Amicus Curiae Brief — California v. Stewart
Supreme Court brief1965
Ask Donna
What actually matters in this document.
Text
FIL
FEB 1
ls JOHN F. DA
Supreme Court of the United States
October Term, 1965.
PEOPLE OF THE STATE OF CALIFORNIA, Petitioner,
No, 584, t.
ROY ALLEN STEWART, Respondent.
On Writ of Certiorari to the Supreme Court of the State of California.
ERNEST ARTHUR MIRANDA, Petitioner,
No, 759. v.
THE STATE OF ARIZONA, Respondent.
On Writ of Certiorari to the Supreme Court of the State of Arizona.
MICHAEL VIGNERA, Petitioner,
No. 760, v.
PEOPLE OF THE STATE OF NEW YORK, Respondent.
On Writ of Certiorari to the Court of Appeals of the State of New York.
CARL CALVIN WESTOVER, Petitioner,
No. 761. v.
UINTED STATES OF AMERICA, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit.
————_
SYLVESTER JOHNSON and STANLEY CASSIDY, Petitioners,
No. 762. v.
STATE OF NEW JERSEY, Respondent.
On Writ of Certiorari to the Supreme Court of the State of New Jersey.
BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,
AMICUS CURIAE.
Of Counsel: wig ge AMSTERDAM,
RayMonp J. BRrapiey, AUL J. MISHKIN,
H. Rosert Fresacn, 3400 Chestnut Street,
12th Floor, Packard Bldg., Philadelphia, Pa. 19104
Philadelphia, Pa. 19102 Attorneys for Amicus Curiae.
Perer Hearn,
2001 Fidelity-Philadelphia Trust Bldg.,
Philadelphia, Pa. 19109
Metvin L. Wutr,
156 Fifth Avenue,
New York, N. Y. 10010
International, 712 So. 50th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215
INDEX.
Page
I OP NE ons gs cn cc ida nvdh dtkcucdewsaneeaies 2
SUMMARY OF ARGUMENT ......... ey aig chelsea ales ag 3
fi, Es DUS Be eae PEO Be Oe T a ti eg peebee ley 5
I. Escobedo v. Illinois Held That the Privilege Against
Self-Incrimination Was Violated by Obtaining a Man’s
Confession Through Police Interrogation Designed to
Elicit Incriminating Statements at a Time When He
Was in Custody and Was Denied the Presence of
Counsel, Since Counsel Was Necessary to Dispel the
Inherently Compelling Atmosphere of Such In-
Sener, Sema ty a BON) tae ey ee aes
A. The Facts and Setting of Escobedo ............ 5
B. The Rationale of Escobedo: Effectuation of the
Right Not to Be Compelled to Incriminate Oneself 6
C. The Privilege Against Self-Incrimination in the
SO TOE osc cawacehacctansceeseeseees 12
D. Typical Police Custodial Interrogation Designed to
Elicit a Confession Is Inherent!y Compelling ..... 13
E. Escobedo Was Not Revolutionary, But Rather the
Natural Cuimination of a Series of Cases ........ 20
F. The Inherently Compelling Nature of Police Cus-
todial Interrogation Requires That a Confession
Obtained During Such Interrogation Be Excluded
Unless the State Shows That There Were Present
Adequate Devices to Protect the Subject’s Privi-
lege Against Self-Incrimination ...............
INDEX (Continued).
G. Under the Present Circumstances of Police Cus-
todial Interrogation Designed to Elicit a Confes-
sion, the Presence of Counsel Is Required to
Protect the Subyect’s Privilege Against Self-
BN ow ah bic des nat wacens ke dnwhiaaeas
1. A Police Warning of the Right to Remain
Silent Is Not Adequate to Protect the Sub-
ject’s Privilege Against Self-Incrimination ...
2. Prior Access to Counsel, as Distinguished From
the Presence of Counsel, Is Not Adequate to
Protect the Subject’s Privilege Against Self-
SONI waa ache cin Wo ane ceikaee ss
3. Neither the Existence of Retained Counsel Nor
a Request to See Him Are Required by the
Proper Application of Escobedo
eee ee eee eeene
II. Application of the Rule in Contexts Other Than the
Usual Police Custodial Interrogations Designed to
Elicit a Confession
ee |
III. The Argument That Police “Need” the Existence of
the Compelling Nature of Custodial Interrogation Must
and Should Be Rejected
eee eee eee eee eee eee eee eeee
A. Even if Such “Need” Were Shown the Constitu-
APPENDIX
tion Requires That the Balance Be Struck on the
Side of Effective Enforcement of the Fifth
Amendment
|
. However, It Is Not Necessary for This Court to
Face the Ultimate Balancing as the Asserted Police
“Need” Has Not Been Shown to Exist
|
Page
25
27
27
31
33
TABLE OF CITATIONS.
Cases: : Page
Albertson v. Subversive Activities Control Board, 86 S. Ct.
RD: 10 E65 nah okn Fina Kae ha ods CURSES Sadeten ent 13
Ashcraft v. Tennessee, 322 U. S. 143 (1944) ............. 9, 20, 21
pamevett.v: With, 357 U, S487 CIDP) | vinniseevcce vecansvsne 41
Bram v. United States, 168 U. S. 532 (1897) ............ 7, 13,17
Chambers v. Florida, 309 U. S. 227 (1940) ......... ee Te 9, 20
Crooker v. California, 357 U. S. 433 (1958) ...........00065 41
Culombe v. Connecticut, 367 U. S. 568 (1961) ...........5 9, 20
Douglas v. California, 372 U. S. 353 (1963) ............05- 30, 31
Draper v. Washington, 372 U. S. 487 (1963) ...........4.- 31
Elkins v. United States, 364 U. S. 206 (1960) .............. 36
Escobedo v. Illinois, 378 U. S. 478 (1965) ....2, 3, 5, 6, 7, 8, 9,
10, 11, 15, 20, 21, 26, 27, 28, 31, 32, 33, 34, 37, 40, 41
Ferguson v. Georgia, 365 U. S. 570 (1961) ............05- 9, 24
Fikes v. Alabama, 352 U. S. 191 (1957) ........... eee eees 9, 29
Gallegos v. Colorado, 370 U. S. 49 (1962) ..........0eeeeeee ¥, 20
Gideon v. Wainwright, 372 U. S. 335 (1963) ............. 10, 30
Griffin v. Illinois, 351 U. S. 12 (1956) ..........ceeecseee at
Haley v. Ohio, 332 U. §. 596 (1948) .......ccccccccceeees 9, 20
Hamilton v. Alabama, 368 U. S. 52 (1961) ....... a 5! 8, 10, 21
Haynes v. Washington, 373 U. S. 503 (1963) ....8, 15, 19, 20,
21, 28, 31, 39
In re Newbern, 55 Cal. 2d 508, 11 Cal. Rptr. 551, 360 P. 2d
WORD cdi v6 bench OAs ORGS Ets caen ssa eau eee 10
Rees wv. Brown, 372. U.S. 477 CIDGB): dias sncevceecescuss 31
Lisenba v. California, 314 U. S. 219 (1941) ............24-- 20, 41
Malloy v. Hogan, 378 U. S. 1 (1964) ....... 8, 12, 13, 19, 20, 21, 32
Mapp v. Ohio, 367 U. S. 643 (1961) ........... eee eee eeee 36
Massiah v. United States, 377 U. S. 201 (1964) ....... 8, 10, 11, 40
McLeod v. Ohio, 381 U. S. 356 (1965) ......... ee eeeeeees 10, 11
Murphy v. Waterfront Commission, 378 U. S. 52 (1964) ....12,22
Th
TABLE OF CITATIONS (Continued).
Cases (Continued): Page
Olmstead v. United States, 277 U. S. 438 (1928) .......... 36
People v. Dorado, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965),
cert. denied, 381 U. S. 946 (1965) ..............0005. 28, 38
Pointer v. Texas, 380 U. S. 400 (1965) .......... cc eeeee 9, 24
Shotwell Mfg. Co. v. United States, 371 U. S. 341 (1963) ... 13
Spano v. New York, 360 U. S. 315 (1959) ............... 9, 20
Townsend v. Burke, 334 U. S. 736 (1947) ...........eeeee 9
Von Moltke v. Gillies, 332 U. S. 708 (1948) ............06- 25
Watts v. Indiana, 338 U. S. 49 (1949) 2.2.2... cece cee neee 19
White v. Maryland, 373 U. S. 59 (1963) ..............06- 8, 10
Winston v. Commonwealth, 188 Va. 386, 49 S. E. 2d 611
4 | RE: Pere PP ehh heres Pep Tyr we bee per 10
Periodicals, N me Saas and Books:
Bazelon, Law, Morality & Civil Liberties, 12 UCLA L. Rev. 13,
BP PUR coda e es cheek ccdd eet cedacetbehanane 37
Devlin, The Criminal Prosecution in England (1960) ....... 16, 26
2 Hawkins, Pleas of the Crown, c. 64 § 34 (8th ed. 1924) ..... 19
Inbau, A Forum on the Interrogation of the Accused, 49 Cor-
well E.. 4D. SRR: CHBE) ic vii ci ciby caer gswavedus cise 35
Inbau, More About Public Safety v. Individual Civil Liberties,
J. Com. LC. & P.S., SD, BS1 (1GGR). ooiccivcveese 35
Inbau & Reid, Criminal Interrogation and Confessions (1962)
14, 15, 23
Inbau & Reid, Lie Detection and Criminal Interrogation 185
Coed ol. TIGR nica sew chS sobs pea tacacwelpaeveeeas's 15
Kamisar, Equal Justice in the Gatehouses and Mansions of
American Criminal Procedure, in Criminal Justice in Our
Time, Magna Carta Essays (Howard ed. 1965) ..... 25, 29, 30
Kamisar, On the Tactics of Police-Prosecution Oriented Critics
on the Courts, 49 Cornell L. Q. 436 (1964) ............ 34, 35
LaFave, Detention for Investigation by the Police: An Analysis
of Current Practices, 1623 Wash. U. L. Q. 331, 332-333 . .40, 41
——
TABLE OF CITATIONS (Continued).
Periodicals, Newspapers and Books (Continued) : Page
Mat FS Vibe Lin 5. OOD oie ccs cena cee ctr ceeet veces. 37, 39
Ms. ¥, Fee, Mov. SZ, T9646, wp. 35, COL F wo eeciccececes 38
N. Y. Times, May 14, 1965, p. 39, col. 1 ........ cece eee 37
OY. Tinea, Tk. 2, TSG, 01, COS vas ci ccccncccsedscci 37
O’Hara, Fundamentals of Criminal Investigation 99 (1959)
14, 15, 16, 17
Sobel, The Exclusionary Rules in the Law of Confessions, A
Legal Perspective—A Practical Perspective, Part Six,
N. Y. Law J., Nov. 22, 1965, p. 1, col. 4 ........006- 39
Sutherland, Crime and Confession, 79 Harv. L. Rev. 21
(19GS) vvcccescccebecccsbesedcescotsanensresevece 19, 38)
8 Wigmore, Evidence 309 (3rd ed. 1940) .........----00es 16
Miscellaneous:
Federal Rules of Criminal Procedure, Rule 5(a) ............ 40)
Report of the Attorney General’s Committee on Poverty and
the Administration of Criminal Justice, p. 9 (1963) ..... 29, 30
U. S. Constitution :
Fifth Amendment ...7, 9, 11, 12, 13, 20, 21, 22, 28, 29, 31,
32, 33, 34
Si TEE Bb ibe aac cccatdvundehewecteseas 9, 10, 21
Fourteenth Amendment ...........-.eeeeeeerees
IN THE
Supreme Court of the United States.
Octroser TeRM, 1965.
PEOPLE OF THE STATE OF CALIFORNIA, Petitioner,
No. 584. v.
Roy ALLEN Stewart, Respondent.
On Writ of Certiorari to the Supreme Court of the State of California.
Ernest ARTHUR MIRANDA, Petitioner,
No. 759. v.
Tue STATE oF Arizona, Respondent.
On Writ of Certiorari to the Supreme Court of the State of Arizona.
MICHAEL VIGNERA, Petitioner,
No. 760. v. \
PEOPLE OF THE STATE OF New York, Respondent.
On Writ of Certiorari to the Court of Appeals of the State of New York.
Cart CaLvin WEsTovER, Petitioner,
No. 761. v.
Unitep STATES OF AMERICA, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit.
SYLVESTER JOHNSON AND STANLEY Cassipy, Petitioners,
No. 762. v.
STaTE oF New Jersey, Respondent.
On Writ of Certiorari to the Supreme Court of the State of New Jersey.
BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,
AMICUS CURIAE.
Interest of Amicus
INTEREST OF AMICUS.
The American Civil Liberties Union has engaged solely
in the defense of the Bill of Rights for more than forty-
five years. Much of its energies have been directed toward
effectuating the provisions of the Bill of Rights concerned
with the administration of criminal justice.
Effectuation of a man’s right not to compelled to
incriminate himself is essential to the preservation of our
accusatorial system of criminal justice. The American
Civil Liberties Union believes that such effectuation can
be achieved by proper application of this Court’s decision
in Escobedo v. Illinois, 378 U. S. 478 (1965). This is just
the issue presented in these cases. The briefs for the
parties have directed attention to the particular facts of
each case. Your Amicus believes it can best serve the
Court by presenting a more general argument addressed
to the theory and application of Escobedo.
1. The attorneys for the parties involved have consented to the
filing of this brief. The letters of consent are on file with the Clerk.
——
Summary of Argument
SUMMARY OF ARGUMENT.
In Escobedo v. Illinois, 378 U. 8. 478 (1965), this Court
held that the privilege against self-incrimination was vio-
lated when an accused’s confession was obtained through
police in-custody interrogation designed to elicit incriminat-
ing statements from him at a time when he was denied the
presence of counsel, since the presence of counsel was
necessary to protect the constitutional privilege. In so
holding, the Court reached the natural culmination of its
‘‘involuntary’’ confession decisions, in light of its appli-
cation of the privilege against self-incrimination to the
States. The determination that Escobedo rests upon effec-
tive enforcement of the privilege against self-incrimination
is not of mere academic interest, but vitally affects the
proper application of the decision.
There can be no doubt that police custodial interroga-
tion designed to elicit a confession is inherently violative
of the privilege against self-incrimination. Therefore con-
fessions obtained under such circumstances cannot be con-
stitutionally admitted in State or federal criminal proceed-
ings unless it has been shown that adequate safeguards
were present to protect the privilege. For reasons spelled
out at length in the brief, under the present circumstances
of police custodial interrogation designed to elicit a con-
fession, the required safeguard is the presence of counsel.
A police warning of the subject’s right to remain
silent is not adequate. Neither is the granting of prior
access to counsel, as distinguished from the presence of
counsel. For these reasons it is immaterial that a subject
of police custodial interrogation asked for or was able to
obtain retained counsel. Effectuation of the privilege
against self-incrimination, in these circumstances, requires
the providing of counsel to all.
This does not mean that the effectuation of the privi-
lege requires the presence of counsel in other than police
4 Summary of Argument
custodial interrogation designed to elicit a confession. Nor
does it mean that if other protective devices are devised
and put into effect which effectively secure the privilege
even in the police custodial situation, the presence of coun-
sel would still be required. A holding that, under the con-
ditions of police interrogation as they normally exist today,
the presence of counsel is necessary to protect the privilege
against self-incrimination, should not foreclose a deter-
mination that other protective devices are acceptable when
and if such devices are put into effective use.
Finally, the Court must reject the argument that the
privilege against self-incrimination should not be enforced
in the face of a police ‘‘need’’ for its non-enforcement.
Even if such ‘‘need’’ conflicting with the privilege were
shown to exist, the Constitution requires that the conflict
be resolved in favor of effective enforcement of the consti-
tutional privilege. However, this issue need not be reached
as the asserted police ‘‘need’’ has not been shown to exist
and the burden of production of evidence clearly rests on
the prosecution. Not only have prosecutors not produced
any convincing evidence, the assertions which they make
are not even supported by considered legislative determina-
tions of police need. Thus in a scale which opposes unsup-
ported assertions of necessity by police and prosecutors
on the one side, and effectuation of the individual’s consti-
tutional right not to be compelled to incriminate himself
on the other, the balance must be struck on the side of the
constitutional right.
Escobedo v. Illinois Held That the Privilege Against Self-
Incrimination Was Violated by Obtaining a Man’s
Confession Through Police Interrogation Designed to
Elicit Incriminating Statements at a Time When He
Was in Custody and Was Denied the Presence of Coun-
sel, Since Counsei Was Necessary to )igpel the In-
herently Compelling Atmosphere of Sueh Interrogation.
A. The Facts and Setting of Escobedo.
The Escobedo opinion itself placed great emphasis on
the facts of the case, and it is appropriate that the analysis
of the implications of that decision begin with an examina-
tion of these facts. Danny Escobedo, a 22-year-old, of
Mexican extraction, with no record of previous experience
with the police, was arrested and taken handcuffed to
police headquarters for interrogation in connection with the
fatal shooting of his brother-in-law. Throughout the entire
interrogation, Escobedo was repeatedly told that the police
had convine ng evidence that he had fired the fatal shots.
During the interrogation he was cut off from all contact
with the outside world despite his repeated requests to see
his retained attorney, who was at the police station attempt-
ing to see him. Requests of both Escobedo and his attorney
to see each other were continually denied by the police.
At one point, Escobedo and his attorney came into each
other’s view for a few moments but the attorney was
quickly ushered away. Escobedo overheard a detective
telling his attorney that he could see Escobedo when they
were finished interrogating him. During the entire inter-
rogation Escobedo ‘‘was handcuffed’’ in a standing posi-
tion, he ‘‘was nervous, he had circles under his eyes and
6 Argument
he was upset’’ and he was ‘‘agitated’’ because ‘‘he had not
slept well in over a week.’’
Despite all this, Escobedo did not ‘‘crack’’ until con-
fronted with an alleged accomplice who stated that Escobedo
had fired the fatal shots. To this Escobedo replied that he
hadn’t shot the deceased, the accomplice had. In this way,
Escobedo, for the first time, admitted to some knowledge
of the crime. After that ‘‘crack’’, he made additional state-
ments implicating himself in the murder plot. At this point
an Assistant State’s Attorney was summoned ‘‘to take”’
his statement. He was an experienced lawyer who was
assigned to the homicide division to take ‘‘statements”’
from prisoners in custody and who ‘‘took’’ Escobedo’s
statement by asking carefully framed questions. Neither
at this time nor at any other point in the interrogation had
anyone warned Escobedo of his constitutiona! right not to
be compelled to incriminate himself.
B. The Rationale of Escobedo: Effectuation of the
Right Not to Be Compelled to Incriminate Oneself.
On these facts, this Court held that during his inter-
rogation Escobedo had been denied ‘‘the Assistance of
Counsel’’ in violation of the Sixth Amendment to the
Constitution as made obligatory upon the States by the
Fourteenth Amendment, and thus the incriminatory state-
ment elicited during this interrogation could not be used
against him at his criminal trial.
In holding that Escobedo had been denied his Sixth
Amendment right to counsel the Court relied on the facts
that he had been extensively interrogated where the ‘‘pur-
pose of the interogation was to ‘get him’ to confess his
guilt despite his constitutional right not to do so. At the
time of his arrest and throughout the course of the inter-
rogation, the police told [Escobedo] that they had con-
vinecing evidence that he had fired the fatal shots. Without
informing him of his absolute right to remain silent in the
ee aes
Argument 7
face of this accusation, the police urged him to make a
statement.’’ 378 U. S., at 485.
The facts of the case were, therefore, remarkably
similar to these invoived in Bram wv. United States, 168
U. S. 532 (1897), where almost seventy years ago this Court
held that such an incriminating statement had been elicited
in violation of the suspect’s Fifth Amendment right not
to be compelled to incriminate himself. Indeed, the Court
in Escobedo, 378 U. S., at 485-486, relied on and quoted the
following language of Bram:
‘**It cannot be doubted that, placed in the position in
which the accused was when the statement was made
to him that the other suspected person had charged
him with crime, the result was to produce upon his
mind the fear that if he remained silent it would be
considered an admission of guilt, and therefore render
certain his being committed for trial as the guilty per-
son, and it cannot be conceived that the converse im-
pression would not also have naturally arisen, that by
denying there was hope of removing the suspicion from
himself.’’ Bram v. United States, 168 U. S. 532, 562.
In discussing the significance of counsel during police
interrogation of a suspect in custody, and the possible
effect of counsel’s presence on the alleged police ‘‘need’’
to obtain confessions, the Court stated: ‘‘Our Constitution,
unlike some others, strikes the balance in favor of the right
of the accused to be advised by his lawyer of his privilege
against self-incrimination,’’ 378 U. S., at 488.
The Court went on to point out that ‘‘[wle have
learned the lesson of history, ancient and modern, that a
system of criminal law enforcement which comes to depend
on the ‘confession’ will, in the long run, be less reliable
and more subject to abuses than a system which depends
on extrinsic evidence independently secured through skill-
ful investigation. As Dean Wigmore so wisely said:
‘[A]ny system of administration which permits the
prosecution to trust habitually to compulsory self-
P J]
8 Argument
disclosure as a source of proof must itself suffer
morally thereby. The inclination develops to rely
mainly upon such evidence, and to be satisfied with an
incomplete investigation of the other sources. The
exercise of the power to extract answers begets a
forgetfulness of the just limitations of that power.
The simple and peaceful process of questioning breeds
a readiness to resort to bullying and to physical force
and torture. If there is a right to an answer, there
soon seems to be a right to the expected answer,—that
is, to a confession of guilt. Thus the legitimate use
grows into the unjust abuse; ultimately, the innocent
are jeopardized by the encroachments of a bad system.
Such seems to have been the course of experience in
those legal systems where the privilege was not recog-
nized.’ 8 Wigmore, Evidence (3d ed. 1940), 309.
(Emphasis in original.)’’ 378 U. S., at 488-89.
It thus seems clear that the Court held that Escobedo
had been denied his right to the Assistance of Counsel be-
cause, under the circumstances of that case, providing
counsel to Escobedo was necessary to protect effectively
his basic right not to be compelled to incriminate himself.
The fundamental quality of the privilege against self-
incrimination is emphasized by considering the independent
significance of the two rights. The privilege against self-
incrimination is so central to our system of justice, that it
is hard to conceive of our society without it; yet, it would
seem fair to say that if there were no such privilege,
Escobedo might well have come to a different result.2. On
2. Put on a straight right to counsel approach, cf., Massiah v.
United States, 377 U. S. 201 (1964), it might well be doubtful that
police interrogation would constitute a “critical stage” absent the
self-incrimination privilege. Cf. White v. Maryland, 373 U. S. 59
(1963) ; Hamilton v. Alabama, 368 U. S. 52 (1961). While it might
be argued that, even absent the privilege against self-incrimination,
Escobedo could still have been put on “involuntary” confession
grounds, cf. Haynes v. Washington, 373 U. S. 503 (1963), it again
seems doubtful that, absent the privilege, the “involuntary” confes-
sion cases would have proceeded to the point expressed in Haynes.
See Malloy v. Hogan, 378 U. S. 1, 7 (1964).
—
Argument 9
the other hand, it seems clear that the absence of a right
to counsel should have had no effect on the result; in the
circumstances of Escobedo, the privilege against self-
incrimination required the presence of counsel for its
effectuation.
Such a marriage of the Fifth Amendment privilege and
Sixth Amendment right to counsel (as made applicable by
the Fourteenth Amendment) is not unique to Escobedo. The
Court has often recognized the fact that the Assistance of
Counsel is necessary to protect effectively other constitu-
tional rights. For example, in Ferguson v. Georgia, 365
U.S. 570 (1961), the Court held that a defendant was denied
the effective assistance of counsel when counsel was neces-
sary in order to enforce effectively his right to testify on his
own behalf. Similarly, in Townsend v. Burke, 334 U.S. 736
(1948), this Court held that a defendant had been denied
the effective assistance of counsel at sentencing when the
presence of counsel was necessary to protect him against
the possibility that the prosecution had purposefully sub-
mitted misinformation to the sentencing judge. Of par-
ticular relevance to the problem of Escobedo is the long
series of ‘‘involuntary’’ confession cases in which the Court
has stressed the fact that the suspect did not have the
assistance of counsel during the interrogation. See, e.g.,
Chambers v. Florida, 309 U. S. 227 (1940); Ashcraft v.
Tennessee, 322 U. S. 143 (1944); Haley v. Ohio, 332 U.S.
596 (1948) ; Fikes v. Alabama, 352 U. S. 191 (1957) ; Spano
v. New York, 360 U.S. 315 (1959) ; Culombe v. Connecticut,
367 U. S. 568 (1961); Gallegos v. Colorado, 370 U. S. 49
(1962) ; Haynes v. Washington, 373 U. S. 503 (1963).
And, just this past Term, the Court merged a de-
fendant’s right to counsel with his right to be confronted
with the witnesses against him. In Pointer v. Texas, 380
U. S. 400 (1965), the Court held that the use at trial of a
transcript of a witness’s testimony taken at a preliminary
hearing at which the defendant did not have counsel
violated the petitioner’s right to confrontation because the
— aS
10 Argument
statement of the witness used ‘‘against petitioner at his
trial had not been taken at a time and under circumstances
affording petitioner through counsel an adequate oppor-
tunity to cross-examine’’ the witness. 380 U. S., at 407.
Similarly, the use of his confession against Escobedo
at his trial violated his constitutional rights since it was
taken at a time and under circumstances where the lack
of the effective assistance of counsel rendered completely
nugatory his right not to be compelled to ineriminate him-
self.
The difference between this approach to Escobedo and
one that concentrates solely on an isolated right to counsel
is not only of academic interest; it vitally concerns the
proper application of the decision. The view that concen-
trates on the right to counsel necessarily is directed to an
inquiry as to when such right attaches. One way of ap-
proaching this is to attempt to discover a point in time
or stage in the process for such attachment. Before that
point is reached Escobedo has no application; after it is
reached, Escobedo requires counsel. It is submitted that
such an all or nothing approach may go both too far and
not far enough. <A rigid requirement of providing counsel
under any and all circumstances after the crucial point in
time is reached, may require the provision of counsel under
circumstances where counsel is not necessary to the effee-
tuation of a person’s right not to be compelled to incrimi-
3. This, of course, does not mean that the Sixth Amendment
right to counsel has no operative effect other than to enforce effec-
tively other constitutional rights. It is clear that the Sixth Amend-
ment does have independent operative effects both at trial, see Gideon
v. Wainwright, 372 U. S. 335 (1963), and before trial, see White
v. Maryland, 373 U. S. 59 (1963) ; Hamilton v. Alabama, 368 U. S.
52 (1961) ; Massiah v. Unitcd States, 377 U. S. 201 (1964) ; Mc-
Leod v. Ohio, 381 U. S. 356 (1965). It is submitted, however, that,
in light of the analysis contained in this brief, it is not now necessary to
determine the extent of this independent right to counsel beyond the
situations represented by the above cases. Cf. In re Newbern, 55
Cal. 2d 508, 11 Cal. Rptr. 551, 360 P. 2d 47 (1961); Winston v.
Commonwealth, 188 Va. 386, 49 S. E. 2d 611 (1948).
on
_————
Argument 11
nate himself. Moreover, it might stifle desirable reform in
State law or police practices aimed at the possibility of
effectuating this right through means other than providing
counsel. On the other hand the counsel-or-nothing ap-
proach may result in not providing adequate protection
when it is found that the point in time at which the right
to counsel attaches has not been reached, a'‘liough the
danger of compelled self-incrimination looms large. In-
deed, the knowledge that counsel must be provided if this
crucial point in time is found to have been reached may
make courts reluctant to make such a finding when the as-
sistance of counsel does not seem to be a feasible require-
ment. Yet, these may very well be cases where the effec-
| tuation of a person’s right not to be compelled to incrim-
inate himself requires protection, though protection other
than through the assistance of counsel.*
Another possible counsel theory of Escobedo is an
approach that makes the providing of counsel dependent
upon the circumstances of the interrogation. If this view
| is taken, however, the issue then really becomes the effec-
| tuation, during the interrogation, of the Fifth Amendment
right. This is just the approach advocated in this brief.
If, therefore, Escobedo rests upon effectuation of a
person’s right not to be compelled to incriminate himself,
| resolution of the issues here presented concerning its appli-
| cation require an analysis of this right and how it must be
effectuated in the context of police investigation. We, there-
fore, turn to these issues.
4. Massiah v. United States, 377 U. S. 201 (1964) apparently
holds that indictment is an absolute point at which the right to counsel
attaches. Cf. McLeod v. Ohio, 381 U. S. 356 (1965). The selec-
tion of indictment as an absolute point is, however, supportable on
the basis of the theory of an indictment: that the government has
prior to that time completed its investigation and made its basic
case. Moreover, the accused’s need for trial preparation—and the
assistance of counsel therein—has then become established.
12 Argument
C. The Privilege Against Self-Incrimination in the
Station House.
As this Court has only recently stated:
‘“‘[The privilege against self-incrimination] reflects
many of our fundamental values and most noble aspira-
tions: . . . our preference for an accusatorial rather
than an inquisitorial system of criminal justice; our
fear that self-incriminating statements will be elicited
by inhumane treatment and abuses; our sense of fair
play which dictates ‘a fair state-individual balance
by requiring the government to leave the individual
alone until good cause is shown for disturbing him
and by requiring the government in its contest with
the individual to shoulc.er the entire load,’ . . .; our
respect for the inviolability of the human personality
and of the right of each individual ‘to a private en-
clave where he may lead a private life,’ . . .; our
distrust of self-deprecatory statements; and our reali-
zation that the privilege, while sometimes ‘a shelter to
the guilty’ is often ‘a protection to the innocent.’ ”’
Murphy v. Waterfront Commission, 378 U. S. 52, 55
(1964).
This Court has recognized ‘‘that the American system
of criminal prosecution is accusatorial, not inquisitorial,
and that the Fifth Amendent privilege is its essential main-
stay. . . . Governments, state and federal, are thus con-
stitutionally compelled to establish guilt by evidence in-
dependently and freely secured. . . . The Fourteenth
Amendment secures against State invasion the same privi-
lege that the Fifth Amendment guarantees against federal
infringement—the right of a person to remain silent unless
he chooses to speak in the unfettered exercise of his own
wil. . . .’? Malloy v. Hogan, 378 U. S. 1, 7-8 (1964).
(Emphasis added.)
_ ea
Argument 13
There can be today no doubt that ‘‘the right of a
person to remain silent unless he chooses to speak in the
unfettered exercise of his own will’’ applies in the context
of police interrogation, state or federal. Almost seventy
years ago this Court held in Bram v. United States, 168
U. S., at 542 (1897) that ‘‘[i]n criminal trials, in the Courts
of the United States, wherever a question arises whether
a confession is incompetent because not voluntary, the
issue is controlled by that portion of the Fifth Amendment
to the Constitution of the United States, commanding that
no person ‘shall be compelled in any criminal case to be
a witness against himself.’’’ Cf. Shotwell Mfg. Co. v.
United States, 371 U. S. 341 (1963); Albertson v. Subver-
sive Activities Control Board, 86 8. Ct. 194 (1965).
Although it was not until two years ago in Malloy v.
Hogan, 378 U. S. 1 (1964), that the Court held that the
Fifth Amendment as such applied to the States, the Court
in Malloy recognized and relied upon the fact that, even
prior to this decision, there had been a ‘‘marked shift’’ to
the Fifth Amendment federal standard in State ‘‘involun-
tary’’ confession cases. ‘‘The shift refiects recognition
that the American system of criminal prosecution is ac-
custorial, not inquisitorial, and that the Fifth Amendment
privilege is its essential mainstay.’’ Malloy v. Hogan,
supra, at 7.
With the decision in Malloy, it is now absolutely clear
that the Fifth Amendment right not to be compelled to
incriminate oneself operates, through application by the
Fourteenth Amendment, in the context of State police in-
terrogation with the same force and effect as it does directly
in the context of federal police interrogation.
D. Typical Police Custodial Interrogation Designed to
Elicit a Confession Is Inherently Compelling.
It seems hardly necessary to argue at length that typi-
cal police custodial interrogation designed to elicit a con-
fession is inherently compelling—inherently violative of
———
14 Argument
the subject’s privilege against self-incrimination. The sub-
ject is arrested and held incommunicado by the police until
they are finished interrogating him. He is completely
within their control, surrounded by hostile forces, and cut
off—except at the whim of the police—from any contact
with the outside world that might give him support. In-
deed, such a situation may well have been created for the
explicit purpose of making the subject confess against his
will.
This purpose and the effectiveness of ineommunicado
interrogation in achieving the purpose have been recog-
nized by the leading writers on police interrogation tech-
niques. Inpau & Rerp, Crimrnat INTERROGATION AND Con-
FEssions, (1962) (hereinafter cited as Insau & Rep) states
that ‘‘[t]he principal psychological factor contributing to
a successful interrogation is privacy—being alone with the
person under interrogation.’’ (Emphasis in the original).
O’Hara, FunDAMENTALS oF CRIMINAL INVESTIGATION 99
(1959) (hereinafter cited as O’Hara) emphasizes this point
and explains the reasons:
“Tf at all practicable, the interrogation should take
place in the investigator’s office or at least in a room of
his own choice. The subject should be deprived of
every psychological advantage. In his own home he
may be confident, indignant, or recalcitrant. He is
more keenly aware of his rights and more reluctant to
tell of his indiscretions of criminal behavior within the
walls of his home. Moreover his family and other
friends are nearby, their presence lending moral sup-
port. In his own office, the investigator possesses all
the advantages. The atmosphere suggests the invinci-
bility of the forces of the law.’’
Both of these books as wel! as numerous other police
manuals present varied and sophisticated methods to be
used by police interrogators in extracting confessions
through incommunicado cutodial interrogation. The basic
,, <a
Argument 15
theme of these works is well summed up in the following
language of Insau & Rew, Liz Detection anv Criminat In-
TERROGATION 185 (3rd ed. 1953) :
‘‘(T he interrogator’s task is somewhat akin to
that of a hunter stalking his game. Each must pa-
tiently maneuver himself or his quarry into a position
from which the desired object [obtaining a confession]
may be obtained . . .”’
Their basic attitude is one of getting the subject
[quarry] to confess despite himself—by trapping him into
it, by deceiving him, or by more direct means of overbearing
his will. Since it is impossible to set forth here at length
the scope of these recommended police techniques, we shall
only try here to highlight some of them. In addition, we
have attached a chapter from O’Hara as an Appendix to
this brief. We believe that this chapter is a fair sample of
this book as well as of other interrogation manuals widely
used and respected in police circles.®
A key element in police interrogation, as demonstrated
by Escobedo and numerous other cases, is the manifestation
by the police interrogator that he expects to obtain a con-
fession from the suspect and that he is prepared to inter-
rogate, under incommunicado circumstances, until he does.
Thus Escobedo was not to see his attorney until the police
were ‘‘done’’. 378 U.S. at 482. Cf. Haynes v. Washington,
373 U.S. 503 (1963). He was also consistently told through-
out the interrogation that they had convincing evidence
that he had fired the fatal shots. Both of these are recog-
nized and recommended interrogation techniques. The first |
interrogation tactic recommended by Insav & Renn is: ‘‘ Dis-
play an Air of Confidence in the Suspect’s Guilt.’’ p. 23.
5. This brief makes frequent use of police inte: rogation man-
uals as evidence of police interrogation practices since it is impossible
to document actual practices by other means. It sliould be kept in
mind, however, that the manual practices probably represent the
most enlightened, and the least objectionable, standards of actual
police work.
16 Argument
This ‘‘air of confidence’’ is to be used along with patience
and persistence. p. 108. ‘‘Not only must the interrogator
have patience, but he must also display it. It is well, there-
fore, to get the idea across, in most case situations that the
interrogator has ‘all the time in the world.’ ’’ p. 109.
O’Hara, after setting forth various ‘‘stratagems’’ to
compel incriminating statements makes the following rec-
ommendation of ‘‘perseverance’’:
‘‘In the preceding paragraphs emphasis has been
placed on kindness and stratagems. The investigator
will, however, encounter many situations where the
sheer weight of his personality will be the deciding
factor. Where emotional appeals and tricks are em-
ployed to no avail, he must rely on an oppressive at-
mosphere of dogged persistence. He must interrogate
steadily and without a relent, leaving the subject no
prospect of surcease. He must dominate his subject
and overwhelm him with his inexorable will to obtain
the truth. He should interrogate for a spell of several
hours pausing only for the subject’s necessities in ac-
knowledgment of the need to avoid a charge of duress
that can be technically substantiated. In a serious case,
the interrogation may continue for days, with the re-
quired intervals for food and sleep, but with no respite
from the atmosphere of domination. It is possible in
this way to induce the subject to talk without resorting
to duress or coercion. This method should be used only
when the guilt of the subject appears highly probable.’’
p. 12.
Can there be any doubt that under such circumstances
many ‘‘subjects’’ of police interrogation will assume that
the police have a right to an answer, and, indeed, to what
the police regard as the ‘‘correct’’ answer—a confession of
guilt? Cf. 8 Wicmorz, Evinence 309 (3rd ed. 1940) ; Drv-
Lin, THE CrimtnaL Prosecution in Eneuanp 26-27 (1960):
‘Tt is probable that even today, when there is much less
—
Argument 17
ignorance about these matters than formerly, there is still
a general belief that you must answer all questions put to
you by a policeman, or at least that it will be the worse for
you if you do not.’’ (Emphasis added.) The whole pur-
pose of such interrogation is to produce in the subject ‘‘the
fear that if he remained silent it would be considered an
admission of guilt’’, Bram v. United States, 168 U. 8. 532,
562 (1897), or indeed, that it might otherwise be ‘‘worse’’
for him.
Inzau & Rem, pp. 111-112, recommends an ‘‘effective
way to deal with a subject’’ who, despite all other pres-
sures, has the knowledge of and the gall to insist upon his
right not to be compelled to incriminate himself or asks to
see a relative, friend or attorney:
“IF A SUBJECT REFUSES TO DISCUSS
THE MATTER UNDER INVESTIGATION, CON-
CEDE HIM THE RIGHT TO REMAIN SILENT,
AND THEN PROCEED TO POINT OUT THE IN-
CRIMINATING SIGNIFICANCE OF HIS RE-
FUSAL.
‘‘The most effective way to deal with a subject who
refuses to discuss the matter under investigation is to
concede to him the right to remain silent. This usually
has a very undermining effect. First of all, his is dis-
appointed in his expectation of an unfavorable reaction
on the part of the interrogator. Secondly, a concession
of this right to remain silent impresses the subject with
the apparent fairness of his interrogator.
‘‘After this psychological conditioning, the interro-
gator should then proceed to point out to the subject the
incriminating significance of his refusal to talk. The
following comments have been found to be very effec-
tive: ‘Joe, you have a right to remain silent. That’s
your privilege and I’m the last person in the world
who'll try to take it away from you. If that’s the way
you want to leave this, O. K. But let me ask you this.
18
Argument
Suppose you were in my shoes and I were in yours and
you called me in to ask me about this and I told you,
**T don’t want to answer any of your questions.’’ You'd
think I had something to hide, and you’d probably be
right in thinking that. That’s exactly what I'll have
to think about you and so will everybody else. So let's
sit here and talk this whole thing over.’
‘*After the subject has been talked to in this manner,
the interrogator should then immediately ask the sub-
ject some innocuous questions that have no bearing
whatsoever on the matter under investigation. For
instance, the interrogator may inquire of the subject,
‘How long have you lived in this city?’; ‘Where are
you working?’; ‘How long have you worked there?’,
As a rule the subject will answer such questions, and
then gradually the examiner may start in with ques-
tions pertaining to the offense under investigation.
Except for the career criminal, there are very few
persons who will persist in their initial refusal to talk
after the interrogator has handled the situation in this
suggested manner.
“Tf a subject expresses a desire to talk to a relative,
or to an employer, or to any other person, the inter-
rogator should respond by suggesting that the subject
first tell the truth to the interrogator himself rather
than get anyone else involved in the matter. If the
request is for an attorney, the interrogator may sug-
gest that the subject save himself or his family the ex-
pense of any such professional service, particularly if
he is innocent of the offense under investigation. The
interrogator may also add, ‘Joe, I’m only looking for
the truth, and if you’re telling the truth, that’s it. You
ean handle this by yourself.’ *’
Is there any doubt that a statement produced under
such circumstances results from undermining the ‘‘sub-
ject’s’’ right ‘‘to remain silent unless he chooses to speak
—
Argument 19
in the unfettered exercise of his own will’’? Malloy v.
Hogan, supra, at 8.
Can it be seriously asserted that the extracting of con-
fessions under such circumstances conforms to our accusa-
torial system under which ‘‘society carries the burden of
proving its charge against the accused not out of his own
mouth . . . [and] must establish its case, not by inter-
rogation of the accused even under judicial safeguards,
but by evidence independently secured through skillful
investigation.’’ Watts v. Indiana. 338 U. 8. 49, 54 (1949)
(opinion of Frankfurter, J.). Where there has been a con-
fession elicited through misapprehension, fear, trick or
stratagem has there not been a violation of the basis of
our system that ‘‘[{t]he law will not suffer a prisoner to
be made the deluded instrument of his own conviction.”’
2 Hawkins, Pleas of the Crown, c. 64 § 34 (Sth ed. 1924).
Indeed, such police interrogation has been aptly charac-
terized as the worst of both worlds: ‘‘It is the inquisi-
torial system without its safeguards.’’ Watts v. Indiana,
supra, at 55 (opinion of Frankfurter, J.).
The absurdity of calling a confession ‘‘voluntary”’
when produced by typical police custodial interrogation
designed to elicit a confession has been pointed up by an
apt example in Professor Sutherland’s recent article, Crime
and Confession, 79 Harv. L. Rev. 21, 37 (1965) :
‘Suppose a well-to-do testatrix says she intends to
will her property to Elizabeth. John and James want
her to bequeath it to them instead. They capture the
testatrix, put her in a carefully designed room, out of
touch with everyone but themselves and their con-
venient ‘witnesses’, keep her secluded there for hours
while they make insistent demands, weary her with
contradic. ns and finally induce her to execute the
will in their favor. Assume that John and James are
deeply and correctly convinced that Elizabeth is un-
worthy and will make base use of the property if she
gets her hands on it, whereas John and James have
20 Argument
the noblest and inmost righteous intentions. Would any
judge of probate accept the will so procured as the
‘voluntary’ act of the testatrix?’’
E. Escobedo Was Not Revolutionary, But Rather the
Natural Culmination of a Series of Cases.
It was within this context of police custodial interro-
gation aimed at eliciting a confession that the Court in
Escobedo held that denying Escobedo the presence of coun-
sel during the interrogation resulted in the confession being
obtained in violation of his right not to be compelled to
incriminate himself. Despite the furor raised in some
corners about the revolutionary nature of this decision, it
is submitted that the decision was not revolutionary, but
rather the natural culmination of a series of cases.
As noted above, beginning with Lisenba v. California,
314 U.S. 219 (1941), there was started a shift to the testing
of State confessions by Fifth Amendment standards. This
development culminated, in one of its phases, in the hold-
ing of Malloy that the Fifth Amendment right not to be
compelled to incriminate oneself was applicable in toto to
the States through the Fourteenth Amendment.
Alongside this development was the recognition by the
Court in numerous ‘‘involuntary’’ confession cases that the
fact that a suspect was held incommunicado, and, in particu-
lar, that he was not given access to an attorney during the
interrogation period was highly significant in the determi-
nation of whether or not a confession was ‘‘voluntary.’’
See, e.g., Chambers v. Florida, 309 U. S. 227 (1940) ; Ash-
craft v. Tennessee, 322 U. S. 148 (1944) ; Haley v. Ohio, 332
U. S. 596 (1948) ; Fikes v. Alabama, 352 U. S. 191 (1957);
Spano v. New York, 360 U. 8. 315 (1959) ; Culombe v. Con-
necticut, 367 U. S. 568 (1961); Gallegos v. Colorado, 370
U.S. 49 (1962) ; Haynes v. Washington, 373 U.S. 503 (1963).
In this last case—which has been described by the
Court as one in which there was ‘‘held inadmissible even a
confession secured by so mild a whip as the refusal, under
_ ———a
Argument 21
certain circumstances, to allow a suspect to call his wife
until he confessed,’’ Malloy v. Hogan, supra, at 7 (1964)—
the Court relied heavily upon the facts that Haynes was
held incommunicado, at no time was warned of his right
to remain silent or that his answers might be used against
him nor told of his rights respecting consultation with an
attorney. The step from Haynes to Escobedo is an ex-
tremely short one, if, indeed, one at ail. If Haynes repre-
sents the capstone of the ‘‘involuntary’’ confession cases,
then Escobedo represents the application of this capstone
in light of the full Fifth Amendment protection held to be
applicable to State interrogation by Malloy.
F. The Inherently Compelling Nature of Police Cus-
todial Interrogation Requires That a Confession
Obtained During Such Interrogation Re Excluded
Unless the State Shows That There Were Present
Adequate Devices to Protect the Subject’s Privi-
lege Against Self-Incrimination.
As the above analysis shows, usual police custodial in-
terrogation designed to elicit a confession is inherently
violative of the subject’s right not to be compelled to in-
criminate himself. It is obviously impossible to probe the
mind of the subject of this interrogation to determine
whether in fact these compelling circumstances were the
cansative force behind his making the self-incriminating
statements. Recognizing this fact, this Court has never
adopted such a self-defeating inquiry but has tested the
issue of compulsion as against the possibility of compulsion
inherent in the external situation. Cf. Ashcraft v. Ten-
nessee, 322 U. S. 143, 154 (1944). When the external police
created situation is such to be inherently prejudicial to the
subject’s privilege against self-incrimination, a Court does
not, and can not ‘‘stop to determine whether prejudice
resulted.’? Hamilton v. Alabama, 368 U.S. 52, 55 (1961).®
6. On this point, the same result should be reached on a Sixth
Amendment approach as there the issue is also one of possible, not
actual prejudice. See Hamilton v. Alabama, 368 U. S. 52 (1961).
_ —
22 Argument
It is particularly apt that the focus of a self-incrimina-
tion issue be on the external conditions established by gov-
ernment. As this Court has recognized, a major basis for
the privilege was our rejection of the inquisitorial system,
the Star-Chamber process. See, e.g. Murphy v. Waterfront
Commission, 378 U. S. 52, 55 (1964). Thus, concentration
on the system or process of police interrogation is not only
appropriate but necessary if we are to maintain fidelity
to one of the major purposes of the privilege.
It is within this concept of analyzing the police process
that we have reviewed the process of police custodial inter-
rogation designed to elicit a confession and shown that
this process is typically violative of the subject’s privilege
against self-incrimination.
G. Under the Present Circumstances of Police Cus-
todial Interrogation Designed to Elicit a Confes-
sion, the Presence of Counsel Is Required to
Protect the Subject’s Privilege Against Self-
Incrimination.
The issue now is what protective devices need be added
to this police custodial interrogation to make the process
conform to Fifth Amendment requirements, i.e., to dispel
the government established compelling atmosphere. LF sco-
bedo, consistent with previous precedent, held that, under
the present conditions of police custodial interrogation, the
presence of counsel was this necessary protective device.
The protection of the Fifth Amendment privilege afforded
by the presence of counsel in police custodial interrogation
designed to elicit a confession has been spelled out in the
other briefs in this case, is well known to this Court, and
therefore, can be here quickly summarized. These include
giving an «effective warning of the suspect’s privilege ‘‘to
remain silent unless he chooses to speak in the unfettered
exercise of his will’’; providing someone in whom the sub-
ject can confide and who is a contact between the subject
and the outside world; assuring that if the subject chooses
—
Argument 23
to tell his story, he does so in a way that conveys his in-
tended meaning; and providing an outside observer to the
interrogation proceedings.
Obviously an effective warning of the privilege is a
keystone of its effective enforcement. It is equally clear
that there is a need to provide the presence of someone
at interrogation in whom the subject can confide and who
will bolster his confidence. As discussed above, it is a
prime function of police custodial incommunicado inter-
rogation to tear a subject away from all things in which he
can rely for support and place him in complete subservience
to the interrogator. The aim is to have him dominated by
the interrogator. In order to dispel such circumstances,
therefore, it is manifestly necessary that the incommuni-
cado environment be eliminated. The presence of counsel
will tend to accomplish this aim. Not only is counsel a
person outside the police force, he is one who can meet
the accomplished police interrogator on a level of at least
partial equality. By training and experience he should
not be afraid to stand up to unrestrained governmental
power. He is someone in whom the subject can freely
confide. It is his job to be a whole-hearted advocate for
the subject with no conflicting interests in this regard.
In order to make effective the privilege against self-
incrimination it is also necessary to ensure that if a person
desires to tell his story he is allowed to do so in a way that
conveys his intended meaning. A police interrogator, how-
ever, is basically an accomplished cross-examiner who is
trained to allude to a particular piece of incriminating evi-
dence but then to ‘‘be on guard to shut off immediately
any explanation the subject may start to offer at that
time.’’ Inpau & Ren, p. 27. Counsel present will tend to
ensure that the accused has a real opportunity, if he so
desires, to tell his story effectively and to eliminate dis-
tortions and ambiguities. In short, counsel can aid in
examining the accused so that his story comes out as he
aims to tell it as well as protecting him from unrestrained
cross-examination. This Court has recognized the need
24 Argument
for ‘‘the guiding hand of’’ counsel to so aid an accused at
trial where ‘‘[t]he tensions . . . for an accused with life
or liberty at stake might alone render him utterly unfit to
give his explanation properly and completely.’’ Ferguson
v. Georgia, 365 U. S. 570, 594 (1961). The Court in Fergu-
son recognized that ‘‘when the average defendant is placed
in the witness chair and told . . . that nobody can ask him
any questions, and that he may make such statement to the
jury as he sees proper in his own defense, he has been set
adrift in an uncharted sea with nothing to guide him
. .’? Id. at 593. The accused may be ‘‘overwhelmed
by his situation, and embarrassed . . . and... . it will
not be surprising if his explanation is incoherent, or if it
overlooks important circumstances.’’ Id. at 595-596. These
statements were made in the context of a trial in which the
accused had spoken with counsel before taking the stand,
and his counsel and friends were present throughout.
Moreover, the prosecutor could not cross-examine. Can
there be any doubt that they are even more relevant where
the accused is held incommunicado and at the same time
subjected to intense, unrestrained cross-examination? Cf.
Pointer v. Texas, 380 U. S. 400 (1965).
Finally, if counsel is present at the interrogation, he
can ensure that there will be a record of the entire pro-
ceedings, so as to preserve the context in which any state-
ment is made. He can make certain that there is no ‘‘off
the record’’ pressure exerted on his client. Too often a
court determination of the admissibility of a confession
turns on whether the court believes the police or the accused
in their often conflicting stories of what has occurred in
that sound-proofed, windowless interrogation room. The
presence of counsel will provide a witness to the inter-
rogation process and counsel will, by his presence, deter
any possibility that the police might, in their zeal to ex-
tract a confession, resort to practices intended to compel
one.
This summary of the need for the presence of counsel
during custodial police interrogation designed to elicit a
Argument 25
confession leads to a clear resolution of a number of
‘‘Escobedo questions’’ now being presented to the Court.
1. A Police Warning of the Right to Remain Silent Is
Not Adequate to Protect the Subject’s Privilege
Against Self-Incrimination.,
It is clear that a police warning cannot even be argued
to serve any of the above-stated necessary protective func-
tions other than the giving of the warning itself. It is
submitted, however, that it does not adequately « serve even
this limited function.
As has been stated:
‘‘The Constitution does not contemplate that prisoners
shall be dependent upon government agents for legal
counsel and aid, however conscientious and able those
agents may be. Undivided allegiance and faithful,
devoted service to a client are prized traditions of
the American lawyer.’’ Von Moltke v. Gillies, 332
U. S. 708, 725-26 (1948) (opinion of Black, J.).
Professor Kamisar has recently written :
‘‘(W)hen we expect the police dutifully to note a sus-
pect of the very means he may utilize to frustrate
them—when we rely on them to advise a suspect un-
begrudingly and unequivocally of the very rights he
is being counted on not to assert—we demand too much
of even our best officers. As Dean Edward L. Barrett
has asked ‘(I)s it the duty of the police to persuade
the subject to talk or persuade him not to talk? They
cannot be expected to do both.’’’ Kamisar, Equal
Justice in the Gatehouses and Mansions of American
Criminal Procedure, in Criminal Justice in Our Time,
Magna Carta Essays (Howard, ed. 1965). (Emphasis
added. )
It seems hard to state a more effective answer to a
claim that a police warning is adequate than that given
in the Amicus Brief of the National District Attorneys’
26 Argument
Association: At best the police warning ‘‘will benefit only
the recidivist and the professional. The first offender and
the Culombes, Fikeses, Malloys, Haynes or Recks will not
be the beneficiaries.’’ P. 14. (Emphasis added.)
Moreover, this same brief makes the point that in
imposing a duty resting solely on the police, with no
objective verification of its exercise, there is a likelihood
that the police will ‘‘stretch the truth’’ as to the fulfillment
of this duty. The brief quotes the following passage from
Devin, Toe Carmina Prosecution 1x Enaianp, 47 (1960)
concerning experience in England 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, it is the general habit of the police never
to admit to the slightest departure from correctness.’’
(Emphasis added by the N. D. A. A. Brief to the
original.)
Indeed, in light of such contemplated police action and
the sophisticated interrogation techniques used by the police,
it is not impossible to conceive the use of a formal warning
as a direct means of intimidation and compelling the sub-
ject to confess.
Even if, however, a perfunctory warning of the right
to remain silent given by the police prior to interrogation
might be an effective protective device for a time there-
after, its effectiveness would soon wear off when confronted
by the plethora of police stratagems end techniques de-
signed precisely to loosen the subject’s tongue.
The Court in Ecobedo quite clearly recognized this
fact when it found that even a prior warning of the right
to remain silent given to Escobedo by his attorney was not
effective in dispelling the compelling circumstances pre-
sented by new police stratagems. Despite these prior
Argument 27
wernings, Escobedo was compelled to incriminate himself
when presented with the classic interrogation technique
of an accomplice’s accusation—a technique clearly designed
to overcome the subject’s desire not to speak. How much
more easily could the effect of a police warning be overcome
by such techniques.
2. Prior Access to Counsel, as Distinguished From
the Presence of Counsel, Is Not Adequate to Pro-
tect the Subject’s Privilege Against Self-Incrimt-
nation,
The above-stated facts of Escobedo indicate also that
prior access to counsel rather than the presence of counsel
at interrogation is not sufficient to protect the subject’s
Fifth Amendment right not to be compelled to incriminate
himself; the effectuation of that right necessitated that
Escobedo have counsel present when he was confronted with
the new police stratagem of the accomplice’s accusation.
As the Court stated: ‘‘The ‘guiding hand of counsel’ was
essential to advise petitioner of his rights in this delicate
situation.’’ 378 U. S., at 486. In addition, of course, again
prior access to counsel does not even arguably provide
the other necessury protective devices.
3. Neither the Existence of Retained Counsel nor a
Request to See Him Are Required by the Proper
Application of Escobedo.
It is true that in Escobedo, the subject of custodial
pojice interrogation had retained counsel and recuested
to see him. The relevance of these facts, however, depends
upcu the proper analysis of the rights protected by that
decision; the analysis contained in this brief clearly shows
that they are not at all significant. The issue always re-
mains a determination of what is necessary to dispel the
compelling atmosphere of the interrogation. It is true
that when Escobedo asked for and was denied the right
_ —
LIOR Oe ae
28 Argument
to consult his attorney this clearly reinforced the compelling
nature of the interrogation. The refusal told him in no
uncertain terms that the police were in charge, that they
were determined to get him to confess and that they would
not let him see his attorney until they chose to do so—
after he confessed. Cf. Haynes v. Washington, 373 U. S.
503 (1963).
Yet, as the above discussion has shown, even absent
this aggravating element of Escobedo, such interrogation
was inherently compelling and only the presence of coun-
sel could dispel that atmosphere. Indeed, it might be
argued that Escobedo’s expressed request to consult with
counsel indicated that the usual compelling nature of the
interrogation would not work as effectively on him as on
others. Escobedo obviously had a sense that he had some
rights and was not completely subject to the will of the
interrogator. A requirement that there must be a request
would only result in placing the ignorant and inexperienced
—those who most need the services of an attorney to
dispel the compelling nature of the interrogation—at a
distinct disadvantage in the enforcement of their constitu-
tional rights. ‘‘The defendant who does not ask for counsel
is the very defendant who most needs counsel; we cannot
penalize a defendant, who, not understanding his constitu-
tional rights, does not make the formal request and by
such failure demonstrates his helplessness. To require the
request would be to favor the defendant whose sophistica-
tion or status had fortuitously prompted him to make it.”’
People v. Dorado, 42 Cal. Rep. 169, 177-178, 398 P. 2d 361,
369-371, cert. denied 381 U. S. 946 (1965).
The same analysis leads clearly to the result that it
is irrelevant that a subject of police custodial interrogation
cannot afford retained counsel. It cannot seriously be
maintained that an indigent subject’s Fifth Amendment
rights are less deserving than those of an affluent one.
Since the presence of counsel is as necessary to effectuate
Argument 29
an indigent subject’s Fifth Amendment right as those of
a more affluent interrogation subject, counsel must be
equally available to both.
As Professor Kamisar, supra, at 71-73 has written:
‘“‘Tf, as the Escobedo Court tells us, our Constitution
strikes the balance between the importance of an ‘in-
terrogation opportunity’ to the police and the critical-
ness of that stage to the accused ‘in favor of his privi-
lege against self-incrimination’ how can those. . .
[too poor to retain counsel] be denied the benefits of
this policy resolution? If ‘the guiding hand of coun-
sel’ at the police interrogation stage is ‘essential to
advise [a suspect] of his rights in this delicate situa-
tion,’ how does the situation become less delicate, less
perilous; why does the need for legal guidance
diminish, when the suspect is poor or ignorant?
‘‘To say that the aforementioned alleged classifying
traits do not bear a reasonable relation to the policies
and purposes of Escobedo is not the worst that can be
said for them. It may also be said that, at least insofar
as the criminal process is concerned, most, if not all,
of these traits cannot be the basis for constitutional
classification; they are irrelevant per se. If ‘the mere
state of being without funds is a neutral fact—consti-
tutionally an irrelevance, like race, creed, or color’
—then the inability of a suspect to retain counsel can-
net constitute sufficient grounds for limiting the impact
of Escobedo .. .”’
In the words of the Report of the Attorney General’s
Committee on Poverty and the Administration of Criminal
Justice, p. 9 (1963):
‘‘Tt should be understood that governmental obligation
to deal effectively with problems of poverty in the
snnatenmeeannaennned —
Argument
administration of criminal justice does not rest or
depend upon some hypothetical obligation of govern-
ment to indulge in acts of public charity. It does not
presuppose a general commitment on the part of the
federal government to relieve impoverished persons
of the consequences of limited means, whenever or
however manifested. It does not even presuppose that
government is always required to take into account
the means of the citizen when dealing directly with
its citizens . . .
‘The obligation of government in the criminal cases
rests on wholly different considerations and _ reflects
principles of much more limited application, The es-
sential point is that the problems of poverty with
which this Report is concerned arise in a process ini-
tiated by government for the achievement of basic
government purposes, It is, moreover, a process that
has as one of its consequences the imposition of severe
disabilities on the persons proceeded against. Duties
arise from action, When a course of conduct, how-
ever legitimate, entails the possibility of serious injury
to persons, a duty on the actor to avoid the reasonably
avoidable injuries is ordinarily recognized. When
government chooses to exert its powers in the criminal
area, its obligation is surely no less than that of taking
reasonable measures to eliminate those factors that
are irrelevent to just administration of the law but
which, nevertheless, may occasionally affect determina-
tions of the aceused’s liability or penalty. While
government may not be required to relieve the accused
of his poverty, it may properly be required to minimize
the influence of poverty on its administration of jus-
tice.”’
The decisions of this Court support the statements of
Professor Kamisar and the Attorney General’s Committee.
See Gideon v, Wainwright, 372 U. S. 335 (1963); Douglas
cccemecieniatantaitnsinseiilial
Argument 31
v. California, 372 U. S. 353 (1963); Lane v. Brown, 372
U. S. 477 (1963); Draper v. Washington, 372 U. 8. 487
(1963); Griffin v. Illinois, 351 U. 8S. 12 (1956). Indeed,
Douglas v. California, supra, seems directly on point for
the issue here presented. In that case, the Court held that
where an appeal is provided to all those convicted of crime,
an indigent is entitled to an attorney on such appeal since
the assistance of an attorney is required to effectuate this
right to appeal. As we have thus analyzed Escobedo the
parallel is obvious, There the Fifth Amendment privilege
against self-incrimination is constitutionally provided to
all persons, Failure to provide the assistance of counsel
during police custodial interrogation designed to elicit a
confession renders this right illusory in such context. Can
there then be any question, under Douglas, that the merger
of the Fifth Amendment and Equal Protection Clauses re-
quires the appointment of counsel for an indigent?
II.
Application of the Rule in Contexts Other Than the Usual
Police Custodial Interrogations Designed to Elicit a
Confession.
This discussion of the meaning and application of
Escobedo has been concerned solely with custodial police
interrogation designed to elicit a confession. This is the
context in which all the cases now presented to the Court
arise and on the basis above set forth it is urged that the
Court hold that the confessions were inadmissible in these
cases.
We will not attempt to apply the analysis in this brief
to all possible hypothetical cases of police interrogation
not consisting of in-custedy interrogation designed to elicit
a confession. It is submitted that these other situations
must be decided as they arise with full consideration given
to the factual variants presented. Cf. Haynes v. Washing-
ton, 373 U.S. 503 (1963).
32
Argument
Where, for example, questioning is of a general in-
vestigatory type, where it is conducted in the questionee’s
home with family and friends present, or where there are
other possible factual patterns, it may not be necessary
to have counsel present in order to protect the questionee’s
right not to be compelled to incriminate himself. Again,
the situation is far different from that analyzed in this
brief, where a person volunteers a statement without any
prior police questioning or pressure. While, therefore,
there is no litmus paper test to solve all questions in this
area, it is submitted that the basic principle remains con-
stant. That principle is measuring the government-
founded circumstances surrounding the confession against
the Constitutional requirement that these circumstances not
be such as to be conducive to a violation of the questionee’s
right not i» be compelled to incriminate himself—his right
‘‘to remain silent unless he chooses to speak in the unfet-
tered exercise of his own will.’’ Malloy v. Hogan, 378
U.S. 1, 8 (1964).
It must also be remembered that neither in Escobedo
nor in any of the cases now presented to this Court has
there been any evidence that what was conducted was not
usual police interrogation designed to elicit a confession.
In none of these cases has there been any evidence that
there were operative, either by legislative determination or
police practice, protective devices other than the presence
of counsel that might even arguably be effective in dis-
pelling the inherently compelling nature of this type of
interrogation.
Although your Amicus feels that the chances are un-
likely it is, of course, possible that protective devices other
than the presence of counsel may be devised and become
operative which are effective to protect the Fifth Amend-
ment right in police custodial interrogation and thereby
remove the need for the presence of counsel for this pur-
pose. If such new devices are proposed and become opera-
tive, of course, it would be the duty of the courts to deter-
OW
Argument 33
mine whether or not they meet the need. A holding that
under the available devices of today, the presence of coun-
sel is necessary to protect the Fifth Amendment right
should not foreclose a determination that other available
protective devices are equally acceptable when and if such
devices are formulated.
As stated above, however, neither in Escobedo, nor
in any of the cases now before this Court, have any of the
government parties argued the availability or advisability
of other protective devices. Indeed, the government argu-
ments in the present cases are that not even the clearly
inadequate devices of a police warning or prior access to
counsel should be provided in an attempt to dispel the
‘ eompelling nature of police custodial interrogation de-
signed to elicit a confession. What is desired is the un-
restrained existence of this compelling situation.
III.
The Argument That Police “Need” the Existence of the
Compelling Nature of Custodial Interrogation Must
and Should Be Rejected.
It is argued to this Court that restrictions on the
powers of the police freely to interrogate suspects as here
advocated will prevent effective police work and thus con-
tribute to what is asserted to be a mounting crime rate
and that, therefore, the balance in this area must and
should be struck, not. on the side of the protection of indi-
vidual liberties, but on the side of this asserted police
need.
A. Even if Such “Need” Were Shown the Constitution
Requires That the Balance Be Struck on the Side
of Effective Enforcement of the Fifth Amendment.
It is submitted that even if these claims of police need
were substantiated, the Constitution requires that the bal-
34 Argument
ance here be struck on the side of effectively enforcing an
accused’s Fifth Amendment right not to be compelled to
incriminate himself.
As the Court stated in Escobedo, 378 U. S., at 488-490:
‘‘Our Constitution, unlike some others, strikes the bal-
ance in favor of the right of the accused to be advised
by his lawyer of his privilege against self-incrim-
ination. . . .
‘*We have learned the lesson of history, ancient and
modern, that a system of criminal law enforcement
which comes to depend on the ‘confession’ will, in the
long run, be less reliable and more subject to abuses
than a system which depends on extrinsic evidence
nidependently secured through skillful investiga-
Gee oe
‘“We have also learned the companion lesson of his-
tory that no system of criminal justice can, or should,
survive if it comes to depend for its continued effec-
tiveness on the citizens’ abdication through unaware-
ness of their constitutional rights. No system worth
preserving should have to fear that if an accused is
permitted to consult with a lawyer, he will become
aware of, and exercise, these rights. If the exercise
of constitutional rights will thwart the effectiveness
of a system of law enforcement, then there is some-
thing very wrong with that system.’’ (Emphasis in the
original.)
B. However, It Is Not Necessary for This Court to
Face the Ultimate Balancing as the Asserted Police
“Need” Has Not Been Shown to Exist.
This ultimate balancing issue, however, need not be
reached as the case for the asserted police ‘‘need’’ has not
been made out. For an analysis of the available data, see
Kamisar, On the Tactics of Police-Prosecution Oriented
Critics on the Courts, 49 Cornell L. Q. 436 (1964).
Argument 35
The first point in the police-necessity thesis is the
postulate that there is a clear link between court decisions
protecting the rights of the accused and an alleged upward
advance in the rate of criminal behavior. Even if it is as-
sumed that there has been a rise in criminal behavior in
the last few years, an issue not at all free from doubt,
see Kamisar, supra, 49 Cornell L. Q., at 462, it is clear
that there has been no showing of a link between such
a rise and court decisions securing individual liberties.
Certainly no statistical data has been produced to
show such a link. See Kamisar, supra, 49 Cornell L. Q.,
at 458-471. While admitting this lack of statistical data,
Professor Inbau, a leading spokesman for police necessity,
has argued that ‘‘simple logic’’ supports the existence of
such a link. Inbau, More About Public Safety v. Indi-
vidual Civil Liberties, J. Crm. L. C. & P. S., 329, 331
(1962). Professor Inbau has recently stated that ‘‘since
most crimes are solveable only by this interrogation oppor-
tunity, whenever you get the courts restricting that inter-
rogation opportunity, you are going to solve fewer crimes
and you are going to catch fewer criminals. Furthermore,
the incentive to commit crime as well as the actual amount
of crime is going to increase.’”? A Forum on the Inter-
rogation of the Accused, 49 Cornell L. Q. 382, 387-388
(1964).
"Assuming arguendo, that interrogation opportunity is
necessary to solve crimes and convict criminals, is it clearly
a matter of ‘‘simple logic’’ that there is a causal connec-
tion between restricting this opportunity and an increased
incidence of criminal behavior? It hardly needs to be
stated that the roots of crime are planted in a number of
complex social factors such as: discrimination, environ-
ment, drug addiction and unemployment, as well as indi-
vidual psychological and psychiatric variants. We are only
now beginning to gain the necessary knowledge in order to
cope with and treat causes rather than symptoms. It is
—_—
36 Argument
just too simplistic a form of logic to ascribe criminal be |
havior to court decisions.
Indeed, it may well be argued that ‘‘simple logic’’ indi-
cates that there is a causal link between unrestrained police
conduct and a high incidence of criminal behavior.
As Mr. Justice Brandeis has so eloquently written:
‘In a government of laws, existence of the government
will be imperilled if it fails to observe the law scrupu-
lously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people
by its example. Crime is contagious. If the Govern-
ment becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto him-
self; it invites anarchy. To declare that in the admin-
istration of the criminal law the end justifies the means
—to declare that the Government may commit crimes
in order to secure the conviction of a private criminal—
would bring terrible retribution. Against that per-
nicious doctrine this Court should resolutely set its
face.’’ Olmstead v, United States, 277 U. S. 488, 485
(1928) (dissenting opinion), quoted with approval by
the Court in Elkins v. United States, 364 U. S. 206, 223
(1960) and Mapp v, Ohio, 367 U. S. 643, 649 (1961).
Recently, Judge Bazelon has amplified this thought:
‘*We should be aware that if the protections of the
Bill of Rights are restricted we shall, in practice, be
affecting directly the rights of only our more deprived
population. When we talk about arrests for investi-
gation, lengthy police interrogation prior to arraign-
ment, and the like, the subject under discussion is not
you or I. We don't get arrested without probable
cause because, to put it plainly, we don’t ‘look’ as if
we would commit acts of violence and we do look as
if it might not pay to trifle with our rights. Nor would
you or I be subjected to long interrogation by the
Argument 37
police without the benefit of counsel. Nor do you and
I live in neighborhoods where the police dragnet is used,
and where suspects are subjected to wholesale arrest.
‘“So the issue really comes down to whether we should
further whittle away the protections of the very people
who most need them—the people who are too ignorant,
too poor, too ill-educated to defend themselves. Can
we expect to induce a spirit of respect for the law in
the people who constitute our crime problem by treat-
ing them as beyond the pale of the Constitutiont”’
Bazelon, Law, Morality & Civil Liberties, 12 UCLA L.
Rev. 13, 27-28 (1964).
This is not to say that any ‘‘simple logic’’ shows that
there is a causal link between lack of restraints on the
police and an increased incidence of criminal behavior.
It is to say that the converse ‘‘simple logic’’ is not self-
evident and that in this area of complicated sociological
and psychological factors there are no ‘‘simple logic’’
answers.
In particularizing the police necessity argument in the
area of unrestrained police interrogation, its proponents
argue that restraints on police interrogation such as here
advocated will result in the elimination of the obtaining of
confessions, see Escobedo, 378 U. S., at 488, and that the
resulting unavailability of confessions will drastically re-
duce the possibility of obtaining convictions of the guilty.
See e.g., N. Y. Trmms, Dec. 2, 1965, p. 1, col. 2; id., May 14,
1965, p. 39, col. 1.
It does not seem, however, that either ‘‘simple logic’’
or available statistical data supports these assertions. Even
if it is assumed that the current practice of most prose-
cutors is not to interrogate suspects when counsel is
present, see Note, 73 Yaur L. J. 1000, 1049, 268:
““[T}he fact that most prosecutors do not now inter-
rogate a man once he has obtained counsel does not
mean that they would find interrogation with counsel
Argument
useless. Nor does the present practice of criminal
lawyers of advising his client to keep silent during
interrogation mean that he would invariably advise
silence if he were permitted to be present and to have
some control over the process. The attorney has not,
contrary to generally accepted notions, seen his role as
constant impediment to the criminal process, making
it as hard for the state as possible. In many cases full
disclosure is exchanged for a lesser charge. In faci,
more guilty pleas are obtained from counseled defend-
ants than from non-counseled ones. Furthermore, an
attorney may find the flow of information helpful.
Counsel now does not invariably advise his client not
to take the stand at trial. Similarly, at interrogation,
participating counsel may find out what the District
Attorney really knows about the case.’’ Id., at 1049.
Indeed, not all prosecutors urge that they or the police
need the power of secret interrogation; witness the re-
marks of District Attorney Aaron E. Koota, N. Y. Timzs,
Nov. 22, 1964, p. 35, col. 1, under whose jurisdiction the
ill-fated and much publicized ‘‘confession’’ of George
Whitmore, Jr. was elicited. See also Sutherland, Crime
and Confession, 79 Harv. L. Rev. 21, 37-39 (1965).
More significantly, there is no substantiation for the
claim that confessions are necessary to the conviction of
the guilty. Attempts to obtain confessions may be used
as ‘‘easier’’ substitutes for proper, independent police in-
vestigatorial processes. Moreover, confessions are some-
times sought even when ample other evidence is already in
hand. Police have attempted to elicit confessions when the
crime has been committed in front of a dozen witnesses,
indeed when it has been committed in the presence of the
police themselves. For example, there could scarcely have
been less need for a confession than was present in the
circumstances of People v. Dorado, 42 Cal. Rptr. 169, 398
P. 2d 361 (1965), cert. denied, 381 U. S. 946 (1965). See
Argument 39
also Sobel, The Exclusionary Rules in the Law of Con-
fessions, A Legal Perspective—A Practical Perspective,
Part Six, N. Y. Law J., Nov. 22, 1965, p. 1, col. 4.
As the Court stated in Haynes v. Washington, 373
U. S. 503, 519 (1963):
‘‘This case illustrates a particular facet of police
utilization of improper methods. While history amply
shows that confessions have often been extorted to
save law enforcement officials the trouble and effort of
obtaining valid and independent evidence, the coercive
devices used here were designed to obtain admissions
which would incontrovertibly complete a case in which
there had already been obtained, by proper investi-
gative efforts, competent evidence sufficient to sustain
a conviction. The procedures here are no less consti-
tutionally impermissible, and perhaps more unwar-
ranted because so unnecessary. There is no reasonable
or rational basis for claiming that the oppressive and
unfair methods utilized were in any way essential to
the detection or solution of the crime or to the pro-
tection of the public. The claim, so often made in
the context of coerced confession cases, that the devices
employed by the authorities were requisite to solution
of the crime and succession prosecution of the guilty
party cannot here be made.”’
It should also be noted that India and Scotland have
strict rules excluding from evidence confessions obtained
as a result of police interrogation and such rules do not
seem to have marked effects on law enforcement in those
countries. See, Note, 73 Yauz L. J. 1000, 1045-1046 (1964).
Nor has any substantial adverse effect of law enforcement
been shown in the federal and state jurisdictions that op-
erate under the McNabb-Mallory rule or an equivalent.
Id., at 1046.
While these facts by no means prove that the eliciting
of confessions is not essential to the solution of crime and
the conviction of the guilty, they do cast substantial doubt
40
Argument
on the unsupported assertions of police and prosecutors of
the essentiality of confessions.
In summation on this point, it seems quite evident that
while not clearly refuting the claim, neither simple logic
nor the available statistical evidence supports the argument
that opportunities for secret, unrestrained and unhampered
police and prosecutorial interrogation are essential to con-
trolling or reducing the incidence of criminal behavior.
If there is more data in this area that should or can
be produced, the burden of production clearly rests on
government and not on an individual accused. An indi-
vidual accused has neither the motivation nor resources to
produce data relevant to a determination of the ‘‘need”’’
for allowing the unrestrained police interrogation desired
by those who assert the existence of such a need. On the
other hand, government has both the continuing interest
and the resources to produce such data if, in fact, it can
be done. Thus far, nothing has been produced that could
by any stretch be deemed to justify overriding a suspect’s
constitutional rights because of overwhelming societal
necessity.
Not only has government not produced any such data
in litigation contexts, there have not even been govern-
mental legislative determinations of such need. It is sig-
nificant that in none of the ‘‘involuntary’’ confession cases,
nor in Massiah, Escobedo nor the cases here presented has
the police interrogation been pursuant to a legislative deter-
mination that such interrogation is necessary or proper.
Indeed, to the extent that there have been legislative deter-
minations, they have been that such interrogation is neither
necessary nor proper. Rule 5(a) of the Federal Rules of
Criminal Procedure requires federal officers to take ar-
rested persons before a commissioner ‘‘without unneces-
sary delay.’’ Thirty-six states have similar procedures
using either such general times as ‘‘without necessary
delay’’ or specific time limits. For a collection of the
statutes, see, LaFave, Detention for Investigation by the
Argument 41
Police: An Analysis of Current Practices, 1623 Wasu. U.
L. Q. 331, 332-333. And, in some states, a suspect has a
statutory ‘‘right’’ not to be held incommunicado. For a
collection of the statutes see Crooker v. California, 357 U.S.
433, 448 n. 4 (1958) (dissenting opinion). See also Lisenba
v. California, 314 U. S. 219 (1941); Ashcraft v. Utah, 357
U. 8. 427 (1947) ; Escobedo v. Illinois, 378 U. 8. 478 (1964).
It seems clear that in a scale composed of the un-
supported necessity assertions of police and prosecutors
on one side and the effectuation and protection of a person’s
constitutional right not to be compelled to incriminate him-
self on the other, the balance must be struck on the side of
the Constitutional right.
Respectfully submitted,
AntHuony G. AMSTERDAM,
Pau J. MisHKIN,
Attorneys for Amicus Curiae.
Of Counsel:
Raymonp J. BRADLEY,
H. Rosert Fresacn,
Peter Hearn,
Metvin L. Wutr.
Appendix.
O’HARA, FUNDAMENTALS OF CRIMINAL
INVESTIGATION (1959)
CHAPTER 9
INTERMOGATIONS
1. Terms
For the purpose of simplifying the treatment of inter-
rogations a special meaning will be attached to some of the
terms used. It should be understood that these conventions
are not universally accepted.
a. Interrogations. An interrogation is a questioning of
a person suspected of having committed an offense or of a
person who is reluctant to make a full disclosure of informa-
tion in his possession which is pertinent to the investigation.
b. Witness. A witness is a person, other than a sus-
pect, who is requested to give information concerning an
incident or person. He may be a victim, a complainant, an
accuser, a source of information, an observer of an occur-
rence, a scientific specialist who has examined physical evi-
dence or a custodian of official documents. A witness is
usually interviewed, but he may be interrogated when he
is suspected of lying or of withholding pertinent infor-
mation.
c. Suspect. A suspect in an offense is a person whose
guilt is considered on reasonable grounds to be a practical
possibility.
d. Subject. The term subject will be used here most
commonly to represent the person, whether witness or sus-
(43)
Ee
At Appendix
pect, who is being interviewed or interrogated. The sub-
ject in this sense is not necessarily the subject of the case
under investigation. Where the term is used to refer to
the subject of the case, the distinction will be apparent
from the phrasing and context. A subject is ordinarily
interrogated for one of the following purposes:
1) To obtain a confession to the crime.
2) To induce the subject to make admissions.
3) To learn the facts and circumstances surrounding
a crime.
4) To learn the identity of accomplices.
5) To develop information which will lead to the re-
covery of the fruits of the crime.
6) To discover the details of any other crimes in which
the suspect participated.
2. Tue INTERROGATOR
The interrogator must be able to dominate his subject,
not through use of his formal authority but because his per-
sonality commands respect. He must be professional in
attitude and performance. If he reveals any wavering ten-
dencies the suspect may discover the means of resisting
the interrogation. To inspire full confidence, the force of
the investigator’s personality should be tempered by an
understanding and sympathetic attitude. The subject must
feel instinctively that he is talking man-to-man with a per-
son who is interested in his viewpoint and problems. The
suspect who has been forced to cooperate with hostile or-
ganizations will tell his story much more readily if he feels
that the investigator understands his helplessness and is in-
clined to take his plight into consideration. The following
qualifications and traits are desirable in an interrogator :
a. General Knowledge and Interests. To a large de-
gree, the efficiency of an investigator is commensurate with
ae
Appendix 45
his general knowledge. To acquire this breadth of knowl-
edge, the investigator must develop intellectual curiosity
and a keen sense of observation. He must cultivate a genu-
ine interest in people and their problems, for such knowl-
edge will help him in determining motives as he deals with
many types of personalities in a variety of circumstances.
It is highly desirable that he have a wide range of knowl-
edge concerning professional and technical matters, since
his subjects represent nearly every phase of human activity.
The background and personality of these individuals, to-
gether with the information they provide, can be assessed
adequately only if the interrogator is prepared to discuss
their major interests intelligently and to analyze their mo-
tives in light of environmental factors.
b. Alertness. The variety of problems confronting him
requires the interrogator to be constantly alert so he can
analyze his subject accurately, adapt his technique to the
requirements of the case, uncover and exploit leads, and
alter his tactics when necessary. A sense of logic will not
in itself quickly reveal contradictions in a subject’s story;
it must be accompanied by a quick awareness of the con-
tradictory information. Discovery of gaps in the subject’s
story after the interrogation is less satisfactory than on-
the-spot recognition, because the time interval gives the sub-
ject opportunity to reflect upon the matter before question-
ing is renewed.
c. Perseverance. Every interrogation requires a great
deal of patience if complete and accurate information is to
be obtained. The need for patience is obvious when lack of
cooperation is encountered; but perseverance frequently is
required even when the suspect is willing to help but is
unable to recall precisely the complex ramifications of his
story or to explain discrepancies.
d. Integrity. If the individual being questioned has
reason to doubt the integrity of the interrogator, it is prac-
tically impossible for the latter to inspire confidence or
46 Appendia
trust. The interrogator must never make a promise he
cannot keep; he should keep all promises he makes.
e. Logical Mind. The interrogator must develop the
questioning along a logical line. The objectives of the ques-
tioning should be clearly defined in his own mind. A plan
of questioning should be built around the requirements of
establishing the elements of proof of the offense.
f. Ability in Observation and Interpretations. He must
not only develop the ability to ‘‘size up’’ an individual, but
also must learn to observe and interpret his reaction to
questions.
g. Power of Self-Control. He must maintain control
of himself at all times. Loss of temper results in a neglect
of important details.
h. Playing the Part. It is quite justifiable during ques-
tioning, if it will accomplish the desired results, for the in-
vestigator to act as though he were angry or sympathetic
to suit the needs of the situation.
2. Conpvot or THE INTERROGATOR
The behavior of the interrogator at the outset of the
questioning usually establishes the atmosphere that will
prevail throughout the interrogation. It is of great im-
portance for the investigator to develop an effective per-
sonality that will incuce desire to respond in the subject.
Personal mannerisms must be controlled wherever they dis-
tract or antagonize. The following are some of the more
useful reminders concerning attitude and demeanor:
a. Dominate the Interview. The interrogator must
always be in command of the situation. The strength of his
personality must constantly be felt: by the subject. He
must never lose control through indignation, ill temper,
hesitancy in the face of violent reactions, or obvious fum-
bling for questions as a result of a lack of resourcefulness,
Appendia 47
b. Distracting Mannerisms. The subject must be im-
pressed with the seriousness of the interrogator’s purpose.
Pacing the room, smoking, ‘‘doodling,’’ and similar forms
of behavior should be avoided, since they tend to convey
a sense of inattentiveness or a lack of concentration. The
investigator should seat himself close to the subjeet with
no intervening furniture and focus his attention on the
subject. The full weight of his personality must be brought
to bear on the emotional situation. Distance or obstructions
provide the subject with a small degree of confidence and
relief.
c. Language. The speech of the interrogator should
be adapted to the subject’s cultural level. Profanity and
vulgarity should be avoided, since they diminish the effec-
tiveness of the interrogator by compromising his dignity or
antagonizing the subject. The uneducated subject must be
approached in his own language. Simple, forthright diction
should be employed. It is especially important in sex cases
to avoid ambiguities. Slang may be used if it provides
ease of speech or fluency to the subject. The choice of
words should be made with a view to encourage a free flow
of speech in the subject. Where the subject may shy away
from words such ‘‘assault’’ and ‘‘steal,’’ he may not hesi-
tate to admit that he ‘‘hit’’ or ‘‘took.’’ It is a natural
tendency for a person to describe his conduct in terms of
euphemisms.
d. Dress. Civilian dress is more likely to inspire
confidence and friendship in a criminal than a uniform.
The accoutrements of the police profession should be re-
moved from view. The sight of a protruding gun or billy
may arouse an enmity or defensive attitude on the part of
the criminal.
e. Attitude. The interrogator is not seeking to convict
or punish. He is endeavoring to establish the facts of the
case; to discover the truth; to clarify a misunderstanding;
to help the criminal to straighten himself out; to clear up
48 Appendia
this mess; to simplify matters; to rectify an unfortunate
situation; to see what he can do to help the subject to help
himself; to get rid of a distasteful task as painlessly as
possible ; to see that the subject’s accomplices are not doing
him an injury; and so forth. There is an endless series
of locutions with which the investigator can attractively
decorate his role in the administration of justice.
f. Preliminary Conduct. In military and certain other
federal investigative agencies, it is required that the inter-
rogator identify himself and show his credentials to the
subject. He must then state, in general terms, the purpose
of the interrogation. Before beginning the questioning,
the must advise the suspect of his rights against self-
incrimination and inform him that he does not need to
answer the questions and that if he does answer, his answers
can be used as evidence against him.
g. Presence of Other Persons. It is desirable to re-
strict the number of persons present at an interrogation.
If a confession is obtained the defense may claim the
existence of duress because of the presence of five or ten
police officers. Moreover, some courts require the proscu-
tion to produce all the witnesses of a confession. A parade
of ten detectives to the witness stand creates an unfavorable
impression and opens up the likelihood of inconsistencies
of the testimony. Ordinarily the interrogator should be
alone with the subject. Other parties may be brought in
for a specific purpose, such as witnessing the signing of
a confession.
3. PLace
If at all practicable, the interrogation should take
place in the investigator’s office or at least in a room of
his own choice. The subject should be deprived of every
psychological advantage. In his own home he may be con-
fident, indignant, or recalcitrant. He is more keenly aware
of his rights and more reluctant to tell of his indiscretions
eS.
Appendix 49
or criminal behavior within the walls of his home. More-
over his family and other friends are nearby, their presence
lending moral support. In his own office, the investigator
possesses all the advantages. The atmosphere suggests
the invincibility of the forces of the law. The structure,
the personnel, and all observable activities have but one
purpose—the discovery of truth and the detection of
crimes.
4. Tue Inrerrocation Room
The room chosen for the interrogation should provide
freedom from distractions. Secondarily, it should not be
designed to give encouragement to the suspect. The fol-
lowing ideal requirements are listed with these two prin-
ciples as a basis:
a. Privacy. Interruptions dispel an amtosphere that
may have been carefully created by the interrogator, hence,
the following are desirable:
1) One door. Several doors suggest possible inter-
ruption and destroy the feeling of inevitability.
2) Absence of windows or view.
3) Sound-proofing.
4) Telephone without bell.
b. Simplicity. Distracting influences should be kept
toa minimum. The suspect may strive to avoid the inves-
tigator’s concentration by focusing his attention on some
object in the room which suggests a different train of
thought.
1) Medium sized room.
2) Bare walls. Pictures and charts are distracting.
3) No glaring lights.
4) Minimum furniture.
50 Appendia
c. Seating Arrangement. The suject and the investiga-
tor should be seated with no large furniture between them.
1) Chair. Armless, straight-back chair for the suspect.
2) Table or Desk. The investigator requires a flat
surface on which to place papers and articles of evidence.
3) Suspect. Seating the suspect with his back to the
door further deprives him of any hope of interruptions or
distraction.
d. Technical Aids. Although the investigator should
be alone with the subject, it is desirable to have facilities
for others to observe and hear the suspect during the inter-
rogation. Other investigators may suspect the subject of
participation in other crimes, Thus the interrogation room
can also serve as a line-up or show-up room. In an im-
portant case the investigator will require the assistance
of his associates. By their listening unobserved to the
interrogation they may be able to make useful suggestions
and draw more objective conclusions. Persons such as
the prosecuting attorney will find this opportunity to ob-
serve the prospective defendant invaluable in preparing
his case. Victims and complainants are enabled to make
identifications.
1) Recording Installation. Important interrogations
and confessions should be recorded.
2) Listening Device. A hidden microphone such as a
‘‘live’’ telephone should be installed.
3) Two-Way Mirror. This device appears to be a
plain mirror on one side but permits a person on the other
side to see through without being observed. Unfortunately
the typical two-way mirror installation is obvious and is
familiar to the experienced criminal. A more deceptive
arrangement can be devised with a little ingenuity. A
framed picture with a mirror strip border is less familiar.
Appendix | 51
A medicine chest with a mirror door will paks unnoticed if
a small sink is installed beneath it.
5. SELECTION OF TECHNIQUE AND APPROACH
In the work of an jnterrogation, the principle of econ-
omy of means should guide the iivestigator. The simplest
approach is best if it achieves the desired result. The in-
terrogator should not be unnecessarily devious. He may
outwit himself with his own cleverness or antagonize the
subject by creating an unwanted confusion. Ingenuity is
desirable when it is required, but it should not be consid-
ered as a satisfactory substitute for intelligence. The inter-
rogator must first classify or analyze his subject with the
aid of information or criminal records. A preliminary
interview will often assist in determining the character
and personality of the suspect and in planning the tech-
niques to be used. With experienced criminals, the methods
described under Anaiety and The Stern Approach are more
effective, since although this type of person may not be
reached by an emotional appeal he will accede to the logical
cogency of the case that has already been built up against
him by the investigator. With first offenders and those
subject to feelings of regret, repentance, and mental an-
guish, a direct appeal on a friendly basis is more effective.
Failing this, they may experience fear and apprehension
if the interrogator expresses himself in terms of official
indignation. As a general rule, the investigator will find
that the direct, friendly approach should be tried first and
a gradual progression can be followed to the more complex
techniques. This must be qualified by the observation that
some of the techniques, such as the pretense of physical
evidence, can lose their effect if they are applied at the
wrong stage of the questioning. The subject may develop
a doubt as to whether there is a strong case against him
if widely varying techniques are used. The interrogators
should never reveal the weakness of their position by hap-
hazardly testing different techniques. The methods should
52 Appendix
be applied economically and with careful planning. It is
important to restrict the questioning to at most two inter-
rogators. A multiplicity of interrogators results in neu-
tralizing the effects of various techniques.
6. InTERRoGATION TECHNIQUES
There are many techniques of interrogation which the
investigator can employ. His choice should depend on the
nature of the crime under investigation, the character of
the subject and on his own personality and limitations.
The following are some of the techniques practiced by expe-
rienced invesiigators.
a. Emotional Appeals. The investigator must create a
mood that is conductive to a confession. To place the sub-
ject in the proper frame of mind, he should provide emo-
tional stimuli that will prompt him to unburden himself
by confiding. In achieving this aim, the interrogator must
combine the qualities of an actor and a practical psycholo-
gist. He must be able to roughly analyze the subject’s per-
sonality in a short time; decide what motivation would
prompt him to tell the truth; and then provide those mo-
tives by appropriate emotional appeals.
1) Sympathetic Approach. The suspect may feel the
need of friendship. He is apparently in trouble. An offer
of friendship accompanied by small acts of kindness may
win his cooperation. The interrogator understands the
plight of the subject. He appreciates the fact that even
fellows like the subject become involved in difficult situa-
tions. He is ready to listen to the subject’s story of his
early life and its lack of opportunities. He understands
how easy it is for a fellow to become a victim of drink or
narcotics. He knows that the subject has merely used bad
judgment in the affair and certainly would never again
become so involved. Perhaps if he and the subject were to
discuss the matter freely they could find an explanation.
ee
Appendia 53
After all, it is really a misunderstanding that has arisen.
Unfortunately, the affair is technically a violation of the
letter of the penal code and the police must comply with
certain regulations. We could keep this unpleasantness
to a minimum by a candid discussion of the whole affair.
2) Kindness. The investigator has appraised the per-
sonality of the subject and finds him a normal person in his
desire for consideration. Kindness is in order. The inves-
tigator knows what it is to be in a spot. How about the
family—the subject’s mother, wife, or children? Is there
anything the subject would wish the investigator to do for
them? The subject’s employer? The subject’s property?
His car, for example? Obviously, the subject and the in-
vestigator can get along together. Perhaps the investigator
can assist the subject in his personal problem? There is
no limit to the things that can be achieved by cooperation.
We are not aione in this world.
b. Friendliness. The simplest of techniques is to as-
sume that the suspect is willing to confess if he is treated
in a friendly spirit. This treatment may take several
forms which although similar to the emotional appeals de-
scribed above are not as simple and direct.
1) The Helpful Advisor. The investigator is the sub-
ject’s friend. Between the two of them they are going to
straighten things out. The subject is bewildered by the
recent happenings. If he explains the whole thing from
the beginning, his friend, the investigator, will try to ad-
vise him. The investigator understands the law, the dis-
trict attorney, and police procedures. Who is in a better
position to help the subject?
2) The Sympathetic Brother. The subject needs to
square things with his own conscience. For the sake of his
family and himself, he should make a clean. breast of the
affair. His friend the investigator has seen other per-
sons in similar circumstances. He knows the suspect is
Hn
54 Appendix
seeking, above all, to achieve peace of mind. He has his
whole life ahead of him. With the help of the investigator.
he can take the first long step toward rehabilitation—
recite the present story from the beginning and reason out
the future steps with this as a basis. The investigator
wants to give the suspect a chance to help himself.
3) Extenuation. The investigator does not take too
serious a view of the subject’s indiscretion. He has seen a
thousand people in exactly the same situation. A rash step
taken in an unguided moment; hasty action prompted by
other people’s advice. Perhaps if the suspect were to give
the details of this unfortunate incident, his friend, the
interrogator, could present the affair in its true light.
4) Shifting the Blame. Obviously, the subject is not
the sort of person that is usually mixed up in a crime like
this. The interrogator could tell from the start that he
wasn’t dealing with a fellow who was a criminal by nature
and choice. The trouble with the suspect ies in his little
weaknesses—he likes drink, perhaps; he is excessively fond
of girls; or he has had a bad run of luck in gambling. These
things can happen to anyone. Particularly in the present
case. The circumstances practically pushed the suspect
into the crime. If the subject and the interrogator were
to work together, they could present this thing as it really
is—a mistake that could happen to anyone. If the com-
plainant and the judge could be assured that the subject
was making a clean breast of it and was at least a decent
fellow, it is quite possible they would take a different view
of the matter. As it is now, there is enough proof to convict
him and there is nothing to show the true facts of the case.
Now if they were to hear the whole story .
5) Mutt and Jeff. In this technique, two agents are
employed. Mutt, the relentless investigator, who knows the
subject is guilty and is not going to waste any time. He’s
sent a dozen men away for this crime and he’s going to
Appendix 55
send the subject away for the full term. Jeff, on the other
hand, is obviously a kindhearted man. He has a family
himself. He has a brother who was involved in a little
scrape like this. He disapproves of Mutt and his tactics
and will arrange to get him off the case if the subject will
cooperate. He can’t hold Mutt off for very long. The sub-
ject would be wise to make a quick decision. The technique
is applied by having both investigators present while Mutt
acts out his role. Jeff may stand by quietly and demur at
some of Mutt’s tactics. When Jeff makes his plea for co-
operation, Mutt is not present in the room.
c. Anxiety. The suspect is in a state of emotional
confusion. He is unable to think logically and clearly, since
his sense of values has been disturbed and his imagination
is distorting perspective. It is possible for the investigator
to obtain admissions or even a confession from the suspect
by further misrepresenting the picture.
1) Exaggerating Fears. The interrogator persistently
points out that the subject ‘‘cannot win.’’ There has never
been a perfect crime. The longer he gets by with petty
offenses, the more likely it is that he will commit a serious
crime and suffer a severe punishment. The subject should
consider the damaging effect such action will have on his
family. His continued silence will undoubtedly affect his
loved ones. The interrogator understands that the subject
has no fear for himself, but he must have some thought
for his friends or relatives. Their good name and future
are at stake.
2) Greater and Lesser Guilt. In most crimes, there
are several offenses involved. Although the investigator
is only concerned with the major offense, he can represent
himself as being interested mainly in a minor offense. The
subject, who is afraid only of the cousequences of the major
offense, may resort to cleverness and in an attempt to throw
the interrogator off the track or at least to placate him by
56 Appendia
throwing him a bone, may confess to a minor offense. Once
he has committed himself to this, the ice has been broken
and persistence should bring forth a confession of the major —
guilt. It must be stressed to the suspect that since he has —
lied about the lesser offense, it is obvious that he has lied
about the greater.
3) Knowledge Bluff. The interrogator reveals a num-
ber of pertinent items of evidence w.ich are definitely
known. He is thus able to convince the subject that it is
futile to resist since the interrogator obviously has sources
of knowledge. The interrogator sh. ald prepare himself
for this approach by learning a great number of facts about
the crime in question and about the subject's background.
He must create the impression that he possesses an un-
limited store of knowledge. This is not too difficult if the
subject is confused and is normally not too bright.
4) The Line-Up. Certain crimes such as assault, for-
gery, and robbery involve an identification. The witness,
complainant, or victim is requested to recognize the sub-
ject. During a break in the interrogation, the subject is
placed among a group of men for a line-up. The witness
or complainant (previously coached, if necessary) studies
the line-up and confidently points out the subject as the
guilty party. He may stress a particular feature for em-
phasis. The interrogation is resumed as though there wera
now no doubt about the guilt of the subject. Now it is
merely a question of the subject helping himself by ‘‘co-
operating.’’
5) Reverse Line-Up. This technique is applicable in
crimes which ordinarily run in series, such as forgeries
and muggings. The accused is placed in a line-up, but this
time he is identified by several fictitious witnesses or vic-
tims who associated him with different offenses. It is ex-
pected that the subject will become desperate and confess
to the offense under investigation in order to escape from
the false accusations.
Appendix 57
6) Bluff on a Split Pair. This is applicable where
there are accomplices. The two suspects are separated and
one is informed that the other has talked. Another varia-
tion, one which is less likely to run aground as a bluff, is
to obtain individual, detailed stories from each suspect, no
matter how fanciful or erroneous they may be, and to play
the discrepancies against each suspect’s story. A stronger
form of this technique is to pretend to the suspect that his
accomplice is placing all the blame on him. It is then sug-
gested that the suspect would be foolish if he did not pro-
tect himself by telling the truth. Inbau describes an effec-
tive form of playing one suspect against the other. Let
us assume that there are two suspects, A and B, and that A
has been interrogated without success, A is then seated
in the outer office which is occupied also by a busy stenog-
rapher. B is taken into the interrogation room and we shall
assume that he too is unsuccessfully interrogated. The
interrogator orders the stenographer to come into the inter-
rogation room with his pencil and notebook. After an
appropriate period of time, the stenographer returns and
begins to type from his notes. Various touches of realism
are added. The stenographer wishes to know A’s address ;
he is requested to hurry, since signatures are needed. Sub-
sequently, A is returned to the interrogation room which B
has now left. He is viewed with a grave silence. The
interrogator opens with: ‘‘I don’t think we'll need any
confession from you, but if you want to clear up a few
points. . . .’’? Heis then asked to verify one or two points
about which the interrogator has certain knowledge.
d. The Stern Approach. A cold, aloof attitude may
sometimes produce the desired results. Techniques classi-
fied under this heading are often designed to induce the
effect of anxiety as described in the preceding paragraphs.
Many types of suspects are in fear of the police and the
police station. Their confidence is shaken if they are faced
by a stern investigator. His very coldness upsets any pre-
58 Appendia
conceived notions of ‘‘kid gloves’’ treatment. A judicious
application of the following techniques may induce dismay
and cause him to plead with the interrogator. They should,
however, be used only if it is highly probable that the sub-
ject is guilty.
1) Pretense of Physical Evidence. The interrogator
states that he does not need any confession and isn’t par-
ticularly interested in the suspect’s reasons. There are,
however, a few formalities he must go through. He is re-
quired to inform the suspect of certain findings and give
him an opportunity to explain certain evidence. The inter-
rogator then pretends that certain physical evidence, appro-
priate to the case, has been found by laboratory experts.
The average person has mystical notions of the power of
scientific crime detection and will accept practically any
claims that science may make. Thus the detective can mix
pseudoscience in his statements. In a hit-and-run case, for
example, the interrogator can suggest that blood has been
found on the car and that the laboratory experts have deter-
mined it to be the victim’s blood. In a homicide, the inter-
rogator can refer to hair found at the scene of the crime,
which can be shown, under the microscope to be the sus-
pect’s hair. For added realism, the suspect can be invited
to look into the microscope. In a document case, such as
a forgery or a threatening letters case, a comparison of
handwriting can be represented as being conclusive. Finger-
prints are the most effective form of evidence. The layman
believes that they can be left on any object. The investi-
gator should select some object which was known to have
been touched and should face the suspect with the object.
It does bear fingerprints and the fingerprints have been
photographed. The interrogator can show at a discreet
distance a small photograph of a latent fingerprint. The
imaginative investigator can create his own dramatic effects
such as having the interrogation interrupted by the delivery
of a message to the effect that the fingerprints on the
Appendiaz 59
weapon have been identified, or that the handwriting has
been positively compared.
2) Jolting. This device is especially useful when deal-
ing with a person unusually calm or nervous. The ques-
tioning is conducted at some length in a quiet, almost sooth-
ing manner. By constantly observing the suspect, the in-
vestigator chooses a propitious moment to shout a pertinent
question and appear as though he is beside himself with
rage. The subject may be unnerved to the extent of con-
fessing. If he appears moved, the interrogator will work
him up to a pitch with a climactic series of questions.
3) Indifference. The investigator is not particularly
interested in the subject. The subject’s conviction is treated
as a fait accompli. There are witnesses and physical evi-
dence. There is an absence of an alibi. The subject’s be-
havior during the period in question is an open book te the
police. To accomplish this effectively, the interrogator
should discuss the case with another investigator in the
presence of the subject. The purpose of the discussion is
ostensibly to determine whether they can obtain a convic-
tion for a greater crime or whether they can obtain the
maximum sentence. They review the case by putting the
worst construction on every aspect and expressing their
annoyance at being put to this inconvenience. The aim, of
course, is to induce the subject to plead with them. Only
with extreme reluctance do they give any consideration to
his pleas. Gradually, they become more ‘‘reasonable.’’
4) Questioning as a Formality. In this technique, the
interrogator asks a series of questions as though it were
a necessary formality in his routine duty. He give the
impression that he knows the answer, but that he is re-
quired to ask the question in consideration of the rights of
the accused. The procedure is business-like, but the interrog-
ator pauses meaningfully as if to give the suspect one more
chance to tell the truth. Such phrases as the following can
60 Appendia
be used; ‘‘You were in the apartment at seven o’clock,
weren’t you?’’ ‘‘You’re sure about this fact?’’ ‘‘Do you
want me to write your answer exactly the way you said it?”
“I’m going to give you a fair chance to answer this ques-
tion truthfully. Think it over for a while; then, give me
your answer.’’ When the answer is not that which the
interrogator expects, he puts down his pencil skeptically,
looks at the suspect, stares at his note pad and shakes his
head ruefully. He may make some remark such as, “‘I
don’t know what you’re trying to do to yourself,’’ or ‘‘You
think you’d give yourself a break.’’ A prolonged silence
will work with equal effectiveness.
5) Affording an Opportunity to Lie. This technique
is useful when the interrogator has used direct questioning
about the crime without success. It is lengthy, time-con-
suming and involved, but it serves the purpose of wearing
down the subject. Questions directly concerning the crime
are avoided. In a cold methodical manner the interrogator
first asks for detailed information concerning the subject’s
background. If he has knowledge of some indiscretion, he
dwells around the event in great detail. He then proceeds
to the activities of the subject before and after the crime in
question. He goes into minute details concerning money,
movements, and conversations. He repeats and re-exam-
ines until he has built up a complete structure. He sup-
ports his questioning with his own knowledge of certain
facts or events. Having reached this point, the investigator
leans back and in a relaxed tone, invites the subject to tell
in his own words all that he knows about the offense, the
victim, the complainant, possible suspects, and the circum-
stances surrounding his involvement in the case. From all
of this information, a capable investigator will be able to
detect weak points such as lies, inconsistencies, improbabili-
ties, and gaps. He should be patient, methodical, and aloof,
willing to go over the events again, step-by-step and in mi-
nute detail in order to ‘‘get the facts straight’’ for his
report. :
Appendia 61
The subject will, ordinarily, continue to answer ques-
tions, since he cannot know that all this information is not
necessary for an investigative report. He is willing to as-
sist the interrogator in developing his report. The interro-
gator gives the impression that he is not interested in guilt
or innocence; he wishes only to obtain details for his re-
port. No person, obviously, should prevent the police from
accomplishing their report by refusing to answer routine
questions. Finally, the investigator will have acquired an
immense, complex, but not quite coherent structure of facts,
data, descriptions, and events. It should not be difficult to
discover a number of lies in this welter.
At a ‘‘psychological moment’’ when the subject ap-
pears confused and dispirited another tack can be taken.
The investigator can suddenly become overwhelmingly in-
dignant, throw down his pad and pencil and demand the
truth forthwith. On the other hand an associate investi-
gator can take advantage of a pause, in private, to suggest
to the suspect that he can ‘‘straighten things out’’ by for-
getting all these details and getting down to a few simple
admissions. Alternatively, the detailed questions can con-
tinue and the discrepancies can be pointed out in an assured
and determined manner.
7. ConTRoL
One of the first lessons to be learned by the inexperi-
enced investigator is the unfortunate ease with which he can
lose control of the interrogation. As he questions the sus-
pect, unexpected answers are received and his strategy is
pushed off its course. Startling emotional reactions on the
part of the suspect may upset him. He may become iiu-
patient in the face of obstinacy or angry with the appear-
ance of impertinence. With the tone of the interrogation
changed and the sequence of his presentation altered, he
may find himself caught in a discouraging stalemate. Al-
though experience will remedy these defects, initial train-
62 Appendia
ing according to sound principles will enable him to avoid
the pitfalls at the outset.
a. Initial Phase. In the beginning of the typical inter-
rogation the investigator has little need for control. The
subject should be permitted to tell his story in his own way
without interruption. A few general questions will lay the
groundwork. Often the suspect, after he is once launched
in his narrative, will work himself into a confession. At this
stage the investigator should restrict himself to assisting
the subject when there is an obvious need for a word or
phrase.
b. Questioning. After the narrative phase of the in-
terrogation, planned questions should be put to the subject.
The tone of the interrogation will now be set by the re-
sponses of the subject. Spontaneous answers which ap-
pear to be given without much reflection are particularly
valuable and trustworthy. If the subject appears to be co-
operating, the investigator should endeavor to develop in
him a pride in his cooperation.
c. Emotion Control. If the subject seems reluctant to
cooperate, the investigator should make every effort to re-
main clean. A loss of temper will cut off the small trickle of
information. Anger may swiftly lead to duress. The sus-
pect, moreover, will sense his own superiority in remaining
calm. Deliberate anger as a tactic in interrogation is, of
course, a different matter. Harassing the suspect should
ordinarily be avoided since it can result in false statements.
It is always possible that the suspect does not have the in-
formation. The indifferent type may give the desired an-
swer regardless of its truth merely to be rid of the oppres-
sion of the interrogator. Instead of yielding to feelings of
contempt, impatience, sarcasm, or anger, the interrogator
can find relief in putting his efforts into the expression of
emotions or sentiments such as patriotism, motherhood,
childhood, religion, or fidelity to ideals.
——
ae
Appendix 63
d. Strategic Interruptions. When the interrogator
senses that he is losing control or that his tactics are avail-
ing nothing, it may be time to pause and do additional plan-
ning or introduce a new technique. The interrogation
room should be equipped with a button and buzzer under
the top of the desk, which the investigator can push with
his knee or foot. In this way, he can sound the buzzer,
pretend it is a signal for him and leave the room.
8. PuystoLocicaL Symptoms
Careful observation of the physical state of the sub-
ject as influenced by his emotion will often give a clue to
guilty knowledge or deception. The various symptoms ob-
servable in the subject are sometimes consistent with a
state of nervousness as well as guilt. Physical manifesta-
tions can be pointed out to the suspect as evidence that his
guilt is obvious. The following observations are general-
ities which may sometimes be useful, but which must always
be modified in relation to the temperament of the individual.
a. Sweating. If the face is flushed, anger is indicated.
Embarrassment or extreme nervousness may also be the
case. A pale face indicates fear or shock. Sweating hands
indicate tension.
b. Color Changes. A flushed face indicates anger,
shame, or embarrassment but not necessarily guilt. A pale
face is a more reliable sign of guilt.
c. Dry Mouth. Great nervous tension is present. This
is considered a reliable symptom of deception. Swallowing,
wetting of the lips, and thirst are indications of dryness of
the mouth.
d. Pulse. An increase in the rate of heart beat is in-
dicative of deception. The pulse beat is observable at times
in the veins of the neck.
e. Breathing. Deception is indicated by an effort to
control breathing during critical questions.
64 Appendia
9, PERSEVERANCE
In the preceding paragraphs emphasis has been placed
on kindness and stratagems. The investigator will, how-
ever, encounter many situations where the sheer weight
of his personality will be the deciding factor. Where emo-
tional appeals and tricks are employed to no avail, he must
rely on an oppressive atmosphere of doggéd persistence.
He must interrogate steadily and without relent, leaving
the subject no prospect of surcease. He must dominate
his subject and overwhelm him with his inexorable will to
obtain the truth. He should interrogate for a spell of
several hours pausing only for the subject’s necessities
in acknowledgnient of the need to aveid a charge of duress
that can be technically substantiated. In a serious case,
the interrogation may continue for days, with the required
intervals for food and sleep, but with no respite from the
atmosphere of domination. It is possible in this way to
induce the subject to talk without resorting to duress or
coercion. The method should be used only when the guilt
of the subject appears highly probable.
10. Spectra, Groups
Two groups of offenders deserve special mention here
because of the relative ease with which they may be in-
duced to make confessions if they are interrogated with
a moderate amount of skill.
a. The Juvenile. Two classes must be distinguished:
the indignant offender with bad character and disreputable
background and the person who comes from a ‘‘good fam-
ily.”’ The expressions ‘‘criminal’’ and ‘‘non-criminal’’
type will be employed.
1) Non-Criminal Type. The boy (or girl) has been
raised to believe in moral principles and to respect author-
ity, but is a little wild and has yielded to temptation; he is
rarely intelligent and his inexperience makes him gullible.
Appendix 65
He is susceptible to emotional appeals by reason of his
training and ‘‘believes’’ in so many things that the investi-
gator has a wide choice of methods by which to motivate
him. ‘‘Mother’’ is a magic word for inducing a state of
repentance and a desire for confession. Since the boy is
usually frightened at the outset, the investigator can rely
on a friendly approach and an emotional appeal.
With a headstrong boy, an investigator should care-
filly avoid humiliating him by compromising his courage
or pride. Lacking common sense and being careless of the
consequeuces, he may rebel at an affront and remain ob-
durate, A friendly appeal to his manhood is effective.
Is he man enough to admit his guilt? What would his
mother think of him? How can he and the investigator
cooperate so that mother won’t be hurt? What should we
tell mother?
2) The Criminal Type. Where poverty and bad en-
vironment have wrought their scars on the boy’s character,
the investigator’s greatest problem is prevarication. The
lie is an integral part of the mode of the subject’s thinking.
Another difficulty is a reluctance to become a ‘stool
pigeon,’’ attended by a heroic silence. An aggravated form
of this attitude is an excessive dislike of ‘‘cops.’’ The fine
arts of detective fiction and mystery cinema have inculcated
in the boy the notion that there is no profession lower
than that of the cop. The police officer is his natural enemy.
Although emotional appeals are far less effective with
this type of subject, they should be given a trial at the out-
set. The friendly approach should be used throughout.
The utmost care must be exercised to avoid permitting the
boy to assume the role of a martyr. If the investigator
is harsh, fancied martyrdom is simple to conjure up.
On the other hand, where the investigator is persistently
friendly, even to the point of fatuity, the boy will feel
foolish in maintaining an air of a rebel without a cause.
The stern approach should be used as a last resort.
— nian
66 Appendix
The investigator must rely heavily on the tactic of
trapping the subject in ridiculous lies. The boy has no
desire to lose face in such an ignominious way as being
repeatedly caught in contradictions and inconsistencies,
After he has been caught in a number of lies, it should be
suggested to him that he ‘‘smarten up.’’ Naturally, in the
half-fictional world that he mentally inhabits, it is of the
utmost importance to be ‘‘smart.’’ Not even the movies
admire the ‘‘dumb’’ thug.
The appeal to his pride in being ‘‘smart’’ should be
used again by pretending that his friends or accomplices
have ‘‘talked’’ and told everything. Is he going to hold
the bag? Since Bogart, Cagney, Robinson and Raft are
never seen holding the bag, there is little likelihood that the
subject will fancy himself in such a position. He will wish
to ‘‘get revenge on them.’’ With the aid of the investi-
gator, this is a relatively simple matter. After all, the in-
vestigator has no desire to see his friend, the subject,
shouldering all the blame.
b. ‘‘White Collar’’ First Offenders. This category
includes persons such as the grocery clerks or bank cashiers
who came from ‘‘poor but honest’’ parentage; middle-class
offenders such as office managers and owners of small
businesses; military officers; teachers; civil service work-
ers; and other groups who are traditionally known to sub-
scribe to orthodox ethical principles and conventional moral
standards. The crime is usually larceny by theft, forgery,
or embezzlement. Rarely it is murder or robbery. It is
not difficult to obtain a confession. The personal dignity
and pride of the subject must be respected. If these are
assaulted by a crude remark, the subject may rebel and
remain obstinate. The calm, dignified approach of a phy-
sician will lull the subject’s fears and lead him to beliers
that if he cooperates the road will be smooth. Since he is
usually naive and knows little of the seamier side of life,
his conception of his fate will be unrealistic. The investi-
Se
Appendix 67
gator should begin with the ‘‘Dutch Uncle’”’ approach. His
job is to help people in trouble. He has seen cases like
this before and things have worked out smoothly. He knows
what the subject has done; that’s a thing of the past. ‘‘Let’s
see what we can do about the future. First of all, we’ll
clear the decks. Tell us in your own words what happened
and give us everything that’s in your favor so that we can
do what we can for you. And stop worrying. Let us do
the worrying about the case. If we all cooperate, we can
get somewhere.’’ A psychological ‘‘lift’’? such as this is
like a sedative before an operation. Things aren’t half as
bad as he had imagined them. It’s good to find that they
have intelligent men on the police force. . . . The character
of a person in this category is weak, and this defect must
be exploited fully.
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.