Annotation 9 - Fifth Amendment
The Common Law Rule .--Not until the latter part of the eighteenth century did there develop a rule excluding coerced confessions from admission at trial; prior to that time, even confessions obtained by torture were admissible. As the rule developed in England and in early United States jurisprudence, the rationale was the unreliability of the confession's contents when induced by a promise of benefit or a threat of harm. 252 In its first decision on the admissibility of confessions, the Court adopted the common-law rule, stressing that while a ''voluntary confession of guilt is among the most effectual proofs in the law, from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution.'' ''[T]he presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.'' 253 Subsequent cases followed essentially the same line of thought. 254 Then, in Bram v. United States 255 the Court assimilated the common-law rule thus mentioned as a command of the Fifth Amendment and indicated that henceforth a broader standard for judging admissibility was to be applied. 256 Though this rule 257 and the case itself were subsequently approved in several cases, 258 the Court could hold within a few years that a confession should not be excluded merely because the authorities had not warned a sus pect of his right to remain silent, 259 and more than once later Courts could doubt ''whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment's protection against self-incrimination, or from a rule that forced confessions are untrustworthy. . . .'' 260
McNabb-Mallory Doctrine .--Perhaps one reason the Court did not squarely confront the application of the self-incrimination clause to police interrogation and the admissibility of confessions in federal courts was that in McNabb v. United States 261 it promulgated a rule excluding confessions obtained after an ''unnecessary delay'' in presenting a suspect for arraignment after arrest. 262 This rule, developed pursuant to the Court's supervisory power over the lower federal courts 263 and hence not applicable to the States as a constitutional rule would have been, 264 was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure, 265 and was clearly informed with concern over incommunicado interrogation and coerced confessions. 266 While the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment would invalidate confessions, Congress in 1968 legislated to set a six-hour pe riod for interrogation following arrest before the suspect must be presented. 267
State Confession Cases .--In its first encounter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions of the defendants which had been extorted from them through repeated whippings with ropes and studded belts. 268 For some thirty years thereafter the Court attempted through a consideration of the ''totality of the circumstances'' surrounding interrogation to determine whether a confession was ''voluntary'' and admissible or ''coerced'' and inadmissible. During this time, the Court was balancing, in Justice Frankfurter's explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it. 269 ''The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.'' 270 Obviously, a court seeking to determine whether the making of a confession was voluntary operated under a severe handicap, inasmuch as the interrogation process was in secret with only police and the suspect witness to it, and inasmuch as the concept of voluntariness referred to the defendant's mental condition. 271 Despite, then, a bountiful number of cases, binding precedents were few.
On the one hand, many of the early cases disclosed rather clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture, 272 but other overtly coercive tactics as well have been condemned. Chambers v. Florida 273 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee 274 held inadmissible a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas, 275 voided a conviction based on a confession obtained from a suspect who had been arrested illegally in one county and brought some 100 miles away to a county where questioning began, and who had then been questioned continuously over the course of three days while being driven from county to county and being told falsely of a danger of lynching. ''Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of 'persuasion'. A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.'' 276
While the Court would not hold that prolonged questioning by itself made a resultant confession involuntary, 277 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention. 278 In Stein v. New York, 279 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado detention. While the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance ''the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.'' 280 But by the time Haynes v. Washington 281 was decided, holding inadmissible a confession made by an experienced criminal because of the ''unfair and inherently coercive context'' in which the statement was made, it was clear that the Court was adhering to a rule which found coercion in the fact of prolonged interrogation without regard to the individual characteristics of the suspect. 282 However, the age and intel ligence of suspects have been repeatedly cited by the Court in appropriate cases as demonstrating the particular susceptibility of the suspects to even mild coercion. 283 But a suspect's mental state alone--even insanity--is insufficient to establish involuntariness absent some coercive police activity. 284
Where, however, interrogation was not so prolonged that the Court would deem it ''inherently coercive,'' the ''totality of the circumstances'' was looked to in determining admissibility. Although in some of the cases a single factor may well be thought to stand out as indicating the involuntariness of the confession, 285 generally the recitation of factors, including not only the age and intelligence of the suspect but also such things as the illegality of the arrest, the incommunicado detention, the denial of requested counsel, the denial of access to friends, the employment of trickery, and other things, seemed not to rank any factor above the others. 286 Of course, confessions may be induced through the exploitation of some illegal action, such as an illegal arrest 287 or an unlawful search and seizure, 288 and when that occurs the confession is inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court will not assume that the subsequent confession was similarly involuntary, but will independently evaluate whether the coercive actions which produced the first continued to produce the later confession. 289
From the Voluntariness Standard to Miranda .--Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Ar izona. 290 The rationale of the confession cases changed over time to one closely approximating the foundation purposes the Court has attributed to the self-incrimination clause. Historically, the basis of the rule excluding coerced and involuntary confessions was their untrustworthiness, their unreliability. 291 It appears that this basis informed the Court's judgment in the early state confession cases 292 as it had in earlier cases from the lower federal courts. 293 But in Lisenba v. California, 294 Justice Roberts drew a distinction between the confession rule and the standard of due process. ''[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.'' Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness. 295
Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that in Rogers v. Richmond 296 Justice Frankfurter spoke for six other Justices in writing: ''Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system--a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.'' Nevertheless, the Justice said in another case, ''[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved.'' 297 Three years later, however, in Malloy v. Hogan, 298 in the process of applying the self-incrimination clause to the States, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi 299 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that beginning with Lisenba v. California, 300 a ''federal standard'' had been developed. The Court had engaged in a ''shift [which] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.'' Today, continued Justice Brennan, ''the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,'' when Bram v. United States had announced that the self-incrimination clause furnished the basis for admitting or excluding evidence in federal courts. 301
One week after the decision in Malloy v. Hogan, the Court essayed to define the rules of admissibility of confessions in different terms than its previous case; while it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois, 302 it held inadmissible the confession obtained from a suspect in custody who had repeatedly requested and had repeatedly been refused an opportunity to con sult with his retained counsel, who was present at the police station seeking to gain access to Escobedo. 303 While Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights. 304
Miranda v. Arizona .--The Sixth Amendment holding of Escobedo was deemphasized and the Fifth Amendment self-incrimination rule made preeminent in Miranda v. Arizona, 305 in which the Court summarized its holding as follows: ''[T]he 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 an swered some questions or volunteered some statements on his own does not deprive him of the right of refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.''
The basis for the Court's conclusions was the determination that police interrogation as conceived and practiced was inherently coercive and that this compulsion, though informal and legally sanctionless, was contrary to the protection assured by the self-incrimination clause, the protection afforded in a system of criminal justice which convicted a defendant on the basis of evidence independently secured and not out of his own mouth. In the Court's view, this had been the law in the federal courts since 1897, and the application of the clause to the States in 1964 necessitated the application of the principle in state courts as well. Therefore, the clause requires that police interrogation practices be so structured as to secure to suspects that they not be stripped of the ability to make a free and rational choice between speaking and not speaking. The warnings and the provision of counsel were essential, the Court said, to this type of system. 306 ''In these cases,'' said Chief Justice Warren, ''we might not find the defendants' statements to have been involuntary in traditional terms.'' 307 The acknowledgment that the decision considerably expanded upon previous doctrine, even if the assimilation of self-incrimination values by the confession-exclusion rule be considered complete, was more clearly made a week after Miranda when, in denying retroactivity to that case and to Escobedo, the Court asserted that law enforcement officers had relied justifiably upon prior cases, ''now no longer binding,'' which treated the failure to warn a suspect of his rights or the failure to grant access to counsel as one of the factors to be considered. 308 It was thus not the application of the self-incrimination clause to police interrogation in Miranda that constituted a major change from precedent but rather the series of warnings and guar antees which the Court imposed as security for the observance of the privilege.
While the Court's decision rapidly became highly controversial and the source of much political agitation, including a prominent role in the 1968 presidential election, the Court has continued to adhere to it, 309 albeit not without considerable qualification. In 1968, Congress enacted a statute designed to set aside Miranda in the federal courts and to reinstate the traditional voluntariness test; an effort to enact a companion provision applicable to the state courts was defeated. 310 The statute, however, appears to lie unimplemented because of constitutional doubts about it, 311 and changing membership of the Court has resulted only in some curtailing of the case's principles.
Although the Court had suggested in 1974 that most Miranda claims could be disallowed in federal habeas corpus cases, Supp.5 such a course was squarely rejected in 1993. The Stone v. Powell Supp.6 rule, precluding federal habeas corpus review of a state prisoner's claim that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner's Miranda claim, the Court ruled in Withrow v. Williams. Supp.7 The Miranda rule differs from the Mapp v. Ohio Supp.8 exclusionary rule denied enforcement in Stone, the Court explained. While both are prophylactic rules, Miranda unlike Mapp, safeguards a fundamental trial right, the privilege against self-incrimination. Miranda also protects against the use at trial of unreliable statements, hence, unlike Mapp, relates to the correct ascertainment of guilt. Supp.9 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal habeas review of state convictions, since most Miranda claims could be recast in terms of due process denials resulting from admission of involuntary confessions. Supp.10
In any event, the Court has established several lines of decisions interpreting Miranda.
First, persons who are questioned while they are in custody must be given the Miranda warnings. Miranda applies to ''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.'' 319 Clearly, a suspect detained in jail is in custody, even if the detention is for some offense other than the one about which he is questioned. 320 If he is placed under ar rest, even if he is in his own home, the questioning is custodial. 321 But the fact that a suspect may be present in a police station does not, in the absence of indicia that he was in custody, mean that the questioning is custodial, 322 and the fact that he is in his home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial. 323 As with investigative stops under the Fourth Amendment, there is a wide variety of police-citizen contacts, and the Supreme Court has not explored at any length the application of Miranda to questioning on the street and elsewhere in situations in which the police have not asserted authority sufficient to place the citizen in custody. 324 Whether a person is ''in custody'' is an objectivetest assessed in terms of how a reasonable person in the suspect's shoes would perceive his or her freedom to leave; a police officer's subjective and undisclosed view that a person being interrogated is a suspect is not relevant for Miranda purposes. Supp.11
Second, persons who are interrogated while they are in custody must be given the Miranda warnings. It is not necessary under Miranda that the police squarely ask a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis. 325 There, police had apprehended the defendant as a murder suspect but had not found the weapon used. While he was being transported to police headquarters in a squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which they indicated that a school for handicapped children was near the crime scene and that they hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon's hiding place.
Unanimously rejecting a contention that Miranda would have been violated only by express questioning, the Court said: ''We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.'' 326 A divided Court then concluded that the officers' conversation did not amount to a functional equivalent of questioning and that the evidence was admissible. 327
In Estelle v. Smith, 328 the Court held that a court-ordered jailhouse interview with the defendant by a psychiatrist seeking to determine his competency to stand trial, when the defense had raised no issue of insanity or incompetency, constituted interrogation for Miranda purposes; the psychiatrist's conclusions about the defendant's dangerousness were inadmissible at the capital sentencing phase of the trial because the defendant had not been given his Miranda warnings prior to the interview. That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than by a police officer, was ''immaterial,'' the Court concluded, since the psychiatrist's testimony at the penalty phase changed his role from one of neutrality to that of an agent of the prosecution. 329 Other instances of questioning in less formal contexts in which the issues of custody and interroga tion intertwine, e.g., in on-the-street encounters, await explication by the Court.
Third, before a suspect in custody is interrogated, he must be given full warnings, or the equivalent, of his rights. Miranda, of course, required express warnings to be given to an in-custody suspect of his right to remain silent, that anything he said may be used as evidence against him, that he has a right to counsel, and that if he cannot afford counsel he is entitled to an appointed attorney. 330 The Court recognized that ''other fully effective means'' could be devised to convey the right to remain silent, 331 but it was firm that the prosecution was not permitted to show that an unwarned suspect knew of his rights in some manner. 332 But it is not necessary that the police give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words used ''fully conveyed'' to a defendant his rights. 333
Fourth, once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect his assertion of right. The Miranda Court strongly stated that once a warned suspect ''indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'' Further, if the suspect indicates he wishes the assistance of counsel before interrogation, the questioning must cease until he has counsel. 334 At least with respect to counsel, the Court has created practically a per se rule barring the police from continuing or from reinitiating interrogation with a suspect requesting counsel until counsel is present, save only that the suspect himself may initiate further proceedings. Thus, in Edwards v. Arizona, 335 the Court ruled that Miranda had been violated when police reinitiated questioning after the suspect had requested counsel. Questioning had ceased as soon as the suspect had requested counsel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, ''when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of this rights. We further hold that an accused . . . , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'' 336 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested. 337
However, the suspect must specifically ask for counsel; if he requests the assistance of someone else he thinks may be helpful to him, that is not a valid assertion of Miranda rights. 338 Moreover, the rigid Edwards rule is not applicable to other aspects of the warnings. That is, if the suspect asserts his right to remain silent, the questioning must cease, but officers are not precluded from subsequently initiating a new round of interrogation, provided only that they again give the Miranda warnings. 339
Fifth, a properly warned suspect may waive his Miranda rights and submit to custodial interrogation. Miranda recognized that a suspect may voluntarily and knowingly give up his rights and re spond to questioning, but the Court cautioned that the prosecution bore a ''heavy burden'' to establish that a valid waiver had occurred. 340 While the waiver need not be express in order for it to be valid, 341 neither may a suspect's silence or similar conduct constitute a waiver. 342 It must be shown that the suspect was competent to understand and appreciate the warning and to be able to waive his rights. 343 Essentially, resolution of the issue of waiver ''must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' '' 344 After a suspect has knowingly and voluntarily waivedhis Miranda rights, police officers may continue questioning until and unless the suspect clearly requests an attorney. Supp.12
Sixth, the admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court has permitted some use for other purposes, such as impeachment. A confession or other incriminating admissions obtained in violation of Miranda may not, of course, be introduced against him at trial for purposes of establishing guilt 345 or for determining the sentence, at least in bifurcated trials in capital cases, 346 and neither may the ''fruits'' of such a confession or admission be used. 347 The Court, in opinions which bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may be used. 348 Thus, in Harris v. New York, 349 the Court held that the prosecution could use statements, obtained in violation of Miranda, to impeach the defendant's testimony if he voluntarily took the stand and denied commission of the offense. Subsequently, in Oregon v. Hass, 350 the Court permitted impeachment use of a statement made by the defendant after police had ignored his request for counsel following his Miranda warning. Such impeachment material, however, must still meet the standard of voluntariness associated with the pre-Miranda tests for the admission of confessions and statements. 351
The Court has created a ''public safety'' exception to the Miranda warning requirement, but has refused to create another exception for misdemeanors and lesser offenses. In New York v. Quarles, 352 the Court held admissible a recently apprehended suspect's response in a public supermarket to the arresting officer's demand to know the location of a gun that the officer had reason to believe the suspect had just discarded or hidden in the supermarket. The Court, in an opinion by Justice Rehnquist, 353 declined to place officers in the ''untenable position'' of having to make instant decisions as to whether to proceed with Miranda warnings and thereby increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that resulting evidence will be excluded at trial. While acknowledging that the exception itself will ''lessen the desirable clarity of the rule,'' the Court predicted that confusion would be slight: ''[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.'' 354 No such compelling justification was offered for a Miranda exception for lesser offenses, however, and protecting the rule's ''simplicity and clarity'' counseled against creating one. 355 ''[A] person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.'' 356
[Footnote 251] 3 J. Wigmore, A Treatise on the Anglo-American System of Evidence Sec. 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id., Sec. 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately, they did stem from some of the same considerations, and, in fact, the confession rule may be considered in important respects to be an off-shoot of the privilege against self- incrimination. See L. Levy, Origins of the Fifth Amendment--The Right against Self-Incrimination 325-32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581 -84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court).
[Footnote 252] 3 J. Wigmore, A Treatise on the Anglo-American System of Evidence Sec. 823 (3d ed. 1940); Developments in the Law--Confessions, 79 Harv. L. Rev. 935, 954-59 (1966).
[Footnote 254] Pierce v. United States, 160 U.S. 335 (1896); Sparf v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility.
[Footnote 255] 168 U.S. 532 (1897). ''[T]he generic language of the [Fifth] Amendment was but a crystallization of the doctrine as to confessions, well settled when the Amendment was adopted. . . .'' Id. at 543.
[Footnote 256] Id. at 549.
[Footnote 257] Ziang Sun Wan v. United States, 266 U.S. 1, 14 -15 (1924). This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession.
[Footnote 260] United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953).
[Footnote 262] In Upshaw v. United States, 335 U.S. 410 (1948), the Court rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirty-hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944).
[Footnote 263] McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule did not apply in military courts.
[Footnote 264] Gallegos v. Nebraska, 342 U.S. 55, 60 , 63-64, 71-73 (1951); Stein v. New York, 346 U.S. 156, 187 -88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599 -602 (1961) (Justice Frankfurter announcing judgment of the Court).
[Footnote 265] Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451 -54 (1957). Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge against him, must warn him that what he says may be used against him, must tell him of his right to counsel and his right to remain silent, and must also provide for the terms of bail.
[Footnote 267] The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. Sec. 3501(c).
[Footnote 268] Brown v. Mississippi, 297 U.S. 278 (1936). ''[T]he question of the right of the State to withdraw the privilege against self- incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.'' Id. at 285, 286.
[Footnote 270] Id. at 602.
[Footnote 271] ''The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three- phased process. First, there is the business of finding the crude historical facts, the external 'phenomenological' occurrences and events surrounding the confession. Second, because the concept of 'voluntariness' is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, 'psychological' fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.'' Id. at 603. See Developments in the Law--Confessions, 79 Harv. L. Rev. 935, 973-82 (1966).
[Footnote 274] 322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts protested that ''interrogation per se is not, while violence per se is, an outlaw.'' A confession made after interrogation was not truly ''voluntary'' because all questioning is ''inherently coercive,'' because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they insisted, determine whether the suspect was in possession of his own will and self-control and not look alone to the length or intensity of the interrogation. They accused the majority of ''read[ing] an indiscriminating hostility to mere interrogation into the Constitution'' and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions.
[Footnote 278] Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession may be corroborated by independent means. Id. at 57.
[Footnote 280] Id. at 185.
[Footnote 281] 373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family).
[Footnote 282] Id. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on suspect's sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968).
[Footnote 283] Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls.
[Footnote 285] E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of ''truth serum'' to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug's side effects).
[Footnote 291] 3 J. Wigmore, A Treatise on the Anglo-American System of Evidence Sec. 882, at 246 (3d ed. 1940).
[Footnote 295] Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due process-fairness standard while four adhered to a trustworthiness rationale. See id. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.
[Footnote 296] 365 U.S 534, 540-41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that ''the conceptions underlying the rule excluding coerced confessions and the privilege again self- incrimination have become, to some extent, assimilated.''
[Footnote 301] Malloy v. Hogan, 378 U.S. 1, 6 -7 (1964). Protesting that this was ''post facto reasoning at best,'' Justice Harlan contended that the ''majority is simply wrong'' in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17-19. Bram v. United States, 168 U.S. 532 (1897), is discussed supra, p.1321.
[Footnote 302] 378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.
[Footnote 303] Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S 201 (1964). See discussion under Sixth Amendment, infra.
[Footnote 304] Escobedo v. Illinois, 378 U.S. 478, 485 , 491 (1964) (both pages containing assertions of the suspect's ''absolute right to remain silent'' in the context of police warnings prior to interrogation).
[Footnote 305] 384 U.S. 436, 444 -45 (1966). In Johnson v. New Jersey, 384 U.S. 719 (1966), the Court held that neither Escobedo nor Miranda was to be applied retroactively. In cases where trials commenced after the decisions were announced, the due process ''totality of circumstances'' test was to be the key. Cf. Davis v. North Carolina, 384 U.S. 737 (1966).
[Footnote 306] Justices Clark, Harlan, Stewart, and White dissented, finding no historical support for the application of the clause to police interrogation and rejecting the policy considerations for the extension put forward by the majority. Miranda v. Arizona, 384 U.S. 436, 499 , 504, 526 (1966). Justice White argued that while the Court's decision was not compelled or even strongly suggested by the Fifth Amendment, its history, and the judicial precedents, this did not preclude the Court from making new law and new public policy grounded in reason and experience, but he contended that the change made in Miranda was ill-conceived because it arose from a view of interrogation as inherently coercive and because the decision did not adequately protect society's interest in detecting and punishing criminal behavior. Id. at 531-45.
[Footnote 307] Id. at 457. For the continuing recognition of the difference between the traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417 U.S. 433, 443 -46 (1974); Mincey v. Arizona, 437 U.S. 385, 396 -402 (1978).
[Footnote 309] See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Chief Justice Burger concurring) (''The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date.'')
[Footnote 310] Pub. L. No. 90-351, Sec. 701(a), 82 Stat. 210, 18 U.S.C. Sec. 3501. See S. Rept. No. 1097, 90th Congress, 2d sess. 37-53 (1968).
[Footnote 311] But cf. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975).
[Footnote 5 (1996 Supplement)] In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a distinction between a constitutional violation and a violation of ''theprophylactic rules developed to protect that right.'' The actual holding in Tucker, however, had turned on the fact that the interrogation had preceded the Miranda decision and that warnings–albeit not full Miranda warnings–had been given.
[Footnote 6 (1996 Supplement)] 428 U.S. 465 (1976).
[Footnote 7 (1996 Supplement)] 507 U.S. 680 (1993).
[Footnote 8 (1996 Supplement)] 367 U.S. 643 (1961).
[Footnote 9 (1996 Supplement)] 507 U.S. at 691-92.
[Footnote10 (1996 Supplement)] Id. at 693.
[Footnotes 312-318]. Deleted in 1996 Supplement.
[Footnote 320] Mathis v. United States, 391 U.S. 1 (1968) (suspect in state jail questioned by federal officer about a federal crime). But even though a suspect is in jail, hence in custody ''in a technical sense,'' a conversation with an undercover agent does not create a coercive, police-dominated environment and does not implicate Miranda if the suspect does not know that he is conversing with a government agent. Illinois v. Perkins, 110 S. Ct. 2394 (1990).
[Footnote 322] Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came voluntarily to police station to be questioned, he was not placed under arrest while there, and he was allowed to leave at end of interview, even though he was named by victim as culprit, questioning took place behind closed doors, and he was falsely informed his fingerprints had been found at scene of crime). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (required reporting to probationary officer is not custodial situation).
[Footnote 324] Cf. United States v. Mendenhall, 446 U.S. 544 (1980); Reid v. Georgia, 448 U.S. 438 (1980); Brown v. Texas, 443 U.S. 47 (1979); Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of motorist stopped for traffic violation is not custodial interrogation until his ''freedom of action is curtailed to a 'degree associated with formal arrest''').
[Footnote 11 (1996 Supplement)] Stansbury v. California, 114 S. Ct. 1526 (1994).
[Footnote 325] 446 U.S. 291 (1980). A remarkably similar factual situation was presented in Brewer v. Williams, 430 U.S. 387 (1977), which was decided under the Sixth Amendment. In Brewer, and also in Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), the Court has had difficulty in expounding on what constitutes interrogation for Sixth Amendment counsel purposes. The Innis Court indicated that the definitions are not the same for each Amendment. 446 U.S. at 300 n.4.
[Footnote 327] Id. at 302-04. Justices Marshall, Brennan, and Stevens dissented, Id. at 305, 307. Similarly, the Court found no functional equivalent of interrogation when police allowed a suspect's wife to talk to him in the presence of a police officer who openly tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987). See also Illinois v. Perkins, 496 U.S. 292 (1990) (absence of coercive environment makes Miranda inapplicable to jail cell conversation between suspect and police undercover agent).
[Footnote 329] Id. at 467.
[Footnote 331] Id.
[Footnote 332] Id. at 469.
[Footnote 333] California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether the warnings ''reasonably conveyed'' a suspect's rights, the Court adding that reviewing courts ''need not examine Miranda warnings as if construing a will or defining the terms of an easement.'' Duckworth v. Egan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would be appointed ''if and when you go to court'').
[Footnote 336] Id. at 484-85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral statements. Connecticut v. Barrett, 479 U.S. 523 (1987). The Court has held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards does apply to cases pending on appeal at the time it was decided. Shea v. Louisiana, 470 U.S. 51 (1985).
[Footnote 337] Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime unrelated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991).
[Footnote 338] Fare v. Michael C., 442 U.S. 707 (1979) (juvenile requested to see his parole officer, rather than counsel). Also, waivers signed by the accused following Miranda warnings are not vitiated by police having kept from the accused information that an attorney had been retained for him by a relative. Moran v. Burbine, 475 U.S. 412 (1986).
[Footnote 339] Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police ''scrupulously honored'' suspect's request, admission valid).
[Footnote 342] Id. at 373. But silence, ''coupled with an understanding of his rights and a course of conduct indicating waiver,'' may support a conclusion of waiver. Id.
[Footnote 343] Tague v. Louisiana, 444 U.S. 469 (1980). A knowing and intelligent waiver need not be predicated on complete disclosure by police of the intended line of questioning, hence an accused's signed waiver following arrest for one crime is not invalidated by police having failed to inform him of intent to question him about another crime. Colorado v. Spring, 479 U.S. 564 (1987).
[Footnote 344] North Carolina v. Butler, 441 U.S. 369, 374 -75 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that a confession following a Miranda warning is not necessarily tainted by an earlier confession obtained without a warning, as long as the earlier confession had been voluntary. And see Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers following Miranda warnings not vitiated by police having kept from suspect information that attorney had been retained for him by relative).
[Footnote12 (1996 Supplement)] Davis v. United States, 114 S. Ct. 2350 (1994) (suspect's statement that ''maybe I should talk to a lawyer,'' uttered after Miranda waiver and after an hour and a half of questioning, did not constitute such a clear request for an attorney when, in response to a direct follow-up question, he said ''no, I don't want a lawyer'').
[Footnote 347] Cf. Harrison v. United States, 392 U.S. 219 (1968) (after confessions obtained in violation of McNabb-Mallory were admitted against him, defendant took the stand to rebut them and made damaging admissions; after his first conviction was reversed, he was retried without the confessions, but the prosecutor introduced his rebuttal testimony from the first trial; Court reversed conviction because testimony was tainted by the admission of the confessions). But see Michigan v. Tucker, 417 U.S. 433 (1974). Confessions may be the poisonous fruit of other constitutional violations, such as illegal searches or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982).
[Footnote 348] Under Walter v. United States, 347 U.S. 62 (1954), the defendant not only denied the offense of which he was accused (sale of drugs), but also asserted he had never dealt in drugs. The prosecution was permitted to impeach him concerning heroin seized illegally from his home two years before. The Court observed that the defendant could have denied the offense without making the ''sweeping'' assertions, as to which the government could impeach him.
[Footnote 349] 401 U.S. 222 (1971). The defendant had denied only the commission of the offense. The Court observed that it was only ''speculative'' to think that impermissible police conduct would be encouraged by permitting such impeachment, a resort to deterrence analysis being contemporaneously used to ground the Fourth Amendment exclusionary rule, whereas the defendant's right to testify was the obligation to testify truthfully and the prosecution could impeach him for committing perjury. See also United States v. Havens, 446 U.S. 620 (1980) (Fourth Amendment).
[Footnote 350] 420 U.S. 714 (1975). By contrast, a defendant may not be impeached by evidence of his silence after police have warned him of his right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976).
[Footnote 353] The Court's opinion was joined by Chief Justice Burger and by Justices White, Blackmun, and Powell. Justice O'Connor would have ruled inadmissible the suspect's response, but not the gun retrieved as a result of the response, and Justices Marshall, Brennan, and Stevens dissented.