Supreme Court of the United States
Ernesto A. MIRANDA, Petitioner,
STATE OF ARIZONA.
384 U.S. 436 (1966)
Argued Feb. 28, March 1 and 2, 1966.
Decided June 13, 1966.
Rehearing Denied No. 584 Oct. 10, 1966.
Mr. Chief Justice WARREN delivered the opinion of the Court.
The cases before us raise questions which go to the
roots of our concepts of American criminal jurisprudence: the
restraints society must observe consistent with the Federal
Constitution in prosecuting individuals for crime. More
specifically, we deal with the admissibility of statements obtained
from an individual who is subjected to custodial police interrogation
and the necessity for procedures which accure that the individual is
accorded his privilege under the Fifth Amendment to the Constitution
not to be compelled to incriminate himself.
We dealt with certain phases of this problem
recently in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758,
12 L.Ed.2d 977 (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
confession. 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 perpetrated a murder. When the defendant denied the
accusation 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 interrogation, the police denied his
request to speak to his attorney, 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
This case has been the subject of judicial
interpretation 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 prosecutor have speculated on its range
and desirability. We granted certiorari in these cases, 382 U.S.
924, 925, 937, 86 S.Ct. 318, 320, 395, 15 L.Ed.2d 338, 339, 348, in
order further to explore some facets of the problems, thus exposed, of
applying the privilege against self-incrimination to in-custody
interrogation, and to give 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 jurisprudence, 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
enshrined 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
jeopardy 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.
Commonwealth of Virginia, 6 Wheat. 264, 387, 5 L.Ed. 257 (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 (have) long obtained in
the continental system, and, until the expulsion of the Stuarts from
the British throne in 1688, and the erection of additional barriers for
the protection of the people against the exercise of arbitrary power,
(were) not uncommon 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 questions put to him may
assume an inquisitorial character, the temptation to press the witness
unduly, 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 evident in many of the earlier state trials, notably in those
of Sir Nicholas Throckmorton, and Udal, the Puritan 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
iniquities 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
constitutional enactment.' Brown v. Walker, 161 U.S. 591,
596--597, 16 S.Ct. 644, 646, 40 L.Ed. 819 (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, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910):
Our contemplation cannot be only of 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 converted by
precedent into importent and lifeless formulas. Rights declared in
words might be lost in reality. And this has been
recognized. The meaning and vitality of the Constitution have
developed against narrow and restrictive construction.'
This was the spirit in which we delineated, in
meaningful language, the manner in which the constitutional rights of
the individual could be enforced against overzealous police practices.
It was necessary in Escobedo, as here, to insure that what was
proclaimed in the Constitution had not become but a 'form of words,'
Silverthorn Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct.
182, 64 L.Ed. 319 (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 exculpatory or
inculpatory, stemming from custodial interrogation 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 continuous 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 attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver
is made voluntarily, knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the 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
The constitutional issue we decide in each of these
cases is the admissibility of statements obtained from a defendant
questioned while in custody or otherwise deprived of his freedom of
action in any significant way. In each, the defendant was
questioned by police officers, detectives, or a prosecuting attorney in
a room in which he was cut off from the outside 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-- incommunicado interrogation of
individuals in a police-dominated atmosphere, resulting in
self-incriminating statements without full warnings of constitutional
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 country they have largely taken place
incommunicado. 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 violence and the
'third degree' flourished at that time. In a series of cases
decided by this Court long after these studies, the police resorted to
physical brutality--beatings, hanging, whipping--and to sustained and
protracted questioning incommunicado in order to extort confessions.
The Commission on Civil Rights in 1961 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,
unfortunately, 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, 257 N.Y.S.2d 931, 205 N.E.2d 857 (1965).
The examples given above are undoubtedly the
exception now, but they are sufficiently widespread to be the object of
concern. Unless a proper limitation upon custodial interrogation
is achieved--such as these decisions will advance--there can be no
assurance that practices 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
necessary 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
sufficient 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
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 prisoner against society, and lowers the esteem in which
the administration of justice is held by the public.'' IV National
Commission on Law Observance and Enforcement, Report on Lawlessness in
Law Enforcement 5 (1931).
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. State of
Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, 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. State of Alabama, 361
U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (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
information about present police practices, however, may be found in
various police manuals and texts which document procedures employed
with success in the past, and which recommend various other effective
tactics. These texts are used by law enforcement agencies themselves as
guides. It should be noted that these texts professedly 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
'principal 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
'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 recalcitrant. He is more
keenly aware of his rights and more reluctant to tell of his
indiscretions of criminal behavior within the walls of his home.
Moreover his family and other friends are nearby, their presence
lending moral support. In his office, the investigator possesses
all the advantages. The atmosphere suggests the invincibility of
the forces of the law.'
To highlight the isolation and unfamiliar
surroundings, the manuals instruct the police to display an air of
confidence in the suspect's guilt and from outward appearance to
maintain only an interest in confirming certain details. The guilt of
the subject is to be posited as a fact. The interrogator should
direct his comments toward the reasons why the subject committed the
act, rather than court failure by asking the subject whether he did it.
Like other men, perhaps the subject has had a bad family life, had an
unhappy childhood, had too much to drink, had an unrequited desire for
women. The officers are instructed to minimize the moral
seriousness of the offense, to cast blame on the victim or on
society. These tactics are designed to put the subject in a
psychological state where his story is but an elaboration of what the
police purport to know already--that he is guilty. Explanations
to the contrary are dismissed and discouraged.
The texts thus stress that the major qualities an
interrogator should possess are patience and perseverance. One
writer describes the efficacy of these characteristics in this manner:
'In the preceding paragraphs emphasis
has been placed on kindness and stratagems. The investigator
will, however, encounter many situations where the sheer weight of his
personality will be the deciding factor. Where emotional appeals
and tricks are employed to no avail, he must rely on an oppressive
atmosphere of dogged persistence. He must interrogate steadily
and without relent, leaving the subject no prospect of surcease.
He must dominate his subject and overwhelm him with his inexorable will
to obtain the truth. He should interrogate for a spell of several
hours pausing only for the subject's necessities in acknowledgment of
the need to avoid a charge of duress that can be technically
substantiated. In a serious case, the interrogation may continue
for days, with the required intervals for food and sleep, but with no
respite from the atmosphere of domination. It is possible in this
way to induce the subject to talk without resorting to duress or
coercion. The method should be used only when the guilt of the
subject appears highly probable.'
The manuals suggest that the suspect be offered
legal excuses for his actions in order to obtain an initial admission
of guilt. Where there is a suspected revenge-killing, for
example, the interrogator may say:
'Joe, you probably
didn't go out looking for this fellow with the purpose of shooting
him. My guess is, however, that you expected something from him
and that's why you carried a gun--for your own protection. You
knew him for what he was, no good. Then when you met him he
probably started using foul, abusive language and he gave some
indication that he was about to pull a gun on you, and that's when you
had to act to save your own life. That's about it, isn't it, Joe?'
Having then obtained the admission of shooting, the
interrogator is advised to refer to circumstantial evidence which
negates the self-defense explanation. This should enable him to
secure the entire story. One text notes that 'Even if he fails to
do so, the inconsistency between the subject's original denial of the
shooting and his present admission of at least doing the shooting will
serve to deprive him of a self-defense 'out' at the time of trial.'
When the techniques described above prove
unavailing, the texts recommend they be alternated with a show of some
hostility. One ploy often used has been termed the
'friendly-unfriendly' or the 'Mutt and Jeff' act:
In this technique,
two agents are employed. Mutt, the relentless investigator, who
knows the subject is guilty and is not going to waste any time.
He's sent a dozen men away for this crime and he's going to send the
subject away for the full term. Jeff, on the other hand, is
obviously a kindhearted man. He has a family himself. He
has a brother who was involved in a little scrape like this. He
disapproves of Mutt and his tactics and will arrange to get him off the
case if the subject will cooperate. He can't hold Mutt off for
very long. The subject would be wise to make a quick decision.
The technique is applied by having both investigators present while
Mutt acts out his role. Jeff may stand by quietly and demur at
some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt
is not present in the room.
The interrogators sometimes are instructed to induce
a confession out of trickery. The technique here is quite
effective in crimes which require identification or which run in
series. In the identification situation, the interrogator may
take a break in his questioning to place the subject among a group of
men in a line-up. 'The witness or complainant (previously
coached, if necessary) studies the line-up and confidently points out
the subject as the guilty party.' Then the questioning
resumes 'as though there were now no doubt about the guilt of the
subject.' A variation on this technique is called the 'reverse
The accused is placed in a line-up, but this time he
is identified by several fictitious witnesses or victims who associated
him with different offenses. It is expected that the subject will
become desperate and confess to the offense under investigation in
order to escape from the false accusations.
The manuals also contain instructions for police on
how to handle the individual who refuses to discuss the matter
entirely, or who asks for an attorney or relatives. The examiner
is to concede him the right to remain silent. 'This usually has a
very undermining effect. First of all, he is disappointed in his
expectation of an unfavorable reaction on the part of the
interrogator. Secondly, a concession of this right to remain
silent impresses 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 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 and 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 refusal to talk, it is said, if this monologue is employed correctly.
In the event that the subject wishes to speak to a
relative or an attorney, the following advice is tendered:
should respond by suggesting that 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 interrogator 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."
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 persistence, 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 objective
may be attained.' When normal procedures fail to produce the
needed result, the police may resort to deceptive stratagems such as
giving false legal 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 constitutional 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 individual liberty and trades on
the weakness of individuals. This fact may be illustrated simply
by referring to three confession cases decided by this Court in the
Term immediately preceding our Escobedo decision. In Townsend v.
Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the defendant
was a 19-year-old heroin addict, described as a 'near mental
defective,' id., at 307--310, 83 S.Ct. at 754--755. The defendant
in Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d
922 (1963), was a woman who confessed to the arresting officer after
being importuned to 'cooperate' in order to prevent her children from
being taken by relief authorities. This Court as in those cases
reversed the conviction of a defendant in Haynes v. State of
Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), whose
persistent request during his interrogation was to phone his wife or
attorney. In other settings, these individuals might have
exercised their constitutional rights. In the incommunicado
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 inculpatory
statement upon being questioned by an assistant district attorney later
the same evening. In No. 761, Westover v. United States, the
defendant was 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 following 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
In these cases, we might not find the defendants'
statements 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
potentiality 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 patent psychological ploys. The fact
remains that in none of these cases did the officers undertake to
afford appropriate 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 individual to the
will of his examiner. This atmosphere carries its own badge of
intimidation. To be sure, this is not physical intimidation, but
it is equally destructive of human dignity. The current practice
of incommunicado 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 statement obtained from the defendant can truly be the product of
his free choice.
Suppose a well-to-do testatrix says she intends to
will her property 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 convenient 'witnesses,' keep her secluded there for hours
while they make insistent demands, weary her with contradictions of her
assertions that she wants to leave her money to Elizabeth, 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?
From the foregoing, we can readily perceive an
intimate 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.
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 defended. Its
roots go back into ancient times. Perhaps 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). He resisted
the oath and declaimed the proceedings, stating:
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.' Haller & Davies,
The Leveller Tracts 1647--1653, p. 454 (1944).
On account of the Lilburn Trial, Parliament
abolished the inquisitorial Court of Star Chamber and went further in
giving him generous reparation. The lofty principles to which
Lilburn had appealed during his trial gained popular acceptance in
England. These sentiments 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 unconstitutional practices get their first
footing by silent approaches and slight deviations from legal modes of
procedure.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535,
29 L.Ed. 746 (1886). The privilege was elevated to constitutional
status and has always been 'as broad ad the mischief against which it
seeks to guard.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct.
195, 198, 35 L.Ed. 1110 (1892). We cannot depart from this noble
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 principle often transcends
its origins,' the privilege has come right-fully to be recognized in
part as an individual's substantive 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, 77
S.Ct. 963, 1 L.Ed.2d 931 (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. of New York Harbor, 378 U.S. 52, 55--57, n. 5, 84
S.Ct. 1594, 1596--1597, 12 L.Ed.2d 678 (1964); Tehan v. United States
ex rel. Shott, 382 U.S. 406, 414--415, n. 12, 86 S.Ct. 459, 464, 15
L.Ed.2d 453 (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 317 (McNaughton rev. 1961), 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. State of Florida, 309 U.S. 227,
235--238, 60 S.Ct. 472, 476--477, 84 L.Ed. 716 (1940). In sum,
the privilege is fulfilled only when the person is guaranteed the right
'to remain silent unless he chooses to speak in the unfettered exercise
of his own will.' Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489,
1493, 12 L.Ed.2d 653 (1964).
The question in these cases is whether the privilege
is fully applicable during a period of custodial interrogation.
In this Court, the privilege has consistently been accorded a liberal
construction. Albertson v. Subversive Activities Control Board, 382
U.S. 70, 81, 86 S.Ct. 194, 200, 15 L.Ed.2d 165 (1965); Hoffman v.
United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed.2d 1118
(1951); Arnstein v. McCarthy, 254 U.S. 71, 72--73, 41 S.Ct. 26, 65
L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct.
195, 197, 35 L.Ed. 1110 (1892). We are satisfied that all the
principles embodied in the privilege apply to informal compulsion
exerted by law-enforcement officers during in-custody
questioning. An individual swept from familiar surroundings into
police custody, surrounded by antagonistic forces, and subjected to the
techniques of persuasion described above cannot be otherwise than under
compulsion 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 investigations, 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, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), this
In criminal trials, in the courts of the United
States, wherever a question arises whether a confession is incompetent
because not voluntary, the issue is controlled by that portion of the
Fifth Amendment 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 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 voluntarily
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, 18
S.Ct. at 189. And see, id., at 542, 18 S.Ct. at 186.
The Court has adhered to this reasoning. In
1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a
conviction resting on a compelled confession, Ziang Sung Wan v. United
States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131. He stated:
'In the federal
courts, the requisite of voluntariness 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
confession obtained by compulsion must be excluded whatever may have
been the character of the compulsion, and whether the compulsion was
applied in a judicial proceeding or otherwise. Bram v. United
States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.' 266 U.S., at 14--
15, 45 S.Ct. at 3.
In addition to the expansive historical development
of the privilege and the sound policies which have nurtured 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 questioning by a
United States, pp. 17--18, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943).
Because of the adoption by Congress of Rule 5(a) of
the Federal Rules of Criminal Procedure, and the Court's effectuation
of that Rule in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87
L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct.
1356, 1 L.Ed.2d 1479 (1957), we have had little occasion in the past
quarter century to reach the constitutional issues in dealing with
federal interrogations. These supervisory rules, requiring
production of an arrested person before a commissioner 'without
unnecessary delay' and excluding evidence obtained in default of that
statutory obligation, were nonetheless responsive to the same
considerations of Fifth Amendment policy that unavoidably face us now
as to the States. In McNabb, 318 U.S., at 343--344, 63 S.Ct. at
614, and in Mallory, 354 U.S., at 455--456, 77 S.Ct. at 1359--1360, 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, 84 S.Ct.
1489, 12 L.Ed.2d 653 (1964), necessitates an examination of the scope
of the privilege in state cases as well. In Malloy, we squarely
held the privilege applicable to the States, and held that the
substantive standards underlying the privilege applied with full force
to state court proceedings. There, as in Murphy v. Waterfront
Comm. of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678
(1964), and Griffin v. State of California, 380 U.S. 609, 85 S.Ct.
1229, 14 L.Ed.2d 106 (1965), we applied the existing Fifth Amendment
standards to the case before us. Aside from the holding itself,
the reasoning in Malloy made clear what had already become
apparent--that the substantive and procedural safeguards surrounding
admissibility of confessions in state cases had become exceedingly
exacting, reflecting all the policies embedded in the privilege, 378
U.S., at 7--8, 84 S.Ct. at 1493. The voluntariness doctrine in
the state cases, as Malloy indicates, encompasses all interrogation
practices which are likely to exert such pressure upon an individual as
to disable him from making a free and rational choice. The
implications of this proposition were elaborated in our decision in
Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d
977, decided one week after Malloy applied the privilege to the States.
Our holding there stressed the fact that the police
had not advised the defendant of his constitutional privilege to remain
silent at the outset of the interrogation, and we drew attention to
that fact at several points in the decision, 378 U.S., at 483, 485,
491, 84 S.Ct. at 1761, 1762, 1765. This was no isolated factor,
but an essential ingredient in our decision. The entire thrust of
police interrogation there, as in all the cases today, was to put the
defendant in such an emotional state as to impair his capacity for
rational judgment. The abdication of the constitutional
privilege--the choice on his part to speak to the police--was not made
knowingly or competently because of the failure to apprise him of his
rights; the compelling atmosphere of the in-custody interrogation, and
not an independent decision on his part, caused the defendant to speak.
A different phase of the Escobedo decision was significant
in its attention to the absence of counsel during the
questioning. There, as in the cases today, we sought a protective
device to dispel the compelling atmosphere of the interrogation.
In Escobedo, however, the police did not relieve the defendant of the
anxieties which they had created in the interrogation rooms.
Rather, they denied his request for the assistance of counsel, 378
U.S., at 481, 488, 491, 84 S.Ct. at 1760, 1763, 1765. This
heightened his dilemma, and made his later statements the product of
this compulsion. Cf. Haynes v. State of Washington, 373 U.S. 503,
514, 83 S.Ct. 1336, 1343 (1963). The denial of the defendant's
request for his attorney thus undermined his ability to exercise the
privilege--to remain silent if he chose or to speak without any
intimidation, blatant or subtle. The presence of counsel, in all
the cases before us today, would be the adequate protective device
necessary to make the process of police interrogation conform to the
dictates of the privilege. His presence would insure that
statements made in the government-established atmosphere are not the
product of compulsion.
It was in this manner that Escobedo explicated
another facet of the pre-trial privilege, noted in many of the Court's
prior decisions: the protection of rights at trial. That
counsel is present when statements are taken from an individual during
interrogation obviously enhances the integrity of the fact-finding
processes in court. The presence of an attorney, and the warnings
delivered to the individual, enable the defendant under otherwise
compelling circumstances to tell his story without fear, effectively,
and in a way that eliminates the evils in the interrogation
process. Without the protections flowing from adequate warning
and the rights of counsel, 'all the careful safeguards erected around
the giving of testimony, whether by an accused or any other witness,
would become empty formalities in a procedure where the most compelling
possible evidence of guilt, a confession, would have already been
obtained at the unsupervised pleasure of the police.' Mapp v.
Ohio, 367 U.S. 643, 685, 81 S.Ct. 1684, 1707, 6 L.Ed.2d 1081 (1961)
(Harlan, J., dissenting). Cf. Pointer v. State of Texas, 380 U.S.
400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
Today, then, there can be no doubt that the Fifth
Amendment privilege is available outside of criminal court proceedings
and serves to protect persons in all settings in which their freedom of
action is curtailed in any significant way from being compelled to
incriminate themselves. We have concluded that without proper
safeguards the process of in-custody interrogation of persons suspected
or accused of crime contains inherently compelling pressures which work
to undermine the individual's will to resist and to compel him to speak
where he would not otherwise do so freely. In order to combat
these pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be adequately
and effectively apprised of his rights and the exercise of those rights
must be fully honored.
It is impossible for us to foresee the potential
alternatives for protecting the privilege which might be devised by
Congress or the States in the exercise of their creative rule-making
capacities. Therefore we cannot say that the Constitution necessarily
requires adherence to any particular solution for the inherent
compulsions of the interrogation process as it is presently
conducted. Our decision in no way creates a constitutional
straitjacket which will handicap sound efforts at reform, nor is it
intended to have this effect. We encourage Congress and the States to
continue their laudable search for increasingly effective ways of
protecting the rights of the individual while promoting efficient
enforcement of our criminal laws. However, unless we are shown
other procedures which are at least as effective in apprising accused
persons of their right of silence and in assuring a continuous
opportunity to exercise it, the following safeguards must be observed.
At the outset, if a person in custody is to be subjected
to interrogation, he must first be informed in clear and unequivocal
terms that he has the right to remain silent. For those unaware of the
privilege, the warning is needed simply to make them aware of it--the
threshold requirement for an intelligent decision as to its exercise.
More important, such a warning is an absolute prerequisite in
overcoming the inherent pressures of the interrogation
atmosphere. It is not just the subnormal or woefully ignorant who
succumb to an interrogator's imprecations, whether implied or expressly
stated, that the interrogation will continue until a confession is
obtained or that silence in the face of accusation is itself damning
and will bode ill when presented to a jury. Further, the warning
will show the individual that his interrogators are prepared to
recognize his privilege should he choose to exercise it.
In accord with our decision today, it is
impermissible to penalize an individual for exercising his Fifth
Amendment privilege when he is under police custodial
interrogation. The prosecution may not, therefore, use at trial
the fact that he stood mute or claimed his privilege in the face of
accusation. Cf. Griffin v. State of California, 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 8, 84
S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964); Comment, 31 U.Chi.L.Rev. 556
(1964); Developments in the Law--Confessions, 79 Harv.L.Rev. 935,
1041--1044 (1966). See also Bram v. United States, 168 U.S. 532,
562, 18 S.Ct. 183, 194, 42 L.Ed. 568 (1897).
The Fifth Amendment privilege is so fundamental to
our system of constitutional rule and the expedient of giving an
adequate warning as to the availability of the privilege so simple, we
will not pause to inquire in individual cases whether the defendant was
aware of his rights without a warning being given. Assessments of
the knowledge the defendant possessed, based on information as to his
age, education, intelligence, or prior contact with authorities, can
never be more than speculation; a warning is a clear cut fact.
More important, whatever the background of the person interrogated, a
warning at the time of the interrogation is indispensable to overcome
its pressures and to insure that the individual knows he is free to
exercise the privilege at that point in time.
The warning of the right to remain silent must be
accompanied by the explanation that anything said can and will be used
against the individual in court. This warning is needed in order
to make him aware not only of the privilege, but also of the
consequences of forgoing it. It is only through an awareness of
these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege.
Moreover, this warning may serve to make the individual more acutely
aware that he is faced with a phase of the adversary system--that he is
not in the presence of persons acting solely in his interest.
The circumstances surrounding in-custody
interrogation can operate very quickly to overbear the will of one
merely made aware of his privilege by his interrogators.
Therefore, the right to have counsel present at the interrogation is
indispensable to the protection of the Fifth Amendment privilege under
the system we delineate today. Our aim is to assure that the
individual's right to choose between silence and speech remains
unfettered throughout the interrogation process. A once-stated
warning, delivered by those who will conduct the interrogation, cannot
itself suffice to that end among those who most require knowledge of
their rights. A mere warning given by the interrogators is not
alone sufficient to accomplish that end. Prosecutors themselves claim
that the admonishment of the right to remain silent without more 'will
benefit only the recidivist and the professional.' Brief for the
National District Attorneys Association as amicus curiae, p. 14. Even
preliminary advice given to the accused by his own attorney can be
swiftly overcome by the secret interrogation process. Cf.
Escobedo v. State of Illinois, 378 U.S. 478, 485, n. 5, 84 S.Ct. 1758,
1762. Thus, the need for counsel to protect the Fifth Amendment
privilege comprehends not merely a right to consult with counsel prior
to questioning, but also to have counsel present during any questioning
if the defendant so desires.
The presence of counsel at the interrogation may
serve several significant subsidiary functions as well. If the
accused decides to talk to his interrogators, the assistance of counsel
can mitigate the dangers of untrustworthiness. With a lawyer
present the likelihood that the police will practice coercion is
reduced, and if coercion is nevertheless exercised the lawyer can
testify to it in court. The presence of a lawyer can also help to
guarantee that the accused gives a fully accurate statement to the
police and that the statement is rightly reported by the prosecution at
trial. See Crooker v. State of California, 357 U.S. 433,
443--448, 78 S.Ct. 1287, 1293--1296, 2 L.Ed.2d 1448 (1958) (Douglas,
An individual need not make a pre-interrogation request
for a lawyer. While such request affirmatively secures his right
to have one, his failure to ask for a lawyer does not constitute a
waiver. No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made after the
warnings we here delineate have been given. The accused who does
not know his rights and therefore does not make a request may be the
person who most needs counsel. As the California Supreme Court
has aptly put it:
'Finally, we must
recognize that the imposition of the requirement for the request would
discriminate against the defendant who does not know his rights. The
defendant who does not ask for counsel is the very defendant who most
needs counsel. We cannot penalize a defendant who, not
understanding his constitutional rights, does not make the formal
request and by such failure demonstrates his helplessness. To
require the request would be to favor the defendant whose
sophistication or status had fortuitously prompted him to make
it.' People v. Dorado, 62 Cal.2d 338, 351, 42 Cal.Rptr. 169,
177--178, 398 P.2d 361, 369--370, (1965) (Tobriner, J.).
In Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct.
884, 889, 8 L.Ed.2d 70 (1962), we stated: '(I)t is settled that
where the assistance of counsel is a constitutional requisite, the
right to be furnished counsel does not depend on a request.' This
proposition applies with equal force in the context of providing
counsel to protect an accused's Fifth Amendment privilege in the face
of interrogation. Although the role of counsel at trial differs
from the role during interrogation, the differences are not relevant to
the question whether a request is a prerequisite.
Accordingly we hold that an individual held for
interrogation must be clearly informed that he has the right to consult
with a lawyer and to have the lawyer with him during interrogation
under the system for protecting the privilege we delineate today.
As with the warnings of the right to remain silent and that anything
stated can be used in evidence against him, this warning is an absolute
prerequisite to interrogation. No amount of circumstantial
evidence that the person may have been aware of this right will suffice
to stand in its stead. Only through such a warning is there
ascertainable assurance that the accused was aware of this right.
If an individual indicates that he wishes the
assistance of counsel before any interrogation occurs, the authorities
cannot rationally ignore or deny his request on the basis that the
individual does not have or cannot afford a retained attorney.
The financial ability of the individual has no relationship to the
scope of the rights involved here. The privilege against
self-incrimination secured by the Constitution applies to all
individuals. The need for counsel in order to protect the
privilege exists for the indigent as well as the affluent. In
fact, were we to limit these constitutional rights to those who can
retain an attorney, our decisions today would be of little
significance. The cases before us as well as the vast majority of
confession cases with which we have dealt in the past involve those
unable to retain counsel. While authorities are not required to
relieve the accused of his poverty, they have the obligation not to
take advantage of indigence in the administration of justice.
Denial of counsel to the indigent at the time of interrogation while
allowing an attorney to those who can afford one would be no more
supportable by reason or logic than the similar situation at trial and
on appeal struck down in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799 (1963), and Douglas v. People of State of
California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).
When government chooses to exert its powers in the
criminal area, its obligation is surely no less than that of taking
reasonable measures to eliminate those factors that are irrelevant to
just administration of the law but which, nevertheless, may
occasionally affect determinations of the accused's liability or
penalty. While government may not be required to relieve the
accused of his proverty, it may properly be required to minimize the
influence of poverty on its administration of justice.
In order fully to apprise a person interrogated of the
extent of his rights under this system then, it is necessary to warn
him not only that he has the right to consult with an attorney, but
also that if he is indigent a lawyer will be appointed to represent
him. Without this additional warning, the admonition of the right to
consult with counsel would often be understood as meaning only that he
can consult with a lawyer if he has one or has the funds to obtain
one. The warning of a right to counsel would be hollow if not
couched in terms that would convey to the indigent--the person most
often subjected to interrogation--the knowledge that he too has a right
to have counsel present. As with the warnings of the right to
remain silent and of the general right to counsel, only by effective
and express explanation to the indigent of this right can there be
assurance that he was truly in a position to exercise it.
Once warnings have been given, the subsequent procedure is clear.
If the individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the interrogation
must cease. At this point he has shown that he intends to exercise his
Fifth Amendment privilege; any statement taken after the person invokes
his privilege cannot be other than the product of compulsion, subtle or
otherwise. Without the right to cut off questioning, the setting
of in-custody interrogation operates on the individual to overcome free
choice in producing a statement after the privilege has been once
invoked. If the individual states that he wants an attorney, the
interrogation must cease until an attorney is present. At that
time, the individual must have an opportunity to confer with the
attorney and to have him present during any subsequent questioning. If
the individual cannot obtain an attorney and he indicates that he wants
one before speaking to police, they must respect his decision to remain
This does not mean, as some have suggested, that
each police station must have a 'station house lawyer' present at all
times to advise prisoners. It does mean, however, that if police
propose to interrogate a person they must make known to him that he is
entitled to a lawyer and that if he cannot afford one, a lawyer will be
provided for him prior to any interrogation. If authorities
conclude that they will not provide counsel during a reasonable period
of time in which investigation in the field is carried out, they may
refrain from doing so without violating the person's Fifth Amendment
privilege so long as they do not question him during that time.
If the interrogation continues without the presence
of an attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and his
right to retained or appointed counsel. Escobedo v. State of
Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d
977. This Court has always set high standards of proof for the
waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58
S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as
applied to in custody interrogation. Since the State is
responsible for establishing the isolated circumstances under which the
interrogation takes place and has the only means of making available
corroborated evidence of warnings given during incommunicado
interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing
to make a statement and does not want an attorney followed closely by a
statement could constitute a waiver. But a valid waiver will not
be presumed simply from the silence of the accused after warnings are
given or simply from the fact that a confession was in fact eventually
obtained. A statement we made in Carnley v. Cochran, 369 U.S.
506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:
from a silent record is impermissible. The record must show, or
there must be an allegation and evidence which show, that an accused
was offered counsel but intelligently and understandingly rejected the
offer. Anything less is not waiver.'
See also Glasser v. United States, 315 U.S.
60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody
interrogation is involved, there is no room for the contention that the
privilege is waived if the individual answers some questions or gives
some information on his own prior to invoking his right to remain
silent when interrogated.
Whatever the testimony of the authorities as to
waiver of rights by an accused, the fact of lengthy interrogation or
incommunicado incarceration before a statement is made is strong
evidence that the accused did not validly waive his rights. In
these circumstances the fact that the individual eventually made a
statement is consistent with the conclusion that the compelling
influence of the interrogation finally forced him to do so. It is
inconsistent with any notion of a voluntary relinquishment of the
privilege. Moreover, any evidence that the accused was
threatened, tricked, or cajoled into a waiver will, of course, show
that the defendant did not voluntarily waive his privilege. The
requirement of warnings and waiver of rights is a fundamental with
respect to the Fifth Amendment privilege and not simply a preliminary
ritual to existing methods of interrogation.
The warnings required and the waiver necessary in
accordance with our opinion today are, in the absence of a fully
effective equivalent, prerequisites to the admissibility of any
statement made by a defendant. No distinction can be drawn
between statements which are direct confessions and statements which
amount to 'admissions' of part or all of an offense. The
privilege against self-incrimination protects the individual from being
compelled to incriminate himself in any manner; it does not distinguish
degrees of incrimination. Similarly, for precisely the same
reason, no distinction may be drawn between inculpatory statements and
statements alleged to be merely 'exculpatory.' If a statement
made were in fact truly exculpatory it would, of course, never be used
by the prosecution. In fact, statements merely intended to be
exculpatory by the defendant are often used to impeach his testimony at
trial or to demonstrate untruths in the statement given under
interrogation and thus to prove guilt by implication. These
statements are incriminating in any meaningful sense of the word and
may not be used without the full warnings and effective waiver required
for any other statement. In Escobedo itself, the defendant fully
intended his accusation of another as the slayer to be exculpatory as
The principles announced today deal with the
protection which must be given to the privilege against
self-incrimination when the individual is first subjected to police
interrogation while in custody at the station or otherwise deprived of
his freedom of action in any significant way. It is at this point
that our adversary system of criminal proceedings commences,
distinguishing itself at the outset from the inquisitorial system
recognized in some countries. Under the system of warnings we
delineate today or under any other system which may be devised and
found effective, the safeguards to be erected about the privilege must
come into play at this point.
Our decision is not intended to hamper the
traditional function of police officers in investigating crime.
See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758,
1765. When an individual is in custody on probable cause, the
police may, of course, seek out evidence in the field to be used at
trial against him. Such investigation may include inquiry of
persons not under restraint. General on-the-scene questioning as
to facts surrounding a crime or other general questioning of citizens
in the fact-finding process is not affected by our holding. It is
an act of responsible citizenship for individuals to give whatever
information they may have to aid in law enforcement. In such situations
the compelling atmosphere inherent in the process of in-custody
interrogation is not necessarily present.
In dealing with statements obtained through
interrogation, we do not purport to find all confessions inadmissible.
Confessions remain a proper element in law enforcement. Any
statement given freely and voluntarily without any compelling
influences is, of course, admissible in evidence. The fundamental
import of the privilege while an individual is in custody is not
whether he is allowed to talk to the police without the benefit of
warnings and counsel, but whether he can be interrogated. There
is no requirement that police stop a person who enters a police station
and states that he wishes to confess to a crime, or a person who calls
the police to offer a confession or any other statement he desires to
make. Volunteered statements of any kind are not barred by the
Fifth Amendment and their admissibility is not affected by our holding
To summarize, we hold that when an individual is
taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning, the
privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to protect the privilege and unless other
fully effective means are adopted to notify the person of his right of
silence and to assure that the exercise of the right will be
scrupulously honored, the following measures are required. He
must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the interrogation.
After such warnings have been given, and such opportunity afforded him,
the individual may knowingly and intelligently waive these rights and
agree to answer questions or make a statement. But unless and
until such warnings and waiver are demonstrated by the prosecution at
trial, no evidence obtained as a result of interrogation can be used
A recurrent argument made in these cases is that
society's need for interrogation outweighs the privilege. This
argument is not unfamiliar to this Court. See, e.g., Chambers v.
State of Florida, 309 U.S. 227, 240--241, 60 S.Ct. 472, 478--479, 84
L.Ed. 716 (1940). The whole thrust of our foregoing discussion
demonstrates that the Constitution has prescribed the rights of the
individual when confronted with the power of government when it
provided in the Fifth Amendment that an individual cannot be compelled
to be a witness against himself. That right cannot be
abridged. As Mr. Justice Brandeis once observed:
and liberty alike demand that government officials shall be subjected
to the same rules of conduct that are commands to the citizen. In
a government of laws, existence of the government will be imperilled if
it fails to observe the law scrupulously. Our government is the
potent, the omnipresent teacher. For good or for ill, it teaches
the whole people by its example. Crime is contagious. If
the government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites anarchy. To
declare that in the administration of the criminal law the end
justifies the means would bring terrible retribution. Against
that pernicious doctrine this court should resolutely set its
face.' Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct.
564, 575, 72 L.Ed. 944 (1928) (dissenting opinion).
In this connection, one of our country's
distinguished jurists has pointed out: 'The quality of a nation's
civilization can be largely measured by the methods it uses in the
enforcement of its criminal law.'
If the individual desires to exercise his privilege,
he has the right to do so. This is not for the authorities to
decide. An attorney may advise his client not to talk to police
until he has had an opportunity to investigate the case, or he may wish
to be present with his client during any police questioning. In
doing so an attorney is merely exercising the good professional
judgment he has been taught. This is not cause for considering
the attorney a menace to law enforcement. He is merely carrying
out what he is sworn to do under his oath--to protect to the extent of
his ability the rights of his client. In fulfilling this
responsibility the attorney plays a vital role in the administration of
criminal justice under our Constitution.
In announcing these principles, we are not unmindful
of the burdens which law enforcement officials must bear, often under
trying circumstances. We also fully recognize the obligation of
all citizens to aid in enforcing the criminal laws. This Court,
while protecting individual rights, has always given ample latitude to
law enforcement agencies in the legitimate exercise of their duties.
The limits we have placed on the interrogation process should not
constitute an undue interference with a proper system of law
enforcement. As we have noted, our decision does not in any way
preclude police from carrying out their traditional investigatory
functions. Although confessions may play an important role in
some convictions, the cases before us present graphic examples of the
overstatement of the 'need' for confessions. In each case
authorities conducted interrogations ranging up to five days in
duration despite the presence, through standard investigating
practices, of considerable evidence against each defendant. Further
examples are chronicled in our prior cases. See, e.g., Haynes v.
State of Washington, 373 U.S. 503, 518--519, 83 S.Ct. 1336, 1345, 1346,
10 L.Ed.2d 513 (1963); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct.
735, 739, 5 L.Ed.2d 760 (1961); Malinski v. People of State of New
York, 324 U.S. 401, 402, 65 S.Ct. 781, 782 (1945).
It is also urged that an unfettered right to
detention for interrogation should be allowed because it will often
redound to the benefit of the person questioned. When police
inquiry determines that there is no reason to believe that the person
has committed any crime, it is said, he will be released without need
for further formal procedures. The person who has committed no
offense, however, will be better able to clear himself after warnings
with counsel present than without. It can be assumed that in such
circumstances a lawyer would advise his client to talk freely to police
in order to clear himself.
Custodial interrogation, by contrast, does not
necessarily afford the innocent an opportunity to clear
themselves. A serious consequence of the present practice of the
interrogation alleged to be beneficial for the innocent is that many
arrests 'for investigation' subject large numbers of innocent persons
to detention and interrogation. In one of the cases before us,
No. 584, California v. Stewart, police held four persons, who were in
the defendant's house at the time of the arrest, in jail for five days
until defendant confessed. At that time they were finally
released. Police stated that there was 'no evidence to connect
them with any crime.' Available statistics on the extent of this
practice where it is condoned indicate that these four are far from
alone in being subjected to arrest, prolonged detention, and
interrogation without the requisite probable cause.
Over the years the Federal Bureau of Investigation
has compiled an exemplary record of effective law enforcement while
advising any suspect or arrested person, at the outset of an interview,
that he is not required to make a statement, that any statement may be
used against him in court, that the individual may obtain the services
of an attorney of his own choice and, more recently, that he has a
right to free counsel if he is unable to pay. A letter received
from the Solicitor General in response to a question from the Bench
makes it clear that the present pattern of warnings and respect for the
rights of the individual followed as a practice by the FBI is
consistent with the procedure which we delineate today. It states:
In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated:
'Law enforcement, however, in defeating the criminal, must maintain
inviolate the historic liberties of the individual. To turn back
the criminal, yet, by so doing, destroy the dignity of the individual,
would be a hollow victory.
'We can have the Constitution, the best laws in the land, and the most
honest reviews by courts--but unless the law enforcement profession is
steeped in the democratic tradition, maintains the highest in ethics,
and makes its work a career of honor, civil liberties will
continually--and without end be violated. The best protection of civil
liberties is an alert, intelligent and honest law enforcement
agency. There can be no alternative.
Special Agents are taught that any suspect or
arrested person, at the outset of an interview, must be advised that he
is not required to make a statement and that any statement given can be
used against him in court. Moreover, the individual must be
informed that, if he desires, he may obtain the services of an attorney
of his own choice.' Hoover, Civil Liberties and Law
Enforcement: The Role of the FBI, 37 Iowa L.Rev. 175, 177--182
'At the oral
argument of the above cause, Mr. Justice Fortas asked whether I could
provide certain information as to the practices followed by the Federal
Bureau of Investigation. I have directed these questions to the
attention of the Director of the Federal Bureau of Investigation and am
submitting herewith a statement of the questions and of the answers
which we have received.
"(1) When an individual is interviewed by agents of the Bureau, what warning is given to him?
warning long given by Special Agents of the FBI to both suspects and
persons under arrest is that the person has a right to say nothing and
a right to counsel, and that any statement he does make may be used
against him in court. Examples of this warning are to be found in
the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., (119
U.S.App.D.C. 100) 337 F.2d 136 (1964), cert. den. 380 U.S. 935, 85
"After passage of
the Criminal Justice Act of 1964, which provides free counsel for
Federal defendants unable to pay, we added to our instructions to
Special Agents the requirement that any person who is under arrest for
an offense under FBI jurisdiction, or whose arrest is contemplated
following the interview, must also be advised of his right to free
counsel if he is unable to pay, and the fact that such counsel will be
assigned by the Judge. At the same time, we broadened the right
to counsel warning to read counsel of his own choice, or anyone else
with whom he might wish to speak.
"(2) When is the warning given?
"The FBI warning is
given to a suspect at the very outset of the interview, as shown in the
Westover case, cited above. The warning may be given to a person
arrested as soon as practicable after the arrest, as shown in the
Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844
(1964), cert. den. (Celso v. United States) 379 U.S. 933 (85 S.Ct. 327,
13 L.Ed.2d 342) but in any event it must precede the interview with the
person for a confession or admission of his own guilt.
"(3) What is the
Bureau's practice in the event that (a) the individual requests counsel
and (b) counsel appears?
"When the person who
has been warned of his right to counsel decides that he wishes to
consult with counsel before making a statement, the interview is
terminated at that point, Shultz v. U.S., 351 F.2d 287 ((10 Cir.)
1965). It may be continued, however, as to all matters other than the
person's own guilt or innocence. If he is indecisive in his request for
counsel, there may be some question on whether he did or did not waive
counsel. Situations of this kind must necessarily be left to the
judgment of the interviewing Agent. For example, in Hiram v. U.S., 354
F.2d 4 ((9 Cir.) 1965), the Agent's conclusion that the person arrested
had waived his right to counsel was upheld by the courts.
"A person being
interviewed and desiring to consult counsel by telephone must be
permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 ((1
Cir.) 1965). When counsel appears in person, he is permitted to
confer with his client in private.
"(4) What is the
Bureau's practice if the individual requests counsel, but cannot afford
to retain an attorney?
"If any person being
interviewed after warning of counsel decides that he wishes to consult
with counsel before proceeding further the interview is terminated, as
shown above. FBI Agents do not pass judgment on the ability of
the person to pay for counsel. They do, however, advise those who
have been arrested for an offense under FBI jurisdiction, or whose
arrest is contemplated following the interview, of a right to free
counsel if they are unable to pay, and the availability of such counsel
from the Judge."
The practice of the FBI can readily be emulated by
state and local enforcement agencies. The argument that the FBI
deals with different crimes than are dealt with by state authorities
does not mitigate the significance of the FBI experience.
The experience in some other countries also suggests
that the danger to law enforcement in curbs on interrogation is
overplayed. The English procedure since 1912 under the Judges' Rules is
significant. As recently strengthened, the Rules require that a
cautionary warning be given an accused by a police officer as soon as
he has evidence that affords reasonable grounds for suspicion; they
also require that any statement made be given by the accused without
questioning by police. The right of the individual to consult with an
attorney during this period is expressly recognized.
The safeguards present under Scottish law may be
even greater than in England. Scottish judicial decisions bar use
in evidence of most confessions obtained through police interrogation.
In India, confessions made to police not in the presence of a
magistrate have been excluded by rule of evidence since 1872, at a time
when it operated under British law. Identical provisions appear
in the Evidence Ordinance of Ceylon, enacted in 1895. Similarly, in our
country the Uniform Code of Military Justice has long provided that no
suspect may be interrogated without first being warned of his right not
to make a statement and that any statement he makes may be used against
him. Denial of the right to consult counsel during interrogation has
also been proscribed by military tribunals. There appears to have
been no marked detrimental effect on criminal law enforcement in these
jurisdictions as a result of these rules. Conditions of law enforcement
in our country are sufficiently similar to permit reference to this
experience as assurance that lawlessness will not result from warning
an individual of his rights or allowing him to exercise them. Moreover,
it is consistent with our legal system that we give at least as much
protection to these rights as is given in the jurisdictions
described. We deal in our country with rights grounded in a
specific requirement of the Fifth Amendment of the Constitution,
whereas other jurisdictions arrived at their conclusions on the basis
of principles of justice not so specifically defined.
It is also urged upon us that we withhold decision
on this issue until state legislative bodies and advisory groups have
had an opportunity to deal with these problems by rule making. We have
already pointed out that the Constitution does not require any specific
code of procedures for protecting the privilege against
self-incrimination during custodial interrogation. Congress and
the States are free to develop their own safeguards for the privilege,
so long as they are fully as effective as those described above in
informing accused persons of their right of silence and in affording a
continuous opportunity to exercise it. In any event, however, the
issues presented are of constitutional dimensions and must be
determined by the courts. The admissibility of a statement in the
face of a claim that it was obtained in violation of the defendant's
constitutional rights is an issue the resolution of which has long
since been undertaken by this Court. See Hopt v. People of
Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884).
Judicial solutions to problems of constitutional dimension have evolved
decade by decade. As courts have been presented with the need to
enforce constitutional rights, they have found means of doing so.
That was our responsibility when Escobedo was before us and it is our
responsibility today. Where rights secured by the Constitution
are involved, there can be no rule making or legislation which would
Because of the nature of the problem and because of
its recurrent significance in numerous cases, we have to this point
discussed the relationship of the Fifth Amendment privilege to police
interrogation without specific concentration on the facts of the cases
before us. We turn now to these facts to consider the application
to these cases of the constitutional principles discussed above.
In each instance, we have concluded that statements were obtained from
the defendant under circumstances that did not meet constitutional
standards for protection of the privilege.
No. 759. Miranda v. Arizona.
On March 13, 1963, petitioner, Ernesto Miranda, was
arrested at his home and taken in custody to a Phoenix police
station. He was there identified by the complaining
witness. The police then took him to 'Interrogation Room No. 2'
of the detective bureau. There he was questioned by two police
officers. The officers admitted at trial that Miranda was not
advised that he had a right to have an attorney present. Two hours
later, the officers emerged from the interrogation room with a written
confession signed by Miranda. At the top of the statement was a
typed paragraph stating that the confession was made voluntarily,
without threats or promises of immunity and 'with full knowledge of my
legal rights, understanding any statement I make may be used against
At his trial before a jury, the written confession
was admitted into evidence over the objection of defense counsel, and
the officers testified to the prior oral confession made by Miranda
during the interrogation. Miranda was found guilty of kidnapping
and rape. He was sentenced to 20 to 30 years' imprisonment on
each count, the sentences to run concurrently. On appeal, the
Supreme Court of Arizona held that Miranda's constitutional rights were
not violated in obtaining the confession and affirmed the conviction.
98 Ariz. 18, 401 P.2d 721. In reaching its decision, the court
emphasized heavily the fact that Miranda did not specifically request
We reverse. From the testimony of the officers and
by the admission of respondent, it is clear that Miranda was not in any
way apprised of his right to consult with an attorney and to have one
present during the interrogation, nor was his right not to be compelled
to incriminate himself effectively protected in any other manner.
Without these warnings the statements were inadmissible. The mere fact
that he signed a statement which contained a typed-in clause stating
that he had 'full knowledge' of his 'legal rights' does not approach
the knowing and intelligent waiver required to relinquish
constitutional rights. Cf. Haynes v. State of Washington, 373
U.S. 503, 512--513, 83 S.Ct. 1336, 1342, 10 L.Ed.2d 513 (1963); Haley
v. State of Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224
(1948) (opinion of Mr. Justice Douglas).
No. 760. Vignera v. New York.
Petitioner, Michael Vignera, was picked up by New
York police on October 14, 1960, in connection with the robbery three
days earlier of a Brooklyn dress shop. They took him to the 17th
Detective Squad headquarters in Manhattan. Sometime thereafter he was
taken to the 66th Detective Squad. There a detective questioned
Vignera with respect to the robbery. Vignera orally admitted the
robbery to the detective. The detective was asked on
cross-examination at trial by defense counsel whether Vignera was
warned of his right to counsel before being interrogated. The
prosecution objected to the question and the trial judge sustained the
objection. Thus, the defense was precluded from making any
showing that warnings had not been given. While at the 66th Detective
Squad, Vignera was identified by the store owner and a saleslady as the
man who robbed the dress shop. At about 3 p.m. he was formally
arrested. The police then transported him to still another station, the
70th Precinct in Brooklyn, 'for detention.' At 11 p.m.
Vignera was questioned by an assistant district attorney in the
presence of a hearing reporter who transcribed the questions and
Vignera's answers. This verbatim account of these proceedings
contains no statement of any warnings given by the assistant district
attorney. At Vignera's trial on a charge of first degree robbery, the
detective testified as to the oral confession. The transcription
of the statement taken was also introduced in evidence. At the
conclusion of the testimony, the trial judge charged the jury in part
'The law doesn't say that the confession is void or invalidated because
the police officer didn't advise the defendant as to his rights.
Did you hear what I said? I am telling you what the law of the
State of New York is.'
Vignera was found guilty of first degree
robbery. He was subsequently adjudged a third-felony offender and
sentenced to 30 to 60 years' imprisonment. The conviction was
affirmed without opinion by the Appellate Division, Second Department,
21 A.D.2d 752, 252 N.Y.S.2d 19, and by the Court of Appeals, also
without opinion, 15 N.Y.2d 970, 259 N.Y.S.2d 857, 207 N.E.2d 527,
remittitur amended, 16 N.y.2d 614, 261 N.Y.S.2d 65, 209 N.E.2d
110. In argument to the Court of Appeals, the State contended
that Vignera had no constitutional right to be advised of his right to
counsel or his privilege against self-incrimination.
We reverse. The foregoing indicates that
Vignera was not warned of any of his rights before the questioning by
the detective and by the assistant district attorney. No other
steps were taken to protect these rights. Thus he was not
effectively apprised of his Fifth Amendment privilege or of his right
to have counsel present and his statements are inadmissible.
No. 761. Westover v. United States.
At approximately 9:45 p.m. on March 20, 1963,
petitioner, Carl Calvin Westover, was arrested by local police in
Kansas City as a suspect in two Kansas City robberies. A report
was also received from the FBI that he was wanted on a felony charge in
California. The local authorities took him to a police station and
placed him in a line-up on the local charges, and at about 11:45 p.m.
he was booked. Kansas City police interrogated Westover on the
night of his arrest. He denied any knowledge of criminal
activities. The next day local officers interrogated him again
throughout the morning. Shortly before noon they informed the FBI
that they were through interrogating Westover and that the FBI could
proceed to interrogate him. There is nothing in the record to
indicate that Westover was ever given any warning as to his rights by
local police. At noon, three special agents of the FBI continued
the interrogation in a private interview room of the Kansas City Police
Department, this time with respect to the robbery of a savings and loan
association and a bank in Sacramento, California. After two or two and
one-half hours, Westover signed separate confessions to each of these
two robberies which had been prepared by one of the agents during the
interrogation. At trial one of the agents testified, and a
paragraph on each of the statements states, that the agents advised
Westover that he did not have to make a statement, that any statement
he made could be used against him, and that he had the right to see an
Westover was tried by a jury in federal court and
convicted of the California robberies. His statements were
introduced at trial. He was sentenced to 15 years' imprisonment
on each count, the sentences to run consecutively. On appeal, the
conviction was affirmed by the Court of Appeals for the Ninth Circuit.
342 F.2d 684.
We reverse. On the facts of this case we
cannot find that Westover knowingly and intelligently waived his right
to remain silent and his right to consult with counsel prior to the
time he made the statement. At the time the FBI agents began
questioning Westover, he had been in custody for over 14 hours and had
been interrogated at length during that period. The FBI interrogation
began immediately upon the conclusion of the interrogation by Kansas
City police and was conducted in local police headquarters.
Although the two law enforcement authorities are legally distinct and
the crimes for which they interrogated Westover were different, the
impact on him was that of a continuous period of questioning.
There is no evidence of any warning given prior to the FBI
interrogation nor is there any evidence of an articulated waiver of
rights after the FBI commenced its interrogation. The record
simply shows that the defendant did in fact confess a short time after
being turned over to the FBI following interrogation by local
police. Despite the fact that the FBI agents gave warnings at the
outset of their interview, from Westover's point of view the warnings
came at the end of the interrogation process. In these
circumstances an intelligent waiver of constitutional rights cannot be
We do not suggest that law enforcement authorities
are precluded from questioning any individual who has been held for a
period of time by other authorities and interrogated by them without
appropriate warnings. A different case would be presented if an
accused were taken into custody by the second authority, removed both
in time and place from his original surroundings, and then adequately
advised of his rights and given an opportunity to exercise them.
But here the FBI interrogation was conducted immediately following the
state interrogation in the same police station--in the same compelling
surroundings. Thus, in obtaining a confession from Westover the
federal authorities were the beneficiaries of the pressure applied by
the local in-custody interrogation. In these circumstances the
giving of warnings alone was not sufficient to protect the privilege.
No. 584. California v. Stewart.
In the course of investigating a series of
purse-snatch robberies in which one of the victims had died of injuries
inflicted by her assailant, respondent, Roy Allen Stewart, was pointed
out to Los Angeles police as the endorser of dividend checks taken in
one of the robberies. At about 7:15 p.m., January 31, 1963,
police officers went to Stewart's house and arrested him. One of
the officers asked Stewart if they could search the house, to which he
replied, 'Go ahead.' The search turned up various items taken
from the five robbery victims. At the time of Stewart's arrest,
police also arrested Stewart's wife and three other persons who were
visiting him. These four were jailed along with Stewart and were
interrogated. Stewart was taken to the University Station of the
Los Angeles Police Department where he was placed in a cell. During the
next five days, police interrogated Stewart on nine different
occasions. Except during the first interrogation session, when he
was confronted with an accusing witness, Stewart was isolated with his
During the ninth interrogation session, Stewart
admitted that he had robbed the deceased and stated that he had not
meant to hurt her. Police then brought Stewart before a
magistrate for the first time. Since there was no evidence to
connect them with any crime, the police then released the other four
persons arrested with him.
Nothing in the record specifically indicates whether
Stewart was or was not advised of his right to remain silent or his
right to counsel. In a number of instances, however, the
interrogating officers were asked to recount everything that was said
during the interrogations. None indicated that Stewart was ever
advised of his rights.
Stewart was charged with kidnapping to commit
robbery, rape, and murder. At his trial, transcripts of the first
interrogation and the confession at the last interrogation were
introduced in evidence. The jury found Stewart guilty of robbery
and first degree murder and fixed the penalty as death. On
appeal, the Supreme Court of California reversed. 62 Cal.2d 571, 43
Cal.Rptr. 201, 400 P.2d 97. It held that under this Court's decision in
Escobedo, Stewart should have been advised of his right to remain
silent and of his right to counsel and that it would not presume in the
face of a silent record that the police advised Stewart of his rights.
 We affirm. In dealing with custodial
interrogation, we will not presume that a defendant has been
effectively apprised of his rights and that his privilege against
self-incrimination has been adequately safeguarded on a record that
does not show that any warnings have been given or that any effective
alternative has been employed. Nor can a knowing and intelligent
waiver of these rights be assumed on a silent record. Furthermore,
Stewart's steadfast denial of the alleged offenses through eight of the
nine interrogations over a period of five days is subject to no other
construction than that he was compelled by persistent interrogation to
forgo his Fifth Amendment privilege.
Therefore, in accordance with the foregoing, the
judgments of the Supreme Court of Arizona in No. 759, of the New York
Court of Appeals in No. 760, and of the Court of Appeals for the Ninth
Circuit in No. 761 are reversed. The judgment of the Supreme
Court of California in No. 584 is affirmed. It is so ordered.
Judgments of Supreme Court of Arizona in No. 759, of
New York Court of Appeals in No. 760, and of the Court of Appeals for
the Ninth Circuit in No. 761 reversed.
Judgment of Supreme Court of California in No. 584 affirmed.
Mr. Justice CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584.
It is with regret that I find it necessary to write
in these cases. However, I am unable to join the majority because
its opinion goes too far on too little, while my dissenting brethren do
not go quite far enough. Nor can I join in the Court's criticism
of the present practices of police and investigatory agencies as to
custodial interrogation. The materials it refers to as 'police
manuals' are, as I read them, merely writings in this filed by
professors and some police officers. Not one is shown by the
record here to be the official manual of any police department, much
less in universal use in crime detection. Moreover the examples
of police brutality mentioned by the Court are rare exceptions to the
thousands of cases that appear every year in the law reports. The
police agencies--all the way from municipal and state forces to the
federal bureaus--are responsible for law enforcement and public safety
in this country. I am proud of their efforts, which in my view
are not fairly characterized by the Court's opinion.
The ipse dixit of the majority has no support in our
cases. Indeed, the Court admits that 'we might not find the defendants'
statements (here) to have been involuntary in traditional terms.' Ante,
p. 1618. In short, the Court has added more to the requirements
that the accused is entitled to consult with his lawyer and that he
must be given the traditional warning that he may remain silent and
that anything that he says may be used against him. Escobedo v. State
of Illinois, 378 U.S. 478, 490--491, 84 S.Ct. 1758, 1764--1765, 12
L.Ed.2d 977 (1964). Now, the Court fashions a constitutional rule
that the police may engage in no custodial interrogation without
additionally advising the accused that he has a right under the Fifth
Amendment to the presence of counsel during interrogation and that, if
he is without funds, counsel will be furnished him. When at any
point during an interrogation the accused seeks affirmatively or
impliedly to invoke his rights to silence or counsel, interrogation
must be forgone or postponed. The Court further holds that
failure to follow the new procedures requires inexorably the exclusion
of any statement by the accused, as well as the fruits thereof.
Such a strict constitutional specific inserted at the nerve center of
crime detection may well kill the patient. Since there is at this time
a paucity of information and an almost total lack of empirical
knowledge on the practical operation of requirements truly comparable
to those announced by the majority, I would be more restrained lest we
go too far too fast.
Custodial interrogation has long been recognized as
'undoubtedly an essential tool in effective law enforcement.'
Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344,
10 L.Ed.2d 513 (1963). Recognition of this fact should put us on
guard against the promulgation of doctrinaire rules. Especially is this
true where the Court finds that 'the Constitution has prescribed' its
holding and where the light of our past cases, from Hopt v. People of
Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), down
to Haynes v. State of Washington, supra, is to the contrary. Indeed,
even in Escobedo the Court never hinted that an affirmative 'waiver'
was a prerequisite to questioning; that the burden of proof as to
waiver was on the prosecution; that the presence of counsel--absent a
waiver--during interrogation was required; that a waiver can be
withdrawn at the will of the accused; that counsel must be furnished
during an accusatory stage to those unable to pay; nor that admissions
and exculpatory statements are 'confessions.' To require all
those things at one gulp should cause the Court to choke over more
cases than Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287,
2 L.Ed.2d 1448 (1958), and Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct.
1297, 2 L.Ed.2d 1523 (1958), which it expressly overrules today.
The rule prior to today--as Mr. Justice Goldberg, the author of the
Court's opinion in Escobedo, stated it in Haynes v.
Washington--depended upon 'a totality of circumstances evidencing an
involuntary admission of guilt.' 373 U.S., at 514, 83 S.Ct. at
1343. And he concluded:
'Of course, detection and solution of
crime is, at best, a difficult and arduous task requiring determination
and persistence on the part of all responsible officers charged with
the duty of law enforcement. And, certainly, we do not mean to
suggest that all interrogation of witnesses and suspects is
impermissible. Such questioning is undoubtedly an essential took
in effective law enforcement. The line between proper and
permissible police conduct and techniques and methods offensive to due
process is, at best, a difficult one to draw, particularly in cases
such as this where it is necessary to make fine judgments as to the
effect of psychologically coercive pressures and inducements on the
mind and will of an accused. We are here impelled to the conclusion,
from all of the facts presented, that the bounds of due process have
been exceeded.' Id., at 514--515, 83 S.Ct. at 1344.
I would continue to follow that rule. Under
the 'totality of circumstances' rule of which my Brother Goldberg spoke
in Haynes, I would consider in each case whether the police officer
prior to custodial interrogation added the warning that the suspect
might have counsel present at the interrogation and, further, that a
court would appoint one at his request if he was too poor to employ
counsel. In the absence of warnings, the burden would be on the
State to prove that counsel was knowingly and intelligently waived or
that in the totality of the circumstances, including the failure to
give the necessary warnings, the confession was clearly voluntary.
Rather than employing the arbitrary Fifth Amendment
rule which the Court lays down I would follow the more pliable dictates
of the Due Process Clauses of the Fifth and Fourteenth Amendments which
we are accustomed to administering and which we know from our cases are
effective instruments in protecting persons in police custody. In
this way we would not be acting in the dark nor in one full sweep
changing the traditional rules of custodial interrogation which this
Court has for so long recognized as a justifiable and proper tool in
balancing individual rights against the rights of society. It
will be soon enough to go further when we are able to appraise with
somewhat better accuracy the effect of such a holding.
I would affirm the convictions in Miranda v.
Arizona, No. 759; Vignera v. New York, No. 760; and Westover v. United
States, No. 761. In each of those cases I find from the
circumstances no warrant for reversal. In California v. Stewart, No.
584, I would dismiss the writ of certiorari for want of a final
judgment, 28 U.S.C. s 1257(3) (1964 ed.); but if the merits are to be
reached I would affirm on the ground that the State failed to fulfill
its burden, in the absence of a showing that appropriate warnings were
given, of proving a waiver or a totality of circumstances showing
voluntariness. Should there be a retrial, I would leave the State
free to attempt to prove these elements.
Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
I believe the decision of the Court represents poor
constitutional law and entails harmful consequences for the country at
large. How serious these consequences may prove to be only time
can tell. But the basic flaws in the Court's justification seem
to me readily apparent now once all sides of the problem are considered.
At the outset, it is well to note exactly what is
required by the Court's new constitutional code of rules for
confessions. The foremost requirement, upon which later
admissibility of a confession depends, is that a fourfold warning be
given to a person in custody before he is questioned, namely, that he
has a right to remain silent, that anything he says may be used against
him, that he has a right to have present an attorney during the
questioning, and that if indigent he has a right to a lawyer without
charge. To forgo these rights, some affirmative statement of
rejection is seemingly required, and threats, tricks, or cajolings to
obtain this waiver are forbidden. If before or during questioning
the suspect seeks to invoke his right to remain silent, interrogation
must be forgone or cease; a request for counsel brings about the same
result until a lawyer is procured. Finally, there are a
miscellany of minor directives, for example, the burden of proof of
waiver is on the State, admissions and exculpatory statements are
treated just like confessions, withdrawal of a waiver is always
permitted, and so forth.
While the fine points of this scheme are far less
clear than the Court admits, the tenor is quite apparent. The new
rules are not designed to guard against police brutality or other
unmistakably banned forms of coercion. Those who use third-degree
tactics and deny them in court are equally able and destined to lie as
skillfully about warnings and waivers. Rather, the thrust of the
new rules is to negate all pressures, to reinforce the nervous or
ignorant suspect, and ultimately to discourage any confession at
all. The aim in short is toward 'voluntariness' in a utopian
sense, or to view it from a different angle, voluntariness with a
To incorporate this notion into the Constitution
requires a strained reading of history and precedent and a disregard of
the very pragmatic concerns that alone may on occasion justify such
strains. I believe that reasoned examination will show that the
Due Process Clauses provide an adequate tool for coping with
confessions and that, even if the Fifth Amendment privilege against
self-incrimination be invoked, its precedents taken as a whole do not
sustain the present rules. Viewed as a choice based on pure
policy, these new rules prove to be a highly debatable, if not
one-sided, appraisal of the competing interests, imposed over
widespread objection, at the very time when judicial restraint is most
called for by the circumstances.
II. CONSTITUTIONAL PREMISES.
It is most fitting to begin an inquiry into the
constitutional precedents by surveying the limits on confessions the
Court has evolved under the Due Process Clause of the Fourteenth
Amendment. This is so because these cases show that there exists a
workable and effective means of dealing with confessions in a judicial
manner; because the cases are the baseline from which the Court now
departs and so serve to measure the actual as opposed to the professed
distance it travels; and because examination of them helps reveal how
the Court has coasted into its present position.
The earliest confession cases in this Court emerged from federal
prosecutions and were settled on a nonconstitutional basis, the Court
adopting the common-law rule that the absence of inducements, promises,
and threats made a confession voluntary and admissible. Hopt v. People,
of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Pierce
v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454. While
a later case said the Fifth Amendment privilege controlled
admissibility, this proposition was not itself developed in subsequent
decisions. The Court did, however, heighten the test of admissibility
in federal trials to one of voluntariness 'in fact,' Ziang Sung Wan v.
United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131 (quoted,
ante, p. 1621), and then by and large left federal judges to apply the
same standards the Court began to derive in a string of state court
This new line of decisions, testing admissibility by
the Due Process Clause, began in 1936 with Brown v. State of
Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and must now
embrace somewhat more than 30 full opinions of the Court. While
the voluntariness rubric was repeated in many instances, e.g., Lyons v.
State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, the
Court never pinned it down to a single meaning but on the contrary
infused it with a number of different values. To travel quickly
over the main themes, there was an initial emphasis on reliability,
e.g., Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed.
1663, supplemented by concern over the legality and fairness of the
police practices, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143,
64 S.Ct. 921, 88 L.Ed. 1192, in an 'accusatorial' system of law
enforcement, Watts v. State of Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347,
1350, 93 L.Ed. 1801, and eventually by close attention to the
individual's state of mind and capacity for effective choice, e.g.,
Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d
325. The outcome was a continuing re-evaluation on the facts of
each case of how much pressure on the suspect was permissible.
Among the criteria often taken into account were
threats or imminent danger, e.g., Payne v. State of Arkansas, 356 U.S.
560, 78 S.Ct. 844, 2 L.Ed.2d 975, physical deprivations such as lack of
sleep or food, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6
L.Ed.2d 948, repeated or extended interrogation, e.g., Chambers v.
State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, limits on
access to counsel or friends, Crooker v. State of California, 357 U.S.
433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. La. Gay, 357 U.S. 504,
78 S.Ct. 1297, 2 L.Ed.2d 1523, length and illegality of detention under
state law, e.g., Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct.
1336, 10 L.Ed.2d 513, and individual weakness or incapacities, Lynumn
v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922. Apart
from direct physical coercion, however, no single default or fixed
combination of defaults guaranteed exclusion, and synopses of the cases
would serve little use because the overall gauge has been steadily
changing, usually in the direction of restricting admissibility. But to
mark just what point had been reached before the Court jumped the rails
in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 977, it is worth capsulizing the then-recent case of Haynes v.
State of Washington, 373 U.S. 503, 83 S.Ct. 1336. There, Haynes had
been held some 16 or more hours in violation of state law before
signing the disputed confession, had received no warnings of any kind,
and despite requests had been refused access to his wife or to counsel,
the police indicating that access would be allowed after a
confession. Emphasizing especially this last inducement and
rejecting some contrary indicia of voluntariness, the Court in a 5-to-4
decision held the confession inadmissible.
There are several relevant lessons to be drawn from
this constitutional history. The first is that with over 25 years
of precedent the Court has developed an elaborate, sophisticated, and
sensitive approach to admissibility of confessions. It is
'judicial' in its treatment of one case at a time, see Culombe v.
Connecticut, 367 U.S. 568, 635, 81 S.Ct. 1860, 1896, 6 L.Ed.2d
1037 (concurring opinion of The Chief Justice), flexible in its ability
to respond to the endless mutations of fact presented, and ever more
familiar to the lower courts. Of course, strict certainty is not
obtained in this developing process, but this is often so with
constitutional principles, and disagreement is usually confined to that
borderland of close cases where it matters least.
The second point is that in practice and from time
to time in principle, the Court has given ample recognition to
society's interest in suspect questioning as an instrument of law
enforcement. Cases countenancing quite significant pressures can
be cited without difficulty, and the lower courts may often have been
yet more tolerant. Of course the limitations imposed today were
rejected by necessary implication in case after case, the right to
warnings having been explicitly rebuffed in this Court many years ago.
Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448;
Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed.
1090. As recently as Haynes v. State of Washington, 373 U.S. 503,
515, 83 S.Ct. 1336, 1344, the Court openly acknowledged that
questioning of witnesses and suspects 'is undoubtedly an essential tool
in effective law enforcement.' Accord, Crooker v. State of
California, 357 U.S. 433, 441, 78 S.Ct. 1287, 1292.
Finally, the cases disclose that the language in
many of the opinions overstates the actual course of decision. It
has been said, for example, that an admissible confession must be made
by the suspect 'in the unfettered exercise of his own will,' Malloy v.
Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, and that 'a
prisoner is not 'to be made the deluded instrument of his own
coniviction,'' Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct.
1860, 1867, 6 L.Ed.2d 1037 (Frankfurter, J., announcing the Court's
judgment and an opinion). Though often repeated, such principles
are rarely observed in full measure. Even the word 'voluntary'
may be deemed somewhat misleading, especially when one considers many
of the confessions that have been brought under its umbrella.
See, e.g., supra, n. 5. The tendency to overstate may be laid in
part to the flagrant facts often before the Court; but in any event one
must recognize how it has tempered attitudes and lent some color of
authority to the approach now taken by the Court.
I turn now to the Court's asserted reliance on the
Fifth Amendment, an approach which I frankly regard as a trompe l'oeil.
The Court's opinion in my view reveals no adequate basis for extending
the Fifth Amendment's privilege against self-incrimination to the
police station. Far more important, it fails to show that the
Court's new rules are well supported, let alone compelled, by Fifth
Amendment precedents. Instead, the new rules actually derive from
quotation and analogy drawn from precedents under the Sixth Amendment,
which should properly have no bearing on police interrogation.
The Court's opening contention, that the Fifth
Amendment governs police station confessions, is perhaps not an
impermissible extension of the law but it has little to commend itself
in the present circumstances. Historically, the privilege against
self-incrimination did not bear at all on the use of extra-legal
confessions, for which distinct standards evolved; indeed, 'the history
of the two principles is wide apart, differing by one hundred years in
origin, and derived through separate lines of precedents. 8 Wigmore,
Evidence s 2266, at 401 (McNaughton rev. 1961). Practice under
the two doctrines has also differed in a number of important respects.
Even those who would readily enlarge the privilege must concede some
linguistic difficulties since the Fifth Amendment in terms proscribes
only compelling any person 'in any criminal case to be a witness
against himself.' Cf. Kamisar, Equal Justice in the Gatehouses and
Mansions of American Criminal Procedure, in Criminal Justice in Our
Time 1, 25--26 (1965).
Though weighty, I do not say these points and
similar ones are conclusive, for, as the Court reiterates, the
privilege embodies basic principles always capable of expansion.
Certainly the privilege does represent a protective concern for the
accused and an emphasis upon accusatorial rather than inquisitorial
values in law enforcement, although this is similarly true of other
limitations such as the grand jury requirement and the reasonable doubt
standard. Accusatorial values, however, have openly been absorbed
into the due process standard governing confessions; this indeed is why
at present 'the kinship of the two rules (governing confessions and
self-incrimination) is too apparent for denial.' McCormick,
Evidence 155 (1954). Since extension of the general principle has
already occurred, to insist that the privilege applies as such serves
only to carry over inapposite historical details and engaging rhetoric
and to obscure the policy choices to be made in regulating confessions.
Having decided that the Fifth Amendment privilege
does apply in the police station, the Court reveals that the privilege
imposes more exacting restrictions than does the Fourteenth Amendment's
voluntariness test. It then emerges from a discussion of Escobedo that
the Fifth Amendment requires for an admissible confession that it be
given by one distinctly aware of his right not to speak and shielded
from 'the compelling atmosphere' of interrogation. See ante, pp.
1623--1624. From these key premises, the Court finally develops
the safeguards of warning, counsel, and so forth. I do not
believe these premises are sustained by precedents under the Fifth
The more important premise is that pressure on the
suspect must be eliminated though it be only the subtle influence of
the atmosphere and surroundings. The Fifth Amendment, however,
has never been thought to forbid all pressure to incriminate one's self
in the situations covered by it. On the contrary, it has been
held that failure to incriminate one's self can result in denial of
removal of one's case from state to federal court, State of Maryland v.
Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; in refusal of a military
commission, Orloff v. Willoughby, 345 U.S 83, 73 S.Ct. 534, 97 L.Ed.
842; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 4
Cir., 176 F.2d 210; and in numerous other adverse consequences.
See 8 Wigmore, Evidence s 2272, at 441--444, n. 18 (McNaughton rev.
1961); Maguire, Evidence of Guilt s 2.062 (1959). This is not to
say that short of jail or torture any sanction is permissible in any
case; policy and history alike may impose sharp limits. See,
e.g., Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14
L.Ed.2d 106. However, the Court's unspoken assumption that any
pressure violates the privilege is not supported by the precedents and
it has failed to show why the Fifth Amendment prohibits that relatively
mild pressure the Due Process Clause permits.
The Court appears similarly wrong in thinking that
precise knowledge of one's rights is a settled prerequisite under the
Fifth Amendment to the loss of its protections. A number of lower
federal court cases have held that grand jury witnesses need not always
be warned of their privilege, e.g., United States v. Scully, 2 Cir.,
225 F.2d 113, 116, and Wigmore states this to be the better rule for
trial witnesses. See 8 Wigmore, Evidence s 2269 (McNaughton rev.
1961). Cf. Henry v. State of Mississippi, 379 U.S. 443, 451--452,
85 S.Ct. 564, 569, 13 L.Ed.2d 408 (waiver of constitutional rights by
counsel despite defendant's ignorance held allowable). No Fifth
Amendment precedent is cited for the Court's contrary view. There
might of course be reasons apart from Fifth Amendment precedent for
requiring warning or any other safeguard on questioning but that is a
different matter entirely. See infra, pp. 1649-- 1650.
A closing word must be said about the Assistance of
Counsel Clause of the Sixth Amendment, which is never expressly relied
on by the Court but whose judicial precedents turn out to be linchpins
of the confession rules announced today. To support its
requirement of a knowing and intelligent waiver, the Court cites
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, ante, p.
1628; appointment of counsel for the indigent suspect is tied to Gideon
v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas
v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d
811, ante, p. 1627; the silent-record doctrine is borrowed from Carnley
v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, ante, p. 1628, as
is the right to an express offer of counsel, ante, p. 1626. All
these cases imparting glosses to the Sixth Amendment concerned counsel
at trial or on appeal. While the Court finds no petinent
difference between judicial proceedings and police interrogation, I
believe the differences are so vast as to disqualify wholly the Sixth
Amendment precedents as suitable analogies in the present cases.
The only attempt in this Court to carry the right to
counsel into the station house occurred in Escobedo, the Court
repeating several times that that stage was no less 'critical' than
trial itself. See 378 U.S. 485--488, 84 S.Ct. 1762--1763.
This is hardly persuasive when we consider that a grand jury inquiry,
the filing of a certiorari petition, and certainly the purchase of
narcotics by an undercover agent from a prospective defendant may all
be equally 'critical' yet provision of counsel and advice on the score
have never been thought compelled by the Constitution in such
cases. The sound reason why this right is so freely extended for
a criminal trial is the severe injustice risked by confronting an
untrained defendant with a range of technical points of law, evidence,
and tactics familiar to the prosecutor but not to himself. This
danger shrinks markedly in the police station where indeed the lawyer
in fulfilling his professional responsibilities of necessity may become
an obstacle to truthfinding. See infra, n. 12. The Court's
summary citation of the Sixth Amendment cases here seems to me best
described as 'the domino method of constitutional adjudication wherein
every explanatory statement in a previous opinion is made the basis for
extension to a wholly different situation.' Friendly, supra, n.
10, at 950.
III. POLICY CONSIDERATIONS.
Examined as an expression of public policy, the
Court's new regime proves so dubious that there can be no due
compensation for its weakness in constitutional law. The
foregoing discussion has shown, I think, how mistaken is the Court in
implying that the Constitution has struck the balance in favor of the
approach the Court takes. Ante, p. 1630. Rather, precedent
reveals that the Fourteenth Amendment in practice has been construed to
strike a different balance, that the Fifth Amendment gives the Court
little solid support in this context, and that the Sixth Amendment
should have no bearing at all. Legal history has been stretched
before to satisfy deep needs of society. In this instance,
however, the Court has not and cannot make the powerful showing that
its new rules are plainly desirable in the context of our society,
something which is surely demanded before those rules are engrafted
onto the Constitution and imposed on every State and county in the land.
Without at all subscribing to the generally black
picture of police conduct painted by the Court, I think it must be
frankly recognized at the outset that police questioning allowable
under due process precedents may inherently entail some pressure on the
suspect and may seek advantage in his ignorance or weaknesses.
The atmosphere and questioning techniques, proper and fair though they
be, can in themselves exert a tug on the suspect to confess, and in
this light '(t)o speak of any confessions of crime made after arrest as
being 'voluntary' or 'uncoerced' is somewhat inaccurate, although
traditional. A confession is wholly and incontestably voluntary
only if a guilty person gives himself up to the law and becomes his own
accuser.' Ashcraft v. State of Tennessee, 322 U.S. 143, 161, 64
S.Ct. 921, 929, 88 L.Ed. 1192 (Jackson, J., dissenting). Until
today, the role of the Constitution has been only to sift out undue
pressure, not to assure spontaneous confessions.
The Court's new rules aim to offset these minor
pressures and disadvantages intrinsic to any kind of police
interrogation. The rules do not serve due process interests in
preventing blatant coercion since, as I noted earlier, they do nothing
to contain the policeman who is prepared to lie from the start.
The rules work for reliability in confessions almost only in the
Pickwickian sense that they can prevent some from being given at all.
In short, the benefit of this new regime is simply to lessen or wipe
out the inherent compulsion and inequalities to which the Court devotes
some nine pages of description. Ante, pp. 1614--1618.
What the Court largely ignores is that its rules
impair, if they will not eventually serve wholly to frustrate, an
instrument of law enforcement that has long and quite reasonably been
thought worth the price paid for it. There can be little doubt that the
Court's new code would markedly decrease the number of confessions. To
warn the suspect that he may remain silent and remind him that his
confession may be used in court are minor obstructions. To
require also an express waiver by the suspect and an end to questioning
whenever he demurs must heavily handicap questioning. And to
suggest or provide counsel for the suspect simply invites the end of
the interrogation. See, supra, n. 12.
How much harm this decision will inflict on
law enforcement cannot fairly be predicted with accuracy.
Evidence on the role of confessions is notoriously incomplete, see
Developments, supra, n. 2, at 941--944, and little is added by the
Court's reference to the FBI experience and the resources believed
wasted in interrogation. See infra, n. 19, and text. We do know
that some crimes cannot be solved without confessions, that ample
expert testimony attests to their importance in crime control, and that
the Court is taking a real risk with society's welfare in imposing its
new regime on the country. The social costs of crime are too great to
call the new rules anything but a hazardous experimentation.
While passing over the costs and risks of its
experiment, the Court portrays the evils of normal police questioning
in terms which I think are exaggerated. Albeit stringently confined by
the due process standards interrogation is no doubt often inconvenient
and unpleasant for the suspect. However, it is no less so for a
man to be arrested and jailed, to have his house searched, or to stand
trial in court, yet all this may properly happen to the most innocent
given probable cause, a warrant, or an indictment. Society has
always paid a stiff price for law and order, and peaceful interrogation
is not one of the dark moments of the law.
This brief statement of the competing considerations
seems to me ample proof that the Court's preference is highly debatable
at best and therefore not to be read into the Constitution. However, it
may make the analysis more graphic to consider the actual facts of one
of the four cases reversed by the Court. Miranda v. Arizona serves
best, being neither the hardest nor easiest of the four under the
On March 3, 1963, an 18-year-old girl was kidnapped
and forcibly raped near Phoenix, Arizona. Ten days later, on the
morning of March 13, petitioner Miranda was arrested and taken to the
police station. At this time Miranda was 23 years old, indigent,
and educated to the extent of completing half the ninth grade. He
had 'an emotional illness' of the schizophrenic type, according to the
doctor who eventually examined him; the doctor's report also stated
that Miranda was 'alert and oriented as to time, place, and person,'
intelligent within normal limits, competent to stand trial, and sane
within the legal definitoin. At the police station, the victim
picked Miranda out of a lineup, and two officers then took him into a
separate room to interrogate him, starting about 11:30 a.m.
Though at first denying his guilt, within a short time Miranda gave a
detailed oral confession and then wrote out in his own hand and signed
a brief statement admitting and describing the crime. All this
was accomplished in two hours or less without any force, threats or
promises and--I will assume this though the record is uncertain, ante,
1636--1637 and nn. 66-- 67--without any effective warnings at all.
Miranda's oral and written confessions are now held
inadmissible under the Court's new rules. One is entitled to feel
astonished that the Constitution can be read to produce this
result. These confessions were obtained during brief, daytime
questioning conducted by two officers and unmarked by any of the
traditional indicia of coercion. They assured a conviction for a
brutal and unsettling crime, for which the police had and quite
possibly could obtain little evidence other than the victim's
identifications, evidence which is frequently unreliable. There
was, in sum, a legitimate purpose, no perceptible unfairness, and
certainly little risk of injustice in the interrogation. Yet the
resulting confessions, and the responsible course of police practice
they represent, are to be sacrificed to the Court's own finespun
conception of fairness which I seriously doubt is shared by many
thinking citizens in this country.
The tenor of judicial opinion also falls well short
of supporting the Court's new approach. Although Escobedo has
widely been interpreted as an open invitation to lower courts to
rewrite the law of confessions, a significant heavy majority of the
state and federal decisions in point have sought quite narrow
interpretations. Of the courts that have accepted the invitation, it is
hard to know how many have felt compelled by their best guess as to
this Court's likely construction; but none of the state decisions saw
fit to rely on the state privilege against self-incrimination, and no
decision at all has gone as far as this Court goes today.
It is also instructive to compare the attitude in
this case of those responsible for law enforcement with the official
views that existed when the Court undertook three major revisions of
prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U.S.
458, 58 S.Ct. 1019, 82 L.Ed. 1461; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799. In Johnson, which established that appointed
counsel must be offered the indigent in federal criminal trials, the
Federal Government all but conceded the basic issue, which had in fact
been recently fixed as Department of Justice policy. See Beaney,
Right to Counsel 29--30, 36--42 (1955). In Mapp, which imposed the
exclusionary rule on the States for Fourth Amendment violations, more
than half of the States had themselves already adopted some such
rule. See 367 U.S., at 651, 81 S.Ct., at 1689. In Gideon,
which extended Johnson v. Zerbst to the States, an amicus brief was
filed by 22 States and Commonwealths urging that course; only two
States besides that of the respondent came forward to protest.
See 372 U.S., at 345, 83 S.Ct., at 797. By contrast, in this case new
restrictions on police questioning have been opposed by the United
States and in an amicus brief signed by 27 States and Commonwealths,
not including the three other States which are parties. No State
in the country has urged this Court to impose the newly announced
rules, nor has any State chosen to go nearly so far on its own.
The Court in closing its general discussion invokes
the practice in federal and foreign jurisdictions as lending weight to
its new curbs on confessions for all the States. A brief
resume will suffice to show that none of these jurisdictions has
struck so one-sided a balance as the Court does today. Heaviest
reliance is placed on the FBI practice. Differing circumstances
may make this comparison quite untrustworthy, but in any event the FBI
falls sensibly short of the Court's formalistic rules. For
example, there is no indication that FBI agents must obtain an
affirmative 'waiver' before they pursue their questioning. Nor is
it clear that one invoking his right to silence may not be prevailed
upon to change his mind. And the warning as to appointed counsel
apparently indicates only that one will be assigned by the judge when
the suspect appears before him; the thrust of the Court's rules is to
induce the suspect to obtain appointed counsel before continuing the
interview. See ante, pp. 1633--1634. Apparently American
military practice, briefly mentioned by the Court, has these same
limits and is still less favorable to the suspect than the FBI warning,
making no mention of appointed counsel. Developments, supra, n.
2, at 1084--1089.
The law of the foreign countries described by the
Court also reflects a more moderate conception of the rights of the
accused as against those of society when other data are considered.
Concededly, the English experience is most relevant. In that
country, a caution as to silence but not counsel has long been mandated
by the 'Judges' Rules,' which also place other somewhat imprecise
limits on police cross-examination o suspects. However, in the courts
discretion confessions can be and apparently quite frequently are
admitted in evidence despite disregard of the Judges' Rules, so long as
they are found voluntary under the common-law test. Moreover, the
check that exists on the use of pretrial statements is counterbalanced
by the evident admissibility of fruits of an illegal confession and by
the judge's often-used authority to comment adversely on the
defendant's failure to testify.
India, Ceylon and Scotland are the other examples
chosen by the Court. In India and Ceylon the general ban on
police-adduced confessions cited by the Court is subject to a major
exception: if evidence is uncovered by police questioning, it is fully
admissible at trial along with the confession itself, so far as it
relates to the evidence and is not blatantly coerced. See
Developments, supra, n. 2, at 1106--1110; Reg. v. Ramasamy (1965) A.C.
1 (P.C.). Scotland's limits on interrogation do measure up to the
Court's; however, restrained comment at trial on the defendant's
failure to take the stand is allowed the judge, and in many other
respects Scotch law redresses the prosecutor's disadvantage in ways not
permitted in this country. The Court ends its survey by imputing added
strength to our privilege against self-incrimination since, by contrast
to other countries, it is embodied in a written Constitution.
Considering the liberties the Court has today taken with constitutional
history and precedent, few will find this emphasis persuasive.
In closing this necessarily truncated discussion of
policy considerations attending the new confession rules, some
reference must be made to their ironic untimeliness. There is now
in progress in this country a massive re-examination of criminal law
enforcement procedures on a scale never before witnessed.
Participants in this undertaking include a Special Committee of the
American Bar Association, under the chairmanship of Chief Judge Lumbard
of the Court of Appeals for the Second Circuit; a distinguished study
group of the American Law Institute, headed by Professors Vorenberg and
Bator of the Harvard Law School; and the President's Commission on Law
Enforcement and Administration of Justice, under the leadership of the
Attorney General of the United States. Studies are also being conducted
by the District of Columbia Crime Commission, the Georgetown Law
Center, and by others equipped to do practical research. There
are also signs that legislatures in some of the States may be preparing
to re-examine the problem before us.
It is no secret that concern has been expressed lest
long-range and lasting reforms be frustrated by this Court's too rapid
departure from existing constitutional standards. Despite the Court's
disclaimer, the practical effect of the decision made today must
inevitably be to handicap seriously sound efforts at reform, not least
by removing options necessary to a just compromise of competing
interests. Of course legislative reform is rarely speedy or
unanimous, though this Court has been more patient in the past.
But the legislative reforms when they come would have the vast
advantage of empirical data and comprehensive study, they would allow
experimentation and use of solutions not open to the courts, and they
would restore the initiative in criminal law reform to those forums
where it truly belongs.
All four of the cases involved here present express
claims that confessions were inadmissible, not because of coercion in
the traditional due process sense, but solely because of lack of
counsel or lack of warnings concerning counsel and silence. For
the reasons stated in this opinion, I would adhere to the due process
test and reject the new requirements inaugurated by the Court. On this
premise my disposition of each of these cases can be stated briefly.
In two of the three cases coming from state courts,
Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the
confessions were held admissible and no other errors worth comment are
alleged by petitioners. I would affirm in these two cases.
The other state case is California v. Stewart (No. 584), where the
state supreme court held the confession inadmissible and reversed the
conviction. In that case I would dismiss the writ of certiorari
on the ground that no final judgment is before us, 28 U.S.C. s 1257
(1964 ed.); putting aside the new trial open to the State in any event,
the confession itself has not even been finally excluded since the
California Supreme Court left the State free to show proof of a
waiver. If the merits of the decision in Stewart be reached, then
I believe it should be reversed and the case remanded so the state
supreme court may pass on the other claims available to respondent.
In the federal case, Westover v. United States (No.
761), a number of issues are raised by petitioner apart from the one
already dealt with in this dissent. None of these other claims
appears to me tenable, nor in this context to warrant extended
discussion. It is urged that the confession was also inadmissible
because not voluntary even measured by due process standards and
because federal-state cooperation brought the McNabb-Mallory rule into
play under Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87
L.Ed. 829. However, the facts alleged fall well short of coercion in my
view, and I believe the involvement of federal agents in pettioner's
arrest and detention by the State too slight to invoke Anderson. I
agree with the Government that the admission of the evidence now
protested by petitioner was at most harmless error, and two final
contentions--one involving weight of the evidence and another improper
prosecutor comment--seem to me without merit. I would therefore
affirm Westover's conviction.
In conclusion: Nothing in the letter or the spirit
of the Constitution or in the precedents squares with the heavy-handed
and one-sided action that is so precipitously taken by the Court in the
name of fulfulling its constitutional responsibilities. The foray
which the Court makes today brings to mind the wise and farsighted
words of Mr. Justice Jackson in Douglas v. City of Jeannette, 319 U.S.
157, 181, 63 S.Ct. 877, 889, 87 L.Ed. 1324 (separate opinion): 'This
Court is forever adding new stories to the temples of constitutional
law, and the temples have a way of collapsing when one story too many
Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
The proposition that the privilege against
self-incrimination forbids incustody interrogation without the warnings
specified in the majority opinion and without a clear waiver of counsel
has no significant support in the history of the privilege or in the
language of the Fifth Amendment. As for the English authorities
and the common-law history, the privilege, firmly established in the
second half of the seventeenth century, was never applied except to
prohibit compelled judicial interrogations. The rule excluding
coerced confessions matured about 100 years later, '(b)ut there is
nothing in the reports to suggest that the theory has its roots in the
privilege against self-incrimination. And so far as the cases
reveal, the privilege, as such, seems to have been given effect only in
judicial proceedings, including the preliminary examinations by
authorized magistrates.' Morgan, The Privilege Against
Self-Incrimination, 34 Minn.L.Rev. 1, 18 (1949).
Our own constitutional provision provides that no
person 'shall be compelled in any criminal case to be a witness against
himself.' These words, when '(c)onsidered in the light to be shed by
grammar and the dictionary appear to signify simply that nobody shall
be compelled to give oral testimony against himself in a criminal
proceeding under way in which he is defendant.' Corwin, The Supreme
Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev.
1, 2. And there is very little in the surrounding circumstances
of the adoption of the Fifth Amendment or in the provisions of the then
existing state constitutions or in state practice which would give the
constitutional provision any broader meaning. Mayers, The Federal
Witness' Privilege Against Self-Incrimination: Constitutional or
Common-Law? 4 American Journal of Legal History 107 (1960).
Such a construction, however, was considerably narrower than the
privilege at common law, and when eventually faced with the issues, the
Court extended the constitutional privilege to the compulsory
production of books and papers, to the ordinary witness before the
grand jury and to witnesses generally. Boyd v. United States, 116
U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and Counselman v. Hitchcock, 142
U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. Both rules had solid
support in common-law history, if not in the history of our own
A few years later the Fifth Amendment privilege was
similarly extended to encompass the then well-established rule against
coerced confessions: 'In criminal trials, in the courts of the
United States, wherever a question arises whether a confession is
incompetent because not voluntary, the issue is controlled by that
portion of the fifth amendment to the constitution of the United
States, commanding that no person 'shall be compelled in any criminal
case to be a witness against himself.'' Bram v. United States, 168 U.S.
532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568. Although this view has found
approval in other cases, Burdeau v. McDowell, 256 U.S. 465, 475, 41
S.Ct. 574, 576, 65 L.Ed. 1048; Powers v. United States, 223 U.S. 303,
313, 32 S.Ct. 281, 283, 56 L.Ed. 448; Shotwell Mfg. Co. v. United
States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357, it has
also been questioned, see Brown v. State of Mississippi, 297 U.S. 278,
285, 56 S.Ct. 461, 464, 80 L.Ed. 682; United States v. Carignan, 342
U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48; Stein v. People of State of
New York, 346 U.S. 156, 191, n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522,
and finds scant support in either the English or American authorities,
see generally Regina v. Scott, Dears. & Bell 47; 3 Wigmore,
Evidence s 823 (3d ed. 1940), at 249 ('a confession is not rejected
because of any connection with the privilege against
self-crimination'), and 250, n. 5 (particularly criticizing Bram); 8
Wigmore, Evidence s 2266, at 400--401 (McNaughton rev. 1961).
Whatever the source of the rule excluding coerced confessions, it is
clear that prior to the application of the privilege itself to state
courts, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the
admissibility of a confession in a state criminal prosecution was
tested by the same standards as were applied in federal
prosecutions. Id., at 6--7, 10, 84 S.Ct., at 1492--1493, 1494.
Bram, however, itself rejected the proposition which
the Court now espouses. The question in Bram was whether a
confession, obtained during custodial interrogation, had been
compelled, and if such interrogation was to be deemed inherently
vulnerable the Court's inquiry could have ended there. After
examining the English and American authorities, however, the Court
'In this court also it has been settled
that the mere fact that the confession is made to a police officer,
while the accused was under arrest in or out of prison, or was drawn
out by his questions, does not necessarily render the confession
involuntary; but, as one of the circumstances, such imprisonment or
interrogation may be taken into account in determining whether or not
the statements of the prisoner were voluntary.' 168 U.S., at 558, 18
S.Ct., at 192.
In this respect the Court was wholly consistent with prior and subsequent pronouncements in this Court.
Thus prior to Bram the Court, in Hopt v. People of
Territory of Utah, 110 U.S. 574, 583--587, 4 S.Ct. 202, 206, 28 L.Ed.
262, had upheld the admissibility of a confession made to police
officers following arrest, the record being silent concerning what
conversation had occurred between the officers and the defendant in the
short period preceding the confession. Relying on Hopt, the Court ruled
squarely on the issue in Sparf and Hansen v. United States, 156 U.S.
51, 55, 15 S.Ct. 273, 275, 39 L.Ed. 343:
'Counsel for the accused insist that
there cannot be a voluntary statement, a free, open confession, while a
defendant is confined and in irons, under an accusation of having
committed a capital offence. We have not been referred to any
authority in support of that position. It is true that the fact
of a prisoner being in custody at the time he makes a confession is a
circumstance not to be overlooked, because it bears upon the inquiry
whether the confession was voluntarily made, or was extorted by threats
or violence or made under the influence of fear. But confinement
or imprisonment is not in itself sufficient to justify the exclusion of
a confession, if it appears to have been voluntary and was not obtained
by putting the prisoner in fear or by promises. Whart(on's) Cr.Ev. (9th
Ed.) ss 661, 663, and authorities cited.'
Accord, Pierce v. United States, 160 U.S. 355, 357, 16 S.Ct. 321, 322, 40 L.Ed. 454.
And in Wilson v. United States, 162 U.S. 613, 623,
16 S.Ct. 895, 899, 40 L.Ed. 1090, the Court had considered the
significance of custodial interrogation without any antecedent warnings
regarding the right to remain silent or the right to counsel.
There the defendant had answered questions posed by a Commissioner, who
had filed to advise him of his rights, and his answers were held
admissible over his claim of involuntariness. 'The fact that (a
defendant) is in custody and manacled does not necessarily render his
statement involuntary, nor is that necessarily the effect of popular
excitement shortly preceding. And it is laid down that it is not
essential to the admissibility of a confession that it should appear
that the person was warned that what he said would be used against him;
but, on the contrary, if the confession was voluntary, it is
sufficient, though it appear that he was not so warned.'
Since Bram, the admissibility of statements made
during custodial interrogation has been frequently reiterated.
Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, cited Wilson
approvingly and held admissible as voluntary statements the accused's
testimony at a preliminary hearing even though he was not warned that
what he said might be used against him. Without any discussion of
the presence or absence of warnings, presumably because such discussion
was deemed unnecessary, numerous other cases have declared that '(t) he
mere fact that a confession was made while in the custody of the police
does not render it inadmissible,' McNabb v. United States, 318 U.S.
332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819; accord, United States v.
Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, despite its having
been elicited by police examination. Ziang Sung Wan v. United
States, 266 U.S. 1, 14, 45 S.Ct. 3; United States v. Carignan, 342 U.S.
36, 39, 72 S.Ct. 97, 99. Likewise, in Crooker v. State of
California, 357 U.S. 433, 437, 78 S.Ct. 1287, 1290, 2 L.Ed.2d 1448, the
Court said that '(t)he bare fact of police 'detention and police
examination in private of one in official state custody' does not
render involuntary a confession by the one so detained.' And
finally, in Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d
1523, a confession obtained by police interrogation after arrest was
held voluntary even though the authorities refused to permit the
defendant to consult with his attorney. See generally Culombe v.
Connecticut, 367 U.S. 568, 587--602, 81 S.Ct. 1860, 1870, 6 L.Ed.2d
1037 (opinion of Frankfurter, J.); 3 Wigmore, Evidence s 851, at 313
(3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842).
Only a tiny minority of our judges who have dealt
with the question, including today's majority, have considered in
custody interrogation, without more, to be a violation of the Fifth
Amendment. And this Court, as every member knows, has left
standing literally thousands of criminal convictions that rested at
least in part on confessions taken in the course of interrogation by
the police after arrest.
That the Court's holding today is neither compelled
nor even strongly suggested by the language of the Fifth Amendment, is
at odds with American and English legal history, and involves a
departure from a long line of precedent does not prove either that the
Court has exceeded its powers or that the Court is wrong or unwise in
its present reinter-pretation of the Fifth Amendment. It does,
however, underscore the obvious--that the Court has not discovered or
found the law in making today's decision, nor has it derived it from
some irrefutable sources; what it has done is to make new law and new
public policy in much the same way that it has in the course of
interpreting other great clauses of the Constitution. This is what the
Court historically has done. Indeed, it is what it must do and will
continue to do until and unless there is some fundamental change in the
constitutional distribution of governmental powers.
But if the Court is here and now to announce new and
fundamental policy to govern certain aspects of our affairs, it is
wholly legitimate to examine the mode of this or any other
constitutional decision in this Court and to inquire into the
advisability of its end product in terms of the long-range interest of
the country. At the very least, the Court's text and reasoning
should withstand analysis and be a fair exposition of the
constitutional provision which its opinion interprets. Decisions
like these cannot rest alone on syllogism, metaphysics or some
ill-defined notions of natural justice, although each will perhaps play
its part. In proceeding to such constructions as it now
announces, the Court should also duly consider all the factors and
interests bearing upon the cases, at least insofar as the relevant
materials are available; and if the necessary considerations are not
treated in the record or obtainable from some other reliable source,
the Court should not proceed to formulate fundamental policies based on
First, we may inquire what are the textual and
factual bases of this new fundamental rule. To reach the result
announced on the grounds it does, the Court must stay within the
confines of the Fifth Amendment, which forbids self-incrimination only
if compelled. Hence the core of the Court's opinion is that because of
the 'compulsion inherent in custodial surroundings, no statement
obtained from (a) defendant (in custody) can truly be the product of
his free choice,' ante, at 1619, absent the use of adequate protective
devices as described by the Court. However, the Court does not
point to any sudden inrush of new knowledge requiring the rejection of
70 years' experience. Nor does it assert that its novel
conclusion reflects a changing consensus among state courts, see Mapp
v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, or that a
succession of cases had steadily eroded the old rule and proved it
unworkable, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799. Rather than asserting new knowledge, the Court
concedes that it cannot truly know what occurs during custodial
questioning, because of the innate secrecy of such proceedings.
It extrapolates a picture of what it conceives to be the norm from
police investigatorial manuals, published in 1959 and 1962 or earlier,
without any attempt to allow for adjustments in police practices that
may have occurred in the wake of more recent decisions of state
appellate tribunals or this Court. But even if the relentless
application of the described procedures could lead to involuntary
confessions, it most assuredly does not follow that each and every case
will disclose this kind of interrogation or this kind of consequence.
Insofar as appears from the Court's opinion, it has not examined a
single transcript of any police interrogation, let alone the
interrogation that took place in any one of these cases which it
decides today. Judged by any of the standards for empirical
investigation utilized in the social sciences the factual basis for the
Court's premise is patently inadequate.
Although in the Court's view in-custody
interrogation is inherently coercive, the Court says that the
spontaneous product of the coercion of arrest and detention is still to
be deemed voluntary. An accused, arrested on probable cause, may
blurt out a confession which will be admissible despite the fact that
he is alone and in custody, without any showing that he had any notion
of his right to remain silent or of the consequences of his admission.
Yet, under the Court's rule, if the police ask him a single question
such as 'Do you have anything to say?' or 'Did you kill your
wife?' his response, if there is one, has somehow been compelled,
even if the accused has been clearly warned of his right to remain
silent. Common sense informs us to the contrary. While one
may say that the response was 'involuntary' in the sense the question
provoked or was the occasion for the response and thus the defendant
was induced to speak out when he might have remained silent if not
arrested and not questioned, it is patently unsound to say the response
Today's result would not follow even if it were
agreed that to some extent custodial interrogation is inherently
coercive. See Ashcraft v. State of Tennessee, 322 U.S. 143, 161,
64 S.Ct. 921, 929, 88 L.Ed. 1192 (Jackson, J., dissenting). The
test has been whether the totality of circumstances deprived the
defendant of a 'free choice to admit, to deny, or to refuse to answer,'
Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct.
280, 292, 86 L.Ed. 166, and whether physical or psychological coercion
was of such a degree that 'the defendant's will was overborne at the
time he confessed,' Haynes v. State of Washington, 373 U.S. 503, 513,
83 S.Ct. 1336, 1343, 10 L.Ed.2d 513; Lynumn v. State of Illinois, 372
U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922. The duration and
nature of incommunicado custody, the presence or absence of advice
concerning the defendant's constitutional rights, and the granting or
refusal of requests to communicate with lawyers, relatives or friends
have all been rightly regarded as important data bearing on the basic
inquiry. See, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143,
64 S.Ct. 921; Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct.
1336. But it has never been suggested, until today, that such
questioning was so coercive and accused persons so lacking in hardihood
that the very first response to the very first question following the
commencement of custody must be conclusively presumed to be the product
of an overborne will.
If the rule announced today were truly based on a
conclusion that all confessions resulting from custodial interrogation
are coerced, then it would simply have no rational foundation.
Compare Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244,
87 L.Ed. 1519; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15
L.Ed.2d 210. A fortiori that would be true of the extension of the rule
to exculpatory statements, which the Court effects after a brief
discussion of why, in the Court's view, they must be deemed
incriminatory but without any discussion of why they must be deemed
coerced. See Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895,
900, 40 L.Ed. 1090. Even if one were to postulate that the
Court's concern is not that all confessions induced by police
interrogation are coerced but rather that some such confessions are
coerced and present judicial procedures are believed to be inadequate
to identify the confessions that are coerced and those that are not, it
would still not be essential to impose the rule that the Court has now
fashioned. Transcripts or observers could be required, specific
time limits, tailored to fit the cause, could be imposed, or other
devices could be utilized to reduce the chances that otherwise
indiscernible coercion will produce an inadmissible confession.
On the other hand, even if one assumed that there
was an adequate factual basis for the conclusion that all confessions
obtained during in-custody interrogation are the product of compulsion,
the rule propounded by the Court will still be irrational, for,
apparently, it is only if the accused is also warned of his right to
counsel and waives both that right and the right against
self-incrimination that the inherent compulsiveness of interrogation
disappears. But if the defendant may not answer without a warning
a question such as 'Where were you last night?' without having his
answer be a compelled one, how can the Court ever accept his negative
answer to the question of whether he wants to consult his retained
counsel or counsel whom the court will appoint? And why if
counsel is present and the accused nevertheless confesses, or counsel
tells the accused to tell the truth, and that is what the accused does,
is the situation any less coercive insofar as the accused is concerned?
The Court apparently realizes its dilemma of foreclosing questioning
without the necessary warnings but at the same time permitting the
accused, sitting in the same chair in front of the same policemen, to
waive his right to consult an attorney. It expects, however, that the
accused will not often waive the right; and if it is claimed that he
has, the State faces a severe, if not impossible burden of proof.
All of this makes very little sense in terms of the
compulsion which the Fifth Amendment proscribes. That amendment
deals with compelling the accused himself. It is his free will
that is involved. Confessions and incriminating admissions, as
such, are not forbidden evidence; only those which are compelled are
banned. I doubt that the Court observes these distinctions today.
By considering any answers to any interrogation to be compelled
regardless of the content and course of examination and by escalating
the requirements to prove waiver, the Court not only prevents the use
of compelled confessions but for all practical purposes forbids
interrogation except in the presence of counsel. That is, instead of
confining itself to protection of the right against compelled
self-incrimination the Court has created a limited Fifth Amendment
right to counsel--or, as the Court expresses it, a 'need for counsel to
protect the Fifth Amendment privilege ' Ante, at 1625. The focus
then is not on the will of the accused but on the will of counsel and
how much influence he can have on the accused. Obviously there is
no warrant in the Fifth Amendment for thus installing counsel as the
arbiter of the privilege.
In sum, for all the Court's expounding on the
menacing atmosphere of police interrogation procedures, it has failed
to supply any foundation for the conclusions it draws or the measures
Criticism of the Court's opinion, however, cannot
stop with a demonstration that the factual and textual bases for the
rule it proponds are, at best, less than compelling. Equally
relevant is an assessment of the rule's consequences measured against
community values. The Court's duty to assess the consequences of
its action is not satisfied by the utterance of the truth that a value
of our system of criminal justice is 'to respect the inviolability of
the human personality' and to require government to produce the
evidence against the accused by its own independent labors. Ante,
at 1620. More than the human dignity of the accused is involved; the
human personality of others in the society must also be preserved. Thus
the values reflected by the privilege are not the sole desideratum;
society's interest in the general security is of equal weight.
The obvious underpinning of the Court's decision is
a deep-seated distrust of all confessions. As the Court declares
that the accused may not be interrogated without counsel present,
absent a waiver of the right to counsel, and as the Court all but
admonishes the lawyer to advise the accused to remain silent, the
result adds up to a judicial judgment that evidence from the accused
should not be used against him in any way, whether compelled or not.
This is the not so subtle overtone of the opinion--that it is
inherently wrong for the police to gather evidence from the accused
himself. And this is precisely the nub of this dissent. I see
nothing wrong or immoral, and certainly nothing unconstitutional, in
the police's asking a suspect whom they have reasonable cause to arrest
whether or not he killed his wife or in confronting him with the
evidence on which the arrest was based, at least where he has been
plainly advised that he may remain completely silent, see Escobedo v.
State of Illinois, 378 U.S. 478, 499, 84 S.Ct. 1758, 1769, 12 L.Ed.2d
977 (dissenting opinion). Until today, 'the admissions or
confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence.' Brown
v. Walker, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819, see also
Hopt v. People of Territory of Utah, 110 U.S. 574, 584--585, 4 S.Ct.
202, 207. Particularly when corroborated, as where the police
have confirmed the accused's disclosure of the hiding place of
implements or fruits of the crime, such confessions have the highest
reliability and significantly contribute to the certitude with which we
may believe the accused is guilty. Moreover, it is by no means certain
that the process of confessing is injurious to the accused. To the
contrary it may provide psychological relief and enhance the prospects
This is not to say that the value of respect for the
inviolability of the accused's individual personality should be
accorded no weight or that all confessions should be indiscriminately
admitted. This Court has long read the Constitution to proscribe
compelled confessions, a salutary rule from which there should be no
retreat. But I see no sound basis, factual or otherwise, and the Court
gives none, for concluding that the present rule against the receipt of
coerced confessions is inadequate for the task of sorting out
inadmissible evidence and must be replaced by the per se rule which is
now imposed. Even if the new concept can be said to have
advantages of some sort over the present law, they are far outweighed
by its likely undesirable impact on other very relevant and important
The most basic function of any government is to
provide for the security of the individual and of his property.
Lanzetta v. State of New Jersey, 306 U.S. 451, 455, 59 S.Ct. 618, 619,
83 L.Ed. 888. These ends of society are served by the criminal laws
which for the most part are aimed at the prevention of crime.
Without the reasonably effective performance of the task of preventing
private violence and retaliation, it is idle to talk about human
dignity and civilized values.
The modes by which the criminal laws serve the
interest in general security are many. First the murderer who has
taken the life of another is removed from the streets, deprived of his
liberty and thereby prevented from repeating his offense. In view
of the statistics on recidivism in this country and of the number of
instances in which apprehension occurs only after repeated offenses, no
one can sensibly claim that this aspect of the criminal law does not
prevent crime or contribute significantly to the personal security of
the ordinary citizen.
Secondly, the swift and sure apprehension of those
who refuse to respect the personal security and dignity of their
neighbor unquestionably has its impact on others who might be similarly
tempted. That the criminal law is wholly or partly ineffective
with a segment of the population or with many of those who have been
apprehended and convicted is a very faulty basis for concluding that it
is not effective with respect to the great bulk of our citizens or for
thinking that without the criminal laws, or in the absence of their
enforcement, there would be no increase in crime. Arguments of
this nature are not borne out by any kind of reliable evidence that I
have been to this date.
Thirdly, the law concerns itself with those whom it
has confined. The hope and aim of modern penology, fortunately, is as
soon as possible to return the convict to society a better and more
law-abiding man than when he left. Sometimes there is success,
sometimes failure. But at least the effort is made, and it should
be made to the very maximum extent of our present and future
The rule announced today will measurably weaken the
ability of the criminal law to perform these tasks. It is a
deliberate calculus to prevent interrogations, to reduce the incidence
of confessions and pleas of guilty and to increase the number of
trials. Criminal trials, no matter how efficient the police are, are
not sure bets for the prosecution, nor should they be if the evidence
is not forthcoming. Under the present law, the prosecution fails
to prove its case in about 30% of the criminal cases actually tried in
the federal courts. See Federal Offenders: 1964, supra, note 4,
at 6 (Table 4), 59 (Table 1); Federal Offenders; 1963, supra, note 4,
at 5 (Table 3); District of Columbia Offenders: 1963, supra, note 4, at
2 (Table 1). But it is something else again to remove from the
ordinary criminal case all those confessions which heretofore have been
held to be free and voluntary acts of the accused and to thus establish
a new constitutional barrier to the ascertainment of truth by the
judicial process. There is, in my view, every reason to believe that a
good many criminal defendants who otherwise would have been convicted
on what this Court has previously thought to be the most satisfactory
kind of evidence will now under this new version of the Fifth
Amendment, either not be tried at all or will be acquitted if the
State's evidence, minus the confession, is put to the test of
I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.
In some unknown number of cases the Court's rule
will return a killer, a rapist or other criminal to the streets and to
the environment which produced him, to repeat his crime whenever it
pleases him. As a consequence, there will not be a gain, but a
loss, in human dignity. The real concern is not the unfortunate
consequences of this new decision on the criminal law as an abstract,
disembodied series of authoritative proscriptions, but the impact on
those who rely on the public authority for protection and who without
it can only engage in violent self-help with guns, knives and the help
of their neighbors similarly inclined. There is, of course, a
saving factor: the next victims are uncertain, unnamed and
unrepresented in this case.
Nor can this decision do other than have a corrosive
effect on the criminal laws as an effective device to prevent
crime. A major component in its effectiveness in this regard is
its swift and sure enforcement. The easier it is to get away with
rape and murder, the less the deterrent effect on those who are
inclined to attempt it. This is still good common sense. If it
were not, we should posthaste liquidate the whole law enforcement
establishment as a useless, misguided effort to control human conduct.
And what about the accused who has confessed or
would confess in response to simple, noncoercive questioning and whose
guilt could not otherwise be proved? Is it so clear that release is the
best thing for him in every case? Has it so unquestionably been
resolved that in each and every case it would be better for him not to
confess and to return to his environment with no attempt whatsoever to
help him? I think not. It may well be that in many cases it
will be no less than a callous disregard for his own welfare as well as
for the interests of his next victim.
There is another aspect to the effect of the Court's
rule on the person whom the police have arrested on probable
cause. The fact is that he may not be guilty at all and may be
able to extricate himself quickly and simply if he were told the
circumstances of his arrest and were asked to explain. This
effort, and his release, must now await the hiring of a lawyer or his
appointment by the court, consultation with counsel and then a session
with the police or the prosecutor. Similarly, where probable
cause exists to arrest several suspects, as where the body of the
victim is discovered in a house having several residents, compare
Johnson v. State, 238 Md. 140, 207 A.2d 643 (1965), cert. denied, 382
U.S. 1013, 86 S.Ct. 623, 15 L.Ed.2d 528, it will often be true that a
suspect may be cleared only through the results of interrogation of
other suspects. Here too the release of the innocent may be
delayed by the Court's rule.
Much of the trouble with the Court's new rule is
that it will operate indiscriminately in all criminal cases, regardless
of the severity of the crime or the circumstances involved. It
applies to every defendant, whether the professional criminal or one
committing a crime of momentary passion who is not part and parcel of
organized crime. It will slow down the investigation and the
apprehension of confederates in those cases where time is of the
essence, such as kidnapping, see Brinegar v. United States, 338 U.S.
160, 183, 69 S.Ct. 1302, 1314, 93 L.Ed. 1879 (Jackson, J., dissenting);
People v. Modesto, 62 Cal.2d 436, 446, 42 Cal.Rptr. 417, 423, 398 P.2d
753, 759 (1965), those involving the national security, see United
States v. Drummond, 354 F.2d 132, 147 (C.A.2d Cir. 1965) (en banc)
(espionage case), pet. for cert. pending, No. 1203, Misc., O.T. 1965;
cf. Gessner v. United States, 354 F.2d 726, 730, n. 10 (C.A.10th Cir.
1965) (upholding, in espionage case, trial ruling that Government need
not submit classified portions of interrogation transcript), and some
of those involving organized crime. In the latter context the
lawyer who arrives may also be the lawyer for the defendant's
colleagues and can be relied upon to insure that no breach of the
organization's security takes place even though the accused may feel
that the best thing he can do is to cooperate.
At the same time, the Court's per se approach may
not be justified on the ground that it provides a 'bright line'
permitting the authorities to judge in advance whether interrogation
may safely be pursued without jeopardizing the admissibility of any
information obtained as a consequence. Nor can it be claimed that
judicial time and effort, assuming that is a relevant consideration,
will be conserved because of the ease of application of the new
rule. Today's decision leaves open such questions as whether the
accused was in custody, whether his statements were spontaneous or the
product of interrogation, whether the accused has effectively waived
his rights, and whether nontestimonial evidence introduced at trial is
the fruit of statements made during a prohibited interrogation, all of
which are certain to prove productive of uncertainty during
investigation and litigation during prosecution. For all these reasons,
if further restrictions on police interrogation are desirable at this
time, a more flexible approach makes much more sense than the Court's
constitutional straitjacket which forecloses more discriminating
treatment by legislative or rule-making pronouncements.
Applying the traditional standards to the cases
before the Court, I would hold these confessions voluntary. I
would therefore affirm in Nos. 759, 760, and 761, and reverse in No.