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INDEX

PAGE

EE ED, sb whan coe a 16h Naa bean ee eee’ 2

Cds ests seu bes deevedsceseces 3

OE ss ovis vedaeeasnewaseuewees J

ele ha Gnas bid 40's 8's ody ohn vbw esas tenses 7

I—The Court should not presently enlarge the con-

stitutional dimension of pre-arraignment rights

to the assistance of counsel .................. 8

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 in these cases ..................4, 21

(1) The importance of pre-arraignment ques-

tioning in law enforcement ............ 24

(2) Effect of the presence of counsel on pre-

; arraignment interrogation ............ 28

E. Variety and imprecision of proposals to ex-

tend the right to counsel to pre-arraignment

ID, ob 66s ovo eeenvedeuieeeiness + <s 30

F. Importance of non-constitutional decisional

ED soe CAU LEN Es SU b ene de Fee SoU ee bande 35

Il—New exclusionary rules limiting the admissibility

of pre-arraignment statements should not be ap-

SE ORION vac av 0 kane vhaceencs- conan 39

ii INDEX

PAGE

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

I 5 obo. So ORs ncaa eer ceyst 39

B. The purposes of a new exclusionary rule

would not be served by retroactive applica-

ap A Ae Rene Sea ee ere ee Pare 42

Ch) RORRRPOIUE: yi nce ds deuce va cet ceeeeness 42

(2) Protection of the innocent ............. 45

(3) The integrity of the judicial system .... 44

C. Retroactive application of a new exclusion-

ary rule would place overwhelming burdens

on the administration of justice by the states 45

(1) A great number of cases would have

to be reopened, and a large number of

persons—particuiarly those under long

sentences, for serious crimes—would in-

evitably be released from custody ..... 45

(2) Retroactive application of a new rule

would impair the future development of

progressive solutions to the difficult

problems of criminal procedure ........ 47

(3) 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’? ..........-...0+++ 49 |

een ee eens Se ee boy Oe dee ew ieee 52

INDEX iii

CasEs

PAGE

Adamson v. California, 332 U. S. 46 (1947) ........ 7

Anderson v. State, 237 Md. 45, 205 A. 2d 281 (1964) sy)

Bean v. State, 398 P. 2d 251 (Nev. 1965) .......... )

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 (1965) ...... 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.

Sete Ue he Oe OD COOE hock cewibens sossch ores 9

Commonwealth v. McCarthy, 200 N. E. 2d 264 (Mass.

RR OE Renin Tiga ap ath fal? Oar ake ea 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, snes Ss. ——, 86 S. Ct.

438 (Dee. 13, 1965), (No. 815, Oct. Term, 1965) ..10,11

Douglas v. California, 372 U. S. 356 Sahel eS ag 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

iv INDEX

PAGE

Fay v. Noia, 372 U.S. 391 (1963) ................ 6, 44, 50

Galarza Cruz v. Delgado, 233 F. Supp. 944 (D.P.R.

DE Ee a aren wiles Gee + ER EW AAHS 82 Sows eee H)

Gallegos v. Nebraska, 342 U. S. 55 (1951) .......... 41

Gideon v. Wainwright, 372 U. S. 335 (1963) ..... 10, +e

Griffin v. California, 380 U. S. 609 (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. S. 503 (1963) . .5, 8, 24, 28, 41

In 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.

eT ea viwueateaseeeesaceayeeyss 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. 8. 528 (1963) ............ 8

Mallory v. United States, 354 U. S. 449 (1957) ...... 11

Mapp v. Ohio, 367 U. S. 643 (1963) ............ 21, 46, 48

Massiah v. United States, 377 U. S. 201 (1964) ..... 13, 46

MeNabb v. United States, 318 U. S. 332 (1943) .... 11

Mooney v. Holohan, 294 U. S. 102 (1935)

Moore v. Dempsey, 261 U. S. 86 (1923)

People v. Dash, 16 N. Y. 2d 493 (1965)

People v. Di Biasi, 7 N. Y. 2d 544 (1960) ............

People v. Donovan, 13 N. Y. 2d 148 (1963)

INDEX v

PAGE

People v. Dorado, 42 Cal. Reptr., 169, 398 P. 2d 361

SEY Siti 0 40 bn dha heewaeed cas ene a 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 .......... i)

Peepie v. Howard, 12 N. Y. 2d 65 (1962), cert. de-

ae eh Bie ic ID Cs cies o8 > oviivicin cite 48

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

Poiiwer 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 (Iowa 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

EE TETTC cas 6 ue cis Wn cates kate ech awaaaie

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. &. 1006 ..........5.4...

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

er CUD i didewececdudeesescuds 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

SE i vied & teeiee kets och seceens send 45, 48

United States ex rel. Russo v. New Jersey, 351 F. 2d

Oe a rrr rr en per 9, 22, 33, 34 |

United States ex rel. Walden v. Pate, 350 F. 2d 240 |

CTE SST cil a cs Ub ob ho chad ded ehhovine oe 65 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.,

Dee. 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) ............-....-. 47 |

Wansley v. Commonwealth, 205 Va. 412, 137 S. E. ,

2d 865 (1964), cert. denied, 380 U.S. 922 .... 9]

Watts v. Indiana, 338 U. S. 49 (1949) .......... 18, 25, 29 |

Weeks v. United States, 232 U. ©. 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 StaTutToRY AUTHORITIES

United States Constitution:

Fifth Amendment

Sixth Amendment

Eighth Amendment

INDEX vii

Federal Statutes: PAGE

28 United States Code § 2241 ................. 49

28 United States Code § 2254 ................. 49

28 United States Code § 2255 ........... aon eS 49

State Statutes:

ae ee ge Oe . rere ry wee 2,3

W. 3. -mommtiwe Tw 6G oon vic ccc scone deccccs 2

‘Tomss Wome Ge. 5 ree. Ame Fae in ic kcecaceccs 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

GUNES ose acing ban aud Sues eaeh as 47, 50

Bator and Vorenberg, Arrest, Detention, Interroga-

tion and the Right to Counsel: Basic Problems

and Possible Legislative Solutions, 66 Col. L.

OY. Ge ALGGE) okscvctandestves Fos% deuleetsiis 26, 36

Beaney, THe Rient to Counse, 1x American Courts

CEE LN sds cetedadaees Casta Tevad OUReaaes 16

Dowling, Escobedo and Beyond: The Need for a

Fourteenth Amendment Code of Criminal Pro-

cedure, 56 Jour. Crim. Law, Criminology & Police

NE SD ANOOED ek duavaev cack bemeniess 9

Enker & Elson, Counsel for the Suspect: Massiah v.

United States and Escobedo v. Illinois, 49 Minn.

Ri, eet MRE ob 0d sini i be chew deca ea ene 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

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

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 cum-

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 exciusionary rule of constitutional

dimension.

1 The 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

counse! but is Saancially unable to obtain counsel, then counsel will

be assigned. See N. Y. Laws of 1965, c. 878, amending N. Y. Code

Cr. Proc. §§ 188, 190 and 699.

ROSE ACI RIE CAE IE POTTY Fp

Pi rere

sat

SEN RSS CRED <a ean EES

SILLA GRIESE EER, BIE Pe PC EY CNY

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). Axcption 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 American 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. S. —, 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 th

decision in Escobedo v. Illinois, there was considerable and 4

justifiable reliance by the state judicial systems upon this |

Court’s earlier decisions establishing voluntariness as the :

criterion goveniing admissibility of a defendant’s incul. —

patory pre-trial statement. See, e.g., Crooker v. California

357 U. S. 4383 (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 2

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 3

individual’s privilege against self-incrimination remains 4

meaningful. Retroactive application would not further 4

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, |

inay be expected to act with knowledge of its sanctions. |

Nor would the policy of protecting the innocent be furthered Be

by retroactive application—to the extent that the absence Ee

of counsel may have contributed to the making of an in- a

voluntary and hence possibly unreliable statement, relief |”

is already available. See Reck v. Pate, 367 U. S. 448 3

(1961); Fay v. Noia, 372 U. S. 391 (1963). Judicial in- i

tegrity would be diminished by such an application, since }

the precedental value of court decisions would be seriously i

undermined. Retroactive application 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

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 Incorporate

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 vy.

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. 8. 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.S.

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.’

i 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, 367 U. S. 433 (1961); Blackburn v. Alabama, 301

U. S. 199 (1960) ; and Spano v. New York, 360 U. S. 315 (1959).

Luk, Giada ee sareeavents -

ait ca SRA

The following year in Escobedo v. Illinois, 378 U. 8S.

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.*

*To whatever extent that case is deemed to establish a “new”

rule concerning the admissibility of confessiors, 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; Commonwealth ex rel. Linde v.

Maroney, 416 Pa. 331, 206 A. 2d 288 (1965) ; State v. Worley, 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. get}

Commonwealth v. McCarthy, 200 N. E. 2d 264 (Mass. 1964);

Campbell v. State, 384 S. W. 2d 4 (Tenn. 1964); United States

v. Cone, —— F. 2d (2d Cir., dec’d Nov. 22, 1965, slip op. p.

3391) ; United States v. Drummond, F. 2d —— (2d Cir., dec’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 v. United States, 337 F. 2d 136 (D. C. Cir. 1964).

* See, e.g., Enker & Elsen, Counsel for the Suspect: Massiah

v. United States and Escobedo v. Illinois, 49 Minn. L. Rev. 47

(1964) ; Friendly, The Béll cf Rights as a Code of Criminal Proce-

dure, 53 Calif. Rev. 929 (1965) ; Kamisar, Equal Justice in the

Gatehouses and Mansions of American Criminal Procedure in Crim-

INAL JUSTICE IN Our Time (U. Va, Press 1965) ; Vorenberg, Police

Detention and Interrogation of Uncounselled Suspects: The upreme

Court and the States, 44 Boston Univ. L. Rev. 423 (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).

Whatever may in other respects be the verdict of judicial

history, we think that Escobedo, and other recent decisions

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- f

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.’’

LEAP Tre PREETI RIT

SPF OLR ge PORTA TEE ML ONY TOS nee

We do not suggest that the Escobedo case be robbed of

priacipled basis and 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-

eated, 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.

» Davis v. North Carolina, 339 F. 2d 770 (4th Cir. 1965), cert.

granted, —— U. S. ——, 86S. 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 cor cerning the absence.or adequacy of the

warning given to the accused that he had a right to remain silent;

these questions are likewise piesent in the Vignera case.

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

OR a eee Se Pe eee ee ee ee

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 constitutionai 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?

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?

*See the concurring opinion of Mr. Justice Harlan in Ker v.

California, 374 U. S. 53, 44-45 (1963), and his dissenting opinion

in Griswold v. Connecticut, 381 U. S. 479, 500. Cf. Mr. Justice

Stewart’s remark in Massiah v. United States, 377 U. S 201, 205:

“Here we deal not with a state court conviction but with a federal

— to which the specific guaranty of the Sixth Amendment directly

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 right to

have counsel supplied. Chandler v. Fretag, 348 U. S. 3, 9 (1954).

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-

nevessary 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 unwitnessed 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 demanded 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-

—eEeE7™™™

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 origina] 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

1 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 offect 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 ‘‘aceusa-

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 on a vast scale for arrest.

ees, most of whom are indigent; or

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 (1964) 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

—_—

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 criminal proce-

dure newly enunciated by this Court in recent years have

had their origin by statute or judicial decision in the

several states, This Court has, to be sure, given these rules

general application by making them of constitutional

dimension, but i¢ has noc 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 in 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 Towa (State v. Sheridan, 96 N. W. 730

He 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 Towa abandoned the rule, eighteen states

had voluntarily — it by 1949 (see appendix in Wolf v. Colo-

rado, 338 U. S, 25, 33-39). By 1960, with several states having

adopted the rule subsequent to Wolf, the Court observed that “the

movement towards exclusion has been halting but seemingly in-

exorable” (ElAins v, United States, 364 U.S, 206 at 219). In holding

the rule applicable to the states in 1961, the Court referred directly

to the experience of the states, particularly that of California (Mapp

Vv. Ohio, U. S. 643 at 650-653),

: >

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 rules 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. Wainwright, 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 JUSTICE IN Our TiME, p. 92 n. 262 (U. Va. Press 1965).

2See Tehan v. Shott,, —— U. S. ——, 34 U.S.L. Week 4095

at 4098 (Tanuary 19, 1966).

’See People v. Dorado, 398 P. 2d 361 (Calif. 1965); People

v. Neely, 398 P. 2d 482 (Oregon 1965); State v. Dufour, 206

A. 2d 82 (R. I. 1965). In addition, the Pennsylvania Supreme Court

has stated (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?

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 follow the ruling of the Third Circuit Court

of Appeals 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. The 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.

hattan 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 for the maintenance of tolerable standards of

efficiency 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. 503, 515 (1963) ; Crooker v. California, 357 U. 8S. 433

(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 enforcement.’’ See also

Cicenia v. Lagay, 357 U. S. 504 at 509 (1958).°

1 See 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); Wald, Pretrial Detention and Ultimate Freedom, 39

N.Y.U.L. Rev. 631 (1964); Rankin, The Effect of Pretrial Deten-

tion, 39 N.Y.U.L. Rev. 641 (1964).

* See generally Proceedings and Interim Report of the National

Conference on Bail and Criminal Justice (1965), esp. pp. Xiii-xxxii

(Interim Report, Apr. 1965) and pp. 6-17 (Address of Chief

Justice Warren to the Opening Session of the Conference, May 27,

1964) ; cf. Paulsen, Pre-Trial Release in the United States, 66 Col.

L. Rev. 109, 116-119, 122-125 (1966).

’ There are other significant comments on the matter by members

of this Court. See, e.g., Mr. Justice Jackson’s concurring opinion

in Watts v. Indiana, 338 U. S. 49 (1949) at 58, and Mr. Teatien

Frankfurter’s opinion in Culombe v. Connecticut, 367 U. S. 568

(1961) at 578-580, with citations to much of the voluminous litera-

ture on the question.

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The authority of the decisions reached in the Crooker

and Cicenia cases was questioned in Escobedo (378 U. S.

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 cases, 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 not 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 interrogaiion. 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. 5.

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, 1965. As he acknowledges (id. p. 4, col. 5), this is a small

sampling ; it aiso 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.

5 Id.

the trial because checking their contents led to sufficient

independent proof.

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—F rom

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 mac« 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 Legislatiwe Solutions, 66 Col. L.

Rev. 62, 68-70 (1966) ; LaFave, Arrest, 319-341 (1965). As

Professors Bator and Vorenberg have pointed 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

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 fzlony 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, ¢.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 pened gga to appear

in court or to check upon statements already given by the

suspect.”

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 et the station horse’’, he declares (Br.

p. 40), would be ‘‘an impractical solution and one which

the police are ill-cquipped 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 usefulness 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. 2d —— (Nov. 22, 1965, slip opinion pp. 3391,

at 3398-99) :

‘‘Tt 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

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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.’’

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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

- eS OR TE

‘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) ;

. 2d 87 (R. I. 1965).

cf. State v. Dufour, 206

the employment of a large number of detectives simil-

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 involved had

reached the ‘‘accusatory’’ stage, gave weight (351 }. 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. But 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 much to study their intrinsic merits and demerits,

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

criminal 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 counsel is one but only one of

many means of ensuring that the suspect has an opportu-

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 @ 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 cireumstances’’ 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 cxclusionary rule based on

a combination of requiremeuts, 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 preferable 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.

SOPOT ET LE TR EN PT

ESE LT RT eT Te LI Tee HEIN

AS NORE ES. RE

The complex problems in the area of pre-arraignment

procedure’ are particu.arly appropriate for solution by

legisletion rather than by judicial decision. As Judge

Kaufman stated in United States v. Drummond, —— F.

2d —— (2d Cir., Dee. 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.’’

A legislature is not limited by the facts of a particular

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-

? 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

(ibee as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 930

ards of criminal justice and the drafting of a Model Code

of Pre-Arraigmment 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 rules 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 y. 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 the 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.’

1In People v. Meyer, 11 N. Y. 2d 162 (1962), the same rule

was applied to a statement made after arraignment but before

indictment.

The Donovam case was cited with approval in the Escobedo

case, 378 U. S. at 486-87.

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

warnel 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 procedure 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

constitutivaally inadmissible under the principles subse-

quently enunciated in the Escobedo case. The Snpreme

Court of New Jersey affirmed the denial of their applica-

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.

Ne ae a

ext

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. 448 (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. 443, 474-476 (1953);

| Stroble v. California, 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. 8. 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 ‘\ave admitted evidence which this Court

had plainly told them was admissible. Cf. Linkletter v.

Walker, supra at “57; 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 wl :t this Court tells him is the applicable law.

At least prior to the decision in Escobedo, the only federal

constitutional |,ar to the admissibility of a defendant’s

pre-arraignmeut 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

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,

receive 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 resented 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 imprison

pursuant to convictions had prior to January 1, 1961. Over 50% of

those imprisoned for over 344 years—2,60. of the total, of 4,543—-

had been convicted of murder, manslaughter, kidnapping, rape oF

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.

er ey

individual who sought to take advantage of the aew rule

via an application for post-conviction relief. Both on

ecllateral attack and, if that succeeded, xpon 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. Shoti, 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. 8. 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)

It seems certain, however, that one reason why the state

courts have exercised their powers broadly in establishing

new exclusionary 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 v.

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 ir. 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 In re Lopez, 42

Cal. Reptr. 188, 398 P. 2d 380 (1965).

Significantly, the progressive New York rules were all

developed in cases where appropriate and timely objec-

tions were made at trial 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 148

(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).

1 Significantly, New York has long allowed post-conviction relief

for a claim that a conviction was obtained in the absence of counsel.

See, e.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.

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 pe 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 turther 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) Retreactivity 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

raise genuine doubt as to the reliability of the adjudication

of guilt. The absence of counsel at trial (Gideon v. Wain

wright, 372 U. 8. 335 [1963]) ; the denial of opportunity to

appeal (Griffin v. California, 351 U. S. 12 [1956]; Eskridge

v. Washington, 357 U. S. 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. Noia, 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’’.? 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. Nota, 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.

2 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 Fifty States, 1962 Duke

L. J. 319, 340-341.

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 Noia 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- 0, 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.”

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

Tetrorp Taylor

Special Counsel for the

State of New York

Samus, A. HirsHowirz

First Assistant Attorney General

Barry MAHONEY

Grorce D. ZucKERMAN

Assistant Attorneys General

of Counsel

xt -

The followi g Attorneys General join in the submission

of the foregoing brief:

Arizona

Hon. Darrewzt F. Surry

BA tunen b A. Flowets sara tag er eral

v MV . aL : oenix, na

Ae ernak) ALA CoLorapo

onTEom . Hon. Duke W. Dunsar

Attorney General

Denver, Colorado

DELAWARE

Hon, Dav P. Bucxson

Attorney General

Wilmington, Delaware

Grorara

Hon. Arrnur K. Botror

Attorney General

Atlanta, Georgia

nsas

om. Bruce Bennett

Attorney General

Tallahassee, Florida

IpaHo

Hon. Autan G. SHEPARD

Attorney General

Boise, Idaho

ILLrnors

How. Wiiam G. Cuarx

Attorney General

Springfield, Illinois

Kansas

Hon. Rosert C. LonperHoiar

Attorney General

Topeka, Kansas

Kentucky

Hon. Ropert Matruews

Attorney General

Lexington, Kentucky

LovuIsIANA

Hon. Jacx P. F. Gremmzion

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 Genera!

Jefferson City, Missouri

MontTaNA

Hon. Forrest H. ANDERSON

Attorney General

Helena, Montana

NEBRASKA

Hon. Ciarence A. H. Meyer

Attorney General

Lincoln, Nebraska

Norru Caro.ina

Hew. T. Wave Bruton

Attorney General

Raleigh, North Carolina

Norru DaxorTa

Hon. Here JoHANNESON

Attorney General

Bismarck, North Dakota

OREGON

Hon. Rosert Y. THornton

Attorney General

Salem, Oregon

PENNSYLVANIA

How. Water E. ALESSANDRONI

Attorney General

Harrisburg, Pennsylvania

Ruope Istanp

Hon. J. Josepx NuGent

Attorney General

Providence, Rhode Island

Sout CaRoLina

Hon. Dante R. McLxop

Attorney General

Columbia, South Carolina

Texas

Hon. Wacconer Carr

Attorney General

Austin, Texas

VigGInia

Hon. Roserr Y. Burron

Attorney General

Richmond, Virginia

WASHINGTON

Hon. Joun J. O’ConnELL

Attorney General

Olympia, Washington

West Vircinia

Hon. C. DonaLp RoBertson

Attorney General

Charleston, South Carolina

WyYomine

Hon. Joun F. Rarer

Attorney General

Cheyenne, Wyoming

Puerto Rico

Hon. RaratL Hernanpvez CoLon

Attorney General

San Juan, Puerto Rico

Virern IsLanps

Hon. Francisco CorNEIRO

Attorney General

Charlotte Amalie, St. Thomas,

Virgin Islands

———————

2 MIRANDA v, ARIZONA.

We dealt with certain phases of this problem recently

in Escobedo v. Illinois, 378 U. S. 478 (1964). There, as

in the four cases before us, law enforcement officials took

the defendant into custody and interrogated him in a

police station for the purpose of obtaining a confes-

sion. The police did not effectively advise him of his

right to remain silent or of his right to consult with

his attorney. Rather, they confronted him with an

alleged accomplice who accused him of having perpe-

trated a murder. When the defendant denied the e*cusa-

tion and said “I didn’t shoot Manuel, you did it,” they

handcuffed him and took him to an interrogation room.

There, while handcuffed and standing, he was questioned

for four hours until he confessed. During this interroga-

tion, the police denied his request to speak to his attor-

ney, and they prevented his retained attorney, who had

come to the police station, from consulting with him. At

his trial, the State, over his objection, introduced the

confession against him. We held that the statements

thus made were constitutionally inadmissible.

This case has been the subject of judicial interpreta-

tion and spirited legal debate since it was decided two

years ago. Both state and federal courts, in assessing

its implications, have arrived at varying conclusions.’

A wealth of scholarly material has been written tracing

its ramifications and underpinnings.? Police and prose-

1 Compare United States v. Childress, 347 F. 2d 448 (C. A. 7th Cir.

1965) with Collins v. Beto, 348 F. 2d 823 (C. A. 5th Cir. 1965).

Compare People v. Dorado, 62 Cal. 2d 350, 398 P. 2d 361, 42 Cal.

Rptr. 169 (1964) with People v. Hartgraves, 31 Ill. 2d 375, 202

N. E. 2d 33 (1964).

? See, e. g., Enker and Elsen, Counsel for the Suspect: Massiah

v. United States and Escobedo vy. Illinois, 49 Minn. L. Rev. 47

(1964); Herman, The Supreme Court and Restrictions on Police

Interrogations, 25 Ohio St. L. J. 449 (1964); Kamisar, Equal Justice

in the Gatehouses and Mansions of American Criminal Procedure,

in Criminal Justice in Our Time (1965); Dowling, Escobedo and

MIRANDA v. ARIZONA. 3

cutor have speculated on its range and desirability.’

We granted certiorari in these cases, 382 U. S. 924, 925,

937, in order further to explore some facets of the prob-

lems, thus exposed, of applying the privilege against self-

incrimination to in-custody interrogation, and to give

Beyond: The Need for a Fourteenth Amendment Code of Colmninel

Procedure, 56 J. Crim. L., C. & P. 8. 156 (1965).

The complex problems alo prompted discussions by jurists. Com-

pare Bazelon, Law, Morality and Civil Liberties, 12 U. C. L. A.

L. Rev. 13 (1964), with Friendly, The Bill of Rights as a Code

of Criminal Procedure, 53 Calif. L. Rev. 929 (1965).

3 For example, the Los Angeles Police Chief stated that “If the

police are required ... to... establish that the defendant was

apprised of his constitutional guarantees of silence and legal coun-

sel prior to the uttering of any admission or confession, and that

he intelligently waived these guarantees ...a whole Pandora’s

box is opened as to under what circumstances . . . can a defendant

intelligently waive these rights. ... Allegations that modern crim-

inal investigation. can compensate for the lack of a confession or

admission in every criminal case is totally absurd!” Parker, 40

L. A. Bar. Bull. 603, 607, 642 (1965). His prosecutorial counter-

part, District Attorney Younger, stated that “[I]t begins to appear

that many of these seemingly restrictive decisions are going to con-

tribute directly to a more effective, efficient and professional level

of law enforcement.” L. A. Times, Oct. 2, 1965, p. 1. The former

Police Commissioner of New York, Michael J. Murphy, stated of

Escobedo: “What the Court is doing is akin to requiring one boxer to

fight by Marquis of Queensbury rules while permitting the other to

butt, gouge and bite.” N. Y. Times, May 14, 1965, p. 39. The

former United States Attorney for the District of Columbia, David

C. Acheson, who is presently Special Assistant to the Secretary of

the Treasury (for Enforcement), and directly in charge of the Secret

Service and the Bureau of Narcotics, observed that “Prosecution

procedure has, at most, only the most remote causal connection with

erie. Changes in court decisions and prosecution procedure would

have about the same effect on the crime rate as an aspirin would have

on a tumor of the brain.” Quoted in Herman, supra, n. 2, at 500,

n. 270. Other views on the subject in general are collected in Weis-

berg, Police Interrogation of Arrested Persons: A Skeptical View,

52 J. Crim. L., C. & P. S., 21 (1961).

4 MIRANDA v. ARIZONA.

concrete constitutional guidelines for law enforcement

agencies and courts to follow.

We start here, as we did in Escobedo, with the premise

that our holding is not an innovation in our jurispru-

dence, but is an application of principles long recognized

and applied in other settings. We have undertaken ‘a

thorough re-examination of the Escobedo decision and

the principles it announced, and we reaffirm it. That

case was but an explication of basic rights that are en-

shrined in our Constitution—that “No person . . . shall

be compelled in any criminal case to be a witness against

himself,” and that “the accused shall... have the

Assistance of Counsel”—rights which were put in jeop-

ardy in that case through official overbearing. These

precious rights were fixed in our Constitution only after

centuries of persecution and struggle. And in the words

of Chief Justice Marshall, they were secured “for ages

to come and . . . designed to approach immortality as

nearly as human institutions can approach it,” Cohens v.

Virginia, 6 Wheat. 264, 387 (1821).

Over 70 years ago, our predecessors on this Court

eloquently stated:

“The maxim nemo tenetur seipsum accusare had

its origin in a protest against the inquisitorial and

manifestly unjust methods of interrogating accused

persons, which has long obtained in the continental

system, and, until the expulsion of the Stuarts from

the British throne in 1688, and the erection of addi-

tional barriers for the protection of the people

against the exercise of arbitrary power, was not un-

common even in England. While the admissions

or confessions of the prisoner, when voluntarily and

freely made, have always ranked high in the scale

of incriminating evidence, if an accused person be

asked to explain his apparent connection with a

crime under investigation, the ease with which the

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MIRANDA v. ARIZONA. 5

questions put to him may assume an inquisitorial

character, the temptation to press the witness un-

duly, to browbeat him if he be timid or reluctant,

to push him into a corner, and to entrap him into

fatal contradictions, which is so painfully evidenced

in many of these earlier state trials, notably in those

of Sir Nicholas Throckmorton, and Udal, the Puri-

tan minister, made the system so odious as to give

rise to a demand for its total abolition. The change

| in the English criminal procedure in that particular

seems to be founded upon no statute and no judicial

opinion, but upon a general and silent acquiescence

of the courts in a popular demand. But, however

adopted, it has become firmly embedded in English,

as well as in American jurisprudence. So deeply

did the inequities of the ancient system impress

themselves upon the minds of the American colonists

that the States, with one accord, made a denial of

the right to question an accused person a part of

their fundamental law, so that a maxim, which in

England was a mere rule of evidence, became clothed

in this country with the impregnability of a consti-

tutional enactment.” Brown v. Walker, 161 U. S.

591, 596-597 (1896).

In stating the obligation of the judiciary to apply these

constitutional rights, this Court declared in Weems v.

United States, 217 U. S. 349, 373 (1910):

“

. . our contemplation cannot be only what has

been but of what may be. Under any other rule a

constitution would indeed be as easy of application

as it would be deficient in efficacy and power. Its

general principles would have little value and be con-

verted by precedent into impotent and lifeless

formulas. Rights declared in words might be lost

in reality. And this has been recognized. The

6 MIRANDA v. ARIZONA.

meaning and vitality of the Constitution have de-

veloped against narrow and restrictive construction.”

This was the spirit in which we delineated, in mean-

ingful language, the manner in which the constitutional

rights of the individual could be enforced against over-

zealous police practices. It was necessary in Escobedo,

as here, to insure that what was proclaimed in the Con-

stitution had not become but a “form cf words,” Stlver-

thorne Lumber Co. v. United States, 251 U. S. 385, 392

(1920), in the hands of government officials. And it is

in this spirit, consistent with our role as judges, that we

adhere to the principles of Escobedo today.

Our holding will be spelled out with some specificity

in the pages which follow but briefly stated it is this:

the prosecution may not use statements, whether excul-

patory or inculpatory, stemming from custodial interro-

gation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege

against self-incrimination. By custodial interrogation,

we mean questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.‘

As for the procedural safeguards to be employed, unless

other fully effective means are devised to inform accused

persons of their right of silence and to assure a contin-

uous opportunity to exercise it, the following measures

are required. Prior to any questioning, the person must

be warned that he has a right to remain silent, that any

statement he does make may be used as evidence against

him, and that he has a right to the presence of an attor-

ney, either retained or appointed. The defendant may

waive effectuation of these rights, provided the waiver is

made voluntarily, knowingly and intelligently. If, how-

ever, he indicates in any manner and at any stage of the

+ This is what we meant in Escobedo when we spoke of an investi-

gation which had focused on an accused.

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MIRANDA v. ARIZONA. 7

process that he wishes to consult with an attorney before

speaking there can be no questioning. - Likewise, if the

individual is alone and indicates in any manner that he

does not wish to be interrogated, the police may not

question him. The mere fact that he may have answered

some questions or volunteered some statements on his

own does not deprive him of the right to refrain from

answering any further inquiries until he has consulted

with an attorney and thereafter consents to be questioned.

The constitutional issue we decide in each of these

cases is the admissibility of statements obtained from a

defendant questioned while in custody and deprived of

his freedom of action. In each, the defendant was ques-

tioned by police officers, detectives, or a prosecuting

attorney in a room in which he was cut off from the out-

side world. In none of these cases was the defendant

given a full and effective warning of his rights at the

outset of the interrogation process. In all the cases, the

questioning elicited oral admissions, and in three of them,

signed statements as well which were admitted at their

trials. They all thus share salient features—incommuni-

cado interrogation of individuals in a police-dominated

atmosphere, resulting in self-incriminating statements

without full warnings of constitutional rights.

An understanding of the nature and setting of this

in-custody interrogation is essential to our decisions

today. The difficulty in depicting what transpires at

such interrogations stems from the fact that in this coun-

try they have largely taken place inc>mmunicado. From

extensive factual studies undertaken in the early 1930’s,

including the famous Wickersham Report to Congress

by a Presidential Commission, it is clear that police vio-

lence and the “third degree” flourished at that time.

*See, for example, IV National Commission on Law Observance

and Enforcement, Report on Lawlessness in Law Enforcement (1931)

8 MIRANDA v. ARIZONA.

In a series of cases decided by this Court long after these

studies, the police resorted to physical brutality—beat-

ings, hanging, whipping—and to sustained and protracted

questioning incommunicado in order to extort confes-

sions. The 1961 Commission on Civil Rights found

much evidence to indicate that “some policemen still

resort to physical force to obtain confessions,” 1961

Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The

use of physical brutality and violence is not, unfortu-

nately, relegated to the past or to any part of the country.

Only recently in Kings County, New York, the police

brutally beat, kicked and placed lighted cigarette butts

on the back of a potential witness under interrogation

for the purpose of securing a statement incriminating a

third party. People v. Portelli, 15 N. Y. 2d 235, 205

N. E. 2d 857, 257 N. Y. S. 2d 931 (1965).’

[Wickersham Report]; Booth, Confessions and Methods Employed

in Procuring Them, 4 So. Calif. L. Rev. 83 (1930) ; Kauper, Judicial

Examination of the Accused—A Remedy for the Third Degree, 30

Mich L. Rev. 1224 (1932). It is significant that instances of third-

degree treatment of prisoners almost invariably took place during

the period between arrest and preliminary examination. Wicker-

sham Report, at 169; Hall, The Law of Arrest in Relation to Con-

temporary Social Problems, 3 U. Chi. L. Rev. 345, 357 (1936). See

also Foote, Law and Police Practice: Safeguards in the Law of

Arrest, 52 Nw. U. L. Rev. 16 (1957).

6 Brown v. Mississippi, 297 U. 8. 278 (1936) ; Chambers v. Florida,

309 U. S. 227 (1940); Canty v. Alabuma, 309 U. S. 629 (1940);

White v. Tezas, 310 U. 8. 530 (1940); Vernon v. Alabama, 313 U.S.

547 (1941); Ward v. Texas, 316 U. 8. 547 (1942); Ashcraft v. Ten-

nessee, 322 U. S. 143 (1944); Malinski v. New York, 324 U. 8. 401

(1945); Leyra v. Denno, 347 U.S. 556 (1954). See also Williams

v. United States, 341 U. S. 97 (1951).

7 In addition, see People v.,Wakat, 415 Ill. 610, 114 N. E, 2d 706

(1953); Wakat v. Harlib, 253 F. 2d 59 (C. A. 7th Cir. 1958)

(defendant suffering from broken bones, multiple bruises and in-

juries sufficiently serious to require eight months’ medical treatment

after being manhandled by five policemen); Kier v. State, 213 Md.

556, 132 A. 2d 494 (1957) (police doctor told accused, who was

MIRANDA v. ARIZONA. 9

The examples given above are undoubtedly the excep-

tion now, but they are sufficiently widespread to be the

object of concern. Unless a proper limitation upon

custodial interrogation is achieved—such as these deci-

sions will advance—there can be no assurance that prac-

tices of this nature will be eradicated in the foreseeable

future. The conclusion of the Wickersham Commission

Report, made over 30 years ago, is still pertinent:

“To the contention that the third degree is neces-

sary to get the facts, the reporters aptly reply in the

language of the present Lord Chancellor of England

(Lord Sankey): ‘It is not admissible to do a great

right by doing a little wrong. ... It is not suffi-

cient to do justice by obtaining a proper result by

irregular or improper means.’ Not only does the

use of the third degree involve a flagrant violation

of law by the officers of the law, but it involves also

the dangers of false confessions, and it tends to make

police and prosecutors less zealous in the search for

objective evidence. As the New York prosecutor

quoted in the report said, ‘It is a short cut and makes

the police lazy and unenterprising.’ Or, as another

official quoted remarked: ‘If you use your fists, you

strapped to a chair completely nude, that he proposed to take hair

and skin scrapings from anything that looked like blood or sperm

from various parts of his body); Bruner vy. People, 113 Col. 194,

156 P. 2d 111 (1945) (defendant held in custody over two months,

deprived of food for 15 hours, forced to submit to a lie detector

test when he wanted to go to the toilet); People v. Matlock, 51 Cal.

2d 682, 336 P. 2d 505 (1959) (defendant questioned incessantly

over an evening’s time, made to lie on cold board and to answer

questions whenever it appeared he was getting sleepy). Other cases

are documented in American Civil Liberties Union, Illinois Division,

Secret Detention by the Chicago Police (1959); Pott, The Prelim-

inary Examination and “The Third Degree,” 2 Baylor L. Rev. 131

(1950); Sterling, Police Interrogation and the Psychology of Con-

fession, 14 J. Pub. L. 25 (1965).

10 MIRANDA v. ARIZONA.

are not so likely to use your wits.’ We agree with

the conclusion expressed in the report, that ‘The

third degree brutalizes the police, hardens the pris-

oner against society, and lowers the esteem in which

the administration of justice is held by the pub-

lic’ ” IV National Commission on Law Observance

and Enforcement, Report on Lawlessness in Law

Enforcement (1931), 5.

Again we stress that the modern practice of in-custody

interrogation is psychologically rather than physically

oriented. As we have stated before, “Since Chambers

v. Florida, 309 U. S. 227, this Court has recognized

that coercion can be mental as well as physical, and that

the blood of the accused is not the only hallmark of an

unconstitutional inquisition.” Blackburn v. Alabama,

361 U.S. 199, 206 (1960). Interrogation still takes place

in privacy. Privacy results in secrecy and this in turn

results in a gap in our knowledge as to what in fact goes

on in the interrogation rooms. A valuable source of in-

formation about present police practices, however, may

be found in various police manuals and texts which docu-

ment procedures employed with success in the past, and

which recommend various other effective tactics.* These

8 The manuals quoted in the text following are the most recent and

representative of the texts currently available. Material of the same

nature appears in Kidd, Police Interrogation (1940); Mulbar, Inter-

rogation (1951); Dienstein, Technics for the Crime Investigator

(1952), 97-115. Studies concerning the observed practices of the

police appear in LaFave, Arrest: The Decision To Take a Suspect

Into Custody (1965), 244-437, 490-521; LaFave, Detention for

Investigation by the Police: An Analysis of Current Practices, 1962

Wash. U. L. Q. 331; Barrett, Police Practices and the Law-—From

Arrest to Release or Charge, 50 Calif L. Rev. 11 (1962); Sterling,

supra, n. 7, at 47-65.

mabe NC at Tee 1

SLEEP LILIES TES AD LPN ISS LCOS EL LE UOT ETI IE,

MIRANDA v. ARIZONA. 11

texts are used by law enforcement agencies themselves

as guides.® It should be noted that these texts pro-

fessedly present the most enlightened and effective means

presently used to obtain statements through custodial

interrogation. By considering these texts and other data,

it is possible to describe procedures observed and noted

around the country.

The officers are told by the manuals that the “prin-

cipal psychological factor contributing to a successful

interrogation is privacy—being alone with the person

under interrogation.” *® The efficacy of this tactic has

been explained as follows:

“If at all practicable, the interrogation should

take place in the investigator's office or at least in

a room of his own choice. The subject should be

deprived of every psychological advantage. In his

own home he may be confident, indignant, or recal-

citrant. He is more keenly aware of his rights and

*The methods described in Inbau and Reid, Criminal Interroga-

tion and Confessions (1962), are a revision and enlargement of ma-

terial presented in three prior editions of a predecessor text, Lie

Detection and Criminal Interrogation (3d ed. 1953). The authors

and their associates are officers of the Chicago Police Scientific Crime

Detection Laboratory and have had extensive experience in writing,

lecturing and speaking to law enforcement authorities over a 20-

year period. They say that the techniques portrayed in their man-

uals reflect their experiences and are the most effective psychological

stratagems to employ during interrogations. Similarly, the tech-

niques described in O’Hara, Fundamentals of Criminal Investigation

(1959), were gleaned from long service as observer, lecturer in police

science, and work as a federal criminal investigator. All these texts

have had rather extensive use among law enforcement agencies and

among students of police science, with total sales and circulation of

over 44,000.

16 MIRANDA v. ARIZONA.

presses the subject with the apparent fairness of his

interrogator.” * After this psychological conditioning,

however, the officer is told to point out the incriminating

significance of the suspect’s refusal to talk:

“Joe, you have a right to remain silent. That’s

your privilege and I’m the last person in the world J

who'll try to take it away from you. If that’s the

way you want to leave this, O. K. But let me ask

you this. Suppose you were in my shoes aad I were

in yours and you called me in to ask me about this

and I told you, ‘I don’t want to answer any of your |

questions.’ You’d think I had something to hide,

and you’d probably be right in thinking that.

That’s exactly what I’ll have to think about you,

and so will everybody else. So let’s sit here and

talk this whole thing over.” ™

Few will persist in their initial refusals to talk, it is said,

if this monologue is employed correctly.

In the event that the subject wishes to speak to a rela-

tive or an attorney, the following advice is tendered:

“(T]he interrogator should respond by suggesting

the subject first tell the truth to the interrogator

himself rather than get anyone else involved in the

matter. If the request is for an attorney, the inter-

rogator may suggest that the subject save himself ;

or his family the expense of any such professional :

service, particularly if he is innocent of the offense

under investigation. The interrogator may also add,

‘Joe, I’m only looking for the truth, and if you're

telling the truth, that’s it. You can handle this by

yourself.’ ” **

2° Inbau and Reid, supra, at 111.

21 Ibid.

22 Inbau and Reid, supra, at 112.

ou: a ae

MIRANDA v. ARIZONA. 17

From these representative samples of interrogation

techniques, the setting prescribed by the manuals and

observed in practice becomes clear. In essence, it is

this: To be alone with the subject is essential to prevent

distraction and to deprive him of any outside support.

The aura of confidence in his guilt undermines his will

to resist. He merely confirms the preconceived story the

police seek to have him describe. Patience and persist-

ence, at times relentless questioning, are employed. To

obtain a confession, the interrogator must “patiently

maneuver himself or his quarry into a position from

which the desired object may be obtained.” ** When

normal procedures fail to produce the needed result, the

police may resort to deceptive stratageras such as giving

fals: iegal advice. It is important to keep the subject

off balance, for example, by trading on his insecurity

about Himself or his surroundings. The police then

persuade, trick, or cajole him out of exercising his consti-

tutional rights.

Even without employing brutality, the “third degree”

or the specific stratagems described above, the very fact

of custodial interrogation exacts a heavy toll on indi-

vidual liberty and trades on the weakness of individuals.”

23 Inbau and Reid, Lie Detection and Criminal Interrogation (3d

ed. 1953), 185.

*4 Interrogation procedures may even give rise to a false con-

fession. The most recent conspicuous example occurred in New

York, in 1964,-when a Negro of limited intelligence confessed to two

brutal murders and a rape which he had not committed. When

this was discovered, the prosecutor was reported as saying: “Call

it what you want—brain-washing, hypnosis, fright. They made him

give an untrue confession. The only thing I don’t believe is that

Whitmore was beaten.” N. Y. Times, Jan. 28, 1965, p. 1, col. 5.

In two other instances, similar events had occurred. N. Y. Times,

Oct. 20, 1964, p. 22, col. 1; N. Y. Times, Aug. 24, 1965, p. 1, col. 1.

In general, see Borchard, Convicting the Innocent (1932); Frank

and Frank, Not Guilty (1957).

18 MIRANDA v. ARIZONA.

This fact may be illustrated simply by referring to three

confession cases decided by this Court in the Term imme-

diately preceding our Escobedo decision. In Townsend

v. Sain, 372 U. S. 293 (1963), the defendant was a

19-year-old heroin addict, described as a “near mental

defective,” id., at 307-310. The defendant in Lynumn v.,

Illinois, 372 U. S. 528 (1963), was a woman who con-

fessed to the arresting officer after being importuned to

“cooperate” in order to prevent her children from being

taken by relief authorities. This Court similarly re-

versed the conviction of a defendant in Haynes v. Wash-

ington, 373 U. S. 503 (1963), whose persistent request

during his interrogation was to phone his wife or attor-

ney.” In other settings, these individuals might have

exercised their constitutional rights. In the incommuni-

cado police-dominated atmosphere, they succumbed.

In the cases before us today, given this background,

we concern ourselves primarily with this interrogation

atmosphere and the evils it can bring. In No. 759,

Miranda v. Arizona, the police arrested the defendant

and took him to a special interrogation room where they

‘secured a confession. In No. 760, Vignera v. New York,

the defendant made oral admissions to the police after

interrogation in the afternoon, and then signed an in-

culpatory statement upon being questioned by an as-

sistant district attorney later the same evening. In No.

761, Westover v. United States, the defendant was

25In the fourth confession case decided by the Court in the 1963

Term, Fay v. Noia, 372 U. 8. 391 (1963), our disposition made it

unnecessary to delve at length into the facts. The facts of the

defendant’s case there, however, paralleled those of his co-defendants,

whose confessions were found to have resulted from continuous and

coercive interrogation for 27 hours, with denial of requests for friends

or attorney. See United States v. Murphy, 222 F. 2d 698 (C. A.

2d Cir., 1955) (Frank, J.); People v. Bonino, 1 N. Y. 2d 752, 135

N. E. 2d 51 (1956).

_ ae

MIRANDA v. ARIZONA. 19

handed over to the Federal Bureau of Investigation by

local authorities after they had detained and interrogated

him for a lengthy period, both at night and the follow-

ing morning. After some two hours of questioning, the

federal officers had obtained signed statements from the

defendant. Lastly, in No. 584, California v. Stewart, the

local police held the defendant five days in the station

and interrogated him on nine separate occasions before

they secured his inculpatory statement.

In these cases, we might not find the defendants’ state-

ments to have been involuntary in traditional terms.

Our concern for adequate safeguards to protect precious

Fifth Amendment rights is, of course, not lessened in

the slightest. In each of the cases, the defendant was

thrust into an unfamiliar atmosphere and run through

menacing police interrogation procedures. The poten-

tiality for compulsion is forcefully apparent, for example,

in Miranda, where the indigent Mexican defendant was

a seriously disturbed individual with pronounced sexual

fantasies, and in Stewart, in which the defendant was

an indigent Los Angeles Negro who had dropped out

of school in the sixth grade. To be sure, the records

do not evince overt physical coercion or patented psy-

chological ploys. The fact remains that in none of these

cases did the officers undertake to afford appropri-

ate safeguards at the outset of the interrogation to insure

that the statements were truly the product of free choice.

It is obvious that such an interrogation environment

is created for no purpose other than to subjugate the

the individual to the will of his examiner. This atmos-

phere carries its own badge of intimidation. To be sure,

this is not physical intimidation, but it is equally destruc-

tive of human dignity. The current practice of incom-

** The absurdity of denying that a confession obtained under these

circumstances is compelled is aptly portrayed by an example in Pro-

20 MIRANDA v. ARIZONA.

municado interrogation is at odds with one of our

Nation’s most cherished principles—that the individual

may not be compelled to incriminate himself. Unless

adequate protective devices are employed to dispel the

compulsion inherent in custodial surroundings, no state-

ment obtained from the defendant can truly be the

product of his free choice.

From the foregoing, we can readily perceive an inti-

mate connection between the privilege against self-

incrimination and police custodial questioning. It is

fitting to turn to history and precedent underlying the

Self-Incrimination Clause to determine its applicability

in this situation.

II.

We sometimes forget how long it has taken to establish

the privilege against self-incrimination, the sources from

which it came and the fervor with which it was de-

fended. Its roots go back into ancient times.” Per-

fessor Sutherland’s recent article, Crime and Confession, 79 Harv.

L. Rev. 21, 37 (1965):

“Suppose a well-to-do testatrix says she intends to will her prop-

erty to Elizabeth. John and James want her to bequeath it to them

instead. They capture the testatrix, put her in a carefully designed

room, out of touch with everyone but themselves and their con-

venient ‘witnesses,’ keep her secluded there for hours while they

make insistent demands, weary her with contradictions and finally

induce her to execute the will in their favor. Assume that John

and James are deeply and correctly convinced that Elizabeth is

unworthy and will make base use of the property if she gets her

hands on it, whereas John and James have the noblest and most

righteous intentions. Would any judge of probate accept the will

so procured as the ‘voluntary’ act of the testatrix?”

27 Thirteenth century commentators found an analogue to the

privilege grounded in the Bible. “To sum up the matter, the prin-

ciple that no man is to be declared guilty on his own admission is

a divine decree.” Maimonides, Mishneh Torah (Code of Jewish

Law), Book of Judges, Laws of the Sanhedrin, c. 18, ¥6, 3 Yale

Judaica Series 52-53. See also Lamm, The Fifth Amendment and

Its Equivalent in the Halakha, 5 Judaism 53 (Winter 1956).

MIRANDA v. ARIZONA. z 21

haps the critical historical event shedding light on its

origins and evolution was the trial of one John Lilburn,

a vocal anti-Stuart Leveller, who was made to take the

Star Chamber Oath in 1637. The oath would have

bound him to answer to all questions posed to him on

any subject. The Trial of John Lilburn and John

Wharton, 3 How. St. Tr. 1315 (1637-1645). He resisted

the oath and declaimed the proceedings, stating:

“Another fundamental right I then contended for,

was, that no man’s conscience ought to be racked by

oaths imposed, to answer to questions concerning

himself in matters criminal, or pretended to be so.”

Heller and Davies, The Leveller Tracts 1647-1653

(1944), 454.

On account of the Lilburn Trial, Parliament abolished

the inquisitorial Court of Star Chamber and went further

in giving him generous reparation. The lofty prin-

ciples to which Lilburn had appealed during his trial

gained popular acceptance in England.* These senti-

ments worked their way over to the Colonies and were

implanted after great struggle into the Bill of Rights.”

Those who framed our Constitution and the Bill of Rights

were ever aware of subtle encroachments on individual

liberty. They knew that “illegitimate and unconstitu-

tional practices get their first footing . . . by silent ap-

proaches and slight deviations from legal modes of pro-.-

cedure.” Boyd v. United States, 116 U. S. 616, 635

(1886). The privilege was elevated to constitutional

status and has always been “as broad as the mischief

*8 See Morgan, The Privilege Against Self-Incrimination, 34 Minn.

L. Rev. 1, 9-11 (1949); 8 Wigmore, Evidence (McNaughton rev.,

1961), 289-295. See also Lowell, The Judicial Use of Torture, 11

Harv. L. Rev. 220, 290 (1897).

*°See Pittman, The Colonial and Constitutional History of the

Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763

(1935); Ullmann v. United States, 350 U. S. 422, 445-449 (1956)

(Dovaxas, J., dissenting).

\ 22 MIRANDA v. ARIZONA.

against which it seeks to guard.” Counselman v. Hitch-

cock, 142 U. S. 547, 562 (1892). We cannot depart from

this noble heritage.

Thus we may view the historical development of the

privilege as one which groped for the proper scope of

governmental power over the citizen. As a “noble prin-

ciple often transcends its origins,” the privilege has come

rightfully to be recognized in part as an individual’s sub-

stantive right, a “right to a private enclave where he may

lead a private life. That right is. the hallmark of our

democracy.” United States v. Grunewald, 233 F. 2d

556, 579, 581-582 (Frank, J., dissenting), rev'd, 353 U.S.

391 (1957). We have recently noted that the privilege

against self-incrimination—the essential mainstay of our

adversary system—is founded on a complex of values,

Murphy v. Waterfront Comm’n, 378 U. S. 52, 55-57, n. 5

(1964); Tehan v. Shott, 382 +8 406, 414-415, n. 12

(1966). All these policies point to one overriding

thought: the constitutional foundation underlying the

privilege is the respect a government—state or federal—

must accord to the dignity and integrity of its citizens.

To maintain a “fair state-individual balance,” to require

the government “to shoulder the entire load,” 8 Wigmore,

Evidence (McNaughton rev., 1961), 317, to respect the

inviolability of the human personality, our accusatory

system of criminal justice demands that the government

seeking to punish an individual produce the evidence

against him by its own independent labors, rather than

by the cruel, simple expedient of compelling it from his

own mouth, Chambers v. Florida, 309 U. S. 227, 235-

238 (1940). In sum, the privilege is fulfilled only when

the person is guaranteed the right “to remain silent

unless he shooses to speak in the unfettered exercise of

his own will.” Malloy v. Hogan, 378 U. S. 1, 8 (1964).

The question in these cases is whether the privilege

is fully applicable during a period of custodial interroga-

— .

MIRANDA v. ARIZONA. 23

tion. In this Court, the privilege has consistently been

accorded a liberal construction. Albertson v. SACB, 382

U. S. 70, 81 (1965) ; Hoffman v. United States, 341 U.S.

479, 486 (1951); Arndstein v. McCarthy, 254 U. S. 71,

72-73 (1920); Counselman vy. Hitchock, 142 U. S. 547,

562 (1892). We are satisfied that all the principles em-

| bodied in the privilege apply to informal compulsion

| exerted by law-enforcement officers during in-custody

| questioning. An individual swept from familiar sur-

roundings into police custody, surrounded by antagonistic

forces, and subjected to the techniques of persuasion de-

scribed above cannot be otherwise than under compul-

sion to speak. As a practical matter, the compulsion to

speak in the isolated setting of the police station may

well be greater than in courts or other official investiga-

tions, where there are often impartial observers to guard

against intimidation or trickery.*

This question, in fact, could have been taken as

settled in federal courts almost 70 years ago, when, in

Bram v. United States, 168 U. S. 532, 542 (1897), this

Court held:

“In criminal trials, in the courts of the United

States, wherever a question arises whether a confes-

sion is incompetent because not voluntary, the issue

is controlled by that portion of the Fifth Amend-

ment . . . commanding that no person ‘shall be

compelled in any criminal case to be a witness

against himself.’ ”

In Bram, the Court reviewed the British and American

history and case law and set down the Fifth Amendment

standard for compulsion which we implement today:

“Much of the confusion which has resulted from

the effort to deduce from the adjudged cases what

“Compare Brown v. Walker, 161 U. 8. 596 (1896); Quinn v.

United States, 349 U. S. 155 (1955).

MIRANDA v. ARIZONA.

would be a sufficient quantum of proof to show that

a confession was or was not voluntary, has arisen

from a misconception of the subject to which the

proof must address itself. The rule is not that in

order to render a statement admissible the proof

must be adequate to establish that the particular

communications contained in a statement were vol-

untarily made, but it must be sufficient to establish

that the making of the statement was voluntary;

that is to say, that from the causes, which the law

treats as legally sufficient to engender in the mind

of the accused hope or fear in respect to the crime

charged, the accused was not involuntarily impelled

to make a statement, when but for the improper

influences he would have remained silent ....” 168

U. S., at 549. And see, id., at 542.

The Court has adhered to this reasoning. In 1924,

Mr. Justice Brandeis wrote for a unanimous Court in

reversing @ conviction resting on a compelled confession,

Wan v. United States, 266 U.S. 1. He stated:

“In the federal courts, the requisite of voluntari-

ness is not ‘satisfied by establishing merely that the

confession was not induced by a promise or a threat.

A confession is voluntary in law if, and only if, it

was, in fact, voluntarily made. A confession may

have been given voluntarily, although it was made

to police officers, while in custody, and in answer

to an examination conducted by them. But a con-

fession obtained by compulsion must be excluded

whatever may have been the character of the com-

pulsion, and whether the compulsion was applied

in a judicial proceeding or otherwise. Bram v.

In addition to the expansive historical development of

the privilege and the sound policies which have nurtured

MIRANDA v. ARIZONA. 25

its evolution, judicial precedent thus clearly establishes

its application to incommunicado interrogation. In fact,

the Government concedes this point as well established

in No. 761, Westover v. United States, stating: “We have

no doubt . . . that it is possible for a suspect’s Fifth

Amendment right to be violated during in-custody ques-

tioning by a law-enforcement officer.” *'

Because of the adoption by Congress of Rule 5 (a) of

the Federal Rules of Criminal Procedure, and this Court’s

effectuation of that Rule in McNabb v. United States,

318 U.S. 332 (1943), and Mallory v. United States, 354

U. S. 449 (1957), we have had little occasion in the past

quarter ceatury to reach the constitutional issues in deal-

ing with federal interrogations. These supervisory rules,

requiring production of an arrested person before a com-

missioner “without unn delay” and excluding evi-

dence obtained in default of that statutory obligation,

were nonetheless responsive|to the same considerations

of Fifth Amendment polic at unavoidably face us

now as to the States. In McNabb, 318 U. S., at 343-344,

and in Mallory, 354 U. S., at 455-456, we recognized both

the dangers of interrogation and the appropriateness of

prophylaxis stemming from the very fact of interrogation

itself."

Our decision in Malloy v. Hogan, 378 U. S. 1 (1964),

necessitates an examination of the scope of the privilege

in state cases as well. In Malloy, we squarely held the

“Brief for the United States, p. 28. To the same effect, see

Brief for the United States, pp. 40-49, n. 44, Anderson v. United

States, 318 U. 8. 350 (1943); Brief for the United States, pp. 17-18,

McNabb v. United States, 318 U. 8. 332 (1943).

** Our decision today does not indicate in any manner, of course,

that these rules can be disregarded. When federal officials arrest an

individual, they must as always comply with the dictates of the

congressional legislation and cases thereunder. See generally, Hogan

and Snee, The MceNabb-Mallory Rule: Its Rise, Rationale and Res-

cue, 47 Geo. L. J. 1 (1958).

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