensational crime, generally murder [25 murders, 1 man-

slaughter, 1 narcoties case, 4 cases of rape and 2 robberies:

Robinson, Massiah, Escobedo and Rationales for the Exclu-

sion of Confessions, 56 J. Crim. L., C. & P. S. 412, 425

(1965) ].

Arrest, Search and Seizure, Since the full effect of Wolf

v. Colorado, 338 U. 8. 25 (1949), did not come to rest upon

the states until Mapp v. Ohio, 367 U. S. 643 (1961), it is

only the results of the latter case that are pertinent here.

While police officers, as overburdened public servants, may

like the facility of short cuts to investigation, the view that

illegal methods, especially flagrant or purposeful violations

of the Constitution, should be countenanced by the courts,

cannot be defended. The concern, of course, lies with what

is ‘‘reasonable grounds’? and what is ‘‘probable cause.’’

There may well be individual cases which would allow

opinions to differ, but few would differ with those cases

brought to the attention of the Supreme Court. More

debate may center upon some of the interpretations of

other appellate courts, state and federal. In United States

v. Ventresca, 380 U. S. 102 (1965) and Linkletter vy. Walker,

381 U. S. 618 (1965), the Court provides reasonableness

for law enforcement, thus enabling them to perform with

diligence, Naturally there is concern when a police officer,

who is stated not to be held to the judgment of a “legal

technician,’’ is reproved for failing to exercise the judg-

ment which only could be expected from a legal technician.

This is true in cases before all courts, in particular the

appellate courts with bare majorities. It may be dis-

couraging, but law enforcement officers will continue to do

their best, appreciating that generally the courts under-

stand their predicament so that the exception is the rule.

Right to counsel at trial and appeal; transcripts. Griffin

v. Lilinois, 351 U. S. 12 (1956), Hamilton vy. Alabama, 368

U. S. 52 (1961), Gideon v. Wainwright, 372 U. 8, 335

(1963), Douglas v. California, 372 U. S. 353 (1963), White

v. Maryland, 373 U. 8. 59 (1963), and others involving right

to counsel at trial and appeal and to transcripts for appeal

were not devastating; they directly concerned only a few

states and the judicial process, as distinguished from the

investigation-prosecution of crimes. Prosecuting attorneys

and courts in the large majority of states were surprised

at Gideon, not knowing beyond the confines of their own

borders the practice in other states, and the Hamilton and

White procedures also were foreign to them. For obvious

reasons, defendants’ demanding to try their cases without

an attorney because of dispute with counsel is abhorred by

courts and state counsel alike. Law enforcement officers

were not affected directly by these decisions.

Other matters. Malloy v. Hogan, 378 U. S. 1 (1964):

Again the impact was minimal. Jackson v. Denno, 378 U.S.

368 (1964): Although this decision affected several of our

more heavily populated states, yet considering the country

as a whole, it produced little change. Again, the direet

impact was upon the state courts, not the prosecuting

attorneys or law enforcement officers. Griffin v. California,

380 U. S. 609 (1965): Most prosecuting attorneys and

courts were not even aware that this could be done. This

procedure was prohibited by constitution, statute or court

rule in at least 44 of the 50 states.

Differing from the foregoing, the determination of an

absolute principle so unique as Escobedo, in any expanded

interpretation, will forever frustrate the good law enforce-

ment officer who tries to obey the rulings of this Court,

only to find reasonable investigation methods subject to

varying confusing findings on each of the principles

associated with the Dorado interpretation of Escobedo, e.g.,

focus, investigatory stage, admonishment, custody, interro-

gation, statement-confession, etc.

B. The Effects of a Required Admonishment Will Inhibit

the Interrogation of Criminal Suspects Without Bene-

fit to the Innocent.

Will warning an individual of his right to remain silent

and of his right to counsel preclude the needed confession?

Frankly, no one knows and an empirical study is not pos-

sible. But, if the admonishment is without this effect, then,

either it is being administered improperly or there is simply

no reason for such a rule existing.

By assuming the posture of one accused (acknowledging

the obvious limitations of this premise), namely his con-

cern with discovery of the misdeed (if not other misdeeds)

and his natural instinct for preserving freedom and life,

it is possible to derive a valid answer. Consider his reali-

zation, having these innate anxieties, that the police know

he is involved. Subjectively we know that misdeeds are

not readily admitted. Some of the effects of a required ad-

monishment include:

Problems in the use of acceptable interrogation tech-

niques already exist and to overcome the admonishment

adds to that burden.

Every confession will be tainted with the issue of waiver

of counsel.

The question then becomes: is waiver possible. If, in

reply to an admonishment, the accused asks, ‘‘Should I

get a lawyer? Why do I need alawyer? What will a law-

yer do for me? etc.’? Having reached this impasse, must

the interrogator simply advise the accused to retain counsel

and thereafter stop his attempt to learn the truth, or, is it

permissible for him now to proceed to convince the accused

that he does not need an attorney? Can an accused ever

effectively waive his right to counsel once he has mentioned,

in response to a warning, that maybe he should have one!

Thus, another issue to plague the courts is created.

Admittedly, in the pretrial investigatory period which

includes time for interrogation, the defendant is at a dis-

advantage. But in our system of justice this imbalance

is adjusted by the rights of the defendant at trial: (a) that

he need not be witness against himself; (b) that he is en-

titled to a unanimous verdict of his peers; (c) that he can-

not be again brought to answer, once acquitted; (d) that

he must be found guilty beyond a reasonable doubt. Fur-

thermore, there is no right in the state to appeal and there

is no discovery procedure to obtain from the defendant

himself the names of witnesses, etc. No one would sug-

gest that these trial protections be altered, but if the pre-

trial investigation, which must involve interrogation of

suspects and witnesses (both of whom could or could not be

culprits in the crime), is eliminated, then our system of

justice must fail but for a concomitant revision in our form

of trial. If the foundation of our system of justice is rocked,

something must give way; the consequences may not be

what this Court, any lawyer, or any citizen would want.

The ‘‘fear’’ of admonishment is that it will benefit only

the recidivist and the professional. The first offender and

the Culombes, Fikeses, Haleys, Paynes or Recks will not

be the beneficiaries. The innocent will take offense to the

caution.

Many of the restrictions upon law enforcement, albeit

for the good of the individual, must of necessity greatly

burden these men who are charged with the protection of

the public. That the police officer is the subject of distrust

is evidenced by (a) the detailed information required in

affidavits to obtain warrants, (b) the required corroboration

of informer information, and (c) the trend to accept the

suspect’s word over that of the police officer. And so, by

establishing unworkable requirements do we not further

undermine and demoralize the police officer, forcing him

to ‘‘stretch the truth’’? Consider the experience in Eng-

land with the Judges’ Rules:

The Rules undoubtedly required the observance of a

very high standard, and it may be a higher standard

than the average policeman was in the first instant

naturally inclined to adopt. It is difficult to say what

extent the spirit of the Rules is infringed because, as

I have said, tt is the general habit of the police never

to admit to the slightest departure from correctness.

Devuin, THe Criinat Prosecution in Enouanp 47

(1960). (Emphasis added.)

Exculpatory statements also will not be easy to obtain,

thereby inviting defendants to change their minds and per-

jure themselves on the stand.

Will impossibility of performance force, not only the

police to uncover loopholes but the prosecutor and the trial

courts as well to pursue this path—objective looking to

one side? Trial judges, both state and federal, as well as

most appellate courts, in their sympathy with the law en-

forcement officers’ plight, are inclined to encourage law

enforcement officers to ‘‘avoid’’ the stringent requirements

of the rules. Is this not apparent in the California Dis-

trict Courts of Appeal application of their Dorado rule to

those cases not yet considered final? [EH.g., Re No Inrerro-

cation, People v. Clapper, 233 A. C. A. 18. 43 Cal. Rptr.

105 (1965), People v. Fork, 233 A. C. A. 860, 43 Cal. Rptr.

804 (1965) ; Re Harmuess Error, Excutpatory STATEMENTS

or Apmissions, People v. Williams, 235 A. C. A. 474, 45 Cal.

Rptr. 427 (1965) (admitted theft but denied robbery),

People v. Cooper, 234 A. C. A. 699, 44 Cal. Rptr. 483 (1965)

(admitted he was chewing marijuana cigarette); Re No

‘‘Foous,’’ People v. Jones, 232 A. C. A. 471, 42 Cal. Rptr.

714 (1965); Re No ‘‘Cusropy,’’ People v. Garrett, 235

A. C. A. 155, 44 Cal. Rptr. 897 (1965) ; Re Type or Apmoy-

ISHMENT, People v. Chaney, 233 A. C. A. 75, 43 Cal. Rptr.

280 (1965).]

C. Confessions Have an Essential Role and They Satisfy

a Useful Purpose in the Administration of Justice.

The fact that confessions are used extensively, as shown

by the Appendix, may not necessarily demonstrate justifi-

cation for their presence. Rationalization of all reason is

possible. Despite this logic, an outline of a few of the

reasons, without great detail as to ‘‘why”’ or ‘‘reason’’ for

the ‘‘why,’’ may be of assistance to the Court:

Tasically, crimes are covert by nature, and, zealous as-

sertions to the contrary, many crimes are impossible to

solve without a confession.

Confessions are the prime source of other evidence. Even

if it is possible to solve crimes in the ‘‘scientifie police

laboratory’’ (a misconception often perpetuated by the

police themselves), the evidence that is analyzed often must

come from admissions: the existence of the gun and the

location thereof, tM location of an automobile (e.g., in an

assault), ete. The doctrine of the fruit of the poisonous

tree will make an inadmissible confession of even greater

consequence.

Critics claim the urgent need is for more and better

police officers. Reality dictates that although there be

the need, there never will be sufficient police officers to

prevent incipient crime and to investigate the millions of

erimes committed in the United States. The selection of

crimes to be investigated merely will be reduced. Assuming

the existence of the required unlimited financing, neverthe-

less there are not enough FBI-caliber men, with college, law

school or other advanced training, available or attainable

for the cop’s beat. Even on that dark hypothesis, which

has some remedy by way of actual training, a ‘‘college

degree per se does not a good police officer make.’’

There is a direct corollary between pleas of guilty and

confessions. The Appendix data so indicates where such

data is available. (The City of Baltimore is an exception

which has had the experience wherein custom has put aside

the jury trial.) This is even more obvious when a distinc-

tion is made of the term ‘‘confessions’’ by eliminating

therefrom the ‘‘exculpatory statement.’’ It has been said

that if all defendants pleaded not guilty and demanded

trial by jury, justice in the United States would come to

an abrupt halt. Can there be any doubt that an increased

call upon court and prosecution personnel and facilities,

already overtaxed, would adversely affect the administra-

tion of justice in the United States? Although all of us

advocate justice, whatever the pecuniary cost, idealism

must give way to the reality of an overburdening demand

that cannot be (or will not be) absorbed by the economy.

If cases are to be disposed of, heavy reliance will be given

to bargaining. Is it the purpose of our system of law

to encourage perjury upon the part of the defendant? Is

it to allow the natural desire of self-preservation to be

expressed by refusal to plead guilty because the confession

is determined inadmissible and thus guilt cannot be proved

beyond a reasonable doubt? Does such an inducement dis-

courage rehabilitation? Is the purpose of our administra-

tion of criminal laws to limit convictions of the guilty?

Typically, Borchard and the Frank studies are cited

as authority for the proposition that innocent persons are

convicted. Borcuarp, Convictinc THE Innocent (1932);

Frank & Frank, Nor Guiity (1957). To say that innocent

persons are not convicted is to defy reality.

While every innocent person convicted is a haunting

reminder, unfortunately human beings are involved so

that no matter what the rule such tragedies will occur.

However, the dates of those cases, the number thereof

and the infrequent correlation between confession and the

wrongful conviction must be taken into consideration. In

29 of the 65 cases reported by Borchard, the innocent per-

son was convicted by eyewitness testimony, all the others

being laid to causes other than confessions except in two

‘‘notable’’ instances. In virtually all of the very few cases

involving any form of statement, it is unlikely that a

Dorado-type warning would have been of assistance be-

cause of the mental deficiency of the defendant. There

may well be in the converse more innocent persons con-

victed because of lack of a confession.

Juries are reluctant to convict one who has admitted no

wrongdoing. A direct correlation between trial and con-

viction is evident from the Appendix material, not to

mention the fact that a plea of not guilty, lacking an ad-

missible confession, often is subject to being dismissed at

the discretion of the prosecuting attorney as difficult or

impossible to convict.

D. The Judges’ Rules and the Dorado Interpretation of

Escobedo Cannot Be Equated.

The Judges’ Rules of England are cited as a persuasion

that the United States should adopt a Dorado interpreta-

tion of Escobedo. The argument is faulty for the follow-

ing reasons:

Since the time of the formulation of the J udges’ Rules

in 1912 and continuing up to the present, English police have

been able to enforce the laws because their image was such

that few would question their authority, whether they

had it or not. The English citizen would not think to re-

fuse (or at least in the past would not) the request of the

police to come down to the station for investigation pur-

poses. If the officer arrested someone and did not have

the authority, no question would be raised. Glanville Wil-

liams, the most eminent authority on criminal law in Eng-

land, has stated: ‘‘The law works as well as it does chiefly

because the moral authority of the police enables them to

get on without powers.’? Williams, Demanding Name and

Address, 66 L. Q. Rev. 465, 476 (1950). To some extent

this is true in the United Stafes. But then why the rule?

So that it can be broken or bent?

Referring to that fact that the fundamental condition of

the admissibility of a statement is that it be voluntary, the

following statement is made in the introduction to the

Rules: ‘Within that principle the Judges’ Rules are put

forward as a guide to police officers conducting investiga-

tions. Non-conformity with these rules may render an-

swers and statements liable to be excluded from evidence

in subsequent criminal proceedings.’’ [1964] 1 All. KE. R.

237 n. 2). (Emphasis added.)

The admonishment is of the right to remain silent not of

the right to an attorney: ‘‘Do you wish to say anything

in answer to the charge? You are not obliged to say any-

thing unless you wish to do so but whatever you say will

be taken down in writing and may be given in evidence’’

Judges’ Rules, Rule 3(a) [1964] 1 All. E. R. 237, 238. In

the United States two jurisdictions have followed admon-

ishment practice as to silence, none as to right to an at-

torney. Uniform Code of Military Justice, 10 U. S. C.

§ 831; Tex. Cope Crim. P. art. 727. Cases of exclusion of

a confession on the ground of failure to inform the de-

fendant of his right to counsel are unknown in England.

Cross, Confessions and Cognate Matters: An English View,

66 Colum. L. Rev. 79, 88 (1966).

While in 1964 the U. S. population was only 4 times that

of England and Wales combined, we had approximately 30

times as many murders and nonnegligent manslaughters,

40 times as many forcible rapes, and 35 times as many rob-

beries. See Appendix p. 45a. It should be remembered

that this is not a comparison with statistics of prior years,

as has been the attack advanced by the critics, but is upon

the statistics of two different countries for the same year.

There is no need for rules of admonishment. The rules

on voluntariness as prescribed by the United States Su-

preme Court are far more restrictive in application than

the Judges’ Rules and they do provide adequate protec-

tion for the innocent. See Haynes v. Washington, 373

U. S. 503 (1963).

II. AS A NEW STANDARD REVERSING PRIOR DECISIONS

OF THIS COURT, ESCOBEDO v. ILLINOIS SHOULD NOT

BE ACCORDED RETROSPECTIVE APPLICATION.

The Escobedo principle is a new rule, not only as an

exclusionary concept but as a constitutional right. Crooker

v. California, 357 U. S. 433 (1958); Cicenia v. Lagay, 357

U. S. 504 (1958). The same arguments presented by this

amicus in Linkletter v. Walker, 381 U. S. 618 (1965) and

Angelet v. Fay, 381 U. S. 654 (1965), including the sup-

plementary material furnished to the Court therein, apply

equally, if not more forcefully to the present situation.

Likewise, the decision of Tehan v. Shott, 34 U. S. L. Wrex

4095 (January 19, 1966), should be applied.

There has been no holding of retroactivity by any of the

federal or state appellate courts: to the contrary, the courts

that have construed Escobedo liberally have held such

a rule not to have retrospective application. E.g., In re

Lopez, 62 Cal. 2d 368, 398 P. 2d 380 (1965).

Obviously the most dangerous of criminals are among

those still incarcerated. Lack of other evidence at this late

date, if it ever existed, would require the release of many

of them. Both Crooker and Cicenia would be entitled to

new trials or release, reversing standings of this Court.

Although the membership of this Court changes, there

remains the need for relative stability of established prin-

ciples. To foster second-guessing will be detrimental to

an orderly society and to the administration of justice.

In the matters now before the Court, arguments have

raged and will continue this pursuit until this Court finally

resolves them. To further this debate be restatement

thereof herein will serve no purpose. The difficulties

which the California courts are experiencing with the cases

which are not as yet ‘‘final’’ (that is, after conviction but

in the process of appeal or subject to appeal, the time there-

for not having expired) seem reason enough to consider

the national effect upon the administration of justice, such

as would make the California situation a mere skirmish.

To cite all of the cases would be of no value, but to illus-

trate this point a few of the 1965 reversals of murder con-

victions (where the punishment was death or life imprison-

ment) on a Dorado interpretation of Escobedo are: Cati-

FORNIA SuPREME Court: People v. Bostick, 62 Cal. 2d 820,

402 P. 2d 529 (1965) (4 defendants); People v. Davis, 62

Cal. 2d 791, 402 P. 2d 142 (1965); People v. Roberts, 63

A. C. 79, 403 P. 2d 411 (1965); People v. Lilliock, 62 Cal.

2d 618, 401 P. 2d 4 (1965) (2 defendants); District Courts

or AppraL: People v. Benavidez, 233 A. C. A. 346, 43 Cal.

Rptr. 577 (1965) ; People v. Reid, 233 A. C. A. 184, 43 Cal.

Rptr. 379 (1965). There are many others, including

Dorado himself and the defendant, Stewart, now before

the Court. Of course, these cases are a mere sampling

of the overall effect of Dorado, much less what the effect

would be were it given retroactive application.

The Appendix of this brief demonstrates, far more than

any recitation of theories, the possible effect of a decision

to make any Escobedo rule retroactive. Of course, if the

suggestion for an advisory rule is adopted, no problem lies

on this point.

As new rules of conduct are formulated by the Court

upon new found constitutional principles, the requiring of

retrospective application thereof will frustrate the ad-

ministration of justice beyond comprehension. While

courts may be required to exercise hindsight, police officers

only can be expected to follow prospective rules.

III. TO GUIDE LAW ENFORCEMENT OFFICERS, AN AD-

VISORY STANDARD, AS DISTINGUISHED FROM AN

EXCLUSIONARY RULE, SHOULD BE DEVISED.

The exclusionary rule is ineffective at best. It may well

be harmful. Whether changes can occur, or will occur in a

degree that change is possible, devolves around human

nature more so than legal principles, except insofar as the

latter is an integral part of the former. This is a fact that

even the critics of law enforcement appreciate:

A practical difficulty in enforcing the constitutional

rights of prisoners is the small efficacy of sanctions

against official misconduct. In practice, the exclusion-

ary rule alone is available, and it has no direct dis-

ciplinary force. The rule is applied only at trial, or

perhaps only on appeal, months after the case has been

“‘solved’’? and after the credit for getting the con-

fession has been duly shared by all concerned. Then

disappointed officials can ascribe the blame to the state

or federal courts. Only after such rare public dis-

closures as those in the Whitmore case will any dis-

credit fall on the officers.

The only effective way to establish a constitutional

regime in the administration of criminal justice is for

the administrative superiors of police and prosecutors

to insist on it. Sutherland, Crime and Confession, 79

Harv. L. Rev. 21, 40 (1965).

And Professor Sutherland may well have stated that ap-

pellate judges are not inclined to reverse many cases for

this reason as well. To add an even more unpopular com-

pulsory rule of exclusion will not serve the interests of the

people, law-abiding and nonlaw-abiding alike, of whom

police officers, prosecuting attorneys, state and federal

judges and Justices of this Court are servants,

Has not the time arrived for all of these public serv-

ants to join with other members of the executive and legis-

lative branches of government in working together toward

improving justice? Can this not be accomplished by an

advisory rule which provides for reasonable, workable

requirements but which does not exclude from court, on

the bases of technicalities, the evidence obtained by a

police officer attempting in good faith to follow such a rule?

There should be no cause for ‘‘stretching of the law’? (if

not of the imagination) by the police officer or the trial or

appellate judge, in order to uphold a conviction which

should be so upheld but for an unintentional violation of

such rule by a police officer seeking to perform his duty.

The Advance Sheets readily disclose the means used by

the California District Courts of Appeal to evade the

stringent Dorado rule. What course the police and the

trial judges of that state may be pursuing is not known.

Would not the advised use of an exclusionary rule—ii

limited to the flagrant abuse, the obvious violation or the

grossly negligent failure to abide with such a regulation—

bring, more forcefully, any improrer conduct to the atten-

tion of those who are in a position to discipline the re-

ealcitrant? Thus, it would be possible to inaugurate a

workable system of redress.

State and federal governments are engaged, at last, in

asserting positive action toward the objective of effective

and just administration of the criminal law. The needs are

obvious, although in all instances the method to accomplish

the specific need is not. Surely improvement of the ju-

diciary, the prosecutorial office and the various law en-

forcement bodies can be made and will be made because of

the present awareness, The various federal programs are

to be seen in the presidential message of March 8, 1965, the

immediate products being the Law Enforcement Assistance

Act and the National Crime Commission. Local govern-

ments and private associations, from state to city, are in-

volved in the overall plan. The American Bar Association

is now engaged in studies which plan uniformity of ty ial

practices as a means to more efficient justice (Criminal

Justice Project headed by Chief Judge J. Edward Lum-

bard, United States Court of Appeals for the Second Cir-

cuit). The International Association of Chiefs of Police,

this amicus and other national groups who represent ad-

ministrators of the criminal laws seek to make changes fdr

the better. There is a revolution in sight. Through the

leadership of this Court, much of this promotion has come

to fruition.

Fifty states, which are much like fifty countries, with

their history of polities, the cultural differences of their

ethnic groups and the myriad of other factors which have

made them distinct, cannot be welded into a uniform mass

overnight. With a national credo, uniformity in adminis-

tration should be sought insofar as it can be sought. Of

course, with human beings in charge perfection can only be

a goal, This is not a pessimistic outlook, but rather it is

optimistic that such a goal should be set at all.

But, to place, before all else, the opinion that the change

must occur immediately by way of a dogmatic exclusionary

rule may well frustrate the hoped-for objectives. The ex-

igencies are time and study. The standard of justice in

this country is not such that we cannot afford to stay

changes, if the foreseeable results are more productive. An

advisory rule, in the manner of Wolf v. Colorado, 338 U. 8.

25 (1949) (which, because the times were different, did not

precipitate the action warranted), will certainly be heeded

now. It will give time to implement and still lead the way.

Salam

As we have throughout our entire legal history, we can

look to England for the wisdom of experience. There, the

formation of the Judges’ Rules came at the request of

police officers for guidance. While, as has been previously

noted, the police of that country do not always adhere to

the letter, the Rules are effectual because of the unique

rapport between the courts and the police, an example to be

encouraged in this country. The advisory Judges’ Rules

have some workable qualities which would not frustrate the

»erecement of our laws. The indulgence of the Court in

this suggestion is respectfully requested.

CONCLUSION.

Amicus curiae requests that the Court limit Escobedo v.

Illinois, 378 U. 8. 478 (1964), to its facts and that the rule

in Escobedo be prospective only, in the form of an ad-

visory rule to guide the administrators of our criminal

laws.

For these reasons the decision in California v. Stewart

should be reversed and the decisions in Miranda v. Arizona,

Vignera v. New York and Johnson v. New Jersey should

be affirmed.

Respectfully submitted,

Duane R. Neprup,

Executive Director, National District

Attorneys Association,

1155 East 60th Street,

Chicago, Illinois 60637,

Marouenrite D. Oserto,

Assistant Executive Director,

Counsel for the National District

Attorneys Association, Amicus

Curiae.

INDEX.

PAGE

ProsecutTine ATTorRNEYs ConTRIBUTING DaTA.......... la

INE a via cons wiais wa wiciehn ale gicier® 6acaba le: «alan 3a

EGRET oT se art Ra eS aU a 5a

Taste I. Confessions: National Relevance (Review of

ONE os Dail) ARGU oo sei enbwedct 6a

Taste II. Confessions: National Relevance (Review

of 1961 Cases Based Partly upon Sampling)........ 7a

Taste III. Confessions: National Relevance of Pleas

and Trials—1961 (Combined Table—Data Obtained

by Complete Check and by Sampling).............. 8a

Summary or Data From THE FoLtLowinG JurispIcTions

(Original materials on file in the Office of the Clerk

of the Supreme Court) :

California, Alameda County (Oakland).......... 9a

California, Sacramento County (Sacramento).... 10a

Connecticut, Hartford County (Hartford)........ 15a

Florida, Eleventh Judicial Circuit (Dade County,

I ie hie Cae aes kel i 16a

Georgia, Atlanta Judicial Circuit (Fulton County,

Chee i ci th dn > ee aiceack | 5 « 18a

Louisiana, Orleans Parish (New Orleans)........ 19a

Maryland, City of Baltimore.................... 20a

Michigan, Wayne County (Detroit).............. 25a

Minnesota, Hennepin County ( Minneapolis)...... 26a

New Jersey, Essex County (Newark)............ 28a

New York, Kings County (Brooklyn)............ 29a

New York, New York County (New York)........ 3la

New York, Westchester County (White Plains).. 3

Ohio, Franklin County (Columbus)..............

33a

Ohio, Hamilton County (Cincinnati)............ 34a

Ohio, Montgomery County (Dayton)..........-- 35a

Pennsylvania, Philadelphia County (Philadelphia) 38a

Jupcrs’ Ruuzs, [1964] 1 All. BE. R. 237...............- 39a

Taste IV. Comparison of Crime Incidence—1964 (Eng-

land - Wales - United States - Chicago Area)........ 45a

is ;

PROSECUTING ATTORNEYS CONTRIBUTING DATA.

Alameda County, Oakland, California

J. Frank Coakley, District Attorney

Robert H. McCreary, Assistant District Attorney

Sacramento County, Sacramento, California

John M. Price, District Attorney

Hartford County, Hartford, Connecticut

John D. LaBelle, State’s Attorney

Eleventh Judicial District (Dade County), Miami, Florida

Richard E. Gerstein, State’s Attorney

Atlanta Judicial Circuit (Fulton County), Atlanta, Georgia

Lewis R. Slaton, Solicitor General

Orleans Parish, New Orleans, Louisiana

Jim Garrison, District Attorney

Charles R. Ward, Chief Assistant District Attorney

City of Baltimore, Baltimore, Maryland

Charles E. Moylan, ./r., State’s Attorney

John D. Hackett, Assistant State’s Attorney

Wayne County, Detroit, Michigan

Samuel H. Olsen, Prosecuting Attorney

Samuel J. Torina, Assistant Prosecuting Attorney

Hennepin County, Minneapolis, Minnesota

George M. Scott, County Attorney

Donald J. Omodt, Assistant County Attorney

Douglas County, Omaha, Nebraska

Donald L. Knowles, County Attorney

Essex County, Newark, New Jersey

Brendan T. Byrne, County Prosecutor

Barry H. Evenchick, Assistant County Prosecutor

Kings County, Brooklyn, New York

Aaron Koota, District Attorney

Elliott Golden, Chief Assistant District Attorney

Ronald B. Bianchi, Assistant District Attorney

Nassau County, Mineola, New York

William Cahn, District Attorney

New York County, New York, New York

Frank S. Hogan, District Attorney

David S. Worgan, Assistant District Attorney

Westchester County, White Plains, New York

Leonard Rubenfeld, District Attorney

Thomas A. Facelle, Jr., Senior Assistant District At-

torney

Franklin County, Columbus, Ohio

C. Howard Johnson, Prosecuting Attorney

Hamilton County, Cincinnati, Ohio

Melvin G. Rueger, Prosecuting Attorney

Montgomery County, Dayton, Ohio

Lee C. Falke, Prosecuting Attorney

Walter H. Rice, Assistant Prosecuting Attorney

Philadelphia County, Philadelphia, Pennsylvania

James ©. Crumlish, Jr., District Attorney

(to 12/31/65)

Arlen Spector, District Attorney

(effective 1/1/66)

Richard A. Sprague, Assistant District Attorney

INTRODUCTION.

This Appendix contains charts showing facts, figures and

relative percentages for individual jurisdictions and on a

national scale in regard to confessions and criminal cases.

T. most instances the data collected was sent in affidavit

form with some additional information by letter. The

original materials, that is, request for data forms, the

affidavits (which have been condensed and correlated for,

this presentation) and other information received have

been filed with the Clerk of the Supreme Court.

Realizing that a great many of the opinions on the

relative significance of confessions (statements) to the

process of criminal cases have been based upon supposition

rather than fact, the National District Attorneys Associa-

tion in October 1965 requested the cooperation of metro-

politan prosecuting attorneys to search files and records

to ascertain the actual use of confessions in felovy cases.

Those listed herein responded to the request. The year

1961 was selected for uniformity. To give an insight into

the number of felony defendants who might still be incar-

cerated (having been convicted at trial as distinguished

from entering a plea of guilty) and thus have possible

recourse if retroactive application were found, case sum-

maries were requested. Those jurisdictions who had suffi-

cient time provided this information and it is included

herein. Data from those jurisdictions that did not fit into

the format requested for the year 1961 are part of the

dossier of original data filed with the Clerk of the Supreme

Court.

Generally, the data was obtained by assistants in the

prosecuting attorney’s office, although in one instance law

students were employed for this purpose and in others,

police officers or other law enforcement personne} collected

the data or otherwise assisted in its compilation.

At first a request was made to check each case. This

was done in a number of the offices; but because of lack

of time and personnel, other offices asked to make sam-

plings. All variations in the method of data collection are

noted.

Many difficulties were encountered due to insufficient in-

formation in the records. In Miami, Oakland and Balti-

more, through the use of samplings, such limitation in data

was noted. Presumably this was true in other jurisdictions

as well, so that the ratio of the number of cases involvir*

confessions, as reported herein, would be low.

In some jurisdictions special data was reported. For

example, both Minneapolis and Detroit classified their

data into types of crimes. Also the Minneapolis data was

further anaylzed to distinguish exculpatory statements

from admissions of guilt, to show use in trials, pleas of

guilty, etc. Miami included information on confessions in

homicide cases.

Usually opinion is involved as to the essentiality of con-

fessions at trial or plea proceedings. Therefore, the re-

quest for data excluded the reporting of such information,

although it may be readily deduced from some of the ab-

stracts. However, generally it would be conceded that

the ‘‘confession’’ was a fattor in the cases—whether in

obtaining a plea of guilty or in the conviction at trial. The

latter situation would include the use of exculpatory state-

ments for impeachment purposes or otherwise aid in the

trial. The fact that statements may have been used to

secure evidence of the crime would preclude the determina-

tion of whether it was ‘‘essential’’ to conviction.

No comment is made on the data, allowing the facts and

figures to speak for themselves. The data was collected,

compiled and included in this brief for the assistance of

the Court. The only other data of this type known is that

_—

found in the supplementary memorandum to this Court

submitted by this amicus in Linkletter v. Walker: in a table

of 100 defendants, 85 gave statements.

GLOSSARY.

(Terms Used in Tables and Original Data.)

Confessions: extrajudicial statements of all kinds, admis-

sions or exculpatory, oral or written.

Convictions: pleas of guilty and convictions at trial.

Dispositions: pleas of guilty, trials, nolle prosequi, dis-

missals, etc.—where case file is closed.

Pleas of Guilty: convictions without trial verdict or judg-

ment; includes cases where defendant pleaded guilty

after trial commenced.

Prosecutions: pleas of guilty and trials by judge or jury.

Trials: acquittals, verdicts, findings, dismissals by court,

insanity, ete.

Trial Convictions: verdicts of guilty by jury and/or find-

ings of guilty by judge sitting without jury after trial

on the «acts.

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TABLE III.

CONFESSIONS: NATIONAL RELEVANCE OF

PLEAS AND TRIALS—1961.

COMBINED TABLE—DATA OBTAINED BY COMPLETE

CHECK OR BY SAMPLING.

Confessions/ Confessions/

Pleas Trial Confessions/

Jurisdiction of Guilty Convictions Trials

California, Sacramento County

(Sacramento) 45.3% 64.7% 57%

Maryland, City of Baltimore 29% 37% 32%

Minnesota, Hennepin County

(Minneapolis) 86.7% 80.7% 80%

New Jersey, Essex County

(Newark) 98% 62% 53.6%

New York, Kings County

(Brooklyn) 47% 0% 11.8%

New York, New York County

(New York) 50% 24.4% 19%

New York, Westchester County

(White Plains) 84.6% 711% 80%

Ohio, Montgomery County

(Dayton) 76.8% 43.3% 38%

Note: California, Maryland, New York (Westchester County), and Ohio

based upon review of all cases. New York (New York County )—

trial convictions and trials based upon review of all cases. All other

perceatages based upon sampling. ;

California.

AuamMeEpA County, Oakland

J. Frank Coakley, District Attorney

Data compiled by Robert H. McCreary,

Assistant District Attorney

1960 County Population: 908,209

In ‘‘Crime in California,’’? 1961, as compiled in the

State’s Bureau of Criminal Statistics, the figures for the

County of Alameda were: felony filings on defendants—

1258; felony defendants—1304; convicted—1229; pleaded

guilty-—1043,

Examining the Registers of Criminal Actions for the

County (County Clerk No. 32134 to and including County

Clerk No. 33271) tor the year 1961, Mr. McCreary found

888 cases in which guilty pleas were entered. Of the 888

cases, every 25th case was reviewed for a total of 35 cases

specifically considered. The check of these cases revealed

that extrajudicial confessions were involved in 21 cases; no

extrajudicial confessions were involved in 11 cases; no data

was available on the confession issue in 3 cases. Thus,

60% of the cases wherein pleas of guilty were registered

also contained verifiable extrajudicial confessions.

No data was to be had in the records or files concerning

the use or nonuse of confessions at trial, except in the

very few cases where appeal transcripts were prepared.

10a

California.

Sacramento County, Sacramento

John M. Price, District Attorney

Data compiled under the direction of

John M. Price, District Attorney

1960 County Population: 502,778

1961: 884 FrLony PRosEcUTIONS

Based on a Review of All Felony Prosecutions

Pleas of

Guilty Trials’ Total

Convictions 774 85 859

Confessions 351 55? 406

Relativity: Confessions

Convictions 45.3% 64.7% 47%

Relativity: Confessions 414

Prosecutions 884 — — 46.9%

Relativity: Confessions 63

Trials 1100 — 57% —

1. Total tried: 110.

2. Total confessions involved in 110 trials: 63, of which

3 found not guilty by reason of insanity.

In 1961 there were 965 felony dispositions, but no data

was available on confessions in the total dispositions other

than by trials or pleas of guilty (e. g., nolle prosequi).

There remain under the control of the penal authorities

15 defendants who were convicted at trials (as distin-

guished from pleas of guilty) in which their statements

were a factor. Resumes of these cases are as follows:

lla

Superior Court #24754—James Vienni:

Convicted of three counts of armed robbery after trial

by jury. An exculpatory-type statement was used at trial

to impeach defendant as it varied from his sworn testimony.

Conviction was the result of a combination of circum-

stances: (1) Identification of defendant by four eye-

witnesses; (2) Fact defendant had pnior felony convic-

tions; (3) Use of district attorney’s statement as im-

peachment.

Superior Court #25294—William Henry Houghton, age 35:

Convicted of assault with intent to commit murder, armed

robbery and ex-convict with a gun. Sentenced January 17,

1962; all counts consecutive, and adjudged a habitual

criminal. Defendant asked three people to accompany him

in a holdup. showed them the gun he intended to use and

testified for them; each refused. When arrested defend-

ant made statement that he is fighting for 15 to 20 years

of his life—that he had no one to blame but himself, that

he was willing to pay for his actions and that he knew he

had to.

Superior Court #25356—Robert O. Dingman, age 29:

Convicted of two counts of second-degree burglary. Sen-

tenced to state prison on February 16, 1962. Defendant

did not take the stand; however, his confession was intro-

duced against him.

Superior Court #25301—Ervin Lewis Zander, age 19:

Defendant, in conjunction with two others who pleaded

guilty, committed an armed robbery. He pleaded not

guilty, was convicted on January 30, 1962, and sentenced

to California Youth Authority on February 21, 1962. His

confession was used against him at trial.

12a

Superior Court #25326—Arthur Davis, age 55:

Convicted of first-degree robbery. Charged November

21, 1961; jury trial; sentenced to state prison February

14, 1962. Defendant, an on-duty policeman in a small

town, was look-out while Freeman and DeLouize robbed

bar. During investigation Freeman confessed, naming

Davis. Had suspicion focused on Davis? By use of elec-

tronic device (. . .), made recording of damaging

admissions by Davis relative to his part in robbery. This

statement vital to conviction as corroboration of Freeman’s

testimony. Davis now on parole.

Superior Court #25047—Sidney Lewis, age 39:

Convicted of burglary, second; sentenced to» one to 15

years on September 27, 1961; affirmed on appeal. No eye-

witnesses. Defendant walked into the Los Angeles Sher-

iff’s office and confessed the crime to two officers. Con-

fession used as only means of connecting him to crime.

Defendant admitting smashing a jewelry store window

and stealing miscellaneous jewelry.

Superior Court #24935—Kenton Dale McHenry, age 32:

Convicted of fuur counts of incest and one count of lewd

and lascivious conduct with a child under the age of 14;

sentenced to one to 50 years on each count of incest and

one year to life on the child molest. Two eyewitnesses.

Admission that one day his wife ‘‘came home too soon”’

was closest thing to a confession in the case. Sentence

was imposed August 11, 1961.

Superior Court #24918—Joseph C. Davis, age 34:

Convicted of first-degree robbery; sentenced to five years

to life on August 23, 1961. Eyewitnesses, plus defendant

confessed to aiding and abetting in the robbery of a serv-

ice station attendant.

EE ——

13a

Superior Court #25177—Martha Seach, age 37:

Convicted of attempted burglary, placed on felony pro-

bation. No confessions or admissions, but demonstrably

false and evasive self-exculpatory statements were intro-

duced 8 zainst her.

Superior Court #25176—Billy Tildon Brown, age 27:

Convicted of forcible rape; sentenced to three years to

life on November 29, 1961. No confession or admissions,

but formal statement used to impeach defendant on basis

of prior inconsistent statements as to whereabouts at par-

ticular times.

Superior Court #25373—William J. Songs, age 49:

Convicted by jury of robbery, first degree, on February

9, 1962. Sentenced to state prison for five years to life

on March 1, 1962. Convicted on testimony of eyewitness-

victim, Made statement denying crime. Defendant’s testi-

mony at trial was, in several material respects, inconsistent

with his statement. Statement was, therefore, used on

cross-examination of defendant for impeachment.

Superior Court #25415—Jesse Allen, age 48:

Convicted by jury of murder, second degree, on March

14, 1962. Sentenced to state prison for five years to life

on March 19, 1962. Made statement confessing shooting

an acquaintance in the course of an argument in a pool hall.

Convicted upon eyewitness testimony and confession.

Superior Court #25034—Harold Pearl, age 33:

Convicted by jury October 26, 1961, of murder, second

degree, and abortion. Sentenced to state prison on No-

vember 7, 1961, for five years to life and six months to

five years concurrent. There were no eyewitnesses to the

l4a

crimes, and defendant was convicted solely on circumstan-

tial evidence. He gave an extrajudicial statement deny-

ing involvement. This statement contained demonstrably

false statements plus admissions showing a consciousness

of guilt. Defendant declined to testify in his own behalf

because of probability of damaging cross-examination on

the basis of his extrajudicial statement.

Superior Court +25034—Robert Kennedy, age 41:

Convicted by jury October 26, 1961, of murder, second

degree, and abortion. Sentenced to state prison on No-

vember 7, 1961, for five years to life and six months to five

years concurrent. There were no eyewitnesses to the

crimes, and defendant was convicted solely on circumstan-

tial evidence. He gave an extrajudicial statement denying

involvement. This statement contained demonstrably false

statements plus admissions showing a consciousness of

guilt. Defendant declined to testify in his own behalf be-

cause of probability of damaging cross-examination on

the basis of his extrajudicial statement.

Superior Court #+24438—Edward Potter, age 34:

Convicted by jury of lewd and lascivious conduct with

a child under the age of 14 years (violation of Section 288

of the Penal Code). On January 6, 1961, he was convicted

and on January 27, 1961, sentenced to the state prison for

a term of one year to life. Defendant convicted on testi-

mony of the victim, age 13, plus his extrajudicial confes-

sion.

15a

Connecticut.

Hartrorp County, Hartford

John D. LaBelle, State’s Attorney

Data compiled by John D. LaBelle,

State’s Attorney

1960 County Population: 689,555

There were 593 defendants docketed on felony charges

for the calendar year 1961.

1961: 319 Prosecutions.

Based on Sampling of Pleas of Guilty and Review of All

Trials.

Pleas of Guilty Trials!

Convictions 13 21

Confessions 7 2

Relativity: Confessions

Convictions 53.8%? 9.5%

1. Total tried 33 of which 21 were convicted; 6 were

acquitted; 4 were found not guilty by reason of insanity

and committed to state mental institution; 2 were found

guilty of lesser charges.

2. Based on an examination of approximately every

25th case, for a total of 13 files checked. A review of these

files disclosed that in 7 cases extrajudicial confessions had

been made by the defendants.

There remain under the control of penal authorities 15

of the defendants convicted (by plea or trial) of felonies.

Of the defendants so incarcerated, 8 of them confessed.

Sinec all eight of these cases involved pleas of guilty, re-

sumes thereof are not set out here.

16a

Florida.

Exuevents Jupician Crecurt, Miami

Richard E. Gerstein, State Attorney

Data compiled under the direction of

Richard E. Gerstein, State Attorney

1960 Judicial Circuit Population: 935,047

(Dade County)

The files were reviewed and the data correlated by Denis

Dean and Philip S. Goldin, law students at the University

of Miami School of Law, who were retained for that pur-

pose by Mr. Gerstein.

In the calendar year 1961, there were 2206 felony charges

filed. Defendants convicted for the period numbered 1722,

which count includes felonies reduced to misdemeanors;

pleas of guilty totaled 1294. The difference between con-

victions and pleas is attributed primarily to the inclusion

of felonies reduced to misdemeanors (especially automo-

bile thefts) in the total conviction count; no specific check

was made to reflect this misdemeanor-conviction figure. No

information was reported of cases tried.

An extrajudicial confession was a factor in 791 felonies.

Confessions were involved in 750 of the convictions; again

the conviction figure incorporates felonies reduced to mis-

demeanors; also no attempt was made to further classify

as to guilty plea or trial. However, in a check of 25 files

(approximately every 25th case) wherein the defendant

had entered a plea of guilty, it was determined that no

evidence of a confession appeared in 17 of these cases while

in 8 of these cases no specific data was available regard-

ing the existence or nonexistence of a confession. Thus,

from a consideration of this sampling, it can be assumed

17a

that a substantial number of the total cases filed did not

contain a record indicating the use or nonuse of a con-

fession; consequently, the percentage of confessions to

convictions, 43.5% (750/1722), is low for it is very likely

to be considerably higher in view of the sampling. The

ratio of confessions to dispositions, 35.8% (791/2206), also

is low for the very same reason.

Of those convicted in 1961, 73 remainincarcerated.

: 1961: 24 Homictpr Prosecutions

Based on Review of All Cases Prosecuted

Pleas of

Guilty Trials' Total

Convictions 20 3 23

Confessions — — 21

Relatively: Confessions

Convictions — — 91%

Relativity: Confessions

Prosecutions — —- 87.5%

—_—_

1. Total tried: 4.

18a

Georgia.

Atiarta Jupicirat Crecurr, Atlanta

Lewis R. Slaton, Solicitor General

Data compiled under the direction of

Lewis R. Slaton, Solicitor General

1960 Judicial Circuit Population: 556,326

(Fulton County)

A sampling of 10% of the following cases for the year

1961 were taken: 3

Number of felony cases handled: 1502

Number of pleas of guilty 1146

Number of cases tried

(all jury) 211

Others (nolle prosequi, dead

docket, etc.) 145

1961: 1357 Fetony Prosecutions

Sampling of 10% of All Cases Prosecuted'

Pleasof Jury

Guilty Trials Total

Convictions 131 — —

Confessions 69 2 71

Relativity: Confessions

Convictions 52.67% — —

Relativity: Confessions 71

Prosecutions 150 — ~~ 47%

1. Cases reviewed: 131 pleas of guilty; 19 trials.

19a

Louisiana,

Orteans Parisu, New Orleans

Jim Garrison, District Attorney

Data compiled by Charles R. Ward, —

Chief Assistant District Attorney

1960 County Population: 627,525

Information regarding the total number of felonies dis-

posed of in 1961 is unavailable.

However, there were 700 pleas of guilty entered, and a

check of every 25th case (for a total of 28 cases) indicated

that 22 extrajudicial confessions were involved while in

6 cases there were no confessions. From this sampling,

the percentage of confessions in pleas of guilty equals

78.4%.

There were 46 cases tried before a jury: confessions were

used in 22 of these cases; all 22 cases resulted in convic-

tions. The percentage of confessions to trials equals

47.8%. No other data was available.

20a

Maryland.

City oF BALTIMORE

Charles E. Moylan, Jr., State’s Attorney

Data compiled by John D. Hackett,

Assistant State’s Attorney

1960 City Population: 939,024

Maryland, a common law state, lists many statutory fel-

onies of other jurisdictions as misdemeanors, e.g., Cay-

time and store house burglaries, both of which comprise

a sizeable number of indictments in the City of Baltimore.

Also many felony charges result in misdemeanor con-

victions under multiple-type indictments. Consequently,

the separation of felonies and misdemeanors in the State of

Maryland cannot afford a meaningful comparison with these

classifications as employed in other states. In a number

of files the records do not indicate whether a confession

was used or not, as reflected by a sampling set out in the

original data.

In Baltimore the guilty plea is infrequent; likewise, the

jury trial is notably rare. Hearings are almost exclusively

by the bench: it is possible for as many as four or five

eases to be disposed of in one day by one judge and by

one prosecuting attorney. The experience of the State’s

Attorney has been that the small number of guilty pleas

have resulted from defense counsels’ concern with defend-

ants’ stock claim in their petitions that counsel was ‘‘pro-

fessionally incompetent. ’’

2la

1961: 638 FrLony Prosecutions

Based on Review of All Felony Prosecutions

Pleas of

Guilty Trials Total

Convictions 210 300 510

Confessions ol 112 173

Relativity: Confessions

Convictions 29% 37% 33.9%

Relativity: Confessions 198

Prosecutions 638 — — 30.9%

Relativity: Confessions 137

Trials oe — 32% _

Defendants still incarcerated where confessions were

used in their cases number 33.

Resumes of every 25th case of the 198 cases tried in

which confessions were used (for a review of 8 cases) follow

(cases selected reflect defendants still incarcerated which

fall closest to the actual 25th case) :

1. Case No. 682, William Holmes, then age 49, con-

victed of murder in the first degree, court trial,

court appointed attorney, eu December 18, 1961

(companion conviction for rape, sentence sus-

pended). Sentenced to life imprisonment on Jan-

uary 5,-1962. No appeal taken. No eyewitness.

Confession admits sexual intercourse, binding and

gagging of victim, abandoning victim behind locked

door, and returning in week’s time to find the victim

dead. Psychiatric examination completed pre-trial :

diagnosis :—legally sane then, legally sane at time

of trial.

2. Case No. 1535, Sylvester Alphonse Evans, then age

18, convicted of murder in the first degree on Oc-

tober 24, 1961, court trial, court-appointed attorney.

22a

Sentenced to life imprisonment on March 16, 1962

in the Maryland Penitentiary. Motion for new trial,

other court-appointed attorney, heard, denied. Ap-

peal not taken. Defendant identified during trial.

Confession admits joining group of youths in pool

room, leaving en masse to punish others for ‘‘mess-

ing’’ with his sister, a confrontation of sister and

victim, age 14, in front of ten friends and beating

of victim by group. Confession also admits taking

shot gun, on the following night to a ‘‘rumble”’

with victim’s friends, chasing the victim and shoot-

ing as he fled down the alley. Defendant also ad-

mits an immediate change of clothing to avoid

police detection.

. Case No. 1031, Floyd Jorstad, then age 34, con-

victed on April 7, 1961, after pleading guilty to

armed robbery of $2863.00 from bank teller, re-

fused court appointed counsel. Sentenced to nine

years in the Maryland Penitentiary on April 7,

1961. Four eyewitnesses identified defendant in

police lineup and trial. Statement admitted, con-

tains story of arrival in Baltimore City via freight

ear to study historical monuments, and makes no

reference to bank hold up.

. Case No. 2165, Paul D. King, then age 45, con-

victed of second degree murder on September 25,

1961, after entering guilty plea with retained at-

torney. Sentenced to 18 years in the Maryland

Penitentiary on September 25, 1961. No appeal

taken. Pre-trial psychiatric report: diagnosis—

legally sane. One eyewitness identified defendant

at trial. Confession admits slapping, chasing and

shooting victim following argument in victim’s

home after evening date refusal. Defendant, a

23a

longshoreman, also admitted carrying unlicensed

gun at all times.

Case No. 2652, Emory McNeal, then age 37, con-

victed on August 9, 1961, of armed robbery, court

trial, court-appointed attorney. Electroencephalo-

graph studies ordered by court: diagnosis—no

brain injury. Sentenced to 10 years in the Mary-

land Penitentiary on August 9, 1961. No appeal

taken. Both cab driver victims identified defend-

ant at trial. One confession admits hold up in at-

tempt to get money for drink. Other confession

admits drinking and ‘‘amnesia’’ concerning pos-

session of leather pocket watch of victim.

Case No. 4080, James D. Clay, then age 27, con-

victed on December 11, 1961 of two cases of armed

robbery and assault, court trial, court-appointed

counsel, guilty plea. Sentenced to 20 years in the

Maryland Fenitentiary on December 11, 1961. No

appeal taken. Both victims identified defendant at

trial. The one confession admits planning with an-

other and execution of robbery of one victim, a used-

car office. Denial of weapon used with admission of

hand in pocket and death threat. Other confes-

sion admits planning with two others, execution of

robbery and beating of barber who resisted hold up

trip.

Case No. 442, Matthew Forrester, then age 26, con-

victed on January 17, 1962 of mayhem and assault

to rob, court trial, court-appointed attorney. Sen-

tenced to ten years in the Maryland Penitentiary,

after denial of motion for new trial, by another

court-appointed attorney, on June 7, 1962. No ap-

peal taken. Victim, who lost an eye and is deaf,

identified defendant as one of four men who as-

os amy

24a

saulted him, ripped off his trousers and fled scene

with victim’s money. Statement asserts defendant

only offered victim handkerchief to stop face bleed-

ing and carrying victim into tavern wash room,

admits sharing loot taken from victim.

8. Case No. 4793, William Cole, then age 22, convicted

on January 24, 1962, of armed robbery, court-ap-

pointed counsel. Sentenced to ten years in the

Maryland Penitentiary on January 24, 1962. No

appeal taken. Truck driver victim identified de-

fendant on street at time of arrest and at trial.

Confession admits planning with codefendant to

‘¢get some money’’, agreement to rob truck driver,

concealed ‘‘gun’’ in coat pocket, beating of victim,

flight and chase by police cruiser and admission of

lies to conceal identity when first questioned.

Michigan.

Wayne County, Detroit

Samuel H. Olsen, Prosecuting Attorney

Data compiled under the direction of

Samuel J. Torina, Chief Appellate

Attorney, by the Criminal Investi-

gation Division, Detroit Police De-

partment

1960 County Population: 2,666,297

1961: 1445 PROSECUTIONS.

Relativity :

Confession/

Crime Prosecution Conviction Confession Prosecution

Unlawful driving away auto

and possession of stolen

auto 392 270 233 52%

Uttering & publishing; lar-

ceny over $100 (shop-

lifting) 337 331 241 71.5%

Homicide 115 105 61 53%

Narcotic violations 240 197 124 51.7%

Kidnapping, extortion, arson,

larceny by trick 24 9 7 29%

Robbery 181 170 148 81.7%

Burglary 62 60 40 64.5%

Forcible rape 74 56 18 24%

Carrying concealed weapon ;

possession of burglar tools;

receiving and concealing

stolen property over $100 20 18 7 35%

Total 1445 1216 879 60.8%

26a

Minnesota.

Henyepix County, Minneapolis

George M. Scott, County Attorney

Data compiled by Donald J. Omodt,

Assistant County Attorney with

the assistance of Charles Rogers,

Investigative Clerk, County At-

torney’s Office

1960 County Population: 842,854

In 1961, felony dispositions totaled 658. There were 593

pleas of guilty entered; in a sampling of 1 out of 20 cases

(30 cases checked), the ratio of confessions to convictions

was 86.7%. A total of 65 cases were tried: 50 convictions

and 14 acquittals. A sampling of 35 of these cases re-

vealed a confession to conviction ratio of 80.7% and a

confession to prosecution ratio of 80%.

The following two charts disclose the detail of the

samplings:

PLEAS OF GUILTY.

Defend-

Signed Oral Excul- ant Defendant

Con- Con- patory Stood Still Incar-

TypeofCrime Cases fession fession Statement Silent cerated

Robbery 12 9 1 2 5

Rape 1 1 1

Narcotics 3 3 0

Assault 2 1 1 0

Indecent Assault 1 1 0

Murder 3 8 2

‘Sodomy 3 2 1 0

Carnal Knowledge 2 1 1 1

Arson 1 1 1

Abortion 2 1 1 0

30 22 1 3 4 10

27a

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28a

New Jersey.

Essex County, Newark

Brendan T. Byrne, County Prosecutor

Data compiled under the direction of

Barry H. Evenchick, Assistant

County Prosecutor by Charles H.

Acocella, County Investigator and

Evan EH. Miles, County Detective,

both on the staff of the County

Prosecutor

1960 County Population: 923,545

1961: Sampuinc or 100 Cases

Pleas of

Guilty Trials Total

Convictions 59 29 88

Confessions 55 18 73

Relativity: Confessions

Convictions 93% 62% 82.9%

Relativity: Confessions 77

Prosecutions 100 — a 77%

Relativity: Confessions 22

Trials 44 — — 53.6%

A chart detailing the review of each individual case is

filed in the Office of the Clerk of the Supreme Court.

29a

New York.

Kines County, Brooklyn

Aaron E. Koota, District Attorney

Data compiled under the direction of

Elliott Golden, Chief Assistant Dis-

trict Attorney, by Ronald B. Bian-

chi, Assistant District Attorney

1960 County Population: 2,627,319

Number of felony dispositions in 1961: 3334

Number of defendants convicted 2890

Number of pleas of guilty 2695

Number of trials (195 convictions;

217 acquittals) 412

1961: 3107 Frtony Prosgecutions

Based Upon Sampling of Every 25th Case

Pleas of

Guilty Trials Total

Convictions 108 4 agai

Confessions 51 0 51

Relativity: Confessions

Convictions 47% 0% 44%

Relativity: Confessions 53

Prosecutions 125 — — 42.4%

Relativity: Confessions 2

Trials ij — — 11.8%

Of the 108 pleas of guilty, the records indicated 51 con-

fessions, 43 no confessions, 14 no data available. This again

shows that the percentage of confessions is low because it

is probable that in some of the cases wherein no data was

available confessions were involved. In the 8 trial con-

victions, the files showed 7 without a confession and 1 with

30a

no data. Of the 9 trial acquittals, the records indicated

no confessions in 7 cases and 2 cases with confessions. It

is interesting to note that in the 2 cases tried involving

confessions (statements) there were acquittals. In at

least 7 of the 8 convictions there were eyewitnesses but no

confessions.

3la

New York.

New York Counry, New York

Frank S. Hogan, District Attorney

Data compiled under the direction of

David S. Worgan, Executive As-

sistant District Attorney, by Crim-

inal Law Investigators on the staff

of the District Attorney

1960 County Population: 1,698,281

The files were reviewed and the data correlated by John

G. Guyet, David H. Lamson, Robert D. Mac Lachlon, Jr.

and Jay Harris, Criminal Law Investigators, Office of the

New York County District Attorney.

1961: 4191 Frtony Disposrrions

Based on a Review of All Trials and a Sampling of Pleas

of Guilty

Pleas of

Guilty' Trials?

Convictions 277 94

Confessions 139 23

Relativity: Confessions

Convictions 50% 24.4%

Relativity: Confessions 23

Trials 120 — 19%

1, Based upon review by sampling of every 25th case

where pleas of guilty came before trial (159 cases with 96

confessions) and of all pleas of guilty given after trial

had commenced (118 cases with 43 confessions).

2. Based upon review of all cases tried.

32a

New York.

Westcuester County, White Plains

Leonard Rubenfeld, District Attorney

Data compiled by Leonard Rubenfeld,

District Attorney with the assis-

ance of Thomas A. Facelle, Jr.,

Senior Assistant District Attorney

1960 County Population: 808,891

1961: 742 Fretony Dispositions’

Based on Review of All Felony Files Closed

Pleas of

Guilty Trials? Total

Convictions 718 7 725

Confessions 608 5 613

Relativity: Confessions

Convictions 84.6% 71% 82%

Relativity: Confessions* 622

Dispositions 742 — — 83.8%

Relativity: Confessions 616

Prosecutions 728 — — 84.7%

1. Total indictments: 611 of which 581 were disposed

of by plea of guilty, trial, or otherwise (death, fugitive, ac-

quitted, dismissed, ete.) ; the 581 indictments covered 511

defendants and constituted 742 cases (a case being de-

fined as each indictment against each defendant, e.g., one

indictment involving four defendants would be computed

as four cases; so also four separate indictments against

one defendant would be computed as four cases).

2. Total trials: 10.

3. Total confessions: 622.

33a

Ohio.

FraNKuLIN County, Columbus

C. Howard Johnson, Prosecuting Attorney

Data compiled by Assistant

Prosecuting Attorneys

1960 County Population: 864,121

The following information was prepared by Assistant

Prosecuting Attorneys under the supervision and control

of Mr. Johnson (review of all cases) :

Felony cases processed in 1961: 1038

Convictions 891

Convictions having confessions prior

to arreignment 731

Relativity: Confessions

Convictions 82%

Incarcerations : 400

Incarcerations having confessions

prior to arraignment 330

Still subject to penal uthorities, hav-

ing given confessions prior to ar-

raignment: 149

Incarcerated 82

Parolees 42

Escaped parole violators (per

Department of Mental Hygiene

and Correction of Ohio) 25

Each case has been listed in a record filed in the Office

of the Clerk of the Supreme Court.

34a

Ohio.

Hamizron County, Cincinnati

Melvin G. Rueger, Prosecuting Attorney

Data compiled by Assistant Prosecuting

Attorneys

1960 County Population: 864,121

The data was obtained by Mr. Rueger’s assigning the

review of the 1961 felony cases to members of his staff.

In a count of 1035 felony dispositions, there was a com-

bined conviction figure of 926 (220 by trials; 706 by guilty

pleas); furthermore, there were 667 extrajudicial con-

fessions involved in the total felony count, being 64.4% of

these cases.

Ohio.

Monteomery County, Dayton

Lee C. Falke, Prosecuting Attorney

Data compiled by Walter H. Rice,

Assistant Prosecuting Attorney

1960 County Population: 527,080

There were 756 felony dispositions, but data regarding

confessions as to those cases dismissed, nol-prossed, ete.

is not available.

1961: 680 FrLony Prosecutions!

Based on Review of All Felony Prosecutions

Pleas of

Guilty Trials Total

Convictions 629 30 659

Confessions 483 13 496

Relativity: Confessions

Convictions 76.8% 43.3% 75%

Relativity: Confessions 502

Prosecutions 680 — — 73.8%

Relativity: Confessions 19

Trials op — o- 38%

—_—_—-———

1. Pleas of Guilty (629) plus Trials (51).

36a

1961: 51 Trrats (JupcE or Jury)

Based on Review of All Cases Tried

Percentage

Confessions of

Total Employed Confessions

Convictions 30 13 43.3%

Acquittals 21 6 28.6%

Percentage of Convictions 58.8% 68.4% -—

There remain incarcerated 6 defendants convicted at

trials (judge or jury) through the use of confessions; a

resume of these cases follows:

1. Case 22434, Billy Joe Humphrey, age 33 years—

convicted on May 3, 1961 by a three-judge panel, of

murder in the first degree while perpetrating a

Robbery; sentenced to life imprisonment in the

Ohio State Penitentiary. Defendant gave full writ-

ten statement which explained all details and cor-

roborated dying declaration of complainant.

2. Case 22459, Ben G. Holston, age 38 years—con-

victed on August 11, 1961 by a jury, of Murder in

the first degree, with a recommendation of mercy;

sentenced to life imprisonment in the Ohio State

Penitentiary. Defendant gave full written state-

ment, corroborating all details of witnesses and ex-

plaining all elements of shooting.

8. Case 22541, Raymond Byrd, age 33 years—con-

victed on July 7, 1961 by a jury, of armed robbery;

sentenced to a term of 10-25 years in the Ohio State

Penitentiary. Defendant gave full written state-

ment which corroborated complaining witness’ testi-

mony. Defendant was on parole at the time of

offense.

4. Case 22752, Alonzie Phillips, age 32—convicted on

37a

November 29, 1961 by a jury, of armed robbery ;

sentenced to 10-25 years in the Ohio State Reforma-

tory. Defendant gave full written statement eun-

cerning this and other armed robberies; said state-

ment corroborated testimony of the complaining

witness.

- Case 22730, Ronald Edwin Lawson, age 21 years—

convicted on September 12, 1961 by a jury, of oper-

ating a motor vehicle without the owner’s consent ;

sentenced to a term of 1-20 years in the Ohio State

Reformatory. Defendant gave oral statement cor-

roborating the testimony of an accomplice. De-

fendant was on parole at the time of the offense.

Note: Defendant was released on parole in (963

but returned as a parole violator on J uly 7, 1964

and is presently incarcerated.

. Case 22489, Paul Edward Coble, age 30 years—

convicted on October 17, 1961, by a jury, of Grand

Larceny; sentenced to a term of 1-7 years in the

Ohio State Reformatory; said jury verdict was

affirmed on appeal. Defendant gave full written

statement which corroborated accomplice testimony.

Defendant was on parole at time of offense.

Note: Defendant was released on parole in 1963

but returned as a parole violator in May of 1965

and is presently incarcerated,

38a

Pennsylvania.

PuuapeLtpHia County, Philadelphia

James C. Crumlish, Jr., District Attorney (to 12/31/65)

Arlen Spector, District Attorney (effective 1/1/66)

Data compiled under the direction of

Richard A. Sprague, Chief Assist-

ant District Attorney, Prosecution

Department, by the County Detec-

tives Staff of the Office of the Dis-

trict Attorney

1960 County Population: 2,002,512

In a review of 376 cases in which defendants were con-

victed of a crime and sentenced to a term of imprisonment

of at least two years, confessions were obtained in 189

of these cases. The percentage of confessions in such cases

is 50%.

-— a

39a

JUDGES’ RULES [1964] 1 ALL. E. R. 237-239.

(Note: In [1964] All England Reports 237-240, coverare

of the latest Judges’ Rules (effective January 27, 1964)

have been reported by N. P. Metcalfe as coming from Home

Office Circular No. 31/1964, dated January, 1964, in a

pamphlet entitled ‘‘ Judges’ Rules and Administrative Di-

rections to the Police.’’ Footnote (2) is set oui verbatim

except for deletions which refer to other footnotes. The

- complete unabridged Judges’ Rules, as given in said Re-

_ ports, are also included. Appendix B which is entitled “‘ Ad-

ministrative Directions on Interrogation and the Taking

of Statements,’’ involving the interpretation and direc-

tives from the Home Office is not reproduced in this brief.)

‘*(2) A note printed before the Judges’ Rules in Ap-

pendix A in the pamphlet . . . explains that the judges con-

trol the conduct of trials and the admission of evidence

against persons on trial before them, but do not control or

in any way initiate or supervise police activities or conduct.

The rules do not purport to deal with many varieties of con-

duct which might render answers and statements involun-

tary and therefore inadmissible, but deal merely with par-

ticular aspects of the matter... .

“Appendix A, in the introduction before the terms of

the Rules are set out, contains the following statement:

‘These Rules do not affect the principles (a) that citizens

have a duty to help a police officer to discover and appre-

hend offenders; (b) that police officers, otherwise than by

arrest, cannot compel any person against his will to come

to or remain in any police station; (c) that every person

at any stage of an investigation should be able to com-

municate 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 proc-

40a

esses of invesiigation or the administration of justice by

his doing so; (d) that when a police officer who is making

inquiries of any person about an offense has enough evi-

dence to prefer a charge against that person for the offense,

he should without delay cause that person to be charged or

informed that he may be prosecuted for the offence; (e)

that it is a fundamental condition of the admissibility in

evidence against any person, equally of any oral answer

given by that person to a question put by a police officer

and of any statement made by that person, that it shall

have been voluntary, in the sense that it has not been ob-

tained from him by fear of prejudice or hope of advan-

tage, exercised or held out by a person in authority, or by

oppression.

‘The principle set out in para. (e) oe is overriding and

applicable in all cases. Within that principle the Judges’

Rules are put forward as a guide to police officers con-

ducting investigations. Non-conformity with these rules

may render answers and statements liable to be excluded

from evidence in subsequent criminal proceedings.’ ’’

Jupvers’ Ruues.

‘¢1, When a police officer is trying to discover whether,

or by whom, an offense has been committed he is entitled

to question any person, whether suspected or not, from

whom he thinks that useful information may be obtained,

This is so whether or not the person in question has been

taken into custody so long as he has not been charged with

the offence or informed that he may be prosecuted for it.

‘«2. 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.

4la

‘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 ques-

tioned, 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.

‘3. (a) Where « person is charged with or informed

that he may be prosecuted for an offence he shall be cau-

tioned in the following terms:

‘Do you wish to say anything? You are not obliged to

say anything unless you wish to do so but whatever you

say will be taken down in writing and may be given in

evidence.’

“(b) It is only in exceptional cases that questions re-

lating to the offence should be put to the accused person

after he has been charged or informed that he may be

prosecuted. Such questions may be put where they are

necessary for the purpose of preventing or minimising

harm or loss to some other person or to the public or for

clearing up an ambiguity in a previous answer or state-

ment.

Before any such questions are put the accused should

be cautioned in these terms:

‘I wish to put some questions to you about the offence

with which you have been charged (or about the offence for

which you may be prosecuted). You are not obliged to

answer any of these questions, but if you do the questions

and’ answers will be taken down in writing and may be

given in evidence.’

Any questions put and answers given relating to the

offence must be contemporaneously recorded in full and

the record signed by that person or if he refuses by the

interrogating officer.

42a

‘¢(¢) When such a person is being questioned, or elects

to make a statement, a record shall be kept of the time

and place at which any questioning or statement began

and ended and of the persons present.

‘‘4. 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 in-

tended 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. If

he accepts the offer the police officer shall, before starting,

ask the person making the statement to sign, or make his

mark to, the following:

fp 2 , wish to make a statement. I

want someone to write down what I say. I have been told

that I need not say anything unless I wish to do so and

that whatever I say may be given in evidence.’

‘¢(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.

‘¢(¢) The person making the statement, if he is going

to write it himself, shall be asked to write out and sign be-

fore writing what he wants to say, the following:

‘I make this statement of my own free will. I have

been told that I need not say anything unless I wish to

do so and that whatever I say may be given in evi-

dence.’ :

‘¢(d) Whenever a police officer writes the statement, he

shall take down the exact words spoken by the person

a py ae

making the statement, without putting any questions other

than such as may be needed to make the statement coherent,

intelligible and relevant to the material matters; he shall

not prompt him.

43a

‘*(e) When the writing of a statement by a police officer

is finished the person making it shall be asked to read it

and to make any corrections, alterations or additions he

wishes. When he has finished reading it he shall be asked

to write and sign or make his mark on the following certif-

ieate at the end of the statement:

‘I have read the above statement and I have been told

that I can correct, alter or add anything I wish. This

statement is true. I have made it of my own free

will.’

‘“‘(f) Ifthe person who has made gH refuses to

read it or to write the above mentioned certificate at the

end of it or to sign it, the senior police officer present

shall record on the statement itself and in the presence of

the person making it, what has happened. If the person

making the statement cannot read, or refuses to read it,

the officer who has taken it down shall read it over to him

and ask him whether he would like the correct, alter or add

anything and to put his signature or make his mark at the

end. The police officer shall then certify on the statement

itself what he has done.

“5. If at any time after a person has been charged with,

or has been informed that he may be prosecuted for an of-

fence a police officer wishes to bring to the notice of that

person any written statement made by another person who

in respect of the same offence has also been charged or in-

formed that he may be prosecuted, he shall hand to that

person a true copy of such written statement, but nothing

shall be said or done to invite any reply or comment. If that

person says that he would like to make a statement in reply,

44a

or starts to say something, he shall at once be cautioned or

further cautioned as prescribed by rule 3(a).

‘6, Persons other than police officers charged with the

duty of investigating offences or charging offenders shall,

so far as may be practicable, comply with these rules (3).”

45a

TABLE IV.

COMPARISON OF CRIME INCIDENCE—1964

ENGLAND-WALES-UNITED STATES-CHICAGO AREA

(CRIMES KNOWN TO POLICE).

Chicago, Il.

England Metropolitan

Classification and Wales United States Area

Population 47,402,000 191,334,000 6,531,000

Crimes :

Murder and Non-

negligent Manslaughter 278 (.6) 9,249 (4.8) 468 (7.2)

Forcible Rape 517 (1.1) 20,551 (10.7) 1,381 (21.1)

Robbery 3,066 (6.5) 111,753 (58.4) 17,887 (273.9)

Auto Theft 13,989 (29.5) 462,971 (24.2) 38,027 (582.3)

1. Sources: Home Derasracer. CRIMINAL Statistics (ENGLAND AND

WaALEs), 1964, 2-5 (November /1965) ; FaprraL BUREAU OF INVESTIGATION,

ye Crime Reports FoR THE UNiTep States (1964) 49-72 (July

1 ls

2. The number of crimes committed per 100,000 inhabitants is given in

parenthesis. ,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.