Amicus Curiae Brief — California v. Stewart
Supreme Court brief1965
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INDEX
PAGE
Interest of the Amici ............. cece cece cecccees 2
Mmestions Presented ..............ccceccecceceees 3
Summary of Argument ...............-.e cece eees 4
PIE, CS eevee cewees ccecnes ceusttcasavncsass 7
I—The Court should not presently enlarge the con-
stitutional dimension of pre-arraignment rights
to the assistance of counsel .................. 8
A. Elements of the constitutional issue ........ 12
B. Historical factors and established practice... 15
C. The materials of decision ................ 18
D. Available empirical evidence is insufficient
for projecting and evaluating the conse-
quences of adopting the exclusionary rules
proposed im these cases ................... 21
(1) The importance of pre-arraignment ques-
tioning in law enforcement ............ 24
(2) Effect of the presenee of counsel on pre-
arraignment interrogation ............ 28
E. Variety and imprecision of proposals to ex-
tend the right te counsel to pre-arraignment
SPONGE ois bs bb ko inp eens S50. 30
F. Importance of non-constitutional decisional
I ain. 8 BERS ROVE RETES od o'ecte 35
II—New exclusionary rules limiting the admissibility
of pre-arraignment statements should not be ap-
NN MORTORGEIVORY |. «ooo cin vccetcesccteueeay a 39
A. The state judicial systems and state law en-
forcement officials have justifiably placed
great reliance on past decisions of this Court
establishing voluntariness as the sole cri-
terion for admissibility of a pre-arraignment
statement 39
. The purposes of a new exclusionary rule
would not be served by retroactive applica-
(2) Protection of the innocent
(3) The integrity of the judicial system ....
C. Retroactive application of a new exclusion-
ary rule would place overwhelming burdens
on the administration of justice by the states
(1) A great number of cases would have
to be reopened, and a large number of
persons—particularly those under long
sentences, for serious crimes—would in-
evitably be released from custody
(2) Retroactive application of a new rule
would impair the future development of
progressive solutions to the difficult
problems of criminal procedure ........
Retroactivity of a new exclusionary rule
would impair the ability of the state judi-
cial systems to provide post-conviction
relief for those individuals whose pres-
ent incarceration truly amounts to ‘‘in-
tolerable restraint’’
Conclusion
INDEX iii
Cases
PAGE.
Adamson v. California, 332 U. S. 46 (1947) ........ 7
Anderson v. State, 237 Md. 45, 205 A. 2d 281 (1964) 9
Bean v. State, 398 P. 2d 251 (Nev. 1965) .......... 9
Blackburn v. Alabama, 361 U. S. 199 (1960) ........ 8
Matter of Bojinoff v. People, 299 N. Y. 145 (1949) .. 48
Bram v. United States, 168 U. S. 532 (1897) ........ 8, 43
Brown v. Allen, 344 U. S. 443 (1953) ............ 41
Browne v. State, 24 Wis. 2d 491, 131 N. W. 2d 169
(1964), cert. denied, 379 U. S. 1004 (195) ...... 9
Campbell v. State, 384 S. W. 2d 4 (Tenn. 1964) 9
Case v. Nebraska, 381 U. S. 336 (1965) ............ 49, 51
Chandler v. Fretag, 348 U. S. 3 (1954) ............. 13
Cicenia v. Lagay, 357 U.S. 504 (1957) ............ 5, 24, 28
Collins v. Beto, 348 F. 2d 823 (5th Cir. 1965) ........ 9, 16
Commonwealth ex rel. Linde v. Maroney, 416 Pa.
331, 206 A. 2d 288 (1965) ......... cece cece eens 9
Commonwealth v. McCarthy, 200 N. E. 2d 264 (Mass.
BNE Geb bouche seks bocce ds ceee 8c hea eek 9
Commonwealth v. Negri, 213 A. 2d 670 (Pa. 1965) ... 9, 22
Crooker v. California, 357 U. S. 433 (1958) ...... 6, 24, 41
Culombe v. Connecticut, 367 U. S. 568 (1961) .. .8, 25, 28, 41
Davis v. North Carolina, 339 F. 2d 770 (4th Cir.
1965), cert. granted, —— U. S. ——, 86 S. Ct.
438 (Dec. 13, 1965), (No. 815, Oct. Term, 1965) . .10, 11
Douglas v. California, 372 U. S. 356 (1963) ........ 50
Elkins v. United States, 364 U. S. 206 (1960) ....... 21
Escobedo v. Illinois, 378 U. S. 478 (1964) . .4, 5, 6, 9, 10, 11,
24, 31, 38, 40, 42, 47
Eskridge v. Washington, 357 U. S. 214 (1958) ... .. 50
te v. Nebraska, 342 U. S. 55 (1951) ..........
Gideon v. Wainwright, 372 U. S. 335 (1963) ..... 10, eg
’
Griffin v. California, 380 U. S. 699 (1965) ... .22, 43, 44, 50
Griswold v. Connecticut, 381 U. S. 479 (1965) .... 18
Hamilton v. Alabama, 368 U. S. 52 (1961) .......... 14
Haynes v. Washington, 373 U. 8. 503 (1963) . .5, 8, 24, 28, 41
Tn re Lopez,'42 Cal. Reptr. 188, 398 P. 2d 380 (1965) 48
Irwin v. Dowd, 359 U. S. 394 (1959) ...........,.. 50
Jackson v. Denno, 378 U. S. 368 (1964) .......... 20, 43, 50
Jackson v. United States, 337 F. 2d 136 (D. C. Cir.
WM eb hele erases is rch ewe bs coe canees 9
Johnson v. Zerbst, 304 U. S. 458 (1937) ............ 17
Ker v. California, 374 U. S. 23 (1963) ............. 13
Linkletter v. Walker, 381 U. S. 618 (1964) . .5, 26, 40, 41, 42,
43, 45, 47, 50
Lynum v. Illinois, 372 U. S. 528 (1963) ............ 8
Mallory v. United States, 354 U. S. 449 (1957) ...... il
Mapp v. Ohio, 367 U. S. 643 (1963) ............ 21, 46, 48
Massiah v. United States, 377 U. S. 201 (1964) ..... 13, 46
McNabb v. United States, 318 U. S. 382 (1943) .... il
Mooney v. Holohan, 294 U. S. 102 (1935) ......... 50
Moore v. Dempsey, 261 U. S. 86 (1923) .......... 50
People v. Dash, 16 N. Y. 2d 493 (1965) .......... 48
People v. Di Biasi, 7 N. Y. 2d 544 (1960) ............ 38, 48
People v. Donovan, 13 N. Y. 2d 148 (1963) .........
Vv
PAGE
People v. Dorado, 42 Cal. Reptr., 169, 398 P. 2d 361
M1965) ..... pyran caer agag 9, 22, 33, 42, 48
People v. Gunner, 15 N. Y. 2d 226 (1965)'.......... 39
People v. Friedlander, 16 N. Y. 2d 48 (1965) ........ 39
People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d
33 (1964), cert. denied, 380 U. S. 961 .......... 9
People v. Howard, 12 N. Y. 2d 65 (1962), cert. de-
nied, 374 U. S. 840 (1968) ............¢085.-
People v. Huntley, 15 N. Y. 2d 72 (1965) ............ 43
People v. Meyer, 11 N. Y. 2d 162 (1962) .......... 38, 46
People v. Neely, 395 P. 2d 557 (Oregon 1964) ...... 21
People v. Rodriguez, 11 N. Y. 2d 279 (1962) ...... 47
People v. Waterman, 9 N. Y. 2d 561 (1961) ...... 47
Pointer v. Texas, 380 U. S. 700, 411 (1965) ........ 45
Powell v. Alamaba, 287 U. S. 45 (1932) .......... 17
Reck v. Pate, 367 U. S. 443 (1961) .............. 6, 44, 48
Spano v. New York, 360 U. S. 315 (1959) .......... 8
State v. Dufour, 206 A. 2d 82 (R. I. 1965) ........ 9, 22, 33
State v. Fox, 131 N. W. 2d 684 (Towa 1964) ........ 9
State v. Hall, 397 P. 2d 261 (Idaho 1964) ........ 9
State v. Johnson, 206 A. 2d 737 (1965) ............ 43
State v. Kitashiro, 48 Hawaii 204, 397 P. 2d 558
SOE os Chua bates hcdcies) bceecKss kabideen 9
State v. Miranda, 98 Ariz. 18, 401 P. 2d 721 (1965),
cert. granted, 86 Sup. Ct. 320 ................
State v. Neely, 239 Ore. 487, 398 P. 2d 482 (1965) . .9, 22, 33
State v. Sheridan, 96 N. W. 730 (Ia. 1903) ........ 21
State v. Smith, 43 N. J. 67, 202 A. 2d 669 (1964),
cert, denied, 379 U.S. 1006. ........6.3...:,
State v. Worley, 178 Neb. 232, 132 N. W. 2d 764 (1965) 9
Stroble v. California, 343 U. S. 181, 196-198 (1952)
PAGE
Tehan, v. Shott, —— U. S. ——, 34 U.S.L. Week
NP NAD kis denen dpaeudedeiee 5, 40, 41, 42, 43, 45
Trop v. Dulles, 356 U. S. 86 (1958) ................ 19
United States ex rel. Angelet v. Fay, 381 U. S. 65
CR oe stil, G0ey Gi a did wetd on aw-adins 469A Ress 45, 48
United States ex rel. Russo v. New Jersey, 351 F. 2d
SA ta MI 6 sink bah eescmcces cease 9, 22, 33, 34
United States ex rel. Walden v. Pate, 350 F. 2d 240
CO es PPE 6th bs ah ve ke: eben cas 9
United States v. Cone, ——-F. 2d —— (2d Cir., dee’d
Nov. 22, 1965; Slip Op. p. 3391) ............. 9, 15, 32
United States v. Drummond, —— F.. 2d —— (2d Cir.,
Dec. 2, 1965; Slip. Op. p. 3425) ................ 9, 37
United States v. Sobell, 314 F. 2d 314 (2 Cir.), cert.
denied, 374 U. S. 857 (1963) ..................6. 47
Wansley v. Commonwealth, 205 Va. 412, 137 S. E.
2d 865 (1964), cert. denied, 380 U. 8S. 922 .... 9
Watts v. Indiana, 338 U. S. 49 (1949) .......... 18, 25, 29
Weeks v. United States, 232 U. S. 283 (1914) ...... 21
Weems v. United States, 217 U. S. 349 (1910) .... 19
White v. Maryland, 373 U. S. 59 (1963) ............. 14
Wolf v. Colorado, 338 U. S. 25 (1949) .......... 21, 40
Wright v. Dickson, 336 F. 2d 878 (9th Cir. 1964) .... 9
ConsTITUTIONAL AND Statutory AUTHORITIES
United States Constitution:
WO MI, Gace cccch ccs ¥cadae ci aete 34
Ritts AmsOONE Co. oc etc cee ceces 4, 9, 13, 15, 31
PE REET ETOP OEE IES SE 19
Fourteenth Amendment .....................: 13, 19
Federal Statutes: PAGE
28 United States Code $2241 ................. 49
28 United States Code § 2254 ................. 49
28 United States Code $2255 ................. 49
State Statutes:
Ae ee Se a ee nen ane 2,3
Ns eee Tw 6 esi dis vic ceeds hen 2
Texua Code Cr. Proc. Art, 727... os ic cckcdsesesc 22
MISCELLANEOUS
Ares, Rankin and Sturz, The Manhattan Bail Project:
An Interim Report on the Use of Pre-Trial
Parole, 38 N.Y.U.L. Rev. 67 (1963) ............ 24
Barrett, Police Practices and the Law—From Arrest
to Release or Charge, 50 Calif. L. Rev. 11 (1962) 26
Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 Harv. L. Rev. 441
CRIN Soi kk in coaikv ic b eesteeteke cides ¢bniies 47, 50
Bator and Vorenberg, Arrest, Detention, Interroga-
tion and the Right to Counsel: Basic Problems
and Possible Legislative Solutions, 66 Col. L. |
RVs GR CRM) » o.5's:0:0.0.0 Cacd ewes bas Heeb ences 26, 36
Beaney, Tue Ricut ro Counse. rm American Courts
CE iad cemtwicuae. -auahindetbenedbe ata 16
Dowling, Escobedo and Beyond: The Need for a
Fourteenth Amendment Code of Criminal Pro-
cedure, 56 Jour. Crim. Law, Criminology & Police
ONO EOE CSET oc. eos ornvs ausumsdaer poe k 9
Enker & Elson, Counsel for the Suspect: Massiah v.
United States and iscobedo v. Illinois, 49 Minn.
Si Ns: A MARE: 08. bee kc d'n'te a odes wha eEws KO 9
Fairman,.Does the Fourteenth Amendment Incor-
porate the Bill of Rights: The Original Under-
standing, 2 Stan. L. Rev. 5 (1949) ............ 7
Friendly, The Bill of Rights as a Code of Criminal
Procedure, 53 Calif. L. Rev. 929 (1965) . .9, 15, 16, 37, 38
Kamisar, Equal Justice in the Gatehouses and Man-
stons of American Criminal Procedure in Crim-
INAL JusTIcE 1n Our True (U. Va. Press 1965) ..
LaFave, Arrest, 319-341 (1965) ................-8,
Mishkin, The High Court, The Great Writ, and the
Due Process of Time and Law, 79 Harv. L. Rev.
Rg SAD RA eee Ae Log Pig ft hier gly RE
10 N. Y. Judicial Conference Annual Report (1965)
Paulsen, Pre-Trial Release in the United States, 66
oe Ae OB A ie ene mae
Proceedings and Interim Report of the National Con-
ference on Bail and Criminal Justice (1965) ....
Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.
Wee, OGL CUPONN oe. eV ais See
Resolution XIV, Post-Conviction Remedies, National
Association of Attorneys General (1965) ......
Traynor, Map v. Ohio at Large in the Fifty States,
1962 Duke L. J. 319, 340-341 .................
Vorenberg, Police Detention and Interrogation of Un-
counselled Suspects: The Supreme Court and
The States, 44 Boston Univ. L. Rev. 423 (1964)..
Wald, Pretrial Detention and Ultimate Freedom, 39
ska MOT GOL CUOOEY oiiceccea ce ievebls fits
PAGE
9, 22
26
Supreme Court of the United States
OCTOBER TERM, 1965
No. 759
ERNESTO A. MIRANDA,
‘ Petitioner,
against
THE STATE OF ARIZONA,
c Respondent.
No. 760
MICHAEL VIGNERA,
: Petitioner,
against
NEW YORK,
s Respondent.
No. 761
CARL CALVIN WESTOVER,
Petitioner,
against
UNITED STATES OF AMERICA,
= Respondent.
No. 762 5
SYLVESTER JOHNSON and STANLEY CASSIDY,
Petitioners,
against
NEW JERSEY,
% Respondent.
No. 584
THE PEOPLE OF THE STATE OF CALIFORNIA,
Petitioner,
against
ROY ALLEN STEWART,
Respondent.
%
vr
BRIEF OF THE STATE OF NEW YORK, JOINED BY
THE STATES OF ARIZONA, COLORADO, DELAWARE,
FLORIDA, GEORGIA, IDAHO, ILLINOIS, KANSAS, KEN-
TUCKY, LOUISIANA, MAINE, MARYLAND, MISSOURI,
MONTANA, NEBRASKA, NORTH CAROLINA, NORTH
DAKOTA, OREGON, PENNSYLVANIA, RHODE ISLAND,
SOUTH CAROLINA, TEXAS, VIRGINIA, WASHINGTON,
WEST VIRGINIA AND WYOMING, THE COMMON.
WEALTH OF PUERTO RICO, AND THE TERRITORY
OF THE VIRGIN ISLANDS, AS AMICI CURIAE
Interest of the Amici
The petitions for certiorari in the above cases raise such
questions as whether criminal suspects must be advised,
prior to arraignment, of a right to be silent or of a right
to have counsel; whether counsel must be furnished to
suspects upon request, or even in the absence of request;
whether pre-arraignment statements of an accused taken
in the absence of counsel must be excluded at trial; and
whether newly-established constitutional rules limiting the
admissibility of statements made by a defendant prior to
his arraignment must be applied retroactively.
The interest of the Attorney General of the State of New
York in these questions is substantial. As the chief legal
officer of the State of New York (N. Y. Executive Law
§ 63), the Attorney General is concerned with maintaining
a fair balance between effective law enforcement to protect
society against crime and the observance of procedural due
process in the administration of criminal justice. In
pursuance of these purposes the New York Attorney Gen-
eral has actively cooperated with the State’s Commission
on Revision of the Penal Law and Code of Criminal
Procedure, and has himself initiated and sponsored legisla-
tion aimed at raising the State’s standards of criminal
justice."
As a prosecuting officer in specified areas of criminal
conduct, and as an advisor to the district attorneys of the
State and to the State’s judicial officers, the New York At-
torney General is likewise cognizant of the huge volume of
1 See, e.g., N. Y. Laws of 1965 c. 878, establishing a requirement
that every county provide counsel for indigents charged with crime,
misdemeanors as well as felonies, and requiring the counties to pro-
vide expert, investigative and other services necessary for an ade-
quate defense.
——
3
criminal cases handled by the New York courts’ and of the
fact that the questioning of suspects in criminal cases, par-
ticularly in cases involving serious felonies, has often been
of significant assistance in the solution of crime.
In addition, the New York Attorney General, as counsel
to the officers of state correctional institutions who are
named as respondents in writs of habeas corpus, is con-
cerned with the seriously disruptive effects upon the ad-
ministration of justice which would inevitably flow from
a retroactive application of new exclusionary rules limiting
the admissibility of pre-arraignment statements.
The other Attorneys General subscribing to this brief
are charged with similar duties and are equally concerned
with these issues. Mindful of the precedents that these
cases nay establish with regard to pre-arraignment pro-
cedures in every State, the States of Arizona, Colorado,
Delaware, Florida, Georgia, Idaho, Illinois, Kansas, Ken-
tucky, Louisiana, Maine, Maryland, Missouri, Montana,
Nebraska, North Carolina, North Dakota, Oregon, Penn-
sylvania, Rhode Island, South Carolina, Texas, Virginia,
Washington, West Virginia and Wyoming, the Common-
wealth of Puerto Rico, and the Territory of the Virgin
Islands join the State of New York in presenting their
position in this brief amici curiae filed with the Court
pursuant to Rule 42. .
Questions Presented
Since this brief is not filed in support of either affirm-
ance or reversal of any of the five cases to which it re-
1 For example, in 1963, the Supreme Court and County Courts
of New York disposed of the cases of 19,888 criminal defendants
charged with felonies and misdemeanors. 10 N. Y. Judicial Confer-
ence Ann. Rep. 416 (1965). This figure does not include 452,271
felonies and misdemeanors handled in inferior courts in 1963, nor
the several million summary offenses—mostly traffic violations—
disposed of in New York every year. 10 N. Y. Judicial Conference
Ann. Rep. 204-07, 418-19 (1965).
4
lates, the questions are stated in general terms, rather
than in the factual framework of any of the cases:
1. Whether an arrested suspect’s lack of the assistance
of counsel at the time he makes a pre-arraignment state-
ment renders the statement constitutionally inadmissible
at his trial.
2. Whether rules presently or hereafter established
within the ambit of the first question should be retroac-
tively applied.
Summary of Argument
I
We oppose the establishment of new constitutional re-
strictions on the admissibility of pre-arraignment state-
ments made in the absence of counsel. Neither the literal
text nor the originally intended meaning of the ‘‘As-
sistance of Counsel’’ clause of the Sixth Amendment com-
prehend pre-adjudicatory stages of criminal procedure.
Extension of the clause to pre-arraignment proceedings
must therefore depend on a showing that such extension
is required by developing concepts of fairness beyond the
ambit of the original understanding. In fact, no such
showing has been made. Therefore the holding of Escobedo
v. Illinois, 378 U. S. 478 (1964), should not be made the
basis for a general exclusionary rule of constitutional
dimension.
1The five cases present this question under varying attendant
circumstances. See note 2, infra, page 11. As used in this brief,
the term “arraignment” refers to the individual’s first appearance
before a judicial officer subsequent to his arrest. New York law
requires that the magistrate before whom the individual is brought
inform him at this time, and before any further proceedings are
had, of his right to the assistance of counsel; and that, if he desires
counsel but is financially unable to obtain counsel, then counsel wiil
be assigned. See N. Y. Laws of 1965, c. 878, amending N. Y. Code
Cr. Proc. §§ 188, 190 and 699.
5
This Court has repeatedly recognized the importance of
pre-arraignment interrogation in the law enforcement
process. See, e.g. Haynes v. Washington, 373 U.S. 503, 515
(1963). Empirical evidence now in hand affords no basis
for challenging this evaluation. The Court has also recog-
nized the hindrances which would be caused by a general re-
quirement of counsel at the pre-arraignment stage. Cicenia
y. LaGay, 357 U. S. 504, 509-511 (1958). Adoption of the
exclusionary rules urged by defendants in these cases would
result either in the virtual elimination of pre-arraignment
interrogation, or the large scale installation of defense
counsel at police stations, or both of these consequences
in unpredictable proportions. Empirical evidence justifying
such consequences is lacking, and neither professional nor
general public concepts of fairness warrant a constitutional
requirement of such fundamental changes in pre-arraign-
ment procedures.
Procedural development in this area should take place
in non-constitutional terms. State courts and legislatures,
and professional organizations such as the Americ:n Law
Institute, are currently and closely concerned with pre-
arraignment procedures, and are alert to the need for
mitigating the legal disadvantages of the indigent and un-
educated. Progress toward this end, with due regard
for the needs of law enforcement, will be surer with the
effective participation of these agencies.
To whatever extent new exclusionary rules may be es-
tablished in these cases or may be deemed already estab-
lished by Escobedo v. Illinois, swpra, such rules should not
be given retroactive application. The same considerations
which militated against retroactive application of newly
established rules barring the admission of illegally seized
evidence (Linkletter v. Walker, 381 U. S. 618 [1964]) and
prohibiting adverse comment by a trial judge upon a de-
fendant’s failure to testify at a criminal trial (Tehan v.
Shott, —— U. 8S. ——, 34 U.S.L. Week 4095 [1965))
weigh heavily against retroactive application of any new
rule limiting the admissibility of pre-trial statements which
are not shown to have been involuntary.
There can be no doubt but that, at least prior to the
decision in Escobedo v. Illinois, there was considerable and
justifiable reliance by the state judicial systems upon this
Court’s earlier decis‘ons establishing voluntariness as the
criterion governing admissibility of a defendant’s incul-
patory pre-trial statement. See, e.g., Crooker v. California,
357 U. S. 433 (1958). For this Court to apply a new
exclusionary rule retroactively, without regard to the vol-
untariness of challenged statements, would be to hold that
state courts and prosecutors should not have used evidence
which this Court had previously told them was admissible.
The primary purpose of any new exclusionary rule limit-
ing the admissibility of pre-trial statements would undoubt-
edly be to prevent police coercion and ensure that an
individual’s privilege against self-incrimination remains
meaningful. Retroactive application would not further
this purpose, however—to the extent that an exclusionary
rule is an effective deterrent to police misconduct, it is
because the police, after the establishment of such a rule,
may be expected to act with knowledge of its sanctions.
Nor would the policy of protecting the innocent be furthered
by retroactive application—to the extent that the absence
of counsel may have contributed to the making of an in-
voluntary and hence possibly unreliable statement, relief
is already available. See Reck v. Pate, 367 U. S. 448
(1961); Fay v. Noia, 372 U. S. 391 (1963). Judicial in-
tegrity would be diminished by such an application, since
the precedental value of court decisions would be seriously
undermined. Retroactive applicatiun of new exclusionary
rules would not be conducive to the orderly administration
of criminal justice either. Numerous old convictions would
be reopened and persons convicted of serious crimes, on
7
reliable evidence of their guilt, would be the principal
beneficiaries.
Retroactivity would also be likely to impose serious re-
straints upon the progressive development of new rules
by the state courts. Surely one important reason why
some state courts have felt free to establish new exclu-
sionary rules has been their reasonable expectation that
the new rules would not affect past cases in which con-
victions have become final. In addition, retroactive applica-
tion would impose serious strains on the resources of the
bench and bar in all the states, to the detriment of those
individuals who have more deserving claims for post-con-
viction relief and to the detriment of the social interest
in meeting pressing problems in other areas of criminal
law.
Argument
The first of the two questions to which this brief is
primarily addressed is raised in various forms and factual
settings in all five of the instant cases, and the second
question in No. 762, Johnson and Cassidy v. New Jersey.
Although they are disparate in important respects, the
two questions are closely interlocked, in that the reasoning
and conclusions adopted for the first may well affect if
not govern the answer to the second.
A basic part of our position on both of these questions
is the proposition that the constitutional claims asserted
in these cases are part of a developmental process rather
than an ‘‘original understanding’’.’ Accordingly, we be-
‘Compare the conflicting approaches to the “original under-
standing” of the Fourteenth Amendment in Mr. Justice Black's
dissenting opinion in Adamson v. California, 332 U. S. 46, 68-123
(1947), and Fairman, Does the Fourteenth Amendment Incor ¢
the Bill of Rights: The Original Understanding, 2 Stan. L. Rev. 5
(1949). Assuming (in line with Mr. Justice Black’s position) “total
incorporation” of the Sixth Amendment in the Fourteenth, we think
it clear (infra, PP. 15-17) that the original understanding of the
“Assistance of Counsel” clause did not comprehend the claims
asserted here.
lieve that the Court may and urge that it should take full
account of contemporary factors in determining whether,
when, and how much to expand the constitutional dimen-
sion of the right to counsel in the pre-arraignment stage
of a proceeding. Our assessment of these factors comprises
the main body of this brief.
The Court should not presently enlarge the consti-
tutional dimension of pre-arraignment rights to the
assistance of counsel.
The constitutional test to be applied in determining the
admissibility of confessions was restated by this Court,
speaking through Mr. Justice Goldberg, in Haynes v.
Washington, 373 U. S. 503, 513:
***[T]he question in each case is whether the defend-
ant’s will was overborne at the time he confessed’
Lynum v. Illinois, 372 U. S. 528, 534. ‘In short, the
true test of admissibility is that the confession is made
freely, voluntarily and without compulsion or induce-
ment of any sort.’ Wilson v. United States, 162 U. 8.
613, 623. See also Bram v. United States, 168 U. S.
532. And, of course, whether the confession was ob-
tained by coercion or improper inducement can be
determined only by an examination of all of the at-
tendant circumstances.’’
The application of this test resulted in reversal of the
conviction in the Haynes case upon the Court’s conclusion
that the interrogation of the petitioner while under de-
tention for sixteen hours, the denial of his requests for
counsel, and the refusal of the police to permit petitioner
to telephone his wife until he signed a confession, demon-
strated the involuntariness of the confession.’
T Other recent instances in which this Court has set aside convic-
tions upon determining that the confessions in question did not
meet the test of “voluntariness” include Lynumn v. Illinois, 372
U. S. 528 (1963); Culombe v. Connecticut, 367 U. S. 568 (1961);
Reck v. Pate, U. S. 433 (1961); Blackburn v. Alabama, 361
U. S. 199 (1960) ; and Spano v. New York, 360 U. S. 315 (1959).
9
The following year in Escobedo v. Illinois, 378 U. 8.
478, this Court considered the admissibility of a pre-ar-
raignment statement in the context of the Sixth Amend-
ment guarantee of the right to ‘‘the assistance of coun-
sel’. The scope of that decision has been the subject of
numerous and conflicting decisions in both State and Fed-
eral courts’ and extensive discussions in legal periodicals.’
a
'To whatever extent that case is deemed to establish a “new”
rule concerning the admissibility of confessions, a problem of
retroactivity is raised, which is discussed in Point II of this brief.
* See, ¢.g., State v. Miranda, 98 Ariz, 18, 401 P. 2d 721 (1965),
cert. granted, 86 Sup. Ct. 320; Commonwvalth ex rel. Linde v.
Maroney, 416 Pa. 331, 206 A. 2d 288 (1965) ; State v. W , 178
Neb. 232, 132 N. W. 2d 764 (1965); Bean v. State, 398 P. 2d 251
(Nev 1965); People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33
(1964), cert. denied, 380 U. S. 961; Anderson v. State, 237 Md. 45,
205 A. 2d 281, 285 (1964) ; State v. Smith, 43 N. J. 67, 202 A. 2d
669, 678 (1964), cert. denied, 379 U. S. 1005; Browne v. State, 24
Wis. 2d 491, 131 N. W. 2d 169 (1964), cert. denied, 379 U. S.
1004; State v. Fox, 131 N. W. 2d 684 (Iowa 1964) ; Galarza Cruz
v. Delgado, 233 F. Supp. 944 (D.P.R. 1964) ; State v. Dufour, 206
A. 2d 82 (R. I. 1965) ; State v. Neely, 239 Ore. 487, 398 P. 2d 482
(1965) ; Commonwealth v. Negri, 213 A. 2d 670, 672 (Pa. oct
Commonwealth v. McCarthy, 200 N. E. 2d 264 (Mass. 1964);
Campbell +. State, 384 S. W. 2d 4 (Tenn. 1964); United States
v. Cone, -—— F. 2d —— (2d Cir., dec’d Nov. 22, 1965, slip 2
3391) ; Umited States v. Drummond, —— F. 2d —— (2d Cir., d
Dec. 2, 1965, slip op. p. 3225) ; United States ex rel. Russo v. New
Jersey, 351 F. 2d 429 (3d Cir. 1965) ; United States ex rel. Davis
v. North Carolina, 339 F. 2d 770 (4th Cir. 1965), cert. granted, 86
S. Ct. 438 (1965) ; Collins v. Beto, 348 F. 2d 823 (Sth Cir, 1965) ;
United States ex rel. Walden v. Pate, 350 F. 2d 240 (7th Cir, 1965) ;
Jackson vy. United States, 337 F. 2d 136 (D. C. Cir. 1964).
* See, e.g., Enker & Elsen, Counsel for the Suspect: Massiah
v. United g ates and Escobedo v. Illinois, 49 Minn. L. Rev. 47
(1964) ; Friendly, The Bill of Rights as a Code of Criminal Proce-
dure, 53 Calif. L Rev, 929 (1965); Kamisar, Equal Justice in the
Gatehouses and Mansions of American Criminal Procedure in Crim-
INAL Justice 1n Our Time (U. Va, Press 1965) ; rete Police
Detention and Interrogation of Uncounselled Suspects: The Supreme
Court and the States, 44 Boston Univ. L. Rev. (1964) ; Dowling,
Escobedo and Beyond: The Need for a Fourteenth Amendment
Code of Criminal Procedure, 56 Journal of Criminal Law, Crimi-
nology and Police Science 156 (1965).
10
Whatever may in other respects be the verdict of judicial
history, we think that Escobedo, and other recent decisicns
of this Court in the field of criminal procedure, have had
a beneficial effect insofar as they have awakened the in-
terest and concern of bench and bar, legislators and ex-
ecutive officials, police and social welfare agencies to cur.
rent and crucial problems of criminal law enforcement. In
the forefront of those whose concern has taken the form
of organized study and the formulation of practical pro-
posals are the American Bar Association, the American
Law Institute, and the New York Commission on Revision
of the Penal Law and Code of Criminal Procedure.
Because the defendant in the Escobedo case had already
retained a lawyer and had requested opportunity for con-
sultation which the police had denied him, prior to his
confession, the case is susceptible of narrow interpreta-
tion. Indeed, this Court’s own statement of the holding is
very particularly worded (378 U. S. at 490) :
‘‘We hold, therefore, that where, as here, the in-
vestigation is no longer a general inquiry into an un-
solved crime but has begun to focus on a particular
suspect, the suspect has been taken into police custody,
the police carry out a process of interrogation that
lends itself to eliciting incriminating statements, the
suspect has requested and been denied an opportunity
to consult with his lawyer, and the police have not
effectively warned him of his absolute constitutional
right to remain silent, the accused has 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,’
Gideon v. Wainwright, 372 U. S., at 342, 83 S. Ct., at
795, and that no statement elicited by the police during
the interrogation may be used against him at a criminal
trial.’’
11
We do not suggest that the Escobedo case be robbed of
principled basis anc practical effect by an overly meticulous
insistence on its details. But we do read its holding, quoted
above, as a warning that substantial variation in circum-
stances will require fresh consideration of the consequences.
And we urge, for the reasons herein set forth, that the
present cases should not be the occasion for any substan-
tial expansion of its impact in the constitutional dimension.
These five cases (as well as a sixth to be heard later this
term') present a spectrum of questions closely related to
those dealt with in the Escobedo case. As already indi-
cated, it is not our purpose to seek either affirmance or
reversal of any of these cases, for the reason that all
five of them involve issues in addition to those of present
interest to the amici curiae,? which may be determinative
of their several outcomes.
1 Davis v. North Carolina, 339 F. 2d 770 (4th Cir. 1965), cert.
granted, —— U. S. ——, 86 S. Ct. 438 (Dec. 13, 1965), transferred
to appellate docket as No. 815, Oct. Term, 1965 (34 U.S.L. Week
3223).
*Thus No. 760, Vignera v. New York, involves a twenty-four
hour period of detention prior to arraignment, from which petitioner
projects arguments primarily derived from McNabb v. United States,
318 U. S. 332, and Mallory v. United States, 354 U. S. 449.
No. 761, Westover v. United States, likewise involves McNabb-
Mallory questions, and furthermore is a federal court case, so that
statutory and “supervisory” as well as constitutional factors are
present. Other unrelated questions (evidentiary and procedural) are
also raised.
In No. 762, Johnson and Cassidy v. New Jersey, petitioners have
raised questions pertaining to self-incrimination through comment
to the jury, severance, and improper prosecution argument and
summation.
In No. 584, California v. Stewart, and No. 759, Miranda v.
Arizona, in addition to the issues pertaining to the assistance of
counsel, there are questions concerning the absence or adequacy of the
warning given to the accused that he had a right to remain silent;
these questions are likewise present in the Vignera case.
12
Rather, we wish to lay before the Court various con-
siderations bearing on the role of constitutional decision-
making in this complicated and contentious area. The
inclusion in this group of cases of one (No. 761, Westover
v. United States) from the federal judicial system under-
lines the distinction which, familiar though it may be,
merits emphatic reiteration at this time. For in the West-
over case (assuming that the unrelated evidentiary and
procedural questions are not determinative) this Court
must take account of federal statutory policy and its own
responsibilities for supervision of the federal judicial proc-
ess, and may find it wise to enunciate general federal rules
derived from these sources.
In the other four cases, the Court should, we respect-
fully submit, give heed both to the limitations of the fed-
eral constitutional source and to the enduring impact and
comparative inflexibility of constitutional decision-making.
Accordingly, in the ensuing text, we invite the Court’s
attention to the historical content of the ‘‘ Assistance of
Counsel’’ clause; to the alarming paucity (soon, we hope,
to be mitigated) of empirical data pertaining to the role
of pre-arraignment interrogation in law enforcement and
the probable effect of a general requirement that counsel
be present at such interrogation; to the difficulties which
courts and bar would encounter in meeting drastic new
requirements of universal application; and to the im-
portance of effective participation in the solution of these
questions by legislative bodies, professional associations,
and other official and private agencies importantly
concerned.
A. Elements of the constitutional issue
The manner and extent to which the provisions of the
Bill of Rights are ‘‘incorporated in’’ and made applicable
to the States by the Fourteenth Amendment remains a mat-
ter of dispute within the Court.’ In our approach to the
13
issues of these cases we assume, arguendo, that the Sixth
Amendment guarantee of the right to the assistance of
counsel applies in the same manner and with the same
force to the States as to the Federal government, i.e., that
in constitutional terms the right to counsel is the same
under the Sixth and Fourteenth Amendments.* So re-
garded, some of the constitutional issues presented by
these petitioners appear to be:
(a) At what point after the initial contact between
a police officer and an individual in which the indi-
vidual’s knowledge of or connection with an actual or
suspected crime is discussed does the individual have
a constitutional right to the assistance of counsel? |
(b) When the right described in (a) arises does the
individual have a simultaneous or subsequent consti-
tutional right to be effectively informed of a right to
counsel ?
(c) When the rights described in (a) and (b) have
arisen and if the individual is unable, for financial or
other reasons, to obtain counsel for himself, are the
arresting authorities, either then or subsequently, con-
stitutionally obligated to provide him with counsel?
(d) Are statements made by an individual, at a time
when his rights under (a), (b) or (c) have been vio-
lated, constitutionally inadmissible?
of Mr. Justice Harlan in Ker v.
cal wee we VU. S. nf, eas (1963): © and his dissenting opinion
riswold v. Connecticut, 381 U. S. 479, 500. Cf. A ustice
Shecedety alanis ta Mateleh ¥. United States, 377 . S 201, 205:
“Here we deal mot with a state court conviction but ‘vith a federal
ey eee en
applies
* There may, of course, be additional standards drawn from
statutes or from this Court’s judicial supervisory powers.
*It would appear to be established that the right to retain one’s
Own counsel is at least somewhat more extensive than the to
have counsel supplied. Chandler v. Fretag, 348 U. S. 3, 9 (1954).
14
That these rights have attached in a constitutional sense
at the time of trial was settled by Gideon v. Wainwright,
372 U. S. 335 (1963). That they have attached at the time
of any important pre-trial proceeding of a judicial nature
is established by Hamilton v. Alabama, 368 U. S. 52 (1961)
(arraignment), and White v. Maryland, 373 U.S. 59 (1963)
(preliminary hearing). The issue raised by the present
cases is whether they shall now be held to attach in whole
or in part at some time prior to arraignment which (as
earlier indicated) we use here not in a technical sense but
as indicating the accused’s first appearance before a judi-
cial officer.
The Gideon case did not arise in the context of an ex-
clusionary rule; deprivation of counsel was held to invali-
date the entire proceeding. Trials and arraignments that
are defective can be held again subject to correction of the
errors but of course this is not true of pre-arraignment
questioning. So far it has not been seriously suggested
that lack of counsel in the pre-arraignment stages should
vitiate the entire proceeding and immunize the suspect
against prosecution. In contrast to the Gideon case, ac-
cordingly, the constitutional issues here stirred in the pre-
arraignment stages are exclusionary in nature and are
to be answered in terms of the admissibility of statements
made by the accused during these early stages.
In approaching these issues the State of New York and
the other amici curiae wish to emphasize their strong
support for measures effectively designed to reduce the
legal disadvantages which commonly afflict the poor and
unsophisticated. There is deep and widespread need for
better public education in the structure and detail of indi-
vidual rights and for the provision of counsel for the
indigent.
The question remains how far and in what ways the law
in general and Federal Constitutional Law in particular
can best contribute to those ends, in the setting of a so-
15
ciety in which other values, including the speedy appre-
hension of criminals and safety of the citizenry, also have
an important place.
B. Historical factors and established practice
In No. 759, Miranda v. Arizona, the petitioner observes
(Br. p. 11) that in these cases: ‘‘We deal . . . with grow-
ing law, and look to where we are going by considering
where we have been.’’ We think that it is indeed sound
to recognize and wise to emphasize that this case does not
concern any ‘‘original understanding”’ of the Sixth Amend-
ment’s guarantee of the right to assistance of counsel, and
that the claims here asserted go far beyond the scope of
that clause either as originally intended or as construed
and applied during the intervening years.
There is simply no historical basis for the constitu-
tional requirements now suggested, which would exclude
all pre-arraignment statements made by a suspect where
the state failed to furnish him with counsel. ‘‘Text, con-
text and history of the Sixth Amendment lead to the con-
clusion that the framers were addressing themselves to
judicial proceedings, where a person is obliged to defend
himself in a process fraught with the technicalities and
procedural niceties of the criminal law.’’ United States
v. Cone, —— F. 2d —— (2d Cir., dee’d Nov. 22, 1965;
Slip Op. pp. 3391, 3399); see also Friendly, The Bill of
Rights as a Code of Criminal Procedure, 53 Cult. L. Rev.
929, 943-944, 946 (1965).
Shortly after proposing the first ten amendments to the
Constitution, the First Congress on April 3, 1790 passed an
act providing for the assignment of counsel only in trials
for treason and other capital crimes. 1 Stat. 118, Rev.
Stat. 4 1034, now found in 18 U.S.C. § 3005. If the guar-
antee of the Sixth Amendment were regarded as imposing
a duty on the part of a trial judge to assign counsel to the
defendant in all criminal cases, this statutory provision
16
would have been superfluous. The obvious implication of
such a statute was that the First Congress considered the
courts to be under no legal obligation to appoint counsel
in other than capital cases.
Indeed, as late as 1800, it appears that only in New
Jersey by statute, and in Connecticut by practice, did the
accused enjoy a full right to retain counsel in a criminal
trial, and to have counsel appointed if he were unable to
afford it. With the exception of these two states, the right
to counsel was interpreted to mean the right of a defendant
at a criminal trial to retain counsel of his own choosing
and at his own expense. Beaney, THe Ricut To CounseEL IN
American Courts, 21 (1955). As Judge Friendly has
written:
‘*History leaves no doubt that the assistance of coun-
sel clause was aimed at the practice that had grown
up in England, whereby defendants charged with
felonies other than treason could not have the aid of
retained counsel at their trials with respect to issues
of fact . . . The practice had been even more offen-
sive in America where, in contrast to the mother
country, professional prosecutors had to some extent
come in vogue. At the time of the adoption of the
Constitution, twelve states, as a part of their legal
systems, had rejected the English rule. The counsel
clause of the sixth amendment was intended to carry
this forward; no one was thinking of the assignment
of counsel . . .’”
Evolving concepts of fairness have made us aware that
the assistance of counsel for one’s defense is a funda-
mental right which should not be limited to enjoyment only
by those who are rich enough to afford counsel or knowl-
1 Friendly, The Bill of Rights as a Code of Criminal Procedure,
53 Calif. L. "Rev. 929, 943-44 (1965), See also Judge Friendly’s
carvieg: cpfetom ta: Collies ¥. Beto, 348 F, 2d 823 at 832, 837
(Sth Cir. 1
17
' edgeable enough to request it (Gideon v. Wainwright, 372
U. S. 335 [1963] ; Johnson v. Zerbst, 304 U. S. 458 [1937]).
However, the purpose of the right to counsel has always
been essentially that expressed by Mr. Justice Sutherland
in his historic opinion for the Court in Powell v. Alabama,
987 U. S. 45, 68-69 (1932):
‘‘The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the science
of law. If charged with crime, he is incapable gen-
erally, of determining whether the indictment is good
or bad. He is unfamiliar with the rules of evidence.
Left without the aid-of counsel he may be put on trial
without a proper charge, and convicted upon improper
evidence, or evidence irrelevant to the issue or other-
wise inadmissible. He lacks both the skill and knowl-
edge adequately to prepare his defense, even though
he have a perfect one. He requires the guiding hanc
of counsel at every step in the proceedings against
him. Without it, though he be not guilty, he faces
the danger of conviction because he does not know
how to establish his innocence.”’
This view of the purposes of having the assistance of
counsel for one’s defense was quoted with approval by the
Court in Gideon, supra, at 344-45. The present proposals
for an extension of the right to a stage prior to the com-
mencement of judicial proceedings cbviously envision quite
different purposes.
The purposes of such an extension do not relate to guid-
ing an individual through the technicalities of the legal
process. Rather, they relate to the fear that an individual’s
privilege against compulsory self-incrimination and his
right {o the meaningful assistance of counsel at trial will
be lost if counsel is not provided at a period prior to the
formal institution of a prosecution, and to a desire to
18
assure equal treatment for rich and poor. Granted that the
protection of these rights is of the utmost importance, the
fact remains that other values must also be weighed. The
dimensions of the problem were described by Mr. Justice
Jackson in his concurring opinion in Watts v. Indiana, 338
U. S. 49, 57 (1949) at 61-62:
‘*T suppose no one would doubt that our Constitut-
tion and Bill of Rights, grounded in revolt against the
arbitrary measures of George III and in the philosophy
of the French Revolution, represent the maximum re-
strictions upon the power of organized society over
the individual that are compatible with the mainte-
nance of organized society itself. They were so in-
tended and should be so interpreted. It cannot be
denied that, even if construed as these provisions tra-
ditionally have been, they contain an aggregate of
restrictions which seriously limit the power of society
to solve such crimes as confront us in these cases.
Those restrictions we should not for that reason cast
aside, but that is good reason for indulging in no un-
necessary expansion of them.
I doubt very much if they require us to hold that
the State may not take into custody and question one
suspected reasonably of an urwitnessed murder. If it
does, the people of this country must discipline them-
selves to seeing their police stand by helplessly while
those suspected of murder prow] about unmolested. Is
it a necessary price to pay for the fairness which we
know as ‘due process of law’? And if not a necessary
one, should it be demazded by this Court? I do not
know the ultimate answer to these questions; but, for
the present, I should not increase the handicap on
society.’’
C. The materials of decision
We have stressed the past, not because it provides the
answers to the issues raised in these cases, but because it
reveals a process and suggests an approach. As the peti |
19
tioner in Miranda rightly stresses, the constitutional right
to the assistance of counsel has grown with the years and
the times.
In short, the Court can not resolve these issues by seek-
ing the original intention of those who framed the Bill
of Rights or by verbal exegesis of the ‘‘Assistance of
Counsel’? clause, and must therefore find the primary
material for decision in its appreciation of contemporary
standards and circumstances. The temporal flexibility of
general constitutional standards was remarked by Mr. Jus-
tice McKenna as early as 1910 in Weems v. United States,
217 U. S. 349, 373:
‘“‘Time works changes, brings into existence new
_conditions and purposes. Therefore a principle to be
vital must be capable of wider application than the
mischief which gave it birth. This is particularly true
of constitutions.’’
Commenting on this passage nearly half a century later,
Chief Justice Warren, in Trop v. Dulles, 356 U. S. 86
(1958), wrote (at 100-101):
‘‘The Court recognized in that [the Weems] case that
the words of the [Eighth] Amendment are not precise,
and that their scope is not static. .The Amendment
must draw its meaning from the evolving standards
of decency that mark the progress of maturing
society.’’
These considerations apply to the Due Process Clause
of the Fourteenth Amendment quite as much as to the
Eighth Amendment’ and their present import, we think,
is both plain and of great moment. Since the Court is not
here bound by history or verbal logic, the constitutional
2 At a later point in his opinion in the Weems case, Mr. Justice
McKenna applied these generalizations directly to the Fourteenth
Amendment (217 U. S. at 374).
standard may be applied with great flexibility, giving full
weight to the bearing of contemporary empirical evidence
of the need for and probable effect of the changes here
sought.
These changes are not uniformly outlined, but in all
these cases the defendants seek the establishment of a
rule, to become effective at some point during pre-arraign-
ment interrogation, at which the arrestee must either
waive, obtain, or be provided with counsel, on pain of
exclusion from evidence of any statement made in the
absence of counsel. In No. 761 (Westover, Br. p. 34),
petitioner would draw that line at the moment of custody;
in No. 759 (Miranda, Br. p. 30), when interrogation begins;
in No. 760 (Vignera, Br., pp. 10, 37-38) when the ‘‘aecusa-
tory’’ stage has been reached.
Under any of these proposals, it seems clear that the
consequences would be:
(a) great reduction or virtual elimination of pre-
arraignment interrogation of arrestees; or
(b) provision of counsel en a vast scale for arrest-
ees, most of whom are indigent; or
(c) both (a) and (b) in varying degrees and un-
predictable ratios.
We do not suggest that the statement of these conse-
quences establishes them as undesirable. But we do sug-
gest that they are of such a nature that further empirical
investigation and analysis are necessary as a basis for
general rule-making whether judicial or legislative. As
was stated by Mr. Justice Black, dissenting in Jackson v.
Denno, 378 U. S. 368 (194) at 403 (commenting on the
rule there adopted by the Court in line with the sugges-
tions of commentators) :
‘*None of these commentators appears to have gath-
ered factual data to support his thesis, nor does it
21
appear that their arguments are at all rooted in the
actual trial of criminal cases. Theoretical contempla-
tion is a highly valuable means of moving toward
improved techniques in many fields, but it cannot
wholly displace the knowledge that comes from the
hard facts of everyday experience.’’
D. Available empirical evidence is insufficient for pro-
jecting and evaluating the consequences of adopting
the exclusionary rules proposed in these cases
The constitutional requirements of fair «: minal proce-
dure newly enunciated by this Court in reeem! years have
had their origin by statute or judicial Geeson in the
several states. This Court has, to be sure, given these rules
general application by making them of constitutional
dimension, but it has not originated the substance of the
rules themselves. For example, at the time of Mapp v.
Ohio, 367 U. S. 643 (1963), well over a third of the states
had already adopted the exclusionary rule for evidence
obtained by unlawful means, and the trend was heavily
in that direction." At the time of Gideon v. Wainwright,
supra, all but thirteen states had statutes requiring that
counsel be provided at trial for the defense of indigent
defendants ir: all felony cases, and in eight of those juris-
‘The rule barring the use at trial of evidence obtained by un-
reasonable search and seizure was first introduced into American
jurisprudence in the State of Iowa (State v. Sheridan, 96 N. W. 730
[la 1903]), several years before the Court applied the rule to
ederal courts in Weeks v. United States, 232 U. S. 283 (1914).
After Weeks, although Iowa abandoned the rule, eighteen states
had voluntarily a he alt fe go olf v. Colo-
rado, 338 U.S. , 33-39). By 1960, with several states having
adopted ¢ the rule subsequent to Wolf, the Court observed that “the
t towards exclusion has been halting but seemingly in-
pred rW (Elkins v. United States, 364 U. S. 206 at 219). In holding
peg al caaapd Dg states in 1961, eg Rev none 2p ome
to the experience o states, particularly o ifornia (Ma
v. Ohio, 367 U. S. 643 at 650-653). id
dictions counsel was in fact provided in felony cases.’ At
the time of Griffin v. California, 380 U. S. 609 (1965), all
but six states barred comment upon a defendant’s failure
to testify at trial.’
In all these situations, accordingly, the probable conse-
quences of the new constitutional rule were not a matter
of speculation, for the rules were already in force on a
non-constitutional basis in a large number of jurisdictions,
This does not, of course, mean that debate over the merits
of these rules had been stilled or that evaluation of their
consequences was uniform. It was, however, clear prior
to the constitutional decisions rendered in this Court that
the substantive rales they embodied had already proved
not only tolerable but preferable to their alternatives in
many or most of the states, and the practical workings of
the rules could thus be observed in the laboratories which
the state and local systems furnished.
But such is not the case with the exclusionary rules
proposed in the present cases. Only three states, to our
knowledge, have adopted rules conditioning the admissibil-
ity of pre-arraignment statements on prior warnings to
the defendant of his rights to remain silent and to consult
counsel, and in these three states the rule is of very recent
origin.’ No state, so far as we know, has as yet estab-
lished a system for the mandatory and universal provision
of counsel for the indigent at the pre-arraignment stage.
1See Brief for Petitioner in Gideon v. oil ncaa ox 372 U. S.
335, No. 155 Oct. Term 1962, p. 29; cf. Kamisar, Equal Justice in
the Gatehouses and Mansions of American Criminal Procedure, in
CRIMINAL JusTICcE In Our Time, p. 92 n. 262 (U. Va. Press 1965).
2 See Tehan v. Shott,, —— U. S. ——, 4 U.S.L. Week 4095
at 4098 (January 19, 1966).
*See People v. Dorado, 398 P. 2d 361 (Calif. 1965); ch
rs Neely, 398 P. 2d 482 ‘(Oregon 1965); State v. Dufour,
2d 82° (R. I. 1965). In addition, the Pennsylvania Supreme Court
veh “ala (Commonwealth v. Negri, 213 A, 2d 670, 672 {1965])
(Footnote continued on following page)
Since in these cases, therefore, empirical evidence of the
consequences of the proposed rules based on experience
from their actual operation is altogether lacking, it would
seem especially important to seek evidence from other
sources. One would want to know, if only in part, the
answer to questions such as the following:
(a) How important is pre-arraignment questioning
in the identification and apprehension of those subse-
quently convicted of crime?
(b) How important are pre-arraignment statements
as evidence for the conviction of those accused?
(c) What would be the effect on the interrogation
process of (1) previous warning of the right| to re-
main silent; (2) previous informing of the right to
assistance of counsel; (3) a requirement that counsel
either be waived or be present?
(d) How, in practice, would counsel be made available
at the pre-arraignment stage?
This kind of empirical data can, in fact, be obtained,
and would be of great value, particularly if studied in rela-
tion to available evidence on the effectiveness of alternative
means of achieving the same goals. The techniques of the
social sciences have already proven to be of considerable
assistance in developing a body of usable knowledge in
other areas of the law, and in stimulating invaluable re-
form in those areas. The statistical studies of the Man-
(Footnote continued from preceding page)
that that state would foilow the ruling of the Third Circuit Court
of A: in United States ex rel. Russo v. New Jersey, 351 F. 2d
429 (1965), where such a warning was held to be required, until
further word from this Court. State of Texas has long pro-
vided by statute (Tex. Code Cr. Proc. Art. 727), that a defendant's
confession is excludable where he had not previously been warned
of his right to remain silent; however, if the confession leads to
confirming evidence both these “fruits” and the confession itself
are admissible.
——
sattan Bail Project,’ for example, have undoubtedly been
greatly responsible for awakening the interest of both the
bar and the public in thoroughgoing bail reform,’
But although empirical data bearing on the questions
listed above may be obtainable, it has not as yet been ob-
tained, at least in sufficient quantities to support a pre-
sumably enduring constitutional decision of nationwide
application, We detail below several of the areas where
both present facts and future prospects remain murky,
(1) The importance of pre-arraignment questioning in
law enforcement
Police and prosecutorial authorities generally regard
opportunity for sustained questioning of arrested suspects
as essential fer the maintenance of tolerable standards of
efticiency in the apprehension and conviction of criminals,
The validity of this view has been accepted and enunciated
in various opinions and at various times by a number of
the members of this Court, and on at least two occasions
has commanded a majority, Haynes v. Washington, 373
U.S. 508, 515 (1963) ; Crooker v. California, 357 U.S, 438
(1958) at 440-441, in which the opinion of the Court re-
marks that elimination of police questioning would have
a ‘devastating effect on law enforeement.'’’ See also
Cicenia v. Lagay, 357 U.S. 504 at 509 (1958)."
~ 8 See Ares, Rankin and Sturz, The Manhatten Bail Project ain
Interim Report on the Use of Pre-Trial Parole, 38 N.Y.U.L. Rev.
G (1963); Wald, Pretrial Detention and Ultimate Freedom, 9
N.Y.ULL, Rev, 631 (1964); Rankin, The Effect of Pretrial Deten-
tion, 39 N.Y.ULL, Rev, 641 (1964),
* See generally Proceedings and Interim Report of the National
Conference on Bail and Criminal Justice (1965), esp. pp. xilivexxii
(Interim Report, Apr, 1965) and pp. 6-17 (Address of Chief
Justice Warren to the Opening Session of the Conference, May 27,
1964) ; " Paulsen, Pre-Trial Release in the United States, 66 Col.
L. Rew, 109, 116-119, 122-125 (1966),
* There are other significant comments on the matter by members
of this Court. See, eg. Mr. Justice Jackson’s concurring opinion
in Watts v. Indiana, 338 U.S. 49 (1949) at $8, and Mr. Justice
Frankfurter’s opinion in Calembe vo Connectiont, 367 U.S. S68
(1961) at 578-580, with citations to much of the voluminous litera-
ture on the question,
ERE
The authority of the decisions reached in the Crooker
and Cicenia cases was questioned in Escobedo (878 U. 8.
492), but not on the basis that the Crooker opinion's’
evaluation of police interrogation was unsound, Indeed,
those members of the Court who dissented in the Crooker
and Cicenia oases, and those who comprised the majority
in the Escobedo case, have not based their conclusions on
the premise that police interrogation of suspects is of
little value in terms of law enforcement,
This favorable evaluation of police questioning has not
gone unchallenged in recent months, Perhaps the most
conservative recent estimate as to the value of confessions
is that of Judge Nathan Sobel, who finds that confessions
are used in less than 10 per cent of the criminal trials in
Kings County, New York.' Judge Sobel’s estimate has
been sharply contradicted in several quarters, however,
notably by New York County District Attorney Frank
Hogan, who has noted that a recent study by his staff in-
dicated that admissions had been made by 62 of 91 defend.
ants in pending homicide cases". Mr, Hogan added that
‘assistant prosecutors told him that 25 of these, or 27%,
could net have been indicted at all if there were no con-
fessions,’”
Without venturing to pass judgment as between any
of these estimates, we suggest that the extent to which
confessions are used in evidence is not the only value of
police interrogation, Often the questioning furnishes leads
to other evidence, and no doubt there are many pre-arraign-
ment admissions and confessions which are not offered at
‘N, Y. Law Journal, Nov, 15, 1965, p, 1, col, 6, p. 4, col, S$.
Judge Sobel’s statistics are based on a survey of the first 1,000
indictments filed in Kings County, New York, subsequent to Janu-
ary 7, 1968, As he acknowledges (id, p. 4, col. 5), this is a small
sampling; it also gives no hint of the extent to which police question-
ing may have led to other evidence, or to the immediate release
of a suspect,
"N.Y. Herald Tribune, Dec 2, 1965, p. 31.
"Td.
me
the trial because checking their contents led to sufficient
independent proof.
26
Other available statistics indicate that confessions or ad-
missions are made, and used, in quite a high percentage
of cases. See, e.g., Supplementary Memorandum on Behalf
of Respondents in Linkletter v. Walker and Angelet v. Fay,
Nos. 95 and 581, respectively, Oct. Term 1964 (statistical
tables pp. 8-14, summarizing a study of the trial records
of the last 100 persons executed for murder in New York
prior to 1961, indicate that statements made to the police,
after arrest, were introduced in the trials of 85 of those
defendants) ; Barrett, Police Practices and the Law—From
Arrest to Release or Charge, 50 Calif. L. Rev. 11, 35-44
(1962) (three month study of police performances in two
California cities in 1960 showed that between 75 and 90%
of all persons charged with crimes had given confessions
after what the author terms ‘‘surprisingly short’’ periods
of interrogation). ‘The amicus brief of the National Dis-
trict Attorneys Association in the present cases presents
similar statistics.
Another function of police questioning—perhaps even
more important to the effective day to day administration
of justice than the solution of a few major crimes—is that
of screening cases where an arrest may well have been
made upon probable cause but where a decision to charge
cannot or should not be made without some further inves-
tigation by the police and some evaluation by the prosecu-
tor of the circumstances of the arrest and the availability
of admissible evidence. See Bator and Vorenberg, Arrest,
Detention, Interrogation and the Right to Counsel: Basic
Problems and Possible Legislative Solutions, 66 Col. L.
Rev. 62, 68-70 (1966) ; LaFave, Arrzsr, 319-341 (1965). As
Professors Bator and Vorenberg have jointed out, the prob-
lem of police questioning must be considered in the context
of a going system of law enforcement. Bator and Voren-
berg, supra, at 69. In any large metropolitan area, a great
number of persons will be lawfully arrested for a wide
a eceummammm
27
variety of reasons; routine preliminary questioning may
well result in their release prior to the filing of any charge,
or in the filing of less serious charges. Id., at 69-70, see
also Barrett, supra, at 31-35.
The California surveys which are the subject of Dean
Barrett’s study are particularly illuminating in this re-
gard. They indicate that 28.5% of the persons arrested and
booked for felonies in California in 1960 were released with-
out the filing of a complaint; in an additional 21.6% of
the cases the felony arrests eventually resulted in the filing
of misdemeanor complaints. Barrett, supra, at 31-35. To
the extent that such preliminary screening can be accom-
plished without subjecting the individual to coercive inter-
rogation—and the available evidence indicates that coercive
interrogation is not at all typical of police questioning’—-
it is obviously desirable both in terms of administrative
efficiency and in terms of avoiding the unnecessary stigma-
tization of a person as one who has been charged with crime.
We recognize, of course, that the utility of police inter-
rogation in law enforcement is not the only factor bearing
on the issues presented by these cases. But if competing
values must be considered, then it is necessary to have as
accurate a gauge of their weight as is possible.
On that score, it must be recognized that our present
knowledge is far from complete, as the conflicting estimates
cited above amply demonstrate. Nevertheless, it is clear
1See, e.g., LaFave, supra, at 386, where the author observes
that
“In the great majority of in-custody interrogations observed
[in the states of Michigan, Wisconsin and Kansas, in 1956
and 1957], the possibility of coercion appeared slight. In many
instances the suspect is merely confronted with the evidence
against him or with evidence inconsistent with his prior state-
ments and is asked to give an explanation, Often he is just
given an opportunity to admit to other outstanding offenses
recited to him. Lengthy, continuous questioning is the excep-
tion rather than the rule. In practice the interrogating detective
often terminates the questioning after a brief period to appear
in court or to check upon statements already given by the
suspect.”
———
that there is a widespread belief among judges, prosecutors,
and police officials that interrogation is of great importance
to law enforcement. Until the contrary appears, therefore,
this Court should adhere to the view, expressed in Mr.
Justice Goldberg’s opinion in Haynes v. Washington, supra,
that (373 U.S. at 515): ‘‘Such questioning is undoubtedly
an essential tool in law enforcement.’’
(2) Effect of the presence of counsel on pre-arraignment
int bi
Assuming (as one must in the present state of knowledge)
that police questioning is an essential part of law enforce-
ment, the next question generated by these cases goes to
the effect on the interrogation process of the warning ad-
monitions with respect to constitutional rights and, more
important, of the actual presence of counsel during the
course of interrogation.
Lack of knowledge on this point is openly acknowledged
in the petitioner’s brief in No. 759 (Miranda) wherein it is
stated (Br. p. 45) that: ‘‘As a practical matter, we cannot
know with assurance whether amplification of the right te
counsel in the interrogation period will severely handicap
the police ; we end by trading opinions.’’ We earnestly sug-
gest that some knowledge of this matter is vital for en-
lightened decision-making, particularly of ccustitutional
dimension.
Members of this Court have addressed themselves to this
point on several occasions. In Cicenia v. Lagay, supra, Mr.
Justice Harlan, speaking for a majority of the Court, ex-
pressed the view (357 U. S. at 509) that consultation with
counsel in the course of pre-arraignment interrogation
‘*would constrict state police activities in a manner that
in many instances might impair their ability to solve dif-
ficult cases.”’ Mr. Justice Frankfurter, writing in the
Culombe case, supra, was more categorical (367 U. S. at
580) : ‘Legal counsel for the suspect will generally prove
29
a thorough obstruction to the investigatica.’’ No doubt
many lawyers would readily aecvept Mr. Justice Jackson’s
analysis of the consequences in his concurring Opinion in
Watts v. Indiana, supra, 338 U. S. at 59:
‘“‘To bring in a lawyer means a real peril to solution
of the crime because, under our adversary system, he
deems that his sole duty is to protect his client—guilty
or innocent—and that in such a capacity he owes no
duty whatever to help society solve its crime problem.
Under this conception of criminal procedure, any law-
yer worth his salt will tell the suspect in no uncer-
tain terms to make no statement to police under any
circumstances. ”’
To be sure, as Mr. Justice Goldberg pointed out in the
Escoboedo case (378 U. S. at 488), this point ‘‘cuts two
ways’’, inasmuch as it highlights the suspect’s need of
counsel at the same time that it emphasizes the importance
to the police of an atmosphere conducive to communication.
Analysis of the conflicting considerations implicit in this
comparison takes us beyond the empirical problem. Once
again, we do not suggest that police efficiency is the only
goal of criminal procedure, But in resolving these issues,
precision in weighing the individual factors is desirable.
It may be that consultation with counsel would prove
to be less of an obstacle to police interrogation than has
been generally assumed. But for such a possibility there
is at present no significant empirical evidence, and this
lack carries its own warning of caution in the enunciation
of new constitutional requirements.
A further problem, closely related to the one directly in
view, is that the response of the bar to a general require-
ment of counsel in the pre-arraignment stages cannot be
accurately forecast. We agree with the petitioner in No. 759
(Miranda, Br. pp. 38-39) that the cost factor should not be
determinative, but we think he is quite wrong in regarding
the problem as primarily one of cost.
fo
|
}
i
'
i
-
Legal services are, after all, professional services, and
shortages of qualified professional services cannot be imme-
diately rectified with money. There is a serious shortage
of doctors in this country, quite beyond the reach of prompt
cure by the appropriation of public funds.
If, as the petitioner in No. 761 (Westover, Br. p. 34)
suggests, all jails should be equipped with public defenders,
then one must ask who they will be and what will they do.
One must ask the same questions if it is anticipated that
private lawyers will be subsidized for these purposes.
30
Assuming that the privilege against self-incrimination is
the principal iegal element in the interrogation problem,
virtually the only function of station-house counsel will be
to paste adhesive tape over his new clients’ mouths. It is
at best dubious whether such a practice would attract the
cream of the bar.
Possibly some sort of special training would be necessary
to qualify members of the bar for these new pursuits. At
all events, it is plain that at present the bar is not equipped,
either conceptually or numerically, to cope with the de-
mands which would follow in the wake of the rules proposed
by some of the petitioners in these cases.
E. Variety and imprecision of proposals to extend the
right to counsel to pre-arraignment interrogation
‘*There is a tide in the affairs of men,’’ declares the peti-
tioner in No. 759 (Miranda, Br. p. 34), ‘‘and it is this en-
gulfing tide which is washing away the secret interrogation
of the unprotected accused.’’ We think that whatever ‘‘it’’
is might better be described as a tide-rip, in the churning
waters of which various and mutually conflicting proposals
are being banged against each other. This conflict is most
apparent with respect to the proposed point in time at which
the right to the assistance of counsel attaches, and to the
consequences which are anticipated to flow from recognition
of the right.
31
None of the defendants in the present case proposes that
the right should attach prior to taking the accused into
custody at the police station, but beyond that point there
is little or no agreement. In No. 761 (Westover, Br. p. 34),
for example, petitioner apparently suggests that the right
attaches as soon as the suspect is in custody, though there
is also a suggestion that this is not the case until there is
‘interrogation directed toward eliciting a confession.’’
In the view of counsel for Westover, the consequence
will be that a lawyer will be present and available at all
jails to represent the interrogated suspects.
The petitioner in No. 759 (Miranda) does not advert to
this precise question, but his major contention is (Br. p. 11)
that ‘‘There is a right to counsel for arrested persons when
interrogated by the police’’, and from this it may be in-
ferred that the right accrues when interrogation commences.
Apparently it is also his view (Br. pp. 39-49) that inter-
rogation will continue, and that counsel will always be
present.
In No. 760 (Vignera), the petitioner has attempted to
achieve greater precision, utilizing language drawn from
the E'scobedo case, 378 U. S. at 492, and states his test as
follows (Br. p. 38):
‘In practice, it would operate as follows: When the
proceeding has become accusatory, the police or prose-
cutor will be obliged to warn the accused of his absolute
constitutional right to silence and of his right to con-
sult with counsel before talking any further with the
police. If the accused thereupon intelligently and effec-
tively waives his right to silence and his right to
immediate consultation with counsel, the interrogation
can continue. If the accused wishes to consult with
previously retained counsel, he will be permitted to do
so and the interrogation will not continue while th:
police are awaiting the lawyer’s arrival. If the accused
does not already have counsel and is indigent, the
——
police may adopt one of two procedures. They may
suggest the local public defender or Legal Aid Society
and provide access to telephone communication. On
the other hand, if the police are unwilling or unable
to recommend such counsel, they will simply terminate
the interrogation at that point.’’
Petitioner in Vignera does not share the taste of West-
over for jails equipped with lawyers; the ‘‘automatic assign-
ment of counsel at the station house’’, he declares (Br.
p. 40), would be ‘‘an impractical solution and one which
the police are ill-equipped to achieve’’. From this and other
passages in the brief, it seems clear that counsel for Vignera
is prepared to reckon with frequent terminations of inter-
rogations when the ‘‘accusatory’’ point is reached.
Inasmuch as in the Escobedo case an Assistant State’s
Attorney was called to help frame and to record the con-
fession (378 U. S. at 483), the Court was warranted in
describing the process as ‘‘accusatory’’ rather then ‘‘in-
vestigatory.’’ Yet it seems to us far from clear that the ‘‘ac-
cusatory-investigatory’’ comparison in Escobedo was in-
tended as a test of general application in future cases,
rather than merely as a description of the circumstances in
the case at hand. The usefuiness of the ‘‘accusatory’’ test
has been recently questioned by the Court of Appeals for
the Second Circuit, sitting en banc, in United States v.
Cone, ——F. 24 —— (Nov. 22, 1965, slip opinion pp. 3391,
at 3398-99) :
‘‘It has been suggested that the process of questioning
suspects may be dissected into ‘investigatory’ and
‘accusatory’ phases and that certain legal conclusions,
such as whether the Sixth Amendment’s right to coun-
sel ‘attaches’ and requires that the suspect be advised
of his rights to silence and counsel, should flow from
a judicial finding that police questioning has passed
beyond mere investigation. We do not consider this
a realistic doctrine for most cases. It was not the job
33
of the agents questioning Cone, nor were they qualified
to make nice decisions about the sufficiency of the evi-
dence they possessed; nor could they at the time of
arrest determine what charges should be formally made
and against whom. Agents in hot pursuit of those
whom they have reason to believe may be implicated
in a crime which has just been discovered cannot be
required ‘on the spot’ to decide difficult questions of
the sufficiency and quantum of proof.
We think a judicial inquiry into whether the agents
were still in the ‘investigatory’ stage when they ar-
rested Cone, and whether what had started out as
an investigation had reached the ‘accusatory’ stage
when Cone was questioned immediately after his arrest,
would serve no useful purpose. What may seem to be
sufficient evidence at one stage of an investigation may
become quite insufficient when those who have sup-
plied information are themselves accused and become
unavailable to the government as witnesses, as hap-
pened with Moser and Spencer in this very case. To
make judicial assessment of the questioning process
turn on whether questioning occurred when a case was
no longer in the ‘investigatory’ stage and had entered
the ‘accusatory’ stage would force police officers to
make momentary and critical decisions so unrelated
to the actualities of law enforcement that the entire
police function might well be significantly undermined
or demoralized.’’
It is true that in several recent decisions the ‘ ‘accusatory-
investigatory’’ language of Escobedo has been used as
a test." Nevertheless, we share the doubts expressed in the
Second Circuit. A typical police investigation may involve
* United States ex rel. Russo v. New Jersey, 351 F. 2d 429
(3d Cir. 1965) ; People v. Dorado, 42 Cal. Repir. 169, 398 P. 2d
361 (1965) ; State v. Neely, 239 Ore. 487, 398 P. 2d 482 (1965) ;
cf. State v. Dufour, 206 A. 2d 87 (R. I. 1965).
34
the employment of a large number of detectives simul-
taneously searching for evidence, pursuing different leads,
interviewing witnesses and suspects or possible suspects,
and checking out alibis. The discovery of a single piece of
evidence might focus suspicion on a single individual at
any given point in time, yet not justify regarding him as
an accused, particularly where there may not be enough
evidence even to justify holding him in custody. Even where
the case is a routine one, a determination of when an inves-
tigation has reached the accusatorial stage involves judg-
ments which cannot easily be made even by courts acting
after the fact, much less by a police officer who may be
acting in extremely pressing circumstances.
In United States ex rel. Russo v. New Jersey, 351 F. 2d
429 (3rd Cir. 1965), the Court of Appeals for the Third
Circuit, in ruling that the interrogation there inxvlved had
reached the ‘‘accusatory’’ stage, gave weight (351 F. 2d
at 437) to the volume of independent evidence implicating
Russo at the time he confessed. Petitioner in Vignera
(Br. p. 16) endorses this as one of the indicia of the
‘‘accusatory’’ stage.
We find the implications of this troublesome, for it leads
to the consequence that good detective work and the accu-
mulation of independent evidence will operate to shorten
rather than lengthen the permissible period of ‘‘investi-
gatory’’ interrogation. Ordinarily the police utilize inter-
rogation to confront a suspect with evidence of his impli-
cation in the crime, both to see whether he can offer credible
exculpatory explanation, and to stimulate admissions if no
such explanation can be given. Bui under the ‘‘accusatory”’
test as applied in the Russo case, the police face the pros-
pect that the greater the reason for interrogation of the
suspect, the less will be their right to do so, unless counsel
is brought into the picture.
We have considered the several proposals and the tests
not so muck to study their intrinsic merits and demerits,
35
as to demonstrate their variety and imprecision, and in-
dicate the numerous questions they suggest but do not
resolve. These matters are, we believe, highly relevant to’
the constitutional dimension of these cases, for they argue
strongly against ‘‘freezing’’ the pre-arraignment scope of
the right to counsel at a time when analysis of the problem
is still in its infancy.
F. Importance of non-constitutional decisional sources
In this brief, we have urged that the scope of the right
to the assistance of counsel prior to arraignment presents
problems which are not ripe for constitutional disposition.
In support of this viewpoint, we have sought to draw the
Court’s attention to a number of aspects of the problem,
where, we believe, empirical evidence is insufficient for
definitive rule-making, and to the uncertainties still sur-
rounding the specific proposals that have been made to
extend the right to counsel into the prearraignment stage.
We would like to close this portion of the brief on an
affirmative note, by pointing out that the Constitution is
by no means the only tool for the solution of problems of
zriminal procedure and that legislatures, state courts and
professional organizations are currently concerned and
actively engaged with pre-arraignment questions includ-
ing the right to counsel. Nor is the field devoid of ideas
and proposals alternative to those urged by petitioners
in the present cases.
Public and professional concern with police interroga-
tion centers chiefly on the possibility of abusive, oppressive
practices, both physical or psychological, that subject
the arrestee to pressures which violate the policy if not
the letter of the Fifth Amendment privilege against self-
incrimination. Furnishing cu ansel is one but only one of
many means of ensuring that the suspect has an opportu-
— —
36
nity to make a responsible choice as to whether or not to
incriminate himself. There are a wide variety of alterna-
tive means by which this goal might be met, including rules
barring the use of any confession made to the police; or
made to the police during a delay in bringing a suspect
before a magistrate; or made by a suspect who has not
been warned of his right to remain silent; or made after
the suspect has been denied a requested opportunity to
consult family or friends or a lawyer; or shown by an
evaluation of the ‘‘totality of the circumstances’’ to have
been physically or psychologically coerced.
These rules obviously could be employed in combina-
tion. Indeed, it appears that the draftsmen of the Amer-
ican Law Institute’s proposed Model Code of Criminal
Procedure have contemplated an exclusionary rule based on
a combination of requirements, including precise time
limitations on the length of custody for pre-arraignment
questioning; a requirement that a suspect be informed
that he is under no obligation to talk; proscriptions against
incommunicado detention and against other potentially
coercive practices; and a prohibition of any questioning in
the absence of counsel once detention has extended beyond
a specified period of a few hours, except where there has
been an explicit consent to such questioning. See Bator
and Vorenberg, supra, at 71-76.
We do not suggest that any one of these alternatives is
necessarily preferabie to the others, or would protect the in-
dividual’s privilege against compulsory self-incrimination
better than would a rule requiring the state to furnish
counsel at the stationhouse. We do suggest that the states
should have an adequate opportunity to develop alternative
methods. It may well be that experience will show that the
alternatives provide adequate protection against police
coercion, while having a significantly less damaging effect
on the detection and prevention of crime.
. <a
37
The complex problems in the area of pre-arraignment
procedure’ are particularly appropriate for solution by
legislation rather than by judicial decision. As Judge
Kaufman stated in United States v. Drummond, —— F.
94 —— (2d Cir., Dec. 2, 1965, slip opinion pp. 3425, 3444) :
‘«« . our Constitution guarantees fundamental rights,
not the utterance of some judicially-ordained shib-
boleth. A decision based on constitutional fiat, there-
fore, is not a desirable method for reaching an in-
formed resolution of the pre-trial access to counsel
problem. This is precisely the sort of question that
ean best be answered after the investigative, experi-
mental, and interest-balancing methods of the legisla-
ture are utilized.’’
case, and can deal constructively with the problems of
police questioning in the context of the broad range of
problems which exist in the pre-arraignment area. Ques-
tions of permissible police conduct during questioning of
a suspect obviously bear a close relationship to standards
for initial stopping, arrest, search, and subsequent deten-
tion. A legislature, working within a broader framework,
can adjust the interrelated portions of the process without
rejecting the ultimate goals sought by the proponents of
an exclusionary rule based on the right to counsel. In
addition, a legislature can be more specific than a court;
the precise language of a statute may provide for more
effective guidance than a judicially created rule formu-
lated on the facts of particular cases.
Large-scale scholarly efforts—most significantly the
American Bar Association’s project on minimum stand-
A legislature is not limited by the facts of a particular
:
1 Judge Friendly, remarking upon the complexity of this subject,
has noted that the ALI’s partial preliminary draft on pre-arraign-
ment procedure spreads over fifty pages. Friendly, The Bill of
(i868) as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 930
).
rl
38
ards of criminal justice and the drafting of a Model Code
of Pre-Arraignment Procedure by the American Law In-
stitute—are underway, and may be expected to provide a
basis for constructive action by state legislatures and
courts. Even if the states did not all promptly adopt new
statutory rates in light of the ALI Model Code, the Code
—and its offshoots in the states that used it as a model—
would provide valuable guidelines for courts faced with
recurring problems in this area. See Friendly, loc. cit.
supra, at 929,
We do not think the Court need be concerned that the
state courts will rest content with old precedents, or ignore
the demands of changing times and standards. As we have
already noted, in other areas of criminal procedure the
Court’s new constitutional pronouncements followed state
court decisions which, in fact, formed an important part
of the basis for this Court’s decisions.
The same progressive tendency is manifest among the
state courts that have dealt extensively with problems
pertaining to the right to counsel. For example, this
Court’s two most controversial recent decisions-—i.e., the
Massiah and Escobedo cases—had previously been antici-
pated in closely comparable decisions in New York State.
In People vy. Di Biasi, 7 N. Y. 2d 544 (1960), the New
York Court of Appeals reversed a conviction because, as
in the Massiah case (1964), the defendant made a state-
ment (received in evidence at his trial) after indictment
and in thy absence of counsel.' In People v. Donovan, 13
N. Y. 2d 148 (1963), the court reached the same result
where, as in Escobedo (1964), the defendant, prior to
arraignment, had been denied access to his retained
counsel."
‘In People v. Meyer, 11 N. Y. 2d 162 (1962), the same rule
was applied to a statement made after arraignment but before
indictment.
®* The Donovan case was cited with approval in the Escobedo
case, 378 U. S. at 480-87,
—
ee
39
Very recently, in People v. Gunner, 15 N, Y. 2d 226
(1965), the court extended pre-arraignment rights to coun-
sel considerably beyond the holding of the Escobedo case.
In the Gunner case, the defendant had made-pre-arraign-
ment statements to the police both before and after a
lawyer had informed the police that he represented
Gunner and wished that no more statements be taken, The
conviction was reversed because the statements made after
the lawyer’s request were received at the trial; two mem-
bers of the Court would have ruled the earlier statements
likewise excludable, because the defendant had not been
warned of his rights, See also People v. Friedlander, 16
N, Y. 2d 48 (1965). .
If some other states have not yet had occasion to pursue
the questions, or have reaffirmed more limited concepts of
the right to counsel, that is still an insufficient reason for
this Court to enlarge the constitutional requirements. The
opportunity for constructive and varied development is
one of the great values of the federal system. To let pass
an opportunity such as presently exists for the develop-
ment by the states of workable rules in this area of strong
conflicting values would do great disservice to the prin-
ciples of federalism and, we suggest, to the healthy
development of criminal proéedure in the United States.
New exclusionary rules limiting the admissibility of
pre-arraignment statements should not be applied
retroactively.
No. 762, Johnson and Cassidy v. New Jersey, is a pro-
ceeding for post-conviction relief in which petitioners
contend that their pre-arraignment incriminatory state-
ments, received in evidence against them at trial, were
constitutionally inadmissible under the principles subse-
quently enunciated in the Escobedo case. The Supreme
Court of New Jersey affirmed the denial of their applica-
—
40
tion, ruling that the Escobedo case established new rules
of constitutional due process which should not be applied
retroactively.’
In their brief (at pp. 32-34) in No. 762, the petitioners
reject the conclusion below that Escobedo established new
rules of constitutional law, and contend that the case
therefore involves no problem of retroactivity. As amici
curiae, we express no opinion on that question. Assuming,
however, that this Court should agree with the New Jersey
court’s analysis of Escobedo, the problem of retroactivity
must then be faced, as it also must in the event new exclu-
sionary rules are to be established in the present or
subsequent cases.
The Court has made it clear in two recent cases that not
all new constitutional rules must be applied retroactively;
rather the merits and demerits of retrospectivity must be
weighed with respect to each case, by looking to the nature,
purpose, and effect of the new rule, the reliance placed
upon the previously existing rule, and the effect upon the
administration of justice of a retroactive application of
the new rule. Linkletter v. Walker, 381 U. S. 618, 628-29,
636 (1965) ; Tehan v. Shott, —— U. S. ——, 34 U.S.L. Week
4095, 4096 (Jan. 19, 1966). We submit that an examination
of these considerations in the context of an exclusionary
rule limiting the admissibility of pre-trial statements makes
it amply clear that no such rule should be applied retro-
actively so as to vitiate a final conviction.
A. The state judicial systems and state law enforcement
officials have justifiably placed great reliance on past
decisions of this Court establishing voluntariness as
the sole criterion for admissibility of a pre-arraign-
ment statement.
There can be no doubt that over the course of years
there has been extensive and justifiable reliance by the
1 Other issues, unrelated to those discussed in this brief, are also
raised by petitioners in No. 762.
=
41
state judicial systems upon this Court’s decisions estab-
lishing voluntariness as the criterion for determining the
admissibility of a pre-trial statement of an accused. In-
deed, the Court had specifically held that the introduction
of incriminating statements obtained in the absence of
counsel—even after the defendant had clearly become the
focus of a police investigation and had requested counsel
—was no constitutional bar to a valid judgment where the
statements were not involuntary. Crooker v. California,
357 U. S. 443 (1958); see also Cicenia v. Lagay, 357 U. S.
504 (1957) ; Culombe v. Connecticut, 367 U. S. 568, 588-602
(1961); Brown v. Allen, 344 U. S. 448, 474-476 (1953);
Stroble v. Californa, 343 U. S. 181, 196-198 (1952);
Gallegos v. Nebraska, 342 U. S. 55, 64-68 (1951).
As recently as 1963, the Court reiterated the well es-
tablished rule that the admissibility of a pre-trial state-
ment depended on its voluntariness, in a case where it held
simply that the absence of a warning of a right to silence,
delay in arraignment, and lack of opportunity to consult
with counsel were factors involved in an assessment of vol-
untariness. Haynes v. Washington, 373 U. S. 503, 510-511
(1963). For this Court now to apply a new exclusionary
rule retroactively, without regard to the voluntariness of
challenged statements, would be to hold that the state
courts should not have admitted evidence which this Court
had plainly told them was admissible. Cf. Linkletter v.
Walker, supra at 637; Tehan v. Shott, supra at 4096-4098.
The reliance of the police and prosecutors is also signif-
icant. A District Attorney naturally prepares his case on
the basis of what this Court tells him is the applicable law.
At least prior to the decision in Escobedo, the only federal
constitutional bar to the admissibility of a defendant’s
pre-arraignment statement was involuntariness—if his
statement was voluntary, it was admissible. The police,
too, must have relied upon the many decisions holding that
the relevant criterion was voluntariness. Certainly they
ces
cannot be said to have been on any kind of notice that they
were under any obligation to inform a suspect of a
‘right’? to consult with counsel to be provided by the
state. In this respect, the case for non-retroactive appli-
cation of any new rule governing the admissibility of
pre-arraignment statements is far stronger than in the
Linkletter situation; at least during the period follow-
ing Wolf vy. Colorado,’ the police knew (or should have
known) they were violating the defendant’s constitutional
rights when they made the searches later complained of.
Surely it cannot be said that the reliance of the state
courts, the prosecutors, and the police upon the past de.
cisions of this Court was wholly misplaced. Yet that would
be precisely the effect of a holding that a new exclusionary
rule—whether based on a requirement of a warning of a
right to silence, or of prompt arraignment, or of informing
an accused of a right to consult with counsel, or of any
variant thereof—must be applied retroactively.
42
B. The purposes of a new exclusionary rule would not be
served by retroactive application
(1) Deterrence
The primary purpose of any exclusionary rule limiting
the admissibility of pre-arraignment statements would
surely be to deter the police from using coercive methods
of interrogation which would violate the policy of the privi-
lege against self-incrimination. Cf. Escobedo vy. Illinois,
378 U. S. 478, 487-90; Crooker v. California, 357 U. S. 433,
441 (1958); (Dovenas, J., dissenting); People v. Dorado,
42 Cal. Reptr. 169, 398 P. 2d 361, 367-369 (1965).
Clearly however, as this Court recognized in the Link-
letter case, supra, at 636-637, the deterrent purpose of an
exclusionary rule cannot be served by its application to
past trials. It is self-evident that past conduct cannot be
deterred; that ‘‘ruptured privacy . . . cannot be re-
1338 U. S, 25 (1949).
43
stored’. Linkletter, supra, at 637; Tehan, supra, at 4098.
To the extent that an exclusionary rule serves as an effec-
tive deterrent to a particular kind of police conduct it is
because the police, after the establishment of such a rule
may be expected to act appropriately with knowledge of
its sanctions,
(2) Protection of the innocent
The Court observed in Tehan that—notwithstanding
passages in the majority opinion in Griffin vy. California
which would indicate the contrary’—the rule established
by the Griffin case did not relate primarily to protecting
the innocent against conviction. Tehan v. Shott, supra at
4098. A new exclusionary rule governing the admissibility
of a defendant’s statements would in this respect have
even less claim to retroactive application than would the
rule barring comment.
The danger of convicting the innocent on the basis of
his own statements lies in the possibility that physical or
psychological coercion might have produced an unreliable
- statement. To the extent that this is a real possibility,
however, retroactive application of a new exclusionary rule
is unnecessary. The involuntariness of a defendant’s
statement has long been grounds tor exclusion at trial and
for reversal on appeal (see Brown v. Mississippi, 297 U. 8S.
%8 [19386]; cf. Bram v. United States, 168 U. S. 532
[1897] and authorities cited therein), and at least where the
sate’s proceduve for testing voluntariness has been found
unreliable (see Jackson v. Denno, 378 U. S. 368 [1964]),
post-conviction relief is generally available in the state
courts (see ¢.g., People v. Huntley, 15 N. Y. 2d 72 [1965]).
Moreover, federal habeas corpus is available for a claim of
involuntariness; thus, insofar as a delay in arraignment, or
the lack of a warning as to a right to silence or to consult
a lawyer, may have contributed to the making of an in-
‘See Gripin v. California, 380 U. S. 609 at 613 (1965).
44
voluntary statement, relief is available. See, e.g., Reck vy,
Pate, 367 U. S. 443 (1961); Fay v. Noia, 372 U. S. 391
(1963) ; cf. Brief for Petitioners in Johnson and Cassidy y,
New Jersey (No. 762) pp. 32-34.
(3) The integrity of the judicial system
In the Tehan decision, the Court emphasized that the
complex of values which go into the privilege against self-
incrimination relate primarily to preservation of a judi-
cial system in which the guilty are not to be convicted
unless the prosecution ‘‘shoulder the entire load’’. Tehan,
supra, at 4098. The Court’s finding in Tehan that the rule
of Griffin v. California—aimed at protecting the privilege
against self-incrimination—should not be held retroactive
is obviously relevant in the context of the exclusionary
rules now urged upon the Court, all of which also relate
primarily to protection of that privilege.
Rather than being in any way furthered by retroactive
application, the integrity of the judicial system—in the
sense that the system symbolizes a steady and reliable in-
stitution—would be seriously undermined by retroactive
application of a new exclusionary rule, since a holding of
* Of course, while federal habeas corpus may always be available
for a claim that a statement was based on physical or psychological
coercion, the states must be recognized to have a strong interest in
limiting the availability of collateral attack in their courts to cases
in which, for good cause, a constitutional claim was not previously
raised. The New Jersey Supreme Court, after noting that petition-
ers’ present allegations with respect to denial of an opportunity to
consult counsel and failure to advise of the right to remain silent
had not been raised in any prior ee antecedent
New Jersey decisions holding that these factors are relevant to the
issue of voluntariness—held that its prior adjudication of the volun-
tariness question precluded further consideration of that issue.
State v. Johnson, 206 A. 2d 737 at 740. The Court did not inquire
into whether there were exceptional circumstances which would
justify the failure to raise these issues earlier in the context of the
voluntariness issue—perhaps because the petitions for post-conviction
relief did not allege any excuse for this failure. Cf. Fay v. Noia,
372 U. S. 391 (1963).
45
retroactivity would necessarily draw into question the
value of this Court’s decisions as a guide for future con-
duct. To hold that the reliance of the state courts and
state law enforcement officers upon the past decisions of
this Court was wholly misplaced would cast doubt upon
the precedental value of any new decision in the criminal
law field. Predictability is certainly an important value
in this area of the law (cf. Pointer v. Texas, 380 U. S. 700,
411, 413 [Goldberg, J., concurring]), yet that value would
be completely rejected by retroactive application of a new
rule in this area. Furthermore, the confidence of the public
in its legal system surely would not be enhanced by the
wholesale release from prison of persons whose guilt of
serious crimes is not questioned, on the basis of retro-
active application of a new rule which does not relate to
the reliability of the conviction.
C. Retroactive application of a new exclusionary rule
would place overwhelming burdens on the administra-
tion of justice by the states
The opinions of this Court in the Linkletter and Tehan
cases placed heavy emphasis on the fact that retroactive
application of the rules at issue in those cases would place
great stresses on the administration of justice. The retro-
active application of a new exclusionary rule affecting the
admissibility of pre-trial statements would, however, place
even more severe burdens upon the administration of
justice.
(1) A great number of cases would have to be reopened,
and a large number of persons—particularly those
under long sentences, for serious crimes—would in-
evitably be released from custody
There can be little doubt but that retroactive applica-
tion of a new exclusionary rule affecting the use of a de-
fendant’s pre-trial statements would result in the reopen-
ing of more convictions than would a retroactive application
46
of the Mapp exclusionary rule. What is perhaps even
more significant is the fact that such statements, or their
fruits, are most apt to have been used in prosecutions for
violent, frequently unwitnessed crimes, such as murder,
manslaughter, rape, kidnapping and robbery. The indi-
viduals convicted of these crimes are the ones who would
be most likely to reap the benefits of retroactive applica-
tion of a new rule in this area,’
The pre-trial statements of the defendants were intro-
duced at the trials of 85 of the last 100 persons executed in
New York State prior to 1962.’ It is certainly reasonable
to suppose that a similarly high percentage of incrimina-
tory statements was introduced at other trials for serious
crimes. Few indeed are the cases in which such statements
were made in the presence of counsel or after consultation
with counsel. The persons who had been convicted at trials
at which such statements were used would, by hypothesis,
receiv’ the benefit of retroactive application regardless of
the fact that they were convicted fairly under the law as it
stood at the time of the trial, despite the reliability of the
adjudication of guilt, and irrespective of the voluntariness
of their statements.
Application of any new exclusionary rule to convictions
which became final prior to the change in the law would,
of course, afford significant advantages to the convicted
1 Some idea of the impact upon old convictions of these serious
crimes may be gained from the statistics presented to this Court last
year by the New York Attorney General and the National District
Attorneys Association in connection with the cases involving the
retroactivity of the Mapp exclusionary rule. See text at p. 25,
supra. As of June 30, 1964, some 13,869 persons were imprisoned
in New York for felony convictions ; of these, 4,543 were imprisoned
pursuant to convictions had prior to January 1, 1961. Over 50% of
those imprisoned for over 34% years—2,607 of the total, of 4,543—
had been convicted of murder, manslaughter, kidnapping, rape or
robbery. See Supplementary Memorandum on Behalf of Respond-
ents in Linkletter v. Walker (No. 95, Oct. Term 1965) and Angelet
v. Fay (No. 578, Oct. Term 1965) at page 4.
2 Supplementary Memorandum (supra, n. 1) at pp. 8-14.
47
individual who sought to take advantage of the new rule
via an application for post-conviction relief. Both on
collateral attack and, if that succeeded, upon retrial of
the case, the passage of time—with the consequent dim-
ming of memories, death or departure of witnesses, and
loss of relevant records—would inevitably work to the ac-
eused’s advantage. See, e.g., Tehan v. Shott, supra at
4099; Linkletter v. Walker, supra at 637-638; United States
ex rel. Angelet v. Fay, 381 U. S. 65 (1965); United States
v. Sobell, 314 F. 2d 314, 325 (2d Cir.), cert. denied 374
U. S. 857 (1963) ; Bator, Finality in the Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 Harv, L.
Rev. 441, 478 (1963). As Judge Friendly observed in writ-
ing for a unanimous Court in the Sobell case, supra at
325:
‘collateral attack can come at any time. Yet nor-
mally it is quite academic to talk of a new trial ten or |
fifteen years after the event; in most cases to direct
one after such an interval is in practical result to
order a release from further punishment, although the
defendant does not even contend that he is entitled
to that relief from the courts.’’
(2) Retroactive application of a new rule would impair
the future development of progressive solutions to
the difficult problems of criminal procedure
The recent decisions of this Court with respect to the
admissibility of pre-trial statements made in the absence
of counsel have been founded substantially on the prior
development of similar rules by the state courts, particu-
larly the New York Court of Appeals. See Massiah v.
United States, 377 U. S. 201 at 204-205 (1964) and Esco-
bedo v. Illinois, 378 U. S. 478 at 486-487 (1964).
* The Massiah decision noted some 10 New York decisions, most
notably People v. Waterman, 9 N. Y. 2d 561 (1961); People v.
(Footnote continued on following page)
48
It seems certain, however, that one reason why the state
courts have exercised their powers broadly in establishing
new ex¢lusionary rules is because of their expectation that
the newly enunciated rules would affect relatively few past
cases—indeed, only those in which the direct appellate
process had not yet been exhausted. The New York Court
of Appeals, for example, has declined to apply its new
rules retroactively... See People v. Howard, 12 N. Y. 2d
65 (1962), cert. denied 374 U. S. 840 (1963); People y.
Dash, 16 N. Y. 2d 493 (1965). Similarly, the California
Supreme Court, one of the few state courts which has
interpreted the Escobedo decision as requiring a warning
of a right to consult counsel and to have counsel provided,
even in the absence of a request, has declined to apply its
new rule retroactively. Compare People v. Dorado, 42
Cal. Reptr. 169, 398 P. 2d 361 (1965) with Jn re Lopes, 42
Cal. Reptr. 188, 398 P. 2d 380 (1965).
Significantly, ihe progressive New York rules were all
developed in cases where appropriate and timely objec-
tions were made at tria! to the use of the statement in
question. If collateral attack were to be made broadly
(Footnote continued from preceding page)
Rodriguez, 11 N. Y. 2d 279 (1962); People v. Meyer, 11 N. Y. 2d
162 (1962); and People v. DiBiasi, 7 N. Y. 2d 544 (1960). The
Escobedo opinion relied on People v. Donovan, 13 N. Y. 2d 14
(1963). This Court has also relied heavily on state court decisions
in developing the exclusionary rule barring the use at trial of illegally
seized evidence. See Mapp v. Ohio, 367 U. S. 643 at 651-653 (1963).
* Significantly, New York has long allowed post-conviction relief
for a claim that a conviction was obtained in the absence of counsel.
See, ¢.g., Matter of Bojinoff v. People, 299 N. Y. 145 (1949). The
New York courts thus recognize the great distinction which exists
between the case where a defendant has been deprived of the assist-
ance of counsel at trial and the case where a defendant who has
had the assistance of counsel at trial later seeks to take advantage
of a change in the rules governing the admissibility of evidence.
Even though the change may have enlarged the right to counsel at
a pre-trial stage, the New York courts will not permit collateral
attack in the latter case.
49
available for claims based on a new exclusionary rule in
the confession area, it is to be expected that concepts of
trial strategy would be adjusted accordingly. Surely the
incentive of defense counsel to challenge an existing rule
of law in a developing area would be lessened—a different
course could be pursued at trial and, as in the Johnson
case now before the Court (No. 762), a constitutional chal-
lenge could later be made on collateral attack.
Both the lessened likelihood of challenge to existing
rules and the spectre of further retroactive effects could
be expected to inhibit state appellate courts—and perhaps
also the federal courts, which would be flooded with ap-
plications from federal prisoners (28 U.S.C. § 2255) and
state prisoners (28 U.S.C, § 2241)—from engaging in fu-
ture constructive decision-making in the area of criminal
procedure.
(3) Retroactivity of a new exclusionary rule would im-
pair the ability of the state judicial legal systems to
provide post-conviction relief for those individuals
whose present incarceration truly amounts to “in-
tolerable restraint”
It would certainly seem that under established prin-
ciples of comity and exhaustion of state remedies, the state
courts would be given the first opportunity to consider a
claim for post-conviction relief which is based upon a new
exclusionary rule. Cf. 28 U.S.C. § 2254; Case v. Nebraska,
381 U. S. 336 (1965). Clearly, however, the retroactive
application of a new exclusionary rule would impose tre-
mendous strains upon the bench and bar in all of the states
—very possibly to the detriment of the individuals whose
claims for post-conviction relief are more deserving under
established principles of criminal justice.
The kinds of claims which have historically been recog-
nized as warranting post-conviction relief are those which
go to the fairness of the trial process itself, and which
- mg
50
raise genuine doubt as to the reliability of the adjudication
of guilt... The absence of counsel at trial (Gideon v. Wain-
wright, 372 U. S. 335 [1963]); the denial of opportunity to
appeal (Griffin v. California, 351 U. S. 12 [1956]; Eskridge
v. Washington, 357 U. 8. 214 [1958]; Douglas v. California,
372 U.S. 356 [1963]) ; the use of an involuntary confession
(Reck v. Pate, 367 U. S. 443 [1961]; Fay v. Nota, 372 U.S.
391 [1963]) ; the use of an unfair and unreliable procedure
for testing voluntariness (Jackson v. Denno, 378 U. S. 368
[1964]); the knowing use of perjured testimony (Mooney
v. Holohan, 294 U. S. 103 [1935]) ; and trial under condi-
ditions of mob domination or inflammatory publicity
(Moore v. Dempsey, 261 U. S. 86 [1923]; Irwin v. Dowd,
359 U. S. 394 [1959]), fall into this category. These are
the kinds of cases in which it can truly be said that con-
tinued imprisonment is intolerable (cf. Fay v. Nota, supra
at 401-02, 441) ; where a defendant has really been afforded
‘*no process of law’’.2 These are the cases in which the
judgment was, in effect, void ab initio, and thus subject to
attack on federal habeas corpus just as any void judgment
is always open to collateral attack. See Fay v. Noia, supra,
at 423.
These are the kinds of cases for which many of the
states have in the past sought to provide post-conviction
relief—and for which, where previous remedies have
proven too narrow, the states are now in the process of
broadening the remedies under the impetus of the Noia
decisions. These are the meritorious cases—the ones in
which a hearing may well be warranted in order to de-
1See Brief for Respondent in Angelet v. Fay, No. 578, Oct.
Term 1964, pp. 18-20, 32-36; cf. Mishkin, The High Court, The
Great Writ, and the Due Process of Time and Law, 79 Harv.
L. Rev. 56 (1965) ; Linkletter v. Walker, supra, at 636 n. 20.
? Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 Harv. L. Rev. 441, 455-460 (1963). See
also Traynor, Mapp v. Ohio at Large in the Fiftw States, 1962 Duke
L. J. 319, 340-341.
51
termine both the truth of the charges and the desirability
of overlooking a prior failure to raise serious issues of
both trial fairness and of reliability—upon which the states
should be able to concentrate their resources. Indeed, that
is clearly the purpose of the new statutes and court rules
which have come into being since the Nota decision. To
require the states to afford collateral relief in a case
where, by contrast, there is no doubt as to the factual re-
liability of a defendant’s statement, where the statement
was used at a trial at which the defendant had adequate
counsel and at which existing law permitted its use, would
be to establish an entirely new and unnecessary concept
of collateral relief.
The result, inevitably, would be unending litigation by
convicted prisoners, and a wholly unwarranted drain on
legal resources—the time of judges, lawyers, court per-
sonnel and policemen, as well as public funds—at a time
when these resources can be far more beneficially allocated
to present responsibilities and to the pursuit of construc-
tive legal developments in other areas of the criminal law.
‘Recent state statutes, court rules and judicial decisions are col-
lected in the concurring opinion of Mr. Justice Brennan in Case
V. Nebraska, 381 U. S. 336 (1965) at 340, 345-346, n. 8. See also
Resolution XIV, Post-Conviction Remedies, adopted without opposi-
tion at the 59th Annual Meeting of the National Association of
Attorneys Generals, held July 25-30, 1965. The resolution urges all
states which have not yet done so “to adopt, either by statute or
tule of court, post-conviction procedures which make it possible to
adjudicate all claims of constitutional right properly presented by
persons convicted in state court criminal proceedings.”
|_| Rae
52
CONCLUSION
For all the foregoing reasons we respectfully submit
that the Court, in disposing of these cases, should ob-
serve the limiting principles of constitutional review
which we have endeavored to set forth.
Dated: New York, New York, February 21, 1966.
Respectfully submitted,
Louis J. Lerxowrrz
Attorney General of the
State of New York
80 Centre Street
New York, New York 10013
Tretrorp Taylor
Special Counsel for the
State of New York
Samuget A. Hmsxowrrz
First Assistant Attorney General
Barry MaHoneEy
Grorce D. ZuckERMAN
Assistant Attorneys General
of Counsel
53
The following Attorneys General join in the submission
of the foregoing brief:
Anizona
Hon. Darrewy F. Surra
Attorney General
ABA MA Phoenix, Arizona
Co
oN. FCN Nn? How. Doxe W. Duwsar
M.FLe WER3, Attorney General
ry GENERA L Denver, Colorado
T ’
ALABAMA Deis
on TC OME Ry, se Hox. Dare P. Buoxeos
7 erese Bennett Wilmington, Tleeiien
_ Grorera
Hon. Artuur K. Boiron
Attorney General
Atlanta, Georgia
Friorma
Hon. East Famciora
Attorney General
Tallahassee, Florida
IpaHo
Hon. Autan G. SHEParp
Attorney General
Boise, Idaho
Inir1Nols
Hon. WouiaM G. CiarK
Attorney General
Springfield, Illinois
Kansas :
Hon. Rosert C. LonperHotm
Attorney General
Topeka, Kansas
KENTUCKY
’ How. Rospert Matruews
Attorney General
Lexington, Kentucky
54
LovursiANa
Hon. Jack P. F. Gremitiion
Attorney General
-Baton Rouge, Louisiana
Hon. Ricuarp J. Dusorp
Attorney General
Augusta, Maine
MaryLanp
Hon. Tuomas B. Frvan
Attorney General
Annapolis, Maryland
Missouri
Hon. Norman H. AnpErson
Attorney General
Jefferson City, Missouri
MonTAaNa
Hon. Forrest H. ANDERSON
Attorney General
Helena, Montana
NEBRASKA
Hon. Ciarence A. H. Meyer
Attorney General
Lincoln, Nebraska
Nortu CaroLuna
Hon. T. Wave Bruton
Attorney General
Raleigh, North Carolina
Norru DaKotTa
Hon. Heer JoHANNESON
Attorney General
Bismarck, North Dakota
' Orngecon
Hon. Ropert Y. THornton
Attorney General
Salem, Oregon
PENNSYLVANIA
Hon. Watter E. ALEsSSANDRONI
Attorney General
Harrisburg, Pennsylvania
55
Ruope Istanp
Hon. J. Josepn Nucent
Attorney General
Providence, Rhode Island
Sours Caroiina
Hon. Dantex R. McLzop
Attorney General
Columbia, South Carolina
Texas
Hon. Wacconer Carr
Attorney General
Austin, Texas
VIRGINIA
Hon. Roserr Y. Butron
Attorney General
Richmond, Virginia
WaAsHINGTON
Hon. Joun J. O’Conweti
Attorney General
Olympia, Washington
West Virginia
Hon. C. Donatp Rosertson
Attorney General
Charleston, South Carolina
Wyomine
Hon. Joun F. Rarer
Attorney General
Cheyenne, Wyoming
Puerto Rico
Hon. Rarazt Hernanvez Coton
Attorney General
San Juan, Puerto Rico
Viren Isianps
Hon. Francisco Cornero
Attorney General
Charlotte Amalie, St. Thomas,
Virgin Islands
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