The Complex of Proof
The C omplex of Proof
John Edgar Hoover 0
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Recommended Citation John Edgar Hoover, Th e Complex of Proof, 35 Fordham L. Rev. 577 (1967). Available at: http://ir.lawnet.fordham.edu/flr/vol35/iss4/1
JOHN EDGAR HOOVER*
of this article is not to present an exhaustive analysis or
THcEommaiemnt on any specific legal doctrine involving proof of guilt, but
to view broadly for illustrative purposes a few developments in the law
of special importance to the American law enforcement officer, state and
federal, in the performance of his duty. Examination of these milestones
of the law which mark the course of constitutional limitation on
permissible crime investigation may show not only the increase in the law's
demands upon its officers, but also the concomitant growth in the need
for their instruction in the controlling rules of law and the underlying
policies upon which these rules are based.
The developments noted have occurred in the important police action
fields of searches and seizures and confessions. Our principal interest,
however, is in the confession as an item of evidence and, accordingly, the
main part of this discussion is devoted to the latter subject.
Fifty years ago if a conscientious law enforcement officer consulted
an up-to-date legal encyclopedia in an attempt to insure that his methods
of gathering evidence were in full accord with the law, he would find
the following compendious account of the general rules on the matter:
Evidence is not infrequently obtained by methods that are reprehensible in good
morals and offensive to fair dealing, subjecting it to unfavorable inferences, which
the party relying upon it must neutralize to entitle it to full credence. And evidence
is sometimes obtained under circumstances which meet the unqualified disapprobation
of the courts. But the evidence, however unfairly and illegally obtained, is not
subject to exclusion, if it be of facts in themselves relevant, except when a party accused
of crime has been compelled to do some positive affirmative act inculpating himself,
or an admission or confession has been extorted from him by force or drawn from
him by appealing to his hopes or fears. A far-reaching miscarriage of justice would
result if the public were to be denied the right to use convincing evidence of a
defendant's guilt because it had been brought to light through the excessive zeal of an
individual, whether an officer or not, whose misconduct must be deemed his own
act and not that of the state, and courts, in the administration of the criminal law,
are not accustomed to be oversensitive in regard to the sources from which evidence
comes, and will avail themselves of all evidence that is competent and pertinent, and
not subversive of some constitutional or legal right.'
As he put down the unfamiliar tome, this officer of another generation
would gather from his reading that few holds were barred in the rough
and tumble of criminal investigation; that the courts might disapprove
* Director, Federal Bureau of Investigation, United States Department of Justice.
1. 8 R.C.L. Criminal Law § 190, at 194 (1929). (Footnotes omitted.)
the method of discovery, but not the proof of guilt discovered; and that
the paramount concern of the law was that the evidence obtained be
relevant to the case so that those who wilfully refused to obey the rules
of community life would not escape the rod of justice.
Conscious of the fact that enforcement of the criminal law is a rugged
business, the officer might consider this brief summary of the law to be
a practical and realistic view. But nonetheless he would be surprised,
for it seemed to indicate not only that the law countenanced official
action that was reprehensible in good morals, an attitude that clashed
with his own religious convictions, but also that it tolerated police
procedures that were illegal, an obvious contradiction that meant nothing
less than that the law could be enforced in a lawless way. On second
thought, however, the officer would realize that this was not so, that the
law did not affirmatively sanction improper and unlawful action by its
officers, but what it really provided was that evidence pertinent to the
case which happened to be collected in such ways was usable at trial,
the person aggrieved being left to whatever other remedies the law might
provide for invasion of protected rights.
To some extent his reading of the paragraph might be a source of
encouragement to the officer. In the first place, he might believe that if
by chance he did happen to breach a technical rule of law in a
goodfaith effort to discover the perpetrator of crime, his mistake would not
fatally injure the prosecution's case. Secondly, since the text indicated
that it was the pertinency, i.e., logical relevancy, of the evidence that
counted above all, he might conclude that without a formal knowledge
of the difficult law of evidence he could still properly discharge his
investigative responsibilities. He would, in other words, be able to find
evidence in the form of witnesses, documents and physical substances to
establish the fact of crime and the identity of the criminal sufficient to
prove guilt beyond a reasonable doubt. And he would not be wrong in
this conclusion for, after all, the basic requirement governing the
admissibility of evidence is that it have rational probative value and this is
determined by right reason, not by legal precepts.
With his short review of the law completed, this officer of the past,
conscious of his obligation to obey the law and imbued with a natural
sense of fair play, could set out to gather the necessary evidence by use
of the traditional tools of the policeman's art. He would, for example,
employ such investigative means as the interview, surveillance, review
of documentary sources of information, the search and seizure of the
fruits and instrumentalities of the offense on occasions such as arrest,
and the collection of physical traces of criminal activity and the identity
of the criminal at the scene of the crime. It is true that many aids would
not be available to him in the analysis of the evidence he collected which
the great advances in police science have provided for the law
enforcement officer of today; for example, the myriad types of scientific
examinations of real evidence afforded by the modem crime laboratory. But
even in his time, the science of fingerprint identification furnished its
great assistance, and, as noted, he did have at his complete command
the most important investigative technique of all-the interview.
The careful and thorough interview of those who may have knowledge,
meager or extensive, of the crime or the criminal is the most fruitful
source of information of evidentiary value that exists. During the
investigative stage of a criminal case it constitutes the main pathway to the
discovery of truth. It leads the officer to that evidence, direct and
indirect, that provides the probable cause necessary for preliminary legal
action and ultimate proof of guilt at trial.
As Mr. Justice Frankfurter has said:
Despite modem advances in the technology of crime detection, offenses frequently
occur about which things cannot be made to speak. And where there cannot be found
innocent human witnesses to such offenses, nothing remains-if police investigation
is not to be balked before it has fairly begun-but to seek out possibly guilty witnesses
and ask them questions, witnesses, that is, who are suspected of knowing something
about the offense precisely because they are suspected of implication in it.2
In carrying out his lawful duty, therefore, the officer would interview
every person, whom his talent and ability could locate, with knowledge
pertinent to the case at hand-those on its perimeter, and those at its
II. THE PROGRESS OF THE LAW
A. Searches and Seizures
To the professional law enforcement officer of today the general
impression produced by the passage in the legal encyclopedia perused by
his predecessor woud appear strange, so great and many have been the
changes in the law that have occurred in the interim. In fact, a great
departure from the view of the law that the admissibility of relevant
evidence is not affected by the illegality of the means through which it
was obtained was already underway when the encyclopedia consulted
was in the process of publication.
This change took place in 1914, in the crucial area of search and
seizure, when the Supreme Court of the United States, influenced by
reasons of constitutional magnitude, handed down its decision in Weeks v.
United States3 in a historic move already heralded by the Court's opinion
2. Culombe v. Connecticut, 367 U.S. 568, 571 (1961).
3. 232 U.S. 383 (1914).
in Boyd v. United States4 a generation before. Weeks held that pertinent
documents obtained by a federal officer through means of an unlawful
search and seizure could be excluded from evidence at a trial in federal
court as a consequence of the fourth amendment to the federal
In that case the defendant was convicted for use of the mails in a
lottery enterprise. In the course of the investigation, his private papers,
books and other property were seized at his house during his absence
and without his authority by a federal officer who had no warrant for
his arrest or for search of the premises. Asserting his rights under the
fourth and fifth amendments to the Constitution, the defendant before
trial applied to the court for a return of his property. The court ordered
the return of that property which was not pertinent to the charge against
the defendant, but denied the petition as to that which was relevant.
The retained letters and correspondence were put in evidence at the
trial and he was convicted.
In reversing the judgment of conviction, the Supreme Court declared:
If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the Fourth Amendment
declaring his right to be secure against such searches and seizures is of no value, and,
so far as those thus placed are concerned, might as well be stricken from the
Constitution. The efforts of the courts and their officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted in their
embodiment in the fundamental law of the land.0
Fourteen years after its formulation the powerful effect of the Weeks
doctrine was described by Chief Justice Taft as follows:
The striking outcome of the Weeks case and those which followed it was the
sweeping declaration that the Fourth Amendment, although not referring to or limiting
the use of evidence in courts, really forbade its introduction if obtained by
government officers through a violation of the Amendment. Theretofore many had supposed
that under the ordinary common law rules, if the tendered evidence was pertinent,
the method of obtaining it was unimportant. 7
Since the fourth amendment, as such, is a limitation on federal action,
the Weeks decision laid down its exclusionary rule for the federal courts
alone. Its influence, however, was great and the principle was accepted
by many of the individual states as a rule of procedure in the
enforcement of their own criminal law. The eventual carry-over of the Weeks
4. 116 U.S. 616 (1886).
5. 232 U.S. at 398.
6. Id. at 393.
7. Olmstead v. United States, 277 U.S. 438, 462-63 (1928).
doctrine to the states in Mapp v. Ohio" by means of the due process
clause of the fourteenth amendment has made the exclusionary rule the
law of the land and constitutes one of the most important developments
in the history of American law enforcement.
As a result of this historic development, the prohibition of the fourth
amendment against unreasonable searches and seizures is enforceable
against the states through the fourteenth amendment not only by the
same sanction of exclusion but also by the application of the same
constitutional standards. The reasonableness of a state search is determined
from the facts and circumstances of the case in the light of the
fundamental criteria laid down by the fourth amendment and in the opinions
of the Supreme Court applying that amendment. The states, however,
are not precluded from developing workable rules governing arrests,
searches and seizures to meet the practical demands of effective criminal
investigation and law enforcement, provided they do not violate the
constitutional proscription of unreasonable searches and seizures, and
the command that evidence so seized is inadmissible against those persons
who have standing to complain.'
It is imperative that the law enforcement officer understand the policies
and purpose which lie behind the exclusionary rule laid down in Weeks
and Mapp by which evidence obtained through an unreasonable search
and seizure is barred from federal and state proceedings. If he does, his
zeal to gather evidence that will prove the guilt of those responsible for
crime will be tempered by that prudence which often spells the difference
between good and bad law enforcement. The purpose of the rule is not
to guard against untrustworthy evidence that may injure the cause of
truth. Indeed, the rule affects evidence whose relevancy and reliability
is unquestioned.' ° The policies underlying the rule are to effectively
enforce the fourth amendment's protection of the right to privacy, and to
close the doors of the courts to any use of evidence unconstitutionally
obtained. If the strict standards set by the law for constitutional searches
and seizures are not satisfied, the evidence thereby obtained is rendered
inadmissible. The rule is calculated to compel respect for the
constitutional guaranty by deterring official action in violation of it through
removal of the incentive to disregard it.
Obviously a monumental change in orthodox legal doctrine such as
that enunciated in the Weeks case did not come about without great
judicial thought and was not received without great difference in judicial
opinion. The classic discussion of the pros and cons necessarily involved
8. 367 US. 643 (1961).
9. See Ker v. California, 374 US. 23 (1963).
10. Linkletter v. Walker, 381 U.S. 618, 639 (1965).
is found in the lucid and forceful opinion delivered in the case of People
v. Delore"l in 1926 by Mr. Justice Cardozo who was then a judge of the
New York court of appeals.
In that case, a search carried out by trespassing law enforcement
officers led to the seizure of a blackjack for whose possession the defendant
was tried. After noting that "means unlawful in their inception do not
become lawful by relation when suspicion ripens into discovery,"' 2 Judge
Cardozo reviewed the sanctions then existing under New York law against
such official misconduct, including resistance to the trespassing officers,
suit for damages, prosecution for oppression, and removal or other
discipline of the officers at the hands of their superiors. On consideration,
however, of the question whether the further sanction of rejection of the
evidence of criminality because of official misconduct should be added
to these, he concluded that it should not.13
Judge Cardozo, remarking that there are dangers in any choice between
them, brilliantly laid out the two great ends at stake: on the one
hand"the social need that crime shall be repressed. On the other, the social
need that law shall not be flouted by the insolence of office."' 4 He pointed
out that greater protection of the individual's right to privacy would
be secured if the government were required to ignore what it had learned
through invasion of this right; but the sanction of exclusion would have
a far-reaching effect upon society because "the pettiest peace officer
would have it in his power through overzeal or indiscretion to confer
immunity upon an offender for crimes the most flagitious."'"
The great judge in reaching his decision that the prevailing New York
statute against unreasonable searches and seizures did not bar the use
of illegally obtained evidence at trial summed up his view of the effect
of Weeks in his well known aphorism: "There has been no blinking the
consequences. The criminal is to go free because the constable has
Despite the general view of the common law that relevant evidence
however unfairly and illegally obtained is not subject to exclusion, the
courts, as the officer noted in the encyclopedia, refused to receive in
evidence extrajudicial confessions of guilt obtained from a defendant
under the influence of improper inducement. Special treatment was
af11. 242 N.Y. 13, 150 N.E. 585 (1926).
12. Id at 19, 150 N.E. at 586.
13. Id. at 21-22, 150 N.E. at 588.
14. Id. at 24-25, 150 N.E. at 589.
15. Id. at 23, 150 NXE. at 588.
16. Id. at 21, 150 N.E. at 587.
forded this type of evidence which by its nature is possessed of
particularly great probative strength. The flat rule laid down almost two
hundred years ago was that a pretrial confession to be valid evidence must
not have been extorted from a defendant by force or drawn from him
by appealing to his hopes or fears; 17 or, as the courts stated the rule
affirmatively, briefly, and indefinitely, the confession to be admissible
had to be "voluntary."
Historically, at the common law, involuntary confessions were rejected
because they constituted unreliable evidence, It was reasoned that the
pressure of improper inducement might influence a suspect or prisoner
to confess falsely to a crime he did not commit in order to gain relief
from the pressure. Since some confessions obtained by such inducement
might be false, they were all deemed untrustworthy and were ruled to
be inadmissible in evidence because they could not be safely used to
support a conviction of guilt.
Today, however, the main reason involuntary confessions are excluded
from evidence in all American courts is because their use breaches the
constitutional privilege against self-incrimination. The standard of
voluntariness grounded in the policies of this fundamental guaranty was set
as the controlling constitutional rule in federal prosecutions at the turn
of the century and has in recent years evolved as the rule applicable in
state criminal cases. The fact that the voluntariness of a confession now
turns on the constitutional privilege guaranteeing a prisoner the absolute
right to remain silent and the fact that the Supreme Court has delineated
detailed and mandatory procedural safeguards in the form of warnings
and waiver to insure that the protection of the privilege is fully effective
while he is subjected to in-custody questioning have added new
responsibilities of great importance to the American law enforcement officer.
Furthermore, the policies involved in this standard of admissibility have
affected other rules of confession law bottomed on the pre-existing reason
for exclusion. Consequently, the development of the current doctrine is
of especial interest.
The traditional rationale underlying the rule excluding involuntary
confessions, i.e., they are inadmissible because they constitute
untrustworthy evidence and not on account of the great privilege or due to
any impropriety in the manner of their procurement, was expounded by
Chief Justice Lemuel Shaw of Massachusetts as follows:
The ground on which confessions made by a party accused, under promises of favor,
or threats of injury, are excluded as incompetent, is, not because any wrong is done
to the accused, in using them, but because he may be induced, by the pressure of
17. See The King v. Warickshall, 1 Leach Cr.C. 263, 168 Eng. Rep. 234 (1783), where
this rule of admissibility for a confession was first clearly enunciated.
hope or fear, to admit facts unfavorable to him, without regard to their truth, in
order to obtain the promised relief, or avoid the threatened danger, and therefore
admissions so obtained have no just and legitimate tendency to prove the facts
admitted. . . . The general rule of law seems sufficiently plain and clear, but the great
variety of facts and circumstances, attending particular cases, renders the application
difficult, and each case must depend much on its own circumstances.' 8
Although the application of the rule based on this rationale was
difficult and each case had to depend greatly on its own circumstances, the
courts singled out two specific situations, noted by Chief Justice Shaw
in his opinion, 9 where experience had demonstrated that the stresses on
an innocent person might especially lead to a false confession; namely,
when he was subjected to the pressure of fear or hope engendered by
threats of harm or promises of benefit.
An English court highlighted these factors as traditional elements of
the rule in the following succinct paragraph:
It is a trite maxim that the confession of a crime, to be admissible against the party
confessing, must be voluntary; but this only means that it shall not be induced by
improper threats or promises, because, under such circumstances, the party may have
been influenced to say what is not true, and the supposed confession cannot be safely
acted upon. 20
Obviously under this concept if a threat of harm vitiated a confession,
a fortiori the use of actual corporal violence would render a confession
obtained as a result likewise inadmissible.
Almost from the beginning, however, the veiled concept of the
privilege against self-incrimination appeared alongside the historical rationale.
The early recognition of this concept, resting not on reasons of evidential
reliability but on humanitarian and fair-play grounds, is seen in the
following passage from Hawkins' Pleas of the Crown:
The human mind under the pressure of calamity is easily seduced; and is liable, in
the alarm of danger, to acknowledge, indiscriminately, a falsehood or a truth, as
different agitations may prevail. A confession, therefore, whether made upon an
official examination or in discourse with private persons, which is obtained from a
defendant either by the flattery of hope, or by the impressions of fear, however
slightly the emotions may be implanted, is not admissible evidence; for the law will
not suffer a prisoner to be made the deluded instrument of his own conviction .... 21
In regard to this principle, i.e., that men are not to be exploited for
the information necessary to condemn them before the law, the Supreme
Court has declared:
18. Commonwealth v. Morey, 67 Mass. 461, 462-63 (1854).
20. Regina v. Scott, 1 D. & B. 47, 58, 169 Eng. Rep. 909, 914 (1856).
21. 2 Hawk. P.C., 604 n.2 (6th ed. 1787).
This principle, branded into the consciousness of our civilization by the memory of
the secret inquisitions, sometimes practiced with torture, which were borrowed briefly
from the continent during the era of the Star Chamber, was well known to those who
established the American governments. Its essence is the requirement that the State
which proposes to convict and punish an individual produce the evidence against him
by the independent labor of its officers, not by the simple, cruel expedient of forcing
it from his own lips.22
1. The Brain Doctrine
At the turn of the century, the Supreme Court of the United States
expressly held in the famous case of Brain v. United States23 that the
constitutional privilege against self-incrimination was the controlling
principle governing the admissibilty of extrajudicial confessions in
federal courts. Prior to that time the Court had decided confession cases,
which came like Brain solely from the lower federal courts, pursuant to
the traditional rationale. 24
Brarn involved the midnight triple-axe murder in the year 1896 of a
ship's master, his wife and the second mate aboard an American vessel
on the high seas. When the bodies of the three victims were discovered,
the suspicion of the crew centered on a seaman called Brown whom they
placed in irons under the supervision of Bram, the first officer of the
ship. Later Brown told his shipmates that while he was at the schooner's
wheel on the night of the crime he had seen Brain kill the captain; and
thereupon the crew shackled Brain as well. When the vessel put.in at
Halifax, Nova Scotia, the two suspects were held in police custody to
await the action of the American authorities.
While at this foreign port, Brain was brought from jail by a police
officer to city hall for interview by a Halifax detective. While he was
alone in a room with the detective, Brain was stripped of his clothing
for purposes of search, and a conversation took place during which Bram
made certain statements, set out below, tending to implicate himself in
At Bran's subsequent trial for murder in federal court at Boston,
Massachusetts, the detective was called as a witness for the prosecution.
He testified that when the defendant came into the room, he said to him:
"Bram, we are trying to unravel this horrible mystery. Your position is
rather an awkward one. I have had Brown in this office, and he made a
statement that he saw you do the murder." To this Brain replied: "He
could not have seen me. Where was he?" The detective said: "He states
22. Culombe v. Connecticut, 367 U.S. 568, 581-82 (1961). (Footnotes omitted.)
23. 168 U.S. 532 (1897).
24. See, e.g., Hopt v. People, 110 U.S. 574 (1884).
25. 168 U.S. at 534-37.
he was at the wheel." Brain answered: "Well, he could not see me from
The detective further testified that he then said: "Now, look here,
Bram, I am satisfied that you killed the captain from all I have heard
from Mr. Brown. But, some of us here think you could not have done
all that crime alone. If you had an accomplice, you should say so, and
not have the blame of this horrible crime on your own shoulders." Bram
then remarked: "Well, I think, and many others on board the ship
think, that Brown is the murderer; but I don't know anything about it.""
The detective declared that during their conversation no threats were
made in any way to Bram and no inducements were held out to him.
Bram's statements were received in evidence against him as a confession
and he was convicted.28 The Supreme Court, however, concluding that
Bram's statements were not voluntary," reversed the conviction and
ordered a new trial. 30
In the course of its opinion, the Court enunciated the following
principle controlling the issue of the voluntariness of a confession in federal
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.' . . . A brief consideration of the reasons which gave rise to the adoption of
the Fifth Amendment, of the wrongs which it was intended to prevent and of the
safeguards which it was its purpose unalterably to secure, will make it clear that the
generic language of the Amendment was but a crystallization of the doctrine as to
confessions, well settled when the Amendment was adopted ....81
Acknowledging the difficulty experienced in attempting to reconcile
the authorities due to the varying factual situations in the decided cases,
the Court declared that no doubt or obscurity could arise as to the rule
itself because it is found in the text of the Constitution. 2 After pointing
out that much of the confusion had arisen from a misconception of the
subject to which the proof of voluntariness must address itself, the Court
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
26. Id. at 539.
28. Id. at 534.
29. Id. at 565.
30. Id. at 569.
31. Id. at 542-43.
32. Id. at 549.
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.33
In reaching its conclusion that the making of the statements by Bram
was not voluntary, the Court noted that although the facts involved,
when isolated from each other, might be insufficient to warrant the
inference that a compelling influence had been exerted, taken as a whole,
they gave room to the strongest inference that the statements were not
made by one who in law could be considered a free agent.3 4 The Court
based its conclusion that the statements could not be the result of a
purely voluntary mental action on the following considerations: At the
time Bram made the statements, he was under arrest in a foreign country
in the custody of the police, and had been taken from jail as a suspect
to the private office of a detective, where alone and stripped of his
clothing, he was interrogated by the detective who exercised complete
authority and control over him.
His statements were made in reply to the detective's assertion that
Brown had charged him with the crime. The effect of this reported
accusation by his co-suspect was to produce upon Brain's mind the fear that
if he remained silent it would be considered an admission of guilt, and
the hope that if he denied it, suspicion would be removed from him.
Although his answer was in the form of a denial, it was offered as a
confession because of the implication of guilt which it was conceived the
words of the denial might be considered to mean. Furthermore, the Court
noted that the detective's remark to Bram that if he had an accomplice
he should say so and not have the blame of the crime on his own
shoulders conveyed an express intimation of benefit if he spoke. This remark
might well have been understood to hold out an encouragement that by
so doing Brain might at least obtain a mitigation of punishment for the
crime. Thus, it rendered the confession involuntary within the rule laid
down by the authorities.35
In its appraisal of the circumstances in which Bram's statements were
made and the evidential use to which they were put, the Court declared:
"A plainer violation as well of the letter as of the spirit and purpose of
the constitutional immunity could scarcely be conceived of." 3'
The Brain decision was not received without criticism or question. For
example, Dean Wigmore, the champion of the traditional trustworthiness
34. Id. at 563-64.
35. Id. at 561-64.
36. Id. at 564.
rationale for the exclusion of involuntary confessions, wrote in regard to
the statements of the Supreme Court on the fifth amendment's privilege
being a crystallization of the doctrine on confessions: "Of this it must
suffice to say that no assertions could be more unfounded. The history
of the two rules ... shows that there never was any historical connection
or association between the constitutional clause and the
Wigmore mentioned several reasons for his view that the blending of
the rule excluding untrustworthy confessions and the privilege against
self-incrimination was incorrect, among them these: the two principles
derived from separate lines of precedents; if the privilege, which was fully
established by the year 1680, was sufficient, there would have been no
need for the creation of a distinct confession-rule a century later; and,
generally, that the privilege concerns statements made in court, while
the confession-rule concerns statements made out of court.38
In maintaining that confessions were not rejected because of any
connection with the privilege against self-incrimination, he noted further
that: "The sum and substance of the difference is that the
confessionrule aims to exclude self-incriminating statements which are false, while
the privilege-rule gives the option of excluding those which are true.130
In his discussion of the privilege against self-incrimination vis-h-vis
the traditional confession rationale, Dean McCormick, after pointing
out that the cluster of doctrines relating to confessions bears the aspect
of a regulation which safeguards the discovery of truth by keeping away
from the jury a kind of evidence because of its special untrustworthiness,
goes on to say:
Nevertheless, there is an insistent recurrence in the decisions on confessions of
language which savors of privilege .... It well may be that the adherence of the courts
to this form of statement of the confession-rule in terms of "voluntariness" is
prompted not only by a liking for its convenient brevity, but also by a recognition
that there is an interest here to be protected closely akin to the interest of a witness
or of an accused person which is protected by the privilege against compulsory
It may be conceded that in time of origin the confession-rule and the self-crimination
rule were widely separated, and certainly Chief Justice White's language in Brain v.
United States to the effect that the fifth amendment guaranteeing the privilege "was
but a crystallizaton of the doctrine as to confessions" is an historical blunder.
Nevertheless, the kinship of the two rules is too apparent for denial.40
Wigmore in this same vein conceded that the confession rule and the
37. 3 Wigmore, Evidence § 823, at 250 n.5 (3d ed. 1940). See also id. § 821, at 240-41 n.2.
38. See 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev. ed. 1961).
39. 3 Wigmore, op. cit. supra note 37, § 823, at 250.
40. McCormick, Evidence § 75, at 155 (1954). (Footnotes omitted.)
privilege are not sometimes kept plainly apart and that judicial
expressions blending the two rules into one principle might be expected. He
This is natural enough, for not only have they the common feature of an
acknowledgement of guilty facts, but also, by the test frequently employed ... the test of
voluntariness for confessions becomes almost identical with the idea of compulsion as
forbidden by the privilege.41
In a footnote to the Supreme Court's opinion in Culombe v.
Connecticut,42 it is said that while Wigmore attributes to the confession-rule the
sole purpose of assuring the reliability of evidence, and there can be no
doubt that the fear of false confessions played a large part in the
adoption of the rule, it is equally clear that there soon mingled with this
original and at first exclusive impetus another independent and sufficient,
although historically diverse, reason. This latter reason is the conception
that the use of extorted confessions set at naught the underlying tenet
of the accusatorial system of trial-that men might not be compelled to
speak what would convict them. In this way, the conceptions underlying
the rule excluding coerced confessions and the privilege against
selfincrimination have become, to some extent, assimilated.
From the time it was handed down, the Brain case has been cited with
approval by the Supreme Court, 3 but it was not resorted to with any
great frequency, and it was not received with universal approbation.4 4
One Supreme Court decision that is of interest because it indicates the
breadth of the grounds for the exclusion of a confession under the Bran
doctrine is the 1924 case of Ziang Sung Wan v. United States,4n where
the Supreme Court reversed a judgment of conviction of murder. Although
it appeared that no threats or promises had been made to the defendant,
he confessed after he had been subjected for seven days to almost
continuous examination. On one occasion, while he was suffering from spastic
colitis, his examination continued throughout the night.
Mr. Justice Brandeis, citing Brain, delivered the opinion of the Court.
The Court of Appeals appears to have held the prisoner's statements admissible on
the ground that a confession made by one competent to act is to be deemed voluntary,
as matter of law, if it was not induced by a promise or a threat; and that here there
was evidence sufficient to justify a finding of fact that these statements were not so
induced. 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
The reason for the relative infrequency with which Bram was invoked
apparently lies in the fact that due to the broad supervisory authority
the Supreme Court has over the procedure and practice of the lower
federal courts, its reviewing power over convictions in federal courts is
not confined to ascertainment of constitutional validity. In the exercise
of its power, the Court can declare a confession inadmissible in a federal
criminal trial whenever this is deemed necessary in the interests of justice.
Therefore, it has been unnecessary in most of the pertinent cases to
invoke constitutional provisions in support of the rule that involuntary
confessions are inadmissible in federal court.
Furthermore, the Court has had little occasion in the past quarter
century to reach constitutional issues in dealing with federal
interrogations because of its inauguration in 1943 of the exclusionary practice
known as the McNabb Rule, which does not arise from constitutional
sources but is based on its supervisory authority over the administration
of federal criminal justice.47 This rule of evidence for criminal trials in
federal courts holds that a confession of guilt, though not the result of
torture, physical or psychological, is inadmissible in evidence where
made by a prisoner under arrest and detained in violation of Rule 5(a)
of the Federal Rules of Criminal Procedure requiring commitment
"without unnecessary delay." The doctrine has not been applied by the Court
to state confession cases under due process.
It should be noted also that after it commenced its consideration of
the state coerced confession cases under the due process clause of the
fourteenth amendment, the Court by and large left federal judges to
apply the same standards it began to derive in the latter line of
2. The Due Process Test
The recent application to the States of the fifth amendment's privilege
against self-incrimination through the due process clause of the
four46. Id. at 14-15. (Emphasis added.) (Footnote omitted.)
47. McNabb v. United States, 318 U.S. 332, 340 (1943).
48. Miranda v. Arizona, 384 U.S. 436, 506-07 (1966) (Harlan, J., dissenting).
teenth amendment,49 and the formulation by the Supreme Court of new
standards governing in-custody interrogation based on the need to
protect the exercise of this fundamental constitutional right from the danger
occasioned by such questioning, 0 constitute the culmination of
developments in confession law which began a generation ago.
In 1936 the Supreme Court, in the exercise of its authority to ascertain
whether the basic safeguards of the fourteenth amendment are violated
by state action, held for the first time that the due process clause
prohibited the States from using a defendant's coerced confession against
him at trial. Since that time a due-process test of voluntariness has
evolved out of the decisions of the Court involving confessions in state
criminal trials. The case which led off this line of decisions was Brown v.
Prior to the Brown decision, the individual States had developed
through case law and statute, against the backdrop of the common-law
rule and rationale, their own tests of voluntariness governing the
admissibility of confessions. These tests varied in strictness from jurisdiction
to jurisdiction. In addition to the traditional rationale for exclusion, the
concept of the privilege against self-incrimination had its influence in
state confession cases. After the Brain decision was handed down, there
was continuing conflict among the state authorities as to the
fundamental reason for exclusion. Some held that the privilege applied; others
that it did not. Still others resorted to both the privilege and the
historical reason in the same case. Inconsistency existed. For example, the
high court of one state declared in 1926:
Involuntary confessions are rejected not because of the illegal or deceitful methods
employed in securing them but because of their unreliability.... When the
authorities are analyzed there is practically no disagreement among them.... This principle
of testimonial untrustworthiness being the foundation of exclusion, i2t follows that the
exclusion is not rested upon the privilege against self-crimination5
The same court, however, four years later in 1929, in holding a
confession inadmissible which was made by the defendant at a time when
he was adjudicated to have been insane, declared: "A confession, to be
admissible, must be voluntary. A voluntary confession necessarily
involves a waiver of the constitutional right against self-incrimination."'ra
In Brown v. Mississippi,4 the three defendants were convicted of murder
49. Malloy v. Hogan, 378 US. 1, 3 (1964).
50. Miranda v. Arizona, 384 U.S. 436 (1966).
51. 297 U.S. 278 (1936).
52. People v. Fox, 319 Ill6.06, 609-11, 150 N.E. 347, 348-49 (1925).
53. People v. Shroyer, 336 Ill. 324, 325-26, 168 N.E. 336 (1929).
54. 297 US. 278 (1936).
and sentenced to be hanged. Aside from their confessions which were
shown to have been extorted by state officers by brutality and violence,
there was no evidence sufficient to warrant the submission of the case
to the jury. The victim in the case was found by his neighbors on March
30, 1934, dying from a murderous assault. That night a deputy sheriff,
accompanied by others, accused the first defendant of the crime. On his
protestation of innocence, he was hanged twice and whipped; but finally
released. A day or two later, the deputy, and another, placed the
defendant under arrest and again severely whipped him until he confessed to a
statement of guilt dictated by the deputy. On April 1, 1934, the other
two defendants were arrested and jailed and the same deputy, in the
company of other men, including an officer, whipped them unmercifully
until they also confessed. The defendants were told that if they changed
their story at any time they would receive the same or equally effective
treatment. The next day, April 2, 1934, the defendants repeated their
confessions to the sheriff of the county in the presence of others.
At the trial the prosecution offered the sheriff as a witness to testify
to the confessions made to him by the defendants; and at the suggestion
of the defense a preliminary examination as to the competency of the
confessions was conducted in the absence of the jury. During the voir
dire the sheriff stated that he had used no force and made no threats or
promises to the defendants to induce their confessions; and the defense
offered no evidence in contradiction. Cross-examination of the sheriff by
the defense, however, disclosed that although he had no personal
knowledge of the torture, he had heard rumors that prior to their confessing
to him the defendants had been whipped and had previously confessed,
and that one of the defendants, who was limping when the sheriff saw
him, had said that he could not sit down because he had been "strapped
pretty hard." The trial judge ruled that the confessions made to the
sheriff were voluntary and admissible; and the defense objection to his
testimony was overruled.
Thereafter, the defendants took the stand and testified that they had
made the confessions to the sheriff which were offered in evidence, but
that prior to that time they had been seriously whipped and mistreated;
that they had confessed because of this treatment; that they had been
warned to tell the same story; and that they made the confessions to
the sheriff on account of fear of further violence. The defendants stated
that the sheriff had treated them kindly, promised to protect them from
harm, told them that they did not have to talk, and that if they did,
they should tell only the truth. Two of them stated that just before they
took the stand, they told the sheriff that their confessions to him were
Later in the trial, examination of rebuttal witnesses for the state also
disclosed that the defendants had been whipped before they confessed.
The defense, however, failed to make a motion to exclude the confessions
after the disclosure of this evidence tending to show the confessions were
made under the influence of fear induced by threats and violence.
Furthermore, the trial judge did not act to exclude it on his own. At that
time it was the state rule that if a confession was admitted after a
preliminary examination, no error was committed by a failure to exclude it,
in the absence of a request to do so, even though during the later progress
of the trial it appeared that the confession was not competent evidence.
The case went to the jury with instructions, upon the request of
defendant's counsel, that if the jury had reasonable doubt as to the confessions
having resulted from coercion, and that they were not true, they were
not to be considered as evidence.
Following their convictions, the defendants appealed unsuccessfully
to the supreme court of the state. 5 Later, they filed in the same court a
"suggestion of error" challenging the trial proceedings.50 Among the
questions raised before the court was whether the failure of the trial judge
to exclude the confessions after the introduction of evidence tending to
show they were coerced, although not requested to do so, violated the
privilege against self-incrimination and due process clauses of the state
constitution and also the due process clause of the fourteenth amendment.
The high state court, noting in the course of exposition that nothing
in its opinion was intended even remotely to sanction the method by
which the confessions were obtained,57 first considered the claim that
the privilege against self-incrimination provision of the state constitution
had been violated. The court stated that the privilege was not violated
because assuming the admission in evidence, over the objection of the
defendant, of a confession coerced by violence is forbidden by the
privilege, the record disclosed no objection had been made on that ground.
The court said that the rule against self-incrimination is not an absolute
immunity, but is simply a privilege, though sacred and important, of
which the accused may avail himself or not at his pleasure, and it may
be, and is, waived unless specifically claimed.58
As to the defendants' claims that due process was violated by the
admission of the confessions, the state court, citing the decisions of the
Supreme Court of the United States in Twining v. New Jersey" and
55. Brown v. State, 173 Miss. 542, 158 So. 339 (1935).
56. Brown v. State, 173 Miss. 542, 161 So. 465 (1935).
57. Id. at 572, 161 So. at 470.
58. Id. at 566-69, 161 So. at 467-68.
59. 211 U.S. 78 (1908). It is noted in this famous Twining case, a state trial judge had
instructed the jury that it might draw an adverse inference from the failure of a defendant
Snyder v. Massachusetts,0 declared that "immunity from
self-crimination is not essential to due process of law."6 1
The state court further declared that if the defendants meant to say
that the failure of the trial judge to exclude the confessions after the
introduction of evidence tending to show their incompetency, although
not requested to do so, deprived them of due process, there was no merit
to their claim. The court stated that this procedure was in accord with
that applicable to all civil and criminal trials, recognized in all
commonlaw jurisdictions, and did not result in arbitrarily depriving the
defendants of any constitutional or common-law right. This is all, the court
said, that the due process clauses of the two constitutions require.
Moreover, the court declared, if the trial judge had erroneously overruled the
motion to exclude the confessions, its ruling would have been mere error
reversible on appeal, but would not have constituted denial of due
After the Mississippi supreme court had thus decided the federal
question against the defendants on these two foregoing grounds, the
Supreme Court of the United States reviewed the case on certiorari and
held that due process had been denied, that convictions of murder which
rest solely upon confessions shown to have been extorted by state officers
by torture are void under the due process clause of the fourteenth
In an opinion, delivered by Chief Justice Hughes, the Court initially
reviewed the facts evidencing that the confessions were procured by
coercion and then considered the two grounds on which the state had based
its decision that there was no denial of due process. As to the first
contention to the effect that the privilege against self-incrimination was not
safeguarded against state action by the fourteenth amendment, the Court
noted that the state had stressed the statement in Twining that
"exemption from compulsory self-incrimination in the courts of the States is
to testify. Following conviction, the case was brought before the Supreme Court of the
United States for review. It was asserted that the trial judge's instruction constituted a
denial of a defendant's right, secured by the Constitution of the United States, not to be
compelled to testify against himself. The Supreme Court, however, held that the state law
permitted such an inference, that the fifth amendment did not apply to state action, and
that neither the privileges and immunities clause nor the due process clause of the
fourteenth amendment included the privilege against self-incrimination. Id. at 99. Twining,
however, was overruled in Malloy v. Hogan, 378 U.S. 1 (1964), and the Supreme Court thereafter
held in Griffin v. California, 380 U.S. 609 (1965), that adverse comment by a state Judge
or prosecutor upon a defendant's failure to take the stand constitutes a denial of the
privilege against self-incrimination.
60. 291 U.S. 97 (1934).
61. 173 Miss. at 567, 161 So. at 468.
62. Brown v. Mississippi, 297 U.S. 278 (1936).
not secured by any part of the federal constitution,"Ol and also the
statement in Snyder that "the privilege against self-incrimination may
be withdrawn and the accused put upon the stand as a witness for the
state." 4 The Court said, however, that these two statements were not
relevant to the Brown case. It declared:
[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
The Court said that a state is free to regulate the procedure of its
courts in accordance with its own conceptions of policy, but this freedom
is limited by the requirement of due process of law. Because it may
abolish trial by jury, for example, it does not follow that it may
substitute trial by ordeal. Stating that a trial is a mere pretense when state
authorities have contrived a conviction resting solely upon confessions
obtained by violence, it then declared:
The due process clause requires "that state action, whether through one agency or
another, shall be consistent with the fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions.". ..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. cO
In disposing of the state's second contention, the Supreme Court said
that it rested upon the failure of defense counsel, who had objected to
the admissibility of the confessions, to move for their exclusion after
they had been introduced and the fact of coercion had been proved. The
Court said that this contention was a misconception of the nature of
the defendant's complaint which was not of the commission of a mere
error, but of a wrong so fundamental that it made the whole proceeding
a mere pretense of a trial and rendered the conviction and sentence
wholly void. The Court declared that it was not concerned with a mere
question of state practice, or whether counsel for the defendants were
competent or mistakenly assumed that their first objections were
sufficient6Y. Here, where the duty of a trial court to supply corrective
process when due process is denied had been recognized by earlier state
decision, the trial judge had not done so. Although he was fully advised
63. Id. at 285, quoting Twining v. New Jersey, 211 US. 78, 114 (1908).
64. 297 U.S. at 285, quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
65. 297 U.S. at 285. (Emphasis added.)
66. Id. at 286.
67. Id. at 286-87.
It is noted that the rule of the Rogers case that the truth or falsity
of a confession is irrelevant to the question of its admissibility is equally
applicable in a federal prosecution. 91
The denouement of the story on the controlling reason for the
exclusion of involuntary confessions in American courts is found in the
opinion of the Supreme Court in the 1964 case of Maloy v. Hogan. 2 In that
decision, the Court held that the fourteenth amendment prohibits state
infringement of the privilege against self-incrimination just as the fifth
amendment prevents the federal government from denying the privilege.
It held also that in applying the privilege, the same standards determine
whether an accused's silence is justified regardless of whether it is a
federal or state proceeding.
Malloy was not a coerced confession case but involved a defendant
who, as a witness in a state inquiry into gambling in Connecticut, invoked
the privilege against self-incrimination in refusing to answer questions
related to a previous arrest for that type of offense. The Connecticut
superior court adjudged him in contempt and committed him to prison
until he was willing to answer. The Connecticut supreme court of errors
in affirming a denial of the defendant's application for a writ of habeas
corpus held that the fifth amendment's privilege against
self-incrimination was not available to a witness in a state proceeding; that the
fourteenth amendment did not extend the privilege to him; and that he had
not properly invoked the privilege available under the Connecticut
In holding that the fourteenth amendment did prohibit state
infringement of the privilege against self-incrimination, the Supreme Court
overruled its 1908 decision in Twining v. New Jersey94 where it had declared
that the privilege was not safeguarded against state action by the
fourteenth amendment. In arriving at its contrary holding in Malloy, the
Court explained that its decisions since Twining had departed from the
view there expressed. In its consideration of the state coerced confession
cases, the Court stated, it had felt impelled, in the light of Twining, to
say initially in Brown v. Mississipp 5 that its conclusion in the latter
case did not involve the privilege against self-incrimination." However,
the Court said, the distinction drawn in Brown that "compulsion by
torture to extort a confession is a different matter" was soon abandoned,
and today the admissibility of a confession in a state criminal prosecution
91. See Shotwell Mfg. Co. v. United States, 371 U.S. 341, 350 n.10 (1963).
92. 378 U.S. 1(1964).
93. 150 Conn. 220, 187 A.2d 744 (1963).
94. 211 US. 78 (1908).
95. 297 US. 278 (1936).
96. 378 U.S. at 6.
FORDIJAM LAW REVIEW
is tested by the same standard applied in Federal prosecutions since 1897
when the Court held in Brain v. United State?' that the question of the
voluntary character of a confession is controlled by the fifth amendment's
privilege against self-incrimination.
The Court declared that the marked shift to the federal standard in
state cases began with the Lisenba case where it spoke of the defendant's
"free choice to admit, to deny, or to refuse to answer." 8 This shift reflects
recognition, the Court said, "that the American system of criminal
prosecution is accusatorial, not inquisitorial, and that the fifth amendment
privilege is its essential mainstay," and that the state and federal
governments are constitutionally compelled to establish guilt by evidence
independently and freely secured, and may not by coercion prove a charge
against an accused out of his own mouth. 9
The Court said that the fourteenth amendment secures against state
invasion the same privilege that the fifth amendment guarantees against
federal infringement; i.e., " 'the right of a person to remain silent unless
he chooses to speak in the unfettered exercise of his own will.' ""o
The Court also pointed out that its holding in Malloy was fortified by
its decision in Mapp v. Ohio.1 1 The Court stated that Mapp, in
returning to the view expressed in the Boyd decision 1 2 of 1886 that the
privilege against self-incrimination is one of the "principles of a free
government," had necessarily repudiated the Twining concept of the privilege
as a mere rule of evidence. 0 3
In holding that the same standards must determine whether an
accused's silence in either a federal or state proceeding is justified, the
Court noted in Malloy that in the state coerced confession cases involving
the policies of the privilege against self-incrimination, there has been no
suggestion that a confession might be considered coerced if used in a
federal but not a state tribunal.0 4
Thus, the standard of voluntariness which eventually evolved in the
state coerced confession cases under the due process clause of the
fourteenth amendment is the same general standard applied in federal
prosecutions; i.e., one grounded in the policies of the privilege against
3. Escobedo and Miranda
The substratal force of Malloy, harnessed to that of Gideon v.
Wainwright1"5 where the Supreme Court had held in 1963 that the due process
clause of the fourteenth amendment made the sixth amendment's right
to counsel obligatory upon the states, was felt almost immediately in the
decision of the Court in the celebrated case of Escobedo v. Illinois.020 In
Escobedo the officers failed to advise the defendant of his absolute
constitutional right to remain silent, denied his requests to consult with his
retained lawyer, and prevented the latter, who was at the police station
where the questioning leading to the confession took place, from
consulting with the defendant.
Although up to Escobedo, the Court in its decisions in the state
coerced confession cases had treated the failure of officers to warn
defendants of their rights and to grant them access to outside assistance as
circumstances tending to prove the involuntariness of the resulting
confession, it had declined to condemn an entire process of in0-7custody
interrogation for a confession solely because of such conduct.
The Court, however, ruled as follows in Escobedo:
We hold.., that where, as here, the investigation is no longer a general inquiry into
an unsolved crime but has begun to focus on a particular suspect, the suspect has
been taken into police custody, the police carry out a process of interrogations that
lends itself to eliciting incriminating statements, the suspect has requested and been
denied an opportunity to consult with his lawyer, and the police have not effectively
warned him of his absolute constitutional right to remain silent, the accused has been
denied "the Assistance of Counsel" in violation of the Sixth Amendment to the
Constitution as "made obligatory upon the States by the Fourteenth Amendment," . . .
and that no statement elicited by the police during the interrogation may be used
against him at a criminal trial.'08
Although Escobedo held narrowly that the statements elicited from the
defendant by the officers under the foregoing circumstances were
inadmissible because they were obtained in violation of the right to counsel,
the implications of the decision were much broader, especially as to the
mandatory nature of the so-called "warnings" to a prisoner prior to
questioning. The ruling became the subject of earnest judicial interpretation
and spirited legal debate in the months that followed and varying
conclusions were arrived at in assessing its implications."0'
105. 372 U.S. 335 (1963).
106. 378 U.S. 478 (1964).
107. Cicenia v. Lagay, 357 U.S., 504 (1958); Crooker v. California, 357 US. 433 (1958).
These cases were overruled by Miranda v. Arizona, 384 U.S. 436, 479 (1966).
108. 378 U.S. at 490-91.
109. See, e.g., Miranda v. Arizona, 384 U.S. 436, 440-41 & nn.1-3 (1966).
In the momentous decision of Miranda v. Arizona,1" two years later,
the Supreme Court reaffirmed Escobedo and discussed in great depth the
relationship of the fifth amendment privilege against self-incrimination
to law enforcement interrogation.
The question before the Court was whether the privilege is applicable
during the period of in-custody interrogation; i.e., when questioning is
initiated by law enforcement officers after a person has been taken into
custody or is otherwise deprived of his freedom of action in any
significant way."' The Court ruled that the privilege is fully applicable at that
time. Characterizing the privilege as the mainstay of our adversary
system of criminal justice and a constitutional guaranty founded on a
complex of values which in sum can be fulfilled only when a person is
guaranteed the right "to remain silent unless he chooses to speak in the
unfettered exercise of his own will,""' the Court declared that it was
"satisfied that all the principles embodied in the privilege apply to
informal compulsion exerted by officers during in-custody questioning"; lip
that in such circumstances an individual cannot be otherwise than under
compulsion to speak.
The Court stated that this question, in fact, could have been taken as
settled in the federal courts by virtue of the holding in Brain which set
down the fifth amendment standard for compulsion. As to state cases,
the Court said that it had squarely held in Malloy v. Hogan"' that the
privilege was applicable to the states and that the substantive standards
underlying it applied with full force to state court proceedings, and that
it had applied the existing fifth amendment standards in that case. Noting
that the reasoning in Malloy made it clear that the substantive and
procedural safeguards surrounding the admissibility of confessions in state
cases had become exceedingly exacting and reflected all the policies
embedded in the privilege, the Court said that the "voluntariness doctrine
in the state cases ... 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."" 5
After declaring that the fifth amendment privilege is available outside
criminal court proceedings and protects persons from being compelled to
incriminate themselves in all settings in which their freedom of action is
110. Id. at 436.
111. Id. at 444 n.4 where the Court states that this is what it meant in Escobedo where It
spoke of an investigation which had focused on an accused.
112. Id. at 460, citing Malloy v. Hogan, 378 U.S. 1, 8 (1964).
113. Id. at 461.
114. 378 U.S. 1 (1964).
115. 384 U.S. at 464-65. (Footnote omitted.)
curtailed, the Court 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.""'
The Court said that when a person is taken into custody and is
subjected to questioning, in order to combat the coercive pressures generated
which put the privilege against self-incrimination in jeopardy, he must
be adequately and effectively apprised of his rights and their exercise
must be fully honored throughout any interrogation conducted."17
The Court then laid out in detailed fashion the procedural safeguards
that must be employed to guarantee full effectuation of the privilege in
the process of in-custody questioning. These safeguards consist in the
so-called "warnings" on the rights possessed by a person in custody which
the interrogating officer must make known to him, and the express waiver
of these rights which the prisoner must give to the officer prior to any
questioning. Specifically, the officer must inform the prisoner that he has
the right to remain silent; he must caution him that any statement he
does make may be used as evidence against him in a court of law; and
he must advise him that he has a right to consult with a lawyer, to have
the lawyer present with him during the questioning, and, if he is indigent,
to have a lawyer appointed to represent him prior to any interrogation.' 8
The Court explained that the warning as to the right to silence is an
"absolute prerequisite in overcoming the inherent pressures of the
interrogating atmosphere." It makes those persons unaware of the privilege
cognizant of it; it is the initial requirement of an intelligent decision as
to its exercise; and it shows the prisoner "that his interrogators are
prepared to recognize his privilege should he choose to exercise it.""' The
caution that anything said can and will be used against him makes the
prisoner aware of the consequences of foregoing the privilege. The
warning regarding the right to counsel and its scope is indispensable to the
protection of the fifth amendment privilege because the presence of
counsel dispels the compelling atmosphere of the interrogation and makes the
process of interrogation conform to the dictates of the privilege.
The Court said that after these warnings are effectively given, the
prisoner may expressly waive effectuation of his rights, provided the
waiver is made voluntarily, knowingly and intelligently. If an
interroga116. Id. at 467.
118. Id. at 468-75 (passim).
119. Id. at 468.
tion continues, however, without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to demonstrate
that the defendant validly waived his privilege against self-incrimination
and his right to counsel.120 Furthermore, the Court said, whatever the
testimony of the authorities as to waiver of rights by the defendant, "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"; and
is inconsistent with any notion of a voluntary relinquishment of the
privilege.' 2 '
The Court ruled that the requirement of warnings and waiver of rights
delineated in Mirandais a fundamental with respect to the fifth
amendment privilege and not simply a preliminary ritual to existing methods
of interrogation. It is an absolute prerequisite to in-custody interrogation.
"[U]nless and until such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result of interrogation can
be used against [the defendant]."122
The Court in reaffirming Escobedo stated that it was an explication of
the basic constitutional privilege against self-incrimination and right to
counsel which were put in jeopardy through official overbearing. 123 In
discussing the Escobedo holding against the general backdrop of the fifth
amendment privilege, the Court said that in its opinion it had repeatedly
stressed the fact that the officers had not advised the defendant of his
constitutional privilege to remain silent at the outset of the interrogation,
a point which was not an isolated factor but an essential ingredient of
its decision. The denial of the defendant's request for the assistance of
counsel undermined his ability to exercise the privilege. The Court said
that the defendant's abdication of the privilege was not made knowingly
or competently because of the failure to apprise him of his rights. The
compelling atmosphere of the in-custody interrogation, not an
independent decision on his part, caused him to speak. 4
Thus, the prime purpose of the rulings in Miranda and Escobedo is
to guarantee full effectuation of the privilege against self-incrimination
by assuring that a prisoner's right "to choose between silence and speech
120. Id. at 475.
121. Id. at 476.
122. Id. at 479. (Footnote omitted.)
123. Id. at 442.
124. Id. at 465.
remains unfettered throughout the interrogation process"" 5 and that if
he responds to interrogation, he does so with an intelligent understanding
of his right to remain silent and of the consequences which may flow
from relinquishing it. They thus secure observance of the traditional
principle that the law will not suffer a prisoner " 'to be made the deluded
instrument of his own conviction.' "126
To the argument that society's need for interrogation outweighs the
privilege, the Court has replied that an individual's right not to be
compelled to be a witness against himself is prescribed by the Constitution
and cannot be abridged. If he desires to exercise his privilege, he has a
right to do so. This is not for the authorities to decide.
The Court has held that its decisions in Escobedo and in Miranda are
to be applied prospectively only.12-7 While defendants tried after the dates
of decision in these cases will benefit fully from the new standards
announced therein governing in-custody interrogation, past defendants may
still avail themselves of the voluntariness test for confessions evolved in
the state coerced confession cases under due process.
4. The Fruits Doctrine
Six years after the historic Weeks decision was handed down where
the Supreme Court, under a broad view of the fourth amendment,
excluded from evidence documents unlawfully obtained by a federal officer,
the question of the use of knowledge gained by means of such unlawful
action came before the Court in Silverthorne Lumber Co. v. United
In this case Silverthorne and his father were arrested at their homes
for violation of a federal statute. While detained in custody, federal
officers, without authority, went to their company's office where they seized
various documents. They then took the papers to the United States
Attorney's Office and made copies and photographs of those that were
material. When the defendants moved to recover the unlawfully seized
papers, the federal district court ordered the return of the originals but
impounded the photographs and copies. Thereafter a new indictment was
framed based on the knowledge obtained from the papers. Subpoenas
were served on the defendants to produce the originals for the use of the
grand jury, but they refused to do so. The court, although it found that
the documents had been seized in violation of constitutional rights,
or125. Id. at 469.
126. Culumbe v. Connecticut, 367 U.S. 568, 581 (1961).
127. Johnson v. New Jersey, 384 U.S. 719 (1966).
128. 251 U.S. 385 (1920).
dered the subpoenas to be complied with. On the failure to comply, the
court fined the company for contempt, and ordered Silverthorne to be
imprisoned until he purged himself of a similar contempt. A writ of error
was brought to review the court's judgment.
The Supreme Court held that the order to produce was vitiated by the
illegality of the original seizure. Speaking for the Court in reversing the
judgment, Mr. Justice Holmes noted that the government was
repudiating and condemning the illegal seizure in form, but at the same time was
trying to use the information obtained by its illegal act. It was proposing
that it could study the illegally seized papers, copy them, return them
and then use the knowledge gained to order the owners to produce them
in a more regular manner."2 9
He stated that it was not the law to hold that Weeks established that
the production of the papers before the grand jury directly was
unwarranted, but that this only meant two stages were required instead of one.
Declaring that it would reduce the fourth amendment to "a form of
words" to maintain that the protection of the Constitution covers the
physical possession but not the advantages the Government can gain over
the object of its pursuit by its forbidden act, he said:
The essence of a provision forbidding the acquisition of evidence in a certain way is
that not merely evidence so acquired shall not be used before the Court but that it
shall not be used at all. Of course this does not mean that the facts thus obtained
become sacred and inaccessible. If knowledge of them is gained from an independent
source they may be proved like any others, but the knowledge gained by the
Government's own wrong cannot be used by it in the way proposed. 130
Mr. Justice Frankfurter in 1939 characterized as the "fruit of the
poisonous tree" evidence which is not the direct product of illegal official
conduct but is derived therefrom.131 He pointed out, however, that while
knowledge gained by the government's own wrong cannot be used simply
because it is used derivatively, and sophisticated argument may prove a
causal connection between the information obtained through illicit means
and the government's proof, nevertheless, as a matter of common sense
"such connection may have become so attenuated as to dissipate the
In the past the question of the admissibility of logically relevant
evidence obtained by law enforcement officers as the indirect result of illegal
methods has arisen most frequently in the general milieu of search and
129. Id. at 391.
130. Id. at 392.
131. Nardone v. United States, 308 U.S. 338, 341 (1939).
seizure where such unlawful action led to physical evidence of the
defendant's complicity. Recent developments in the law, however, have made
the "fruit of the poisonous tree" doctrine of growing importance in the
confession area. In the confession cases, two situations are to be
distinguished: first, the inadmissibility of a confession because it is itself the
"poisonous fruit" of an unlawful arrest or search; and secondly, the
exclusion of evidence because it is the "poisonous fruit" of an involuntary
As to the first situation, the Supreme Court held in a recent federal
case'133 that where one of the two defendants involved made incriminating
statements in his bedroom to trespassing officers at the time of his
unlawful arrest, the statements were the fruits of the officers' unlawful
actions, and were inadmissible in evidence. 34 The Court declared that
although the federal exclusionary rule had traditionally barred physical
materials obtained during or as a direct result of an unlawful invasion,
verbal evidence, deriving immediately from an entry of living quarters
unlawful under the fourth amendment and from an unauthorized arrest
made without probable cause, is no less the "fruit" of official illegality,
and as in the case of the more common tangible fruits of unwarranted
intrusion is likewise inadmissible.' 35
The Court found that the arrest of the second defendant in the case
was also unlawful because of an absence of probable cause, but ruled
that the confession by him which eventually followed was nevertheless
admissible.'3 6 The Court explained that after the unlawful arrest of this
particular defendant, but following his lawful arraignment and release on
his own recognizance, he had voluntarily gone to the authorities several
days later and made his incriminating statement. As a consequence the
Court concluded that his confession was not the "fruit" of unlawful
arrest because the connection between the latter and the confession had
"'become so attenuated as to dissipate the taint.' "I"3
In further regard to this first situation, the Court held in a recent state
case that it was permissible for a defendant to claim that his admissions
and confession had been induced by his being confronted with illegally
seized evidence.' 38 In this case, the defendant, who had painted swastikas
133. Wong Sun v. United States, 371 U.S. 471 (1963).
134. Id. at 485-86.
135. Id. at 485. The Court also held that narcotics, to which the officers had been
immediately led by the defendant's inadmissable bedroom declarations, could not be used
against him because they were "'come at by the exploitation of that illegality?" Id. at 487-88.
136. Id. at 491.
137. Ibid., citing Nardone v. United States, 308 US. 338, 341 (1939).
138. Fahy v. Connecticut, 375 U.S. 85 (1963).
on a synagogue, was convicted of willfully injuring a public building. By
means of an illegal search, the paint and brush were seized by officers
and thereafter, while under arrest, the defendant made admissions and
eventually a full confession.
Although the record in the case when it reached the Supreme Court of
the United States did not show whether the defendant knew the police
had seized the paint and brush before he made his admissions, the
prosecution said that he had "probably" been told of the search by that time.
Furthermore, the Court concluded that the defendant unquestionably
knew the police had obtained the paint and brush by the time he made
his full confession.
At his trial, which took place prior to Mapp v. Ohio, the defendant
was not allowed to pursue the illegal search and seizure inquiry and the
paint and brush were admitted into evidence along with his admissions
and confession. Thus, he was unable to argue at that time that the
illegally seized evidence induced his admissions and confession, a claim
which he told the Court he would make if he were allowed to challenge
the search and seizure as illegal at a new trial. The Court, citing the
principle set out in Silverthorne that "the essence of a provision
forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court but that it shall not
be used at all," declared that such a line of inquiry was permissible and
that the defendant should have a chance to show that his statements were
induced by being confronted with the illegally seized evidence.13 9
As to the second situation, i.e., that concerning evidence obtained as
the result of an involuntary confession, the rule at the common law was
that such evidence was not excludable by reason of the fact that it was
obtained by means of an involuntary confession. This view is illustrated
by the opinion of the English court in Rex v. Warickshall 40 In this
leading case, a man named Thomas Littlepage was indicted at the Old
Bailey for grand larceny and a woman named Jane Warickshall was also
charged as an accessory after the fact; viz., with having received the
property involved in the larceny knowing it to have been stolen. She made
a full confession of guilt and in consequence of it the property was found
concealed in her bed. The court, however, refused to admit her confession
because it found that it had been obtained by promises of favor. Her
counsel thereupon argued that since the fact of finding the stolen
property in her custody had been obtained through the means of an
inadmissible confession, the proof of that fact ought also to be rejected because
139. Id. at 91. See also text accompanying note 5 supra.
140. 1 Leach Cr. Cas. 263, 168 Eng. Rep. 234 (1783).
otherwise Jane Warickshall would be made "the deluded instrument of
her own conviction." 4 '
To this contention, the court, after stressing the common-law rationale
that involuntary confessions "forced from the mind by the flattery of
hope, or by the torture of fear" are inadmissible as evidence of guilt
because of their evidential untrustworthiness, 142 declared:
This principle respecting confessions has no application whatever as to the admission
or rejection of facts, whether the knowledge of them be obtained in consequence of
an extorted confession, or whether it arises from any other source; for a fact, if it
exist at all, must exist invariably in the same manner, whether the confession from
which it is derived be in other respects true or false .... The rules of eidence which
respect the admission of facts, and those which prevail with respect to the rejection
of parol declarations or confessions, are distinct and independent of each other ....
Although confessions improperly obtained cannot be received in evidence, yet ... any
acts done afterwards might be given in evidence, notwithstanding they were done in
consequence of such confession. i4 3
The common-law rule admitting facts discovered by virtue of a
defendant's involuntary confession was not limited to real evidence, such
as the loot in a larceny case, but was also extended to testimonial
evidence of witnesses who were located as a result of the information
disclosed. For example, in Lockhart's Case'1 the defendant was indicted
for stealing a number of diamonds and pearls. He made a full confession;
but only after improper inducements, rendering his confession
inadmissible in evidence, had been made to him in the form of promises of favor.
By reason of the involuntary confession, however, it was discovered that
some of the stolen jewels had been disposed of to one Grant. Counsel
for the prosecution called Grant as a witness to prove that he bad
received the property from the defendant, but the defense contended that
Grant was not a competent witness because his discovery had resulted
from the illegal confession. The English court held, however, that the
law was clearly settled that although a confession improperly obtained
cannot be given in evidence, yet it can never go to the rejection of the
evidence of other witnesses "which are got at in consequence of such a
confession." ' 4
The type of cases in which the common-law rule on the admissibility
of incriminating evidence disclosed by an involuntary confession has
142. Id. at 263-64, 168 Eng. Rep. at 235.
143. Id. at 264-65, 168 Eng. Rep. at 235. (Emphasis added.)
144. Rex v. Lockhart, 1 Leach Cr. Cas. 386, 168 Eng. Rep. 295 (1785).
145. Id. at 387, 168 Eng. Rep. at 295.
come most frequently into play are those involving the crimes of larceny,
robbery, burglary and the receiving of stolen goods where the
inadmissible confession leads to the discovery of the stolen property in the place
where the defendant said that it would be found. The rule is not
confined, however, to theft-type offenses. It has been followed in such
cases as murder where the confession leads to the uncovering of the body
of the victim, the place of the killing, or the disclosure of the fatal
weapon. Furthermore, it has been applied in sundry other offenses where
the fruits or instrumentalities of the crime, or leads to other evidence
proving the case are located by this means.14 6
As shown by the decision in Warickshall's Case, the doctrine holding
that relevant and material facts discovered in consequence of information
obtained from an involuntary confession are nonetheless admissible in
evidence is bottomed on the traditional reason underlying the
commonlaw rule of exclusion; i.e., involuntary confessions are inadmisible
because they might well be false and thus constitute evidence so
untrustworthy it is not entitled to credit. These after-discovered facts were
admitted because they tended to prove the trustworthiness of the confession.
But does the doctrine cut two ways? In other words, when it is admitted
that involuntary confessions are to be excluded because of the danger
that they might be false, does it follow that such confessions are
admissible when as a result of them facts are discovered which show that they
must be true and therefore clearly reliable evidence?
Wigmore says in this regard:
[W]here, in consequence of a confession otherwise inadmissible, search is made and
facts are discovered which confirm it in material points, the possible influence which
through caution had been attributed to the iwmipthroopuetr hiensdituactieomne.1n4t7 is seen to have
been nil, and the confession may be accepted
Wigmore refers to this theory as "confirmation by subsequent facts." He
states that it has been in vogue ever since there has been any doctrine
about excluding confessions, and that it has always been accepted, at
least in the abstract. 14 In Wharton it is said that:
When an inadmissible confession leads to the discovery of inculpatory facts, all courts
admit evidence of such facts, but differ in the extent to which they will admit the
confession itself under such circumstances. The authorities are divided into three
classes: (1) those courts that admit no part of the confession, but only the
inculpatory facts which have been discovered; (2) those courts which admit the entire
confession to accompany the facts, on the theory that if any part of the confession can
146. See 3 Wigmore, Evidence §§ 858-59 (3d ed. 1940).
147. Id. § 856, at 338. (Footnote omitted.)
be believed, the entire confession must be deemed trustworthy; and (3) those courts
that admit only that part of the confession relevant to the corroborating facts. 140
The taproot of the common-law rule under which facts discovered by
means of an inadmissible confession are themselves competent evidence
of guilt was hit by the decision of the Supreme Court in Rogers v.
Richmond,15 where the Court held that a state legal standard for governing
the admissibility of a confession which took into account its probable
truth or falsity was not permissible under due process. The state case of
People v. Ditson'51 illustrates the influence of this decision on the
Ditson involved the bloody killing of a gangster named Ward, and the
dismemberment and concealment of his body. The leader and the first
lieutenant of the gang to which he belonged, Allen Ditson and Carlos
Cisneros, were tried and convicted of the murder and sentenced to death.
Ditson had ordered Ward's execution because the latter had tried to
blackmail him and was suspected of being a potential "squealer." On the
night of the crime, Cisneros hit Ward over the head with repeated blows
of a hammer, stuffed him still alive into the trunk of his automobile,
picked up Ditson and drove out to the country where Ditson shot Ward
to death. To prevent identification, Cisneros dismembered Ward's body
and buried the torso in a grave, retaining the head and arms which were
later buried in other places.
Following his arrest, Cisneros made a confession which led to the
finding of the victim's torso by the police. At the trial the judge ruled that
the confession made by Cisneros was involuntary and excluded it from
evidence. However, he admitted into evidence the testimony of the police
as to the finding of the torso and the photographs taken at the grave,
declaring: "'the mere exclusion of the confession to my mind does not
exclude the evidence secured by the People as a result of it.' ,,i12
Apart from the evidence related to the confession, the proof of the
defendants' guilt was overwhelming, and they were convicted. They
appealed contending that they were denied a fair trial and due process of
law by reason of the admission of evidence assertedly discovered by the
police as a result of Cisneros' confession. The supreme court of California
concluded, on detailed analysis of the various problems presented in the
case, that the trial judge's ruling was immaterial, that the record revealed
149. 2 Wharton, Criminal Evidence § 357, at 58-60 (12th ed. 1955). (Footnotes ommited.)
150. 365 U.S. 534 (1961).
151. 57 Cal. 2d 415, 369 P.2d 714, 20 Cal. Rptr. 165 (1962), cerL granted 371 US
541 (per curiam), vacated as moot, 372 U.S. 933 (1963).
152. Id. at 422, 369 P.2d at 716, 20 Cal. Rptr. at 167.
no prejudicial error, and that the judgments of conviction should be
In its consideration of the question of the admissibility of evidence
discovered as the result of an involuntary confession, the court said that
the above-quoted declaration of the trial judge portrays a view of the law
that was once widely accepted, but which in recent years had been
"rejected" by the Supreme Court of the United States and is now
untenable. 113 The court noted that early California cases had followed the
older doctrine allowing such evidence in, but that the rule now established
under federal decisions has been recognized as that governing in
California, even though it had perhaps not theretofore been unqualifiedly
The court explained that the doctrine admitting evidence of physical
facts discovered by means of an involuntary confession was a corollary
to the rule excluding involuntary confessions because of their presumed
untrustworthiness, and that such evidence was uniformly held fo be
admissible since it tended to prove the trustworthiness of the confession.
The court declared, however, that in recent decades the views of the
courts on the nature and scope of the constitutional guarantee of due
process had evolved a concept that bears directly on this problem-the
rationale that due process is denied whenever a confession is used which
has been obtained by means which the law should not sanction.
After a review of this development, the court stated that more recently
in Rogers v. Richmond, the Supreme Court had declared that the
traditional "trustworthiness" test of admissibility is not a permissible standard
under due process, and that in this respect the Rogers decision may be
viewed as unanimous for while the dissenting Justices disagreed with the
procedural disposition of the case, they did agree that the Connecticut
courts had failed to verbalize properly the correct due process test of
admissibility by considering in their determination the impermissible
factor of probable reliability. 54
The California high court said that a development parallel to that in
the state coerced confession cases decided by the Supreme Court under
due process had taken place in its own decisions, and that it is now
settied that involuntary confessions are excluded not because of their lack
of evidential trustworthiness but because of the manner in which they
are obtained. The court said that this conclusion is impelled by the due
process clause of the California constitution as well as by the fourteenth
amendment. The court stated that while it may have continued to make
153. Id. at 436, 369 P.2d at 725, 20 Cal. Rptr. at 176.
154. Id. at 438, 369 P.2d at 726, 20 Cal. Rptr. at 177.
occasional reference to the "trustworthiness" rationale, which it noted is
surely a factor of importance by any standard, involuntary confessions
will in proper circumstances be excluded by it because it offends the
community's sense of fair play and decency to convict a defendant by
evidence extorted from him, and because exclusion serves to discourage the
use of physical brutality and other undue pressures in questioning those
suspected of crime.
The court declared that "if it offends 'the community's sense of fair
play and decency' to convict a defendant by evidence extorted from him
in the form of an involuntary confession, that sense of fair play and
decency is no less offended when a defendant is convicted by real evidence
which the police have discovered essentially by virtue of having extorted
such a confession,"'55 and that a constitutionally valid distinction cannot
be drawn between the two. The court then said:
It follows also that the reason for the common-law rule permitting the introduction of
real evidence discovered by means of an involuntary confession-that such evidence
tends to prove the "trustworthiness" of the confession-must now be deemed
constitutionally indefensible, and hence that the rule itself must be abandoned.150
The opinion in the Ditson case was based upon due process
considerations and was handed down prior to the ruling in Malloy v. Hogan. It is
noted, however, that the constitutional privilege against
self-incrimination, now the specific controlling principle governing the admissibility of
confessions, has long been held to protect a witness "'from being
compelled to disclose the circumstances of his offense, the sources from which,
or the means by which, evidence of its commission, or of his connection
with it, may be obtained or made effectual for his conviction ... .'"
Furthermore, in regard to the new standards of admissibility based on
the privilege announced in Miranda,Mr. Justice Clark has stated: "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
5. Confessions Induced By Subterfuge
Another rule on confessions at the common law which turns on the
traditional rationale of "trustworthiness" is that concerning their
induce155. Id. at 439, 369 P.2d at 727, 20 Cal. Rptr. at 178.
157. Counselman v. Hitchcock, 142 U.S. 547, 585 (1892), citing Emery's Case, 107 'Mass.
172, 182 (1871).
158. Miranda v. Arizona, 384 U.S. 436, 500 (1966) (Clark, J., dissenting). See also
United States v. Haynes, 9 U.S.C.M.A. 792 (1958) (fruits of illegally obtained confssions
inadmissable under military law).
ment by the use of subterfuge. Greenleaf set out the common-law
doctrine governing the admissibility of a confession obtained in such a
manner as follows:
It will be received, though it were induced ...by any deception practiced on the
prisoner, or false representation made to him for that purpose, provided there is
no reason to suppose that the inducement held out was calculated to produce any
untrue confession, which is the main point to be considered .... In all these cases the
evidence may be laid before the jury, however little it may weigh, under the
circumstances, and however reprehensible may be the mode in which, in some of them,
it was obtained. 15 9
Thus, traditionally, in a case where a subterfuge in the form of
artifice, deception, trickery or deceit, not calculated to prompt the victim
to confess falsely, was employed, and the subterfuge was not linked with
any violence, threats, or promises of benefit, the courts generally ruled
that the resultant confession was admissible, its admissibility being
justified on the principle of evidential reliability. The courts, despite their
distaste and disapprobation of such methods on the part of law
enforcement officers, held the confession was voluntary because a subterfuge is
not likely, in and of itself, to produce an untrue confession of guilt.
Under due process, however, a confession is inadmissible on
constitutional grounds if in the circumstances of a particular case the subterfuge
practiced upon a defendant is of such a nature that it is deemed to
amount to mental coercion. Thus, the Supreme Court excluded a
confession obtained where a police officer, who was a friend of the defendant,
falsely told the defendant that he might be fired and his sick wife and
children deprived if he did not confess and repeatedly appealed to him
to do so. The Court ruled that the defendant's will "was overborne by
official pressure, fatigue and sympathy falsely aroused." 00 Furthermore,
in regard to the due process concept the Supreme Court made the
following significant statement in a dictum in Lisenba v. California: If, by
fraud, collusion, trickery, and subornation of perjury, on the part of
those representing the State, the trial of an accused person results in his
conviction, he has been denied due process of law. The case can stand
no better if, by the same devices, a confession is procured, and used in
As to the status of this doctrine under the Miranda standards based
on the privilege against self-incrimination, the Supreme Court in
discuss159. 1 Greenleaf, Evidence § 220b. at 359-60 (16th ed. 1899). (Footnotes omitted.)
160. Spano v. New York, 360 U.S. 315 (1959).
161. 314 U.S. 219, 237 (1941).
ing the procedural safeguard of a valid waiver of rights as an absolute
prerequisite to in-custody interrogation declared: "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
This passing look at a few of the milestones marking the law's route
indicates that the task of American law enforcement in successfully
carrying out its principal mission of maintaining law and order is one of
increasing difficulty. The difficulty is due in part to the growing demands
of the law in the form of stricter rules of procedure and higher standards
of performance for law enforcement brought about by the emphasis
placed upon the importance to our way of life of specific individual rights
which are guaranteed by the supreme law to all alike-the guilty as well
as the innocent. Manifestly, these procedures and these standards aimed
at the protection of these constitutional rights in the early stages of the
criminal prosecution must be fully honored. Thus, a challenge of great
magnitude is directed to law enforcement which puts it on its mettle as
a profession and summons all its members to meet it in the manner of
professional men. Only the briefest consideration suffices to show how
these developments in the law have made the role of the law enforcement
officer more important, decisive and exacting than it has ever been in
In the performance of his duty, the American law enforcement officer
is the law in action, its shield and its sword. At one and the same time,
he is the guarding hand of government to ensure that the right of the
law-abiding public to live in peace is protected; and he is the sturdy arm
of government to ensure that the criminal law is enforced against those
relatively few who willfully refuse to obey the elementary rules of
community life and ruthlessly deny to the many their just claim to security
from crime's threat and actuality. This criminal law which he enforces
is the roughest instrument of society but, paradoxically enough, it is an
instrument which must be most delicately employed. It has to be enforced
with strength or its purpose will be nullified; it must be enforced with
care or it will breach basic principles of liberty and justice. Since the
officer is the agent of government who must face this dilemma at the
outset, his decisions and his actions frequently determine whether the
problems raised by it will be solved.
In order to discharge his responsibility of preserving the public peace,
162. Miranda v. Arizona, 384 US. 436, 476 (1966).
it is imperative that the officer detect crime and those responsible for it
by the discovery of proof of guilt. This serious obligation to establish the
fact of crime, to identify the person who has committed it, and to
apprehend him so that he may be brought before the bar of justice, is imposed
by the solemn command of the law. Among the means by which this
obligation is met are the police actions of arrest, search, seizure, and
interrogation. These actions involve one or more cherished constitutional
rights of the individual such as the right to personal liberty, the right to
privacy, the privilege against self-incrimination and the right to counsel
and the serious obligation of ensuring that these drastic but necessary
acts do not invade these rights is imposed by the same solemn command
of the law.
The law enforcement officer, therefore, stands at the very forefront of
the great conflict that exists between the interest of a free society in
prompt and efficient enforcement, and its interest in preventing the rights
of individual members from being abridged by unconstitutional methods
of enforcement. It is essential that a true balance between these two
interests be properly set and faithfully kept. The responsibility of setting
the delicate balance is the grave obligation of those who must make and
interpret the law, and the immediate task of maintaining it is that of
those who must enforce the law in the streets and alleys of the nation.
Needless to say, the problems involved in the proper setting of the
balance between these competing social interests are so many and
perplexing that able men may reasonably differ as to how they are to be
Once the crucial decision has been made, however, and the law is
handed down, the course of the law enforcement officer is clear. He must
follow the law and the rules by which it is to be enforced to the limit
of his ability and in the best of faith. The fact that a particular rule of
law may or may not be to his own preference, or the fact that it may
or may not be difficult to apply are accidentals that have nothing to do
with the law's command and the duty to obey. Inasmuch as expansion
of the area of individual rights leads to a narrowing of the area of
permissible police action, the law enforcement officer must exert greater
effort than he has ever made in the past if he is to successfully meet his
added responsibilities. There is no other way to maintain the balance set
by the law.
Failure on his part to satisfy the more stringent rules of the law and
to tailor his actions to the higher standards required may do grave harm
to the cause of justice. Although his efforts in the investigation of crime
may have led to the uncovering of evidence which demonstrates the
defendant's guilt beyond question, a mistake may render the evidence
inadmissible and ultimately enable a criminal to go free. If this happens, not
only does his hard work go for naught, but, more importantly, the
spectacle of an escape from justice by an obviously guilty felon-murderer,
rapist, robber or what you will-seriously weakens the sanction of sure
and swift punishment whose great justification lies not in retribution or
atonement of crime, but in deterrence, protection and reformation. When
such a travesty occurs, no lesson is taught the criminal, no preventive
example is forthcoming to deter those of like bent, and the community
is exposed once more to the danger of repeated attack from an
unreformed criminal at large.
It is not sufficient that the law enforcement officer of today be right
in most of the steps he takes; he must do his utmost not to fail or falter
in any one of them. If, at the outset, he ascertains a fact in an
impermissible manner, the additional evidence to which it leads in the direct
course of investigation is spoiled by his initial mistake-the "fruit of
the poisonous tree." The entire superstructure of the case built upon
an unlawful base collapses like the image whose feet were "part of iron
and part of clay." Furthermore, if he gathers a plenitude of extrinsic
evidence to prove the defendant's guilt, but in the final phase of the case
obtains a constitutionally invalid confession which is admitted in
evidence against the accused, the entire proceedings will be vitiated and
any conviction secured will not be allowed to stand. If his error was
made in good faith, the tainted evidence is still beyond redemption. If
in a rare event his error is willful, his unlawful act breeds disrespect
for the law, and brings the law, the profession, the individual agency
and the officer himself into disrepute.
There was a time when the able law enforcement officer could perform
the difficult duties required of him in these fields with only a modicum
of legal knowledge. He could return a commendable "yeoman's service"
to the community based on the personal attributes he possessed, such
as sharp senses, a busy imagination, good judgment, practical experience,
a natural sense of justice and fair play, personal reserve and discipline,
an alertness to the danger of the innocent being falsely accused of crime,
and an ideal of public service that impelled him to do everything in his
power to protect his fellow citizens from the evil of crime. The
discovery of the truth in the case by means of logically relevant, reliable
evidence was to all intents and purposes the main desideratum and he
was fully capable of attaining it. But this is not enough today. The
discovery of truth, of course, is the prime purpose of criminal investigation,
just as it is the ultimate end of a criminal trial, but the manner in which
proof of guilt is gathered in a particular case may be a consideration of
equally great importance. Where relevant evidence is obtained by
methods which violate fundamental constitutional guaranties, it is
inadmissible. It is inadmissible not because its efficacy in establishing the truth
is questioned, but because it was obtained in a manner that is destructive
of essential values which the law will protect even at the cost of the
guilty going free.
It is necessary, therefore, in the interests of the common good, that
the law enforcement officer of today be fully cognizant of the increasing
number of rules which the law has laid down to guarantee the exercise
of those rights held to lie at the base of American liberty and justice
and to protect them from restraints deemed to be beyond the needs of
society and the necessary demands of the effective enforcement of its
laws. Furthermore, he must be skilled in the application of these rules,
all of them strict and many of them technical, for they frequently must
be applied under great pressures in those fast-moving, unprecedented
situations that are a commonplace of everyday law enforcement life.
On such occasions time is of the essence and there is little opportunity
for long reflection and none for consultation. If he does not act then and
there, it may be impossible to vindicate the law. Without this knowledge
and skill he is incapable of doing his duty in the way he desires, or in
the way the community has the right to expect.
It follows that as the requirements of the law have become more
difficult to meet and its standards for police performance have grown
higher, so has the need increased for education in legal matters of law
enforcement personnel. Law enforcement as an institution has sought to
meet this need through the means of police training which in the past
few decades has been one of the most effective forces in its drive to
professional status. It is a professional imperative that this phase of
police training be extended in furtherance of the interests of justice.
Due to the dynamic nature of the subject matter, the instruction must
be of a continuing nature throughout the officer's entire career, and a
prominent feature of in-service as well as recruit police-training schools.
This essential training in the law must not be limited to the
presentation and study of the bare rules themselves. The course of instruction
must press beyond the language of the rules to encompass the policies,
purposes, and history of the doctrines upon which they are based. This
is particularly true in regard to those rules not designed to facilitate the
ascertainment of facts by guarding against evidence which is unreliable,
prejudicial or misleading, but to protect other social interests. Since rules
which bar logically relevant evidence whose exclusion may allow "some
offenders to go unwhipped of justice" must be justified by over-riding
policies expressed in the Constitution or the laws, knowledge of these
policies is necessary to enable the officer to put the rules in their proper
light. They will then appreciate them for what they are, rather than be
inclined to regard them as technical barriers to the discovery and proof
of the true facts in a case. Knowledge of the purposes underlying the
rules will highlight the necessity for the methods of procedure required,
and improve their mode of application in the variety of situations
confronting the officer in his daily work. Knowledge of the history of the
doctrines underlying the rules will enable the officer to understand why
they occupy such a lofty place in our jurisprudence and why they must
be protected against unlawful infringement.
In the field of interrogation, for example, when the officer is cognizant
of the background of the privilege against self-incrimination and the
interests it is designed to protect, he will more readily understand the
rules governing the admissibility of a confession. When he realizes that
the privilege is deemed to be not "an adjunct to the ascertainment of
truth," but a doctrine whose basic purposes relate to the integrity of a
judicial system in which even the guilty are not to be convicted unless
the prosecution "shoulders the entire load," he will understand why a
prisoner has the absolute right to remain completely mute if he so wills,
and why this right must be honored. He can better understand why the
law considers confessions to be a proper element in law enforcement,
but nevertheless demands that certain safeguards be respected before a
person in custody may be questioned. By the same token, he can better
appreciate why our adversary system of prosecution prefers investigation
to interrogation, and raises to the modem professional officer the ideal
that crimes are to be solved by thorough, skillful investigation which
extends beyond the words of the defendant and which results in the
gathering of independent, extrinsic evidence of guilt.
Finally, this essential instruction of law enforcement personnel in legal
matters is invaluable to the individual officer in a very personal sense.
By reason of his daily work the officer has an appreciation of the evil
effects of crime that no person in the community can match other than
the victim of the crime himself. As a result he is imbued with a natural
human zeal to do his utmost to discover and apprehend those who have
caused the prohibited harm. Knowledge of constitutional limitations,
however, will help him temper his commendable zeal with caution and
cause him to prudently delay that action which the law deems precipitate.
It will give him, on the other hand, that confidence which he needs to
act swiftly and decisively in those situations where law and duty
command that such be done. It will enable him to lay the ghost that haunts
all conscientious law enforcement officers of today-the fear that acting
in good faith he may nevertheless err and "confer immunity upon an
offender for crimes the most flagitious."
41. 8 Wigmore, op. cit. supra note 38 , § 2266 , at 400-01.
42. 367 U.S. 568 , 583 n. 25 ( 1961 ).
43. E.g., Shotwell Mfg . Co. v. United States , 371 U.S. 341 , 347 ( 1963 ); Smith v . United States , 348 U.S. 147 , 150 ( 1954 ) ; Ziang Sung Wan v . United States , 266 U.S. 1 , 15 ( 1924 ); Hardy v . United States , 186 US. 224 , 229 ( 1902 ). See also Burdeau v . McDowell , 256 U.S. 465 , 475 ( 1921 ).
44. E.g., Stein v . New York, 346 U.S. 156 , 190 - 91 n. 35 ( 1953 ), overruled, Jackson v . Denno , 378 U.S. 368 , 391 ( 1964 ) ; United States v . Carignan , 342 US. 36 , 41 ( 1951 ).
45. 266 U.S. 1 ( 1924 ).