# Best Copy Available — California v. Stewart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Best Copy Available
- **Published:** January 1, 1966
- **Citation:** 383 U.S. 903

## Text

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 + 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

4

lates, the questions are stated in general terms, rather
than in the factual framework of any of the cases:

1. Whether an arrested suspect’s lack of the assistance
of counsel at the time he makes a pre-arraignment state-
ment renders the statement constitutionally inadmissible
at his trial.*

2. Whether rules presently or hereafter established
within the ambit of the first question should be retroac-
tively applied.

Summary of Argument
I

We oppose the establishment of new constitutional re-
strictions on the admissibility of pre-arraignment state-
ments made in the absence of counsel. Neither the literal
text nor the originally intended meaning of the ‘‘As-
sistance of Counsel’’ clause of the Sixth Amendment 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.

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22

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)

23

Since in these cases, therefore, empirical evidence of the
consequences of the proposed rules based on experience
from their actual operation is altogether lacking, it would
seem especially important to seek evidence from other
sources. One would want to know, if only in part, the
answer to questions such as the following:

(a) How important is pre-arraignment questioning
in the identification and apprehension of those subse-
quently convicted of crime?

(b) How important are pre-arraignment statements
as evidence for the conviction of those accused?

(c) What would be the effect on the interrogation
process of (1) previous warning of the right to re-
main silent; (2) previous informing of the right to
assistance of counsel; (3) a requirement that counsel
either be waived or be present?

(d) How, in practice, would counsel be made available
at the pre-arraignment stage?

This kind of empirical data can, in fact, be obtained,
and would be of great value, particularly if studied in rela-
tion to available evidence on the effectiveness of alternative
means of achieving the same goals. The techniques of the
social sciences have already proven to be of considerable
assistance in developing a body of usable knowledge in
other areas of the law, and in stimulating invaluable re-
form in those areas. The statistical studies of the Man-

(Footnote continued from preceding page)

that that state would 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.

24

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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25

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.

26

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

27

variety of reasons; routine preliminary questioning may
well result in their release prior to the filing of any charge,
or in the filing of less serious charges. Id., at 69-70, see
also Barrett, supra, at 31-35.

The California surveys which are the subject of Dean
Barrett’s study are particularly illuminating in this re-
gard. They indicate that 28.5% of the persons arrested and
booked for felonies in California in 1960 were released with-
out the filing of a complaint; in an additional 21.6% of
the cases the 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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33

of the agents questioning Cone, nor were they qualified
to make nice decisions about the sufficiency of the evi-
dence they possessed; nor could they at the time of
arrest determine what charges should be formally made
and against whom. Agents in hot pursuit of those
whom they have reason to believe may be implicated
in a crime which has just been discovered cannot be
required ‘on the spot’ to decide difficult questions of
the sufficiency and quantum of proof.

We think a judicial inquiry into whether the agents
were still in the ‘investigatory’ stage when they ar-
rested Cone, and whether what had started out as
an investigation had reached the ‘accusatory’ stage
when Cone was questioned immediately after his arrest,
would serve no useful purpose. What may seem to be
sufficient evidence at one stage of an investigation may
become quite insufficient when those who have sup-
plied information are themselves accused and become
unavailable to the government as witnesses, as hap-
pened with Moser and Spencer in this very case. To
make judicial assessment of the questioning process
turn on whether questioning occurred when a case was
no longer in the ‘investigatory’ stage and had entered
the ‘accusatory’ stage would force police officers to
make momentary and critical decisions so unrelated
to the actualities of law enforcement that the entire
police function might well be significantly undermined
or demoralized.’’

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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

34

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,

35

as to demonstrate their variety and imprecision, and in-
dicate the numerous questions they suggest but do not
resolve. These matters are, we believe, highly relevant to
the constitutional dimension of these cases, for they argue
strongly against ‘‘freezing’’ the pre-arraignment scope of
the right to counsel at a time when analysis of the problem
is still in its infancy.

F. Importance of non-constitutional decisional sources

In this brief, we have urged that the scope of the right
to the assistance of counsel prior to arraignment presents
problems which are not ripe for constitutional disposition.
In support of this viewpoint, we have sought to draw the
Court’s attention to a number of aspects of the problem,
where, we believe, empirical evidence is insufficient for
definitive rule-making, and to the uncertainties still sur-
rounding the specific proposals that have been made to
extend the right to counsel into the prearraignment stage.

We would like to close this portion of the brief on an
affirmative note, by pointing out that the Constitution is
by no means the only tool for the solution of problems of
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-

36

nity to make a responsible choice as to whether or not to
incriminate himself. There are a wide variety of alterna-
tive means by which this goal might be met, including rules
barring the use of any confession made to the police; or
made to the police during a delay in bringing @ 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

37

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

5

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.

39

Very recently, in People v. Gunner, 15 N. Y. 2d 226
(1965), the court extended pre-arraignment rights to coun-
sel considerably beyond the holding of the Escobedo case.
In the Gunner case, the defendant had made pre-arraign-
ment statements to the police both before and after a
lawyer had informed the police that he represented
Gunner and wished that no more statements be taken. The
conviction was reversed because the statements made after
the lawyer’s request were received at the trial; two mem:
bers of the Court would have ruled the earlier statements
likewise excludable, because the defendant had not been
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-

40

tion, ruling that the Escobedo case established new rules
of constitutional due process which should not be applied
retroactively.’

In their brief (at pp. 32-34) in No. 762, the petitioners
reject the conclusion below that Escobedo established new
rules of constitutional law, and contend that the case
therefore involves no problem of retroactivity. As amici
curiae, we express no opinion on that question. Assuming,
however, that this Court should agree with the New Jersey
court’s analysis of Escobedo, the problem of retroactivity
must then be faced, as it also must in the event new exclu-
sionary rules are to be established in the present or
subsequent cases.

The Court has made it clear in two recent cases that not
all new constitutional rules must be applied retroactively;
rather the merits and demerits of retrospectivity must be
weighed with respect to each case, by looking to the nature,
purpose, and effect of the new rule, the reliance placed
upon the previously existing rule, and the effect upon the
administration of justice of a retroactive application of
the new rule. Linkletter v. Walker, 381 U. S. 618, 628-29,
636 (1965) ; Tehan v. Shott, —— U.S. —, 34 U.S.L. Week
4095, 4096 (Jan. 19, 1966). We submit that an examination
of these considerations in the context of an exclusionary
rule limiting the admissibility of pre-trial statements makes
it amply clear that no such rule should be applied retro-
actively so as to vitiate a final conviction.

A. The state judicial systems and state law enforcement
officials have justifiably placed great reliance on past
decisions of this Court establishing voluntariness as
the sole criterion for admissibility of a pre-arraign-
ment statement.

There can be no doubt that over the course of years
there has been extensive and justifiable reliance by the

1 Other issues, unrelated to those discussed in this brief, are also
raised by petitioners in No. 762.

Ne ae a

ext

41

state judicial systems upon this Court’s decisions estab-
lishing voluntariness as the criterion for determining the
admissibility of a pre-trial statement of an accused. In-
deed, the Court had specifically held that the introduction
of incriminating statements obtained in the absence of
counsel—even after the defendant had clearly become the
focus of a police investigation and had requested counsel
_ —was no constitutional bar to a valid judgment where the
statements were not involuntary. Crooker v. California,
357 U. S. 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

46

of the Mapp exclusionary rule. What is perhaps even
more significant is the fact that such statements, or their
fruits, are most apt to have been used in prosecutions for
violent, frequently unwitnessed crimes, such as murder,
manslaughter, rape, kidnapping and robbery. The indi-
viduals convicted of these crimes are the ones who would
be most likely to reap the benefits of retroactive applica-
tion of a new rule in this area.’

The pre-trial statements of the defendants were intro-
duced at the trials of 85 of the last 100 persons executed in
New York State prior to 1962.’ It is certainly reasonable
to suppose that a similarly high percentage of incrimina-
tory statements was introduced at other trials for serious
crimes. Few indeed are the cases in which such statements
were made in the presence of counsel or after consultation

with counsel. The persons who had been convicted at trials

at which such statements were used would, by hypothesis,
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

47

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)

48

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.

49

available for claims based on a new exclusionary rule in
the confession area, it is to be expected that concepts of
trial strategy would be adjusted accordingly. Surely the
incentive of defense counsel to challenge an existing rule
of law in a developing area would be lessened—a different
course could 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

50

raise genuine doubt as to the reliability of the adjudication
of guilt. The absence of counsel at trial (Gideon v. Wain
wright, 372 U. 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.

OL

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

54

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

ES

55

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.

I.

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)

a

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

SS

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

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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.

© Inbau and Reid, supra, at 1.

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).

eC

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).

24

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.
United States, 168 U. ©. 532.” 266 U.S., at. 14-15.

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0275%3A11. Public record. Not legal advice.