# Amicus Curiae Brief — California v. Stewart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0225%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 937 ## Text 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. .