Online Attorney

t of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility. 269 168 U.S. 532 (1897). ‘‘[T]he generic language of the [Fifth] Amendment was but a crystallization of the doctrine as to confessions, well settled when the Amendment was adopted. . . .’’ Id. at 543. 270 168 U.S. at 549. 271 Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession. 272 Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States , 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963). 273 Powers v. United States, 223 U.S. 303 (1912). 274 United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953). 275 318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943). such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.’’ 267 Subsequent cases followed essentially the same line of thought. 268 Then, in Bram v. United States, 269 the Court assimilated the common- law rule thus mentioned as a command of the Fifth Amendment and indicated that henceforth a broader standard for judging admissibility was to be applied. 270 Though this rule 271 and the case itself were subsequently approved in several cases, 272 the Court could hold within a few years that a confession should not be excluded merely because the authorities had not warned a suspect of his right to remain silent, 273 and more than once later Courts could doubt ‘‘whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment’s protection against self-incrimination, or from a rule that forced confessions are untrustworthy. . . .’’ 274 McNabb-Mallory Doctrine.—Perhaps one reason the Court did not squarely confront the application of the self-incrimination clause to police interrogation and the admissibility of confessions in federal courts was that in McNabb v. United States 275 it promulgated a rule excluding confessions obtained after an ‘‘unnecessary VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00053 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1414 AMENDMENT 5—RIGHTS OF PERSONS 276 In Upshaw v. United States, 335 U.S. 410 (1948), the Court rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirtyhour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944). 277 McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule did not apply in military courts. 278 Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951); Stein v. New York, 346 U.S. 156, 187–88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599–602 (1961) (Justice Frankfurter announcing judgment of the Court). 279 Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957). Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge against him, must warn him that what he says may be used against him, must tell him of his right to counsel and his right to remain silent, and must also provide for the terms of bail. 280 McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States, 354 U.S. 449, 452–53 (1957). 281 The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c). 282 Brown v. Mississippi, 297 U.S. 278 (1936). ‘‘[T]he question of the right of the State to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.’’ Id. at 285, 286. delay’’ in presenting a suspect for arraignment after arrest. 276 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts 277 and hence not applicable to the States as a constitutional rule would have been, 278 was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure, 279 and was clearly informed with concern over incommunicado interrogation and coerced confessions. 280 While the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment would invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented. 281 State Confession Cases.—In its first encounter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions of the defendants which had been extorted from them through repeated whippings with ropes and studded belts. 282 For some thirty years thereafter the Court attempted through a consideration of the ‘‘totality of the cir- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00054 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1415 283 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court). 284 367 U.S. at 602. 285 ‘‘The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.’’ 367 U.S. at 603. See Developments in the Law—Confessions, 79 HARV. L. REV. 935, 973–82 (1966). 286 Brown v. Mississippi, 297 U.S. 278 (1936). 287 309 U.S. 227 (1940). 288 322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts protested that ‘‘interrogation per se is not, while violence per se is, an outlaw.’’ A confession made after interrogation was not truly ‘‘voluntary’’ because all questioning is ‘‘inherently coercive,’’ because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they insisted, determine whether the suspect was in possession of his own will and selfcumstances’’ surrounding interrogation to determine whether a confession was ‘‘voluntary’’ and admissible or ‘‘coerced’’ and inadmissible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it. 283 ‘‘The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’’ 284 Obviously, a court seeking to determine whether the making of a confession was voluntary operated under a severe handicap, inasmuch as the interrogation process was in secret with only police and the suspect witness to it, and inasmuch as the concept of voluntariness referred to the defendant’s mental condition. 285 Despite, then, a bountiful number of cases, binding precedents were few. On the one hand, many of the early cases disclosed rather clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture, 286 but other overtly coercive tactics as well have been condemned. Chambers v. Florida 287 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee 288 held inadmissible a confession obtained near the end VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00055 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1416 AMENDMENT 5—RIGHTS OF PERSONS control and not look alone to the length or intensity of the interrogation. They accused the majority of ‘‘read[ing] an indiscriminating hostility to mere interrogation into the Constitution’’ and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions. 289 316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 U.S. 544 (1941); Vernon v. Alabama, 313 U.S. 540 (1941). 290 Blackburn v. Alabama, 361 U.S. 199, 206 (1960). 291 Lisenba v. California, 314 U.S. 219 (1941). 292 Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession may be corroborated by independent means. 338 U.S. at 57. 293 346 U.S. 156 (1953). of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas, 289 voided a conviction based on a confession obtained from a suspect who had been arrested illegally in one county and brought some 100 miles away to a county where questioning began, and who had then been questioned continuously over the course of three days while being driven from county to county and being told falsely of a danger of lynching. ‘‘Since Chambers v. State of Florida, . . . 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. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’ A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.’’ 290 While the Court would not hold that prolonged questioning by itself made a resultant confession involuntary, 291 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention. 292 In Stein v. New York, 293 however, the Court affirmed convictions of experienced VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00056 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1417 294 346 U.S. at 185. 295 373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family). 296 373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968). 297 Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls. 298 Colorado v. Connelly, 479 U.S. 157 (1986). 299 E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado detention. While the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance ‘‘the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.’’ 294 But by the time Haynes v. Washington 295 was decided, holding inadmissible a confession made by an experienced criminal because of the ‘‘unfair and inherently coercive context’’ in which the statement was made, it was clear that the Court was adhering to a rule which found coercion in the fact of prolonged interrogation without regard to the individual characteristics of the suspect. 296 However, the age and intelligence of suspects have been repeatedly cited by the Court in appropriate cases as demonstrating the particular susceptibility of the suspects to even mild coercion. 297 But a suspect’s mental state alone—even insanity—is insufficient to establish involuntariness absent some coercive police activity. 298 Where, however, interrogation was not so prolonged that the Court would deem it ‘‘inherently coercive,’’ the ‘‘totality of the circumstances’’ was looked to in determining admissibility. Although in some of the cases a single factor may well be thought to stand out as indicating the involuntariness of the confession, 299 generally VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00057 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1418 AMENDMENT 5—RIGHTS OF PERSONS already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of ‘‘truth serum’’ to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects). 300 E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina, 384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 (1958); Thomas v. Arizona, 356 U.S. 390 (1958). 301 Wong Sun v. United States, 371 U.S. 471 (1963). 302 Fahy v. Connecticut, 375 U.S. 85 (1963). 303 United States v. Bayer, 331 U.S. 532 (1947); Lyons v. Oklahoma, 322 U.S. 596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); Darwin v. Connecticut, 391 U.S. 346 (1968). 304 384 U.S. 436 (1966). 305 3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 882, at 246 (3d ed. 1940). 306 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); White v. Texas, 310 U.S. 530 (1940). 307 Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613 (1896). 308 314 U.S. 219, 236 (1941). the recitation of factors, including not only the age and intelligence of the suspect but also such things as the illegality of the arrest, the incommunicado detention, the denial of requested counsel, the denial of access to friends, the employment of trickery, and other things, seemed not to rank any factor above the others. 300 Of course, confessions may be induced through the exploitation of some illegal action, such as an illegal arrest 301 or an unlawful search and seizure, 302 and when that occurs the confession is inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court will not assume that the subsequent confession was similarly involuntary, but will independently evaluate whether the coercive actions which produced the first continued to produce the later confession. 303 From the Voluntariness Standard to Miranda.—Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona. 304 The rationale of the confession cases changed over time to one closely approximating the foundation purposes the Court has attributed to the self-incrimination clause. Historically, the basis of the rule excluding coerced and involuntary confessions was their untrustworthiness, their unreliability. 305 It appears that this basis informed the Court’s judgment in the early state confession cases 306 as it had in earlier cases from the lower federal courts. 307 But in Lisenba v. California, 308 Justice Roberts drew a distinction between the confession rule and the standard of due process. ‘‘[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00058 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1419 309 Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due process- fairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated. 310 365 U.S. 534, 540–41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that ‘‘the conceptions underlying the rule excluding coerced confessions and the privilege again self-incrimination have become, to some extent, assimilated.’’ 311 Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963). 312 378 U.S. 1 (1964). of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.’’ Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness. 309 Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that in Rogers v. Richmond 310 Justice Frankfurter spoke for six other Justices in writing: ‘‘Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.’’ Nevertheless, the Justice said in another case, ‘‘[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved.’’ 311 Three years later, however, in Malloy v. Hogan, 312 in the process of applying the self-incrimination clause to the States, Justice Brennan for the Court reinterpreted the line VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00059 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1420 AMENDMENT 5—RIGHTS OF PERSONS 313 297 U.S. 278 (1936). 314 314 U.S. 219 (1941). 315 Malloy v. Hogan, 378 U.S. 1, 6–7 (1964). Protesting that this was ‘‘post facto reasoning at best,’’ Justice Harlan contended that the ‘‘majority is simply wrong’’ in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States, 168 U.S. 532 (1897), is discussed under ‘‘Confessions: Police Interrogation, Due Process, and Self-Incrimination,’’ supra. 316 378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495. 317 Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). See discussion of ‘‘Custodial Interrogation’’ under Sixth Amendment, infra. 318 Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing assertions of the suspect’s ‘‘absolute right to remain silent’’ in the context of police warnings prior to interrogation). of cases since Brown v. Mississippi 313 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that beginning with Lisenba v. California, 314 a ‘‘federal standard’’ had been developed. The Court had engaged in a ‘‘shift [which] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.’’ Today, continued Justice Brennan, ‘‘the

Online Attorney