Journal of Criminal Law and CriminologyVolume 56Issue 4 December Article 2

Winter 1965

Massiah, Escobedo, and Rationales for theExclusion of ConfessionsDavid Jr. Robinson

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Recommended CitationDavid Jr. Robinson, Massiah, Escobedo, and Rationales for the Exclusion of Confessions, 56 J. Crim. L. Criminology & Police Sci. 412(1965)

TEE JOuRNAL OF CninmiAL LAw, CRIMnOLoGY AND POLICE SCENCE Vol. 56, No. 4Copyright 0 1965 by Northwestern University School of Law Printed in U.S.A.

IMASSIAH, ESCOBEDO, AND RATIONALES

FOR THE EXCLUSION OF

CONFESSIONS

DAVID ROBINSON, JR.

The author is an Associate Professor of Law at The George Washington University in Washing-ton, D. C. Following his graduation from Columbia Law School in 1956, he served as law clerk toJustice Hall S. Lusk of the Supreme Court of Oregon, as a Deputy District Attorney (later, Chief ofthe Criminal Department) for Multnomah County (Portland), Oregon, and as an Assistant UnitedStates Attorney for Oregon. From 1963 to 1965, he was a Teaching Fellow at Harvard Law Schooland was awarded the degree of Master of Law by that institution in 1965.

The article explores the now famous cases of Massiah v. United States and Escobedo v. Illinoisand their relation to the trend and rationales of the confession doctrines that have been developedby the Supreme Court of the United States during the last few decades. From his unique vantagepoint as a prosecutor turned academician, Professor Robinson critically examines the validity of theCourt's assumptions and holding in Escobedo and projects the future impact of that opinion uponthe administration of criminal justice in the United States.-EDIoR.

INTRODUCTION

Last year the Supreme Court of the UnitedStates decided two already famous cases whichseem likely to have revolutionary impact on Ameri-can criminal procedure.

Massiah v. United States' reversed the convictionof a merchant seaman who had been charged withviolating the federal narcotics laws. Because of thequantity of drugs involved, federal narcoticsofficers suspected that the defendant was a part ofa substantial criminal organization. The officerssought to continue their investigation into thisenterprise and to obtain further incriminating in-formation as to Massiah himself, although thelatter had been indicted and released on bail. Thecooperation of a co-defendant, one Colson, wasobtained. Colson agreed that the governmentmight install a radio transmitter under the seat ofhis car. A receiver permitted a government agentto overhear what was said. Massiah made in-criminating statements to Colson in this car, andthe agent divulged the conversation at the trial.2

The defendant argued before the Supreme Courtthat the use of the radio transmitter constitutednot only a violation of his fourth amendment rightto be free from unreasonable search but a viola-

1377 U.S. 201 (1964).2 The government apparently decided not to attempt

to use Colson as a witness to this conversation becausehe had previously informed the court that he and hisfamily had been threatened with death if he testified.See Record, vol. 2, p. 16.

tion of the fifth and sixth amendments as well,since incriminating statements had been elicitedfrom him in the absence of counsel. The Court putaside the fourth amendment argument. 3 The ma-jority, speaking through Justice Stewart, held thatthe sixth amendment right to counsel had beenviolated by the introduction into evidence of thefruits of the interrogation. Relying on languagecontained in concurring opinions in Spdno v.New York, 4 the Court stated:

"... [U]nder our system of justice the mostelemental concepts of due process of law con-template that an indictment be followed by atrial, 'in an orderly courtroom, presided overby a judge, open to the public, and protectedby all the procedural safeguards of the law."***It was said that a Constitution whichguarantees a defendant the aid of counsel atsuch a trial could surely vouchsafe no less toan indicted defendant under interrogation bythe police in a completely extrajudicial pro-ceeding. Anything less, it was said, might deny

3 In On Lee v. United States, 343 U.S. 747 (1951),another federal narcotics case, the accused while freeon bail was visited on his own premises by a federalundercover agent with a radio transmitter concealed onhis person. Testimony as to admissions made by thedefendant was presented by a second federal agent whohad received the radio transmissions. The Court sus-tained the conviction on the basis that there had beenno unlawful invasion of the defendant's premises andhence no fourth amendment violation.

4360 U.S. 315 (1959).

MASSIAH, ESCOBEDO, AND RATIONALES

a defendant 'effective representation by counselat the only stage when legal aid and advicewould help him.' -5Fscobedo v. Illinois6 reversed a murder conviction

of a defendant also on the basis that he had beendenied the assistance of counsel. The defendanthad been taken into custody for interrogationshortly after his brother-in-law had been fatallyshot. After a number of hours of unsuccessfuleffort by the Chicago police to obtain incrimina-tory admissions from him, the defendant was re-leased pursuant to a writ of habeas corpus. Tendays later, one DiGerlando, later a co-defendant,told the police that Escobedo had fired the fatalshots. The latter was then rearrested. Escobedo'slawyer, who had been in daily consultation withhim since his prior arrest, reached the police stationshortly after his client, but was not permitted tosee him. The defendant's requests to consult thelawyer were likewise denied by the police. Afterconfronting DiGerlando (who was also in custody),the defendant confessed, stating that he had hiredDiGerlando to kill his brother-in-law and haddriven him to the scene of the homicide becausethe deceased had been abusing Escobedo's sister.After a number of general criticisms of the utiliza-tion of private police interrogation to obtain con-fessions, the Court concluded:

"We hold, therefore, that where, as here, theinvestigation is no longer a general inquiry intoan unsolved crime but has begun to focus ona particular suspect, the suspect has beentaken into police custody, the police carry outa process of interrogations that lends itself toeliciting incriminating statements, the sus-pect has requested and been denied an oppor-tunity to consult with his lawyer, and thepolice have not effectively warned him of hisabsolute constitutional right to remain silent,the accused has been denied 'the Assistance ofCounsel' in violation of the Sixth Amendmentto the Constitution as 'made obligatory uponthe States by the Fourteenth Amendment,'Gideon v. Wainwright, 372 U.S., at 342, 83 S.Ct., at 795 and that no statement elicited bythe police during the interrogation may beused against him at a criminal trial."7

The purpose of this article is to review and evalu-ate some of the rationales for the now broadening

5 377 U.S. at 204.6378 U.S. 478 (1964).7 1d. at 490-491.

doctrines tepding toward the exclusions of con-fessions8 in trials of criminal cases.

I. PROTECTING THE TRusTwoRTINEss

OF THE TRUTH-SEEKING PROCESS

Empirical and Comnon Law Bases

The classic rationale for the exclusion of con-fessions, both as a matter of constitutional law andof the law of evidence, is that some confessions arebelieved to be untrustworthy.9 The orthodox prin-ciple excludes confessions when the circumstancesunder which they were obtained are such as to in-dicate a substantial danger of inducement to makea false statement. Conversely, it assumes that con-fessions made in the absence of such inducementhave probative value. This inference rests largelyon the common sense notion that an innocent per-son will not ordinarily wish to imperil his freedomby making a false admission of criminal guilt. Inthe past this assumption has almost invariablybeen unquestioned.

The first Mr. justice Harlan observed:"... A confession, if freely and voluntarilymade, is evidence of the most satisfactorycharacter....

Elementary writers of authority concur insaying that, while from the very nature of suchevidence it must be subjected to careful scru-tiny and received with great caution, a de-liberate, voluntary confession of guilt is amongthe most effectual proofs in the law, and con-stitutes the strongest evidence against theparty making it that can be given of the factsstated in such confession.' 0

Professor Wigmore expressed a similar view:"In the first place, the only real danger and

weakness in a confession-the danger of a falsestatement-is of a slender character, and thecases of that sort are of the rarest occurrence.No trustworthy figures of authenticated in-stances exist; but they are concededly few.

For purposes of this article the term "confessions"is used unusually broadly, in the interest of brevity.It therefore includes not only admission of all of theelements of a crime, but also of individual elements,of subordinate facts relevant to culpability, and ofexculpatory statements relevant to a showing of guiltyknowledge or to self-contradiction.

9 3 WIGMosx ON EVIDENCE §822 (3d ed. 1940).The common wording of this test in terms of volitionis preferably avoided because of its inescapable am-biguity. See 3 VIGMOIE ON EVIDENCE §824 (3d ed.1940); Kamisar, What is an Involuntary Confession?17 RUTGERS L. REv. 728 (1963).

10 Hopt v. Utah, 110 U.S. 574, 584 (1883).

1965]

DAVID ROBINSON, JR.

Now if it were a question of receiving the con-fession as conclusive, t.e. as equivalent to aplea of guilty, we might well prefer to be ex-tremely cautious (as under the early tradi-tional practice already described), and let thetrial take its ordinary course. But as it is amere matter of giving or not giving one morepiece of evidence to the jury, as it is impossibleto determine beforehand the real weight of anyconfession, and as the accused has ample op-portunity of offering any facts affecting theweight of the confession, it is entirely unneces-sary to bar out all confessions whatever bybroad and artificial tests, merely on account ofthis slender and rare risk of falsity. To employan anomalous occurrence as the basis of indis-criminate exclusion is not reasonable. It issimply, in the language of Chief JusticePaxson already quoted, an exhibition of senti-mentalism toward the guilty."'1

A probable exception to the general consensusof writers and courts as to the reliability of con-fession evidence in American trials is contained inthe Escobedo assertion:

"We have learned the lesson of history,ancient and modern, that a system of criminallaw enforcement which comes to depend on the'confession,' will in the long run, be less reli-able and more subject to abuses than a systemwhich depends on extrinsic evidence independ-ently secured through skillful investiga-tion .... 2 ,

However, the authorities cited by the Court insupport of the quoted statement 13 on the reliability

113 WIGMORE ON EVIDENCE §867 (3d ed. 1940).Professor McCormick came to a similar conclusion.McCormick, Some Problems and Developments in theAdmissability of Confessions, 24 Txx. L. REv. 239,246 (1946); MCCORMICK, HANDBOOK OF THE LAwOF EvIDENCE §109 (1954). Compare the statement ofJustice Jackson: ".... [O]nce a confession is obtainedit supplies ways of verifying its trustworthiness....Such corroboration consists in one case of finding aweapon where the accused has said he hid it, and inothers that conditions which could only have beenknown to one who was implicated correspond withhis story. It is possible, but it is rare, that a confession,if repudiated on the trial, standing alone will convictunless there is external proof of its verity." Watts v.Indiana, 338 U.S. 49, 60 (1949) (concurring opinion).

378 U.S. 478, 488 (1964).13 "See Committee Print, Subcommittee to In-

vestigate Administration of the Internal Security Act,Senate Committee on the Judiciary; 85th Cong., 1stSess., reporting and analyzing the proceedings at theXXth Congress of the Communist Party of the SovietUnion, February 25, 1956, exposing the false confessionobtained during the Stalin purges of the 1930's. Seealso Miller v. United States, 320 F.2d 767, 772-773

of such a system are generally inapposite to theAmerican system of criminal justice. 4

The argument of those inclined to the view that"voluntary" confessions constitute evidence suffi-ciently credible to survive an exclusionary principlebased on nontrustworthiness is not that the inno-cent never confess. It is not that given the full re-sources, unlimited time, and insensitivity to per-sonal suffering of modern totalitarian states, sys-tematic false confessions cannot be obtained. Itis simply that the truth-seeking process is far morereliable when confession evidence is added to suchother evidence as may be available than when it isexcluded. At best the facilities which we have toassist a tribunal in determining disputed mattersof historical fact fall short of the ideal. But otherlikely sources of information, such as reports ofeyewitnesses, frequently relating to events im-perfectly perceived and remembered and testimonyaccomplices, for example, do not, in the absence of

Reform and the Psychology of Totalism (1963);Rogge, Why Men Confess (1959); Schein, CoercivePersuasion (1961)." Id. at 489, n. 11.

14 The printed title of the referenced Senate Judiciarymaterial is "Speech of Nikita Khruschev Before aClosed Session of the XXth Congress of the Com-munist Part), of the Soviet Union on February 25,1956." The "analysis" is a brief summary and com-mentary on the speech by the Free Trade Union Com-mittee (AFL-CIO). The confessions during the Stalinpurges were obtained by long periods of physicaltorture and threats of death, according to the speech.See id. at 34-43, 53-56. For example, Stalin's personalinstructions in the case of the so-called doctor's plotwere quoted as "beat, heat and, once again, beat."Id. at 53-54. The Miller case involved the relevance ofevidence of flight after the commission of a crime toestablish guilt. It was apparently cited because ofJudge Bazelon's footnoted reference to a bibliographyof literary, psychoanalytic, and general sociologicalmaterial. The Lifton and Schein books are studies ofbrainwashing in Communist China in which prisonerswere subjected to torture, continuous confinement,and semicontinuous interrogation, often for periods ofyears. The Rogge book is also primarily a discussion ofcommunist confession producing techniques, althoughit attempts to illustrate confession situations throughthe ages and to give a psychoanalytically-orientedinterpretation.

The Court in Escobedo proceeded on to cite 8 Wig-more On Evidence 309 (3d ed. 1940) as to the author'sargument against the abolition of the privilege againstself-incrimination in judicial proceedings. While Wig-more did defend the privilege against advocates ofcompulsory disclosure in judicial proceedings his viewson confessions were strongly to the contrary, as hasbeen indicated above. Nevertheless, in view of thesubstantial overlap in policies between the confessionrule and the privilege against self-incrimination, it isdifficult to reconcile Wigmore's disparate treatment ofthem.

The applicability of the privilege against self-in-crimination to the confession situation is discussedinfra pp. 416-418.

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MASSIAH, ESCOBEDO, AND RATIONALES

(opinion of Chief Judge Bazelon); Lifton, Thoughtempirical data which we lack, appear to offer morereliable sources of information.

In both the Borchard and Frank studies1 5 ofconvictions in which strong subsequent evidencelater appeared that the defendant was innocent,confessions were not commonly blamed, althoughalmost all of the cases arose at a time when controlof police practices was less careful than today.

Both the Borchard and Frank 2 studies indi-cated the most common source of error to be re-liance on eyewitnesses. If unreliability of con-fessions requires their exclusion, a fortiori, it wouldappear that eyewitness testimony should also beexcluded.

Yet it cannot be doubted that the circumstancesof in-custody interrogation present real problemsfor a trier of fact in determining the conditionsunder which a confession was made. The defendantcharacteristically must rely upon his own testi-mony, which is likely to be discounted because ofself interest and because of contradictory testi-mony given by the police. Escobedo is itself an in-teresting example of this. The defendant allegedthat he had confessed to hiring DiGerlando tocarry out the murder on the promise by the policethat if he (Escobedo) made a statement implicatingDiGerlando, there would be no prosecution ofhimself. The Illinois Supreme Court initially re-versed the conviction on the assumption that theconfession was induced by this promise. On peti-tion for rehearing the state pointed out that thisassertion of the defendant was contradicted by thetestimony of the police, and the Illinois courtthereupon unanimously affirmed the conviction. 6

The Supreme Court noted the conflict in testimony,stated that it was authorized to resolve it itself,but found it unnecessary to do so in view of the

15 BoRgcHAR, CONVICTInG THE INNOcENT (1932);FRANK & FRANK, NOT GUILTY (1957). Borchard'sstudy of 65 erroneous convictions indicated that in 29cases, the identification of the accused by the victimof a crime of violence was practically alone responsiblefor the error. In 15 additional cases mistaken identifi-cation was supplemented by circumstantial evidence.Perjury by hostile witnesses accounted for an ad-ditional fourteen cases. Of the seven cases involvingconfessions, one occurred after conviction. Two of theconfessions were attributed by Borchard to improperquestioning by police. In 20 of the cases the errorswere uncovered by substantiated confessions of others.Id. at xiii-xix.

Of the 18 cases of erroneous conviction brieflydescribed by Frank and Frank, Ch. 7, none involvedconfessions, but in 12, the solution was aided by con-fession of others.

"People v. Escobedo, 28 Ill.2d 41, 190 N.E.2d 825(1963).

new constitutional basis assigned by it for its de-cision.

Constitutional Applications

The first reversal of a state case because of ad-mission of a coerced confession occurred in 1936.18At least as early as 1941 it became evident that theCourt was not exclusively concerned with trust-worthiness in imposing a constitutional standard.Lisenba v. California9 sustained a California con-viction for murder. The Court, through JusticeRoberts, stated:

"The aim of the requirement of due processis not to exclude presumptively false evidence,but to prevent fundamental unfairness in theuse of evidence, whether true or false. Thecriteria for decision of that question may differfrom those appertaining to a State's rule as tothe admissibility of a confession. 20

In Ashcraft v. Tennessee" the Lisenba dictumthat the constitutional test was not one merely oftrustworthiness was applied to reverse a convic-tion in which a confession obtained after 36 hoursof semi-continuous questioning had been receivedin evidence. The Court held that the police conducthad been "inherently coercive" without explainingthe principle applied. Justice Jackson in dissentprotested that the Court had failed to determinewhether the confession was in fact coerced and hadignored evidence indicating that the confessionhad been given under circumstances indicatingthat Ashcraft was in full control of his faculties atthe time of the confession."

In spite of decisions such as Lisenba andAshcraft, which appeared to announce a broaderexclusionary rule, as recently as Stein v. New York2the Court, through Mr. Justice Jackson, spoke asthough the principle to be applied was still onebased upon the desire to prevent conviction uponunreliable evidence:

"Coerced confessions are not more stainedwith illegality than other evidence obtained inviolation of law .... [R]eliance on a coercedconfession vitiates a conviction because such

17 378 U.S. 478, 484, n.4. The possibility of attempt-ing to deal with improper inducement of confessionsby law enforcement officers by preserving more evi-dence relating to the circumstances under which theywere obtained is briefly discussed infra, pp. 430-431.

18 Brown v. Mississippi, 297 U.S. 278 (1936).19 314 U.S. 219 (1941).20 id. at 236.21322 U.S. 143 (1944).22 Id. at 156-174.

346 U.S. 156 (1953).

DAVID ROBINSON, JR.

a confession combines the persuasiveness ofapparent conclusiveness with what judicial ex-perience shows to be illusory and deceptiveev id en ce . ,,A : I .I,

Stein sustained the practice followed in New Yorkand a number of other jurisdictions under which atrial judge left to the jury the decision of whethera confession was "voluntary," the Court merelymaking a preliminary finding that a jury couldproperly so determine. The jury was instructed notto consider the confession in the event they deemedit coerced. The rule in Stein thus presented nodifficulty so long as the rationale of exclusion waslack of trustworthiness; it did, however, createdangers that a jury might give weight to a con-fession (that is, believe it to be truthful) eventhough they believed it to have been obtained bycoercive means.

Stein was followed by widespread changes in thepersonnel of the Court. A few months after the de-cision Chief Justice Warren replaced Chief JusticeVinson, and the following year Justice Jackson,the leader of the group of justices who subscribedto something close to a trustworthiness test died,being succeeded by Justice Harlan. In 1956 JusticeBrennan replaced Justice Minton, and two yearslater Justice Stewart followed Justice Burton.While the most decisive abandonment of previouscriteria applied to confession cases was to awaitthe later retirement of Justice Frankfurter-whohad himself played a leading role in the attack onin-custody interrogation methods, particularly infederal courts-the alteration in attitude was soonvisible. 5

Rogers v. Richmond 6 applied the coup de grace to

the orthodox principle of exclusion. After the de-fendant had been arrested and questioned forseveral hours without success, the police statedthat they were going to have his wife taken intocustody for questioning. The defendant then con-

241d. at 192. Professor Paulsen has argued that the

Court went beyond the trustworthiness rationale evenin Stein, which indicated that the admission of a con-fession coerced by physical violence or threat of itwould vitiate a conviction as being too untrustworthy.Paulsen pointed out that even such a confession maybe corroborated and found to be reliable. Thus, hecontended, the opinion is not fully supportable onthe trustworthiness principle. See Paulsen, The Four-teenth Amendment and the Third Degree, 6 STAN L.REv. 441, 428 (1954), See also Schaefer, Federalismand State Criminal Procedure, 70 HARv. L. REv. 1,12 (1956); cf. Wigmore On Evidence §§856-859 (3ded. 1940).

25 E.g., see Spano v. New York, 360 U.S. 315 (1959);Blackburn v. Alabama, 361 U.S. 199 (1960).

26 365 U.S. 534 (1961).

fessed. The Connecticut courts admitted the con-fession on the theory that the confession was vol-untary in that the circumstances were not suchas to make likely an untruthful admission of guilt.The Supreme Court unanimously was of the viewthat this standardwag constitutionally impermis-sible.

The final blow to the trustworthiness standardwas the formal repudiation of the Stein rule. Thiswas accomplished in Jackson v. Denno,27 the Courtstating that Stein had been based on a reliabilitytest, which had been rejected in Rogers 8

Thus it has become fully apparent that theCourt in excluding confessions has not been solely-or perhaps even primarily-concerned with safe-guarding the truth-seeking process. Other valuesare involved. An attempt must be made to considerthem.

II. REQuIRxsrNTs OF THE

CoNsTrruTIoN ITSELF

This article will not attempt a detailed re-examination of the origins of the fifth and sixthamendments or of their interpretation. The propo-sition submitted is a modest one: neither the wordsof the Constitution, its background, nor its essen-tial policies requires wholesale rejection of con-fessions.

The language of the fifth, sixth, and fourteenthamendments to the Constitution does not compelgeneral exclusion of confessions. Neither do theirhistories.

The privilege against self-incrimination at com-mon law did not apply to situations where therewas no official right to compel answers and hencedid not apply to police questioning.29 The con-fession rule came into existence a century after theorigins of the privilege against self-incrimination."While the Supreme Court in 1897 stated by way ofdictum that the prohibition against coerced con-fessions was controlled by the fifth amendment, 3'the decision resulted in much criticism and was notfollowed in succeeding cases.n

Z 378 U.S. 368 (1964).28 Id. at 383-4.29 8 WIoGoRE ON EVIDENCE §2252; (McNaugh. Rev.

1961); Morgan, The Privilege against Self-Incrimination,34 MINN. L. REv. 1, 18 (1949); cf. Comment, The Privi-lege against Self-Incrimination: Does it Exist in the Po-lice Station? 5 STAN L. REV. 459 (1953).

3 8 WrGuoRE oN EVIDENCE §2266 (McNaugh. Rev.1961).

31 Bram v. United States, 168 U.S. 533, 542.273 WiGMoRE ON EVIDENCE §822, n.2, §823, n.5

3d ed. 1940); BEIsEL, CoNoL OVER ILLEGAL EN-FORCEMENT OF THE CRIMINAL LAW: ROLE OF THESuPrumuE CoURT 86-90 (1955).

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MASSIAH, ESCOBEDO, AND RATIONALES

The distinction between the privilege and thecoerced confession rule was carefully noted in thefirst case constitutionally imposing the latter uponthe states as a matter of due process of law.- Dueprocess was held to proscribe the admission intoevidence of a coerced confession, although at thetime, the privilege against self-incrimination wasnot itself included within the fourteenth amend-ment protections.3 Nevertheless more recent de-cisions broadening the scope of the involuntaryconfession rule to cover admissions which wouldnot be barred on a lack of trustworthiness basisadopt policies also served by the privilege againstself-incrimination. Furthermore, .. dicta in con-temporary opinions of the Court indicate an in-clination to rescue the notion that the privilegeextends to police investigations.

In Malloy v. Hogan35 the Court reversed a con-tempt conviction of a witness before a state judicialproceeding who declined to testify on grounds ofself-incrimination. The Court based its argumentin part on the state coerced confession cases whichhad been reversed under the fourteenth amend-ment, stating that those decisions, in ruling outstatements secured with mild inducements, afortiori would not permit a state to obtain in-criminating admissions under threat of imprison-ment.3" The confession rule is applicable to situa-tions where the process of questioning itself issubject to greater danger of abuse of the suspect,since the proceedings are usually secret, the per-sonnel frequently more poorly trained, the suspectis not represented by counsel, and there is no im-partial arbiter of the proceeding. In these respects,if there is an a fortiori argument, it must be madethe other way, as indeed, it frequently has.n

In view of the broad coverage of the existingconfession doctrine the matter might seem to belargely academic. However it is not at all academicif, by extending the privilege against compulsoryself-incrimination to confessions situations, theCourt will now require a showing of informed andpurposeful waiver of the privilege. There is a hintin Escobedo that it may have this in mind: "Theaccused may, of course, intelligently and knowinglywaive his privilege against self-incrimination ...",,Under such an approach, confessions traditionallydeemed to have been voluntarily made to police

3 Brown v. Mississippi, 297 U.S. 278, 285 (1936).34Twining v. New Jersey, 211 U.S. 78 (1908).35 378 U.S. 1 (1964).36Id. at 7.3 See infra, pp. 421-424.36 378 U.S. 478, 490 n.14.

or even to private persons may hereafter be ex-cludable. The fifth amendment requirement of nocompulsion, would, in effect, be replaced by a re-quirement of a showing of "intelligent and know-ing" waiver. Such a result could not be attributedto the Constitution itself.

From the time of the adoption of the sixthamendment to 1932 there were almost no cases,either federal or state, on the right to counsel. TheEnglish background is uncertain, although it ap-pears that the right to be assisted even by retainedcounsel in felony cases (other than treason) wasnot fully recognized until 1836.31 The modernfederal constitutional law of right to counsel wasinaugurated with Powell v. Alabamna,40 holding thatin capital cases the states were required to providecounsel for assistance at trial, with sufficient ad-vance notice for preparation for trial. The right toother than retained counsel at trial in non-capitalfelony cases was not established in the federalcourts until 1938,41 or in the state courts until1963 . 2 The question of whether it was constitu-tionally permissible for a state to admit a con-fession obtained after refusal to permit a defendantto consult with his lawyer came before the SupremeCourt in two cases in 1958. It was answered in thenegative. 3 While these cases were probably over-ruled by Rscobedo,4 the reach of the right to counselin investigative situations remains to be clarifiedby further decisions.

It is sometimes urged that the right of a suspectto remain quiet during police questioning beingconceded, the encouragement of his exercise of thatright by means of a vigorous privilege against self-incrimination and an extended right to counselshould not be protested. 45 However, it is one thingfor society to establish a policy of not applyingcoercive sanctions against behavior and quiteanother for society to urge it. For example, onemay grant a "right" to kill to prevent the escape ofa felon without promoting its exercise wheneverpossible. If indeed there is a social interest in tryingcriminal cases on their facts, although an interest

39 See Powell v. Alabama, 287 U.S. 45, 60 (1932);Note, An Historical Argunent for the Right to CounselDuring Police Interrogation, 73 Yale L.J. 1000, 1018-1034 (1964).

40 287 U.S. 45 (1932).41 ohnson v. Zerbst, 304 U.S. 458.4 Gideon v. Wainwright, 372 U.S. 335.43 Crooker v. California, 357 U.S. 433; Cicenia v.

LaGay, 357 U.S. 504."See 378 U.S. 478, 491 (1964).41 See Note, The Supreme Court, 1963 Term, 79

Harv. L. Rev. 143, 221 (1964).

DAVID ROBINSON, JR.

which we have decided to be outweighed by an in-terest in avoiding coercive treatment of suspects, itdoes not follow that the former interest is to bedisregarded in the absence of actual coercion. 46 It

is obvious that the privilege against self-incrimina-tion and the right to counsel can be applied so asto have a highly restrictive effect upon the obtain-ing of confession evidence. Whether they shouldbe cannot be resolved in their own terms, but re-quire independent assessments.

III. DETERRENCE OF ILLEGAL OR UNDESIRABLE

POLICE CONDUCT

It has sometimes been thought that the princi-ple to be served by exclusion of confessions is thedeterrence of the third degree47 and other unlawfulor undesired police conduct. The situation thuswould be analogous to the common justification ofthe exclusion of evidence obtained as a result of anillegal search and seizure under the rule of Mapp v.Ohio.48

While there is undoubtedly an element of de-terrent thinking in many of the confession cases,the principle is intelligible only if we understandwhat we are trying to deter.

16Compare DEVLIN, THE CRIMINAL PROSECUTIONIN ENGLAND 48-50 (1960):

I have said that the accused's statement to thepolice often plays a great part in the prosecution'scase....

How do I reconcile what I have said with the ac-cused's right to silence? Does not the English systempride itself on having nothing to do with those in-quisitorial methods which are said to be practised onthe Continent and are designed to get the accused toconvict himself out of his own mouth?...

The answer to these questions is that while theEnglish System undoubtedly does give the accusedman the right to say nothing, it does nothing to urgehim to take advantage of his right or even to makethat course invariably the attractive one....

4 According to Wigmore, the "third degree" origi-nally meant the use of violence. It has been frequentlyextended to include non-violent interrogation, par-ticularly by continuous questioning over an extendedperiod of time. 3 WIomoRE ON EVIDENCE §851 (3d ed.1940). The Wickersham Commission defined it as the"employment of methods which inflict suffering,physical or mental, upon a person in order to obtaininformation about a crime." NATIONAL COMMsi. ONLAW OBSERVANCE AND ENFORCEMENT, REPORT No.11, LAWLESSNESS IN LAW ENFORCEMENT 19 (1931).

48367 U.S. 643 (1961). ". . . [Tlhe purpose of theexclusionary rule 'is to deter-to compel respect forthe constitutional guarantee in the only effectivelyavailable way-by removing the incentive to disregardit' .... " Id. at 656. See Linkletter v. Walker, 381U.S. 618 (1965). Professor Paulsen, writing over adecade ago, seems to have taken this position withrespect to the exclusion of confessions, to the extentthe principle went beyond the requirements of re-liability. See Paulsen, The Fourteenth Amendment andthe Third Degree, 6 STAN L. REV. 411 (1954).

There is surely a consensus that the Court shouldact to prevent the utilization of physical torture, aswas involved in the 1936 case of Brown v. Missis-sippi;49 yet there have been no state cases beforethe Supreme Court in which a finding of violencewas made since that time.50 There is also probablya consensus with respect to outrageous physicalindignity such as that occurring in Malinsky v. NewYork. 5' One would expect that there is also a con-sensus on cases of very prolonged incommunicadointerrogation.5 The same may be said for threats ofharm or promises of benefit which present any sub-stantial likelihood of producing false statements,ualthough such exclusions are also fully justifiableon the trustworthiness of evidence rationale. Thedeterrence argument is relevant when the con-fession at issue was obtained as a result of an il-legal search and/or an illegal arrest, although it isnot yet clear whether a majority of the Court iswilling to apply an exclusionary sanction in thecase of confessions obtained after any illegal arrestirrespective of the circumstances.4

The problem of defining what we are trying todeter becomes an extremely difficult one, however,when the standard applied is whether the practicesof the police "offend what may fairly be deemedthe civilized standards of the Anglo-Americanworld,"5 or where the conduct of the police indi-cates "disregard of the standards of decency."'"While Justice Frankfurter defended similar dueprocess standards against the objection that theyare predicated on concepts of natural law and infact provide no standard for judgment, 57 JusticesBlack and Douglas have, on occasion, respectivelyfound them "evanescent"' ' and "dependent uponthe idiosyncrasies of judges."5 9

Recent decisions indicate that whatever thenature of the uncivilized standards, it is not now

49 297 U.S. 278.50 See Ritz, State Criminal Confession Cases: Subse-

quent Developments in Cases Reversed by the U.S.Supreme Court and Some Current Problems, 19 WASH.& LEE L. REv., 202 (1962).

51324 U.S. 401 (1945) (defendant required to re-main without clothing for extended period of time);see also, Bram v. United States, 168 U.S. 533 (1897).

12 E.g., Chambers v. Florida, 309 U.S. 227 (1940).53 E.g., Lynum v. Illinois, 372 U.S. 528 (1963).54 See Wong Sun v. United States, 371 U.S. 471

(1962). (Statement made after illegal search followedby illegal arrest inadmissable.)

51 Fikes v. Alabama 352 U.S. 191 (1957) (concurringopinion of Frankfurter, J.).

11 Haley v. Ohio, 332 U.S. 596, 600 (1948) (opinionof Douglas, J.

51 Rochin v. California, 342 U.S. 165 (1951).58 Id. at 177.59 Id. at 179.

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required that they be such as to "shock the con-science." 60 For example, in Haynwe v. Washington"'the defendant having already orally confessed to arobbery, was told that he could telephone his wifeonly after he "cooperated" in reducing the state-ment to writing. This he did, and the statementwas admitted at the trial. The Court held the con-iession involuntary and reversed the conviction.

However, the case most dramatically inconsist-ent with a deterrent rationale is Massiah v. UnitedStates.62 In replying to the Solicitor General'sargument that the Narcotics Bureau was justifiedin continuing its investigation into the criminal ac-tivities of the group of which defendant was amember, even after the defendant's indictment,the Court stated:

"We may accept and, at least for presentpurposes, completely approve all that this ar-gument implies, Fourth Amendment problemsto one side. We do not question that in thiscase, as in many cases, it was entirely properto continue an investigation of the suspectedcriminal activities of the defendant and hisalleged confederates, even though the de-

fendant had already been indicted. All that we

hold is that the defendant's own incriminatingstatements, obtained by federal agents underthe circumstances here disclosed, could not

constitutionally be used by the prosecution as

evidence against him at his trial."' '

It seems clear that the Court's decision, in which

six members joined, cannot be supported on a de-

terrent theory. To be sure, deception at the in-

stigation of the government was involved, but this

is a necessary concomitant of all undercover opera-tions. More fundamentally, the Court did notpredicate its decision on such deception in im-munizing the defendant from its effects. The Court

appears to accept the propriety of the further in-vestigation itself.

To the extent that deterrence of the third degreeor other undesired conduct by the police does play

a role in exclusionary principles, an evaluationwould have to seek to determine its efficacy. Un-

fortunately, here as elsewhere opinions are moreeasily discovered than fact. A pessimistic indica-tion is a study of cases in a branch of the ChicagoMunicipal Court during the year 1950. In 4,673out of 6,649 cases the defendant challenged the

The phrase is from id. at 172.6373 US. 503 (1963).377 U.S. 201 (1964). The decision is summarized

supra p. 1.Id. at 206-207 (Emphasis in original.)

legality of the method of obtaining evidence. In4,593 of these cases the Court suppressed the evi-dence. It should be noted that the cases heard bythe Chicago Municipal Court involved the mis-demeanor of gambling. The degree of deterrencemay be greater in felony cases, as the police interestin successful prosecution rather than harassmentmay be increased. The Chicago experience mayalso be atypical.65

In the area of confessions the exclusionary rulesare utilized, not by all persons subjected to policeinterrogation, but only by those who are chargedand who decide to contest their cases. In a study ofarrests for investigation made by the police of theDistrict of Columbia in the years 1960 and 1961only about 6% of the persons thus arrested wereactually charged. 66

Even if all confessions were inadmissible, policewould have motives for interrogating suspects inorder to get leads to extrinsic evidence, to gain in-telligence about crimes, as well as a sanction initself.6

On the other hand, it seems reasonable to assumethat a desire of criminal investigators to see theirwork bear fruition in convictions would lead tosome negation of interrogation practices which areheld to be illegal. Assuming this to be the case,some unmeasured and probably unmeasurabledeterrent effect may be obtained.

IV. EQUALITARIANISM AMONGPOTEITIAL DEFENDANTS

It cannot be denied that confession is almost in-

variably inconsistent with the interest of a suspect

A Note, Searches and Seizures in Illinois: Enforce-onent of the Constitutional Right of Privacy, 47 Nw.

U.L. REv. 493, 497-499 (1952).61 See Kamisar, Wolf and Lustig Ten Years Later:

Illegal State Evidewe in State and Federal Courts, 43MINN. L. REv. 1083, 1157, n.250 (1959).

66 District of Columbia Committee on Police Ar-rests for Investigation, Report and Recommendations(1962); See Note, Philadelphia Police Practice and theLaw of Arrest, 100 U. PA. L. REv. 1182 (1952).

67 See MAGUIRE, EViDENCE OF GUST §4.002 (1959);LAFAVE, ARREST, REPORT OF THE AMERICAN BARFOUNDATION'S SURVEY OF TE ADMINISTRATION OFCRIMINAL JUSTICE IN THE UNID STATES 438-489(1965). "This Court may, by the adoption of such arule, outlaw confessions. But the police will not abandontheir practice of questioning suspects after arrest andbefore arraignment. And not because of any disrespectfor this Court and its teachings, but simply becausesociety will not let them, because society cannot letthem. The 'deeply rooted feelings of the community'will demand that those who murder and rape andwould escape unknown-but for the confession follow-ing arrest-be at least unmasked though they may gounwhipped of justice." Brief for Respondent, p. 43,Escobedo v. Illinois, 378 U.S. 478(1964).

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DAVID ROBINSON, JR.

seeking to avoid criminal prosecution and convic-tion. While the factors that lead persons to confessare undoubtedly extremely complex and imper-fectly understood, it is an easy inference that per-sons guilty of such a tactical blunder must be in-tellectually, emotionally, ethnically, or culturally,disadvantaged. In a famous early confession caseinvolving protracted interrogation, Justice Blackmildly wrote for the Court:

"The determination to preserve an accused'sright to procedural due process sprang in largepart from knowledge of the historical truththat the rights and liberties of people accusedof crime could not be safely entrusted to secretinquisitorial processes. The testimony of cen-turies, in governments of varying kinds overpopulations of different races and beliefs, stoodas proof that physical and mental torture andcoercion had brought about the tragically un-just sacrifices of some who were the noblestand most useful of their generations. The rack,the thumbscrew, the wheel, solitary confine-ment, protracted questioning and cross ques-tioning, and other ingenious forms of entrap-ment of the helpless or unpopular had left theirwake of mutilated bodies and shattered mindsalong the way to the cross, the guillotine, thestake and the hangman's noose. And they whohave suffered most from secret and dictatorialproceedings have almost always been the poor,the ignorant, the numerically weak, the friend-less, and the powerless."0 8

Professor Beisel adds:"Seldom indeed do we hear of professionally

trained men or experienced business men mak-ing confessions as to crimes of which theymight be accused. Instead, under the presentconstitutional law of 'coerced' confessions, itis the frightened, the insecure, the weak, theuntrained, the bewildered, the stupid, thenaive, the credulous that are caught in theweb. These are the ones who will talk to anexperienced, well-trained police interrogator.Once they start talking, they talk themselvesinto jail.... No matter how fine we may thinkthe present constitutional law of confessionsto be, it does permit many of the discrimina-tory features of characteristics dividing andseparating men into various social classes to-day to play an important, perhaps decisive,yet unarticulated, role in determining who6S Chambers v. Florida, 309 U.S. 227 at 237-238

(1940)-

shall or shall not be punished by the use of con-fessions. All the inequalities of native intelli-gence, environment, schooling, economic op-portunity, racial origin, to name only a few,bear upon and are allowed to play an impor-tant part in securing confessions of guilt atthe police station under the present constitu-tional law of 'coerced' confessions." 69

The argument surely has emotional appeal. Itwould be incautious to assert that it may not havelegal consequence as well in an age of advancingconstitutional equalitarianism. 70 Relying primarilyupon the equal protection clause, the SupremeCourt has held that the states must take affirma-tive action to remedy inequality resulting frompoverty during litigation itself, e.g., as in providingappellate transcripts7' and counselU2 Gideon v.Wainwrigh 3 while decided in terms of due process,has strong equalitarian motifs.74 If the dull witted,the ignorant, the impulsive, the guilt-ridden aredisadvantaged in the criminal process by improvi-dent confession should not the legal system alsoattempt to provide a remedy? Is it not unfair totake advantage of such weakness?

In Escobedo the Court came close to indicatingan affirmative answer to these questions: ".... Ifthe exercise of constitutional rights will thwart theeffectiveness of a system of law enforcement, thenthere is something very wrong with that system. 5

Taking this language for all it may be worth, it69 BEISEL, CONTROL OVER ILLEGAL ENFORCEMENT

OF TE CRIMINAL LAW: Role of the Supreme Court105-106 (1955). Note, An Historical Argument forthe Right to Counsel during Police Interrogation, 73Yale L. J. 1000, 1044 (1964) appears to make thesame assumption. Empirical data is not cited for thenotion that the economically or intellectually fortunatedo not confess as readily when questioned as those lessfavored in these qualities, and the writer knows ofnone. To the extent the former may confess less fre-quently because of a lower incidence of criminalitythe argument seems to prove too much, assuming weare unwilling, for example, to abolish the law of theftbecause its impact is primarily on the poor. A conclu-sion that experienced criminals rarely confess seemsto have a common sense plausibility, and is probablyborne out in the case of professionals engaged in enter-prises such as gambling and vice. It is doubtfullyvalid as to habitual sociopathic offenders. See gen-erally, CLECKLEY, THE MASK OF SANiTY (2d ed. 1950).70 See Kurland, Foreword: "Equal in Origin and

Equal in Tilli to the Legislative and Executive Branchesof the Government," 78 Harv. L. Rev. 143, 143-149(1964).

71 Griffin v. Illinois, 351 U.S. 12 (1956).72 Douglas v. California, 372 U.S. 353 (1963).73 372 U.S. 335 (1963) (requiring that states provide

trial counsel for the indigent in felony cases).7 Id. at 344.71 378 U.S. 478 at 490 (1964).

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]MASSIAH, ESCOBEDO, AND RATIONALES

could be inferred that no confession would be ad-missible unless the suspect were advised not only ofhis right to remain silent, but also of the practicaland tactical consequences of any statement. Thisinterpretation is supported by the fact thatEscobedo himself had extensively consulted coun-sel prior to confession. The Court emphasized thatthere was no evidence in the record that theyspecifically discussed what Escobedo should do inthe event that his codefendant made a false accusa-tion that he had fired the fatal bulletsYl This, too,may be interpreted as requiring the tactical assist-ance of counsel. Yet in view of the careful statingof the holding, and in view of the more limitednature of the factual context of the case, the mattermust be regarded as still undecided.

The basic inadequacy of the equalitarian argu-ment, it is submitted, is that it misconceives thenature of the problem. Surely it does not followthat because skilled burglars carefully wipe theirfingerprints off safe dials, that society must outlawthe use of all fingerprint evidence lest there be dis-criminatory utilization of such evidence againstthe "poor, the ignorant, the numerically weak, thefriendless, and the powerless." It surely will not doto argue that because some clever or wealthy crimi-nals avoid conviction that all should do soY7 Thelack of professionalism of many of those engaged incriminal conduct is a resource which society shouldbe able to utilize. There seems to be no justifiableend in equal acquittal of the guilty 8

V. Tim ADvERSARY SYSTEu-EQuALITARIuANISBETWEEN PRosEcUTIoN AND DEFENSE

The analogy of the adversary system as it existsin the courtroom has been referred to in a numberof decisions reaching conclusions that interrogation

76 Id. at 485.77 See Enker and Elsen, Counsel for the Suspect:

Massiah v. United States and Escobedo v. Illinois, 49MnN. L. REv. 47, 65 (1964).

78 It is perhaps significant that the opinions of theCourt in Griffin v. Illinois, 351 U.S. 12, 17 (1956), andDouglas v. California, 372 U.S. 353, 356-358 (1963)are couched in due process as well as equal protectionterms, although the latter is given primary emphasis.The Hon. Nicholas deB. Katzenbach, Attorney Gen-eral of the United States, has said recently, "But Inever understood why the gangster should be madethe model and all others raised, in the name of equality,to his level of success in suppressing evidence. This issimply the proposition that if some can beat the rap,all must beat the rap. I see no reason to distort thewhole of the criminal process in this fashion. Becausewe cannot solve all crimes and convict all criminalsis no reason to release those guilty whom we can con-vict." The Bazelon-Katzenbacl Letters, 56 J. Clu. L., C.& P. S. 498 (1965).

procedures in those cases fell below due processstandards. In Ashcraft v. Tennessee7 9 the Courtstated:

"We think a situation such as that hereshown by uncontradicted evidence is so in-herently coercive that its very existence is ir-reconcilable with the possession of mentalfreedom by a lone suspect against whom its fullcoercive force is brought to bear. It is incon-ceivable that any court of justice in the land,conducted as our courts are, open to the pub-lic, would permit prosecutors serving in relaysto keep a defendant witness under continuouscross-examination for thirty-six hours withoutrest or sleep in an effort to extract a 'volun-tary' confession. Nor can we, consistently withConstitutional due process of law, hold volun-tary a confession where prosecutors do thesame thing away from the restraining influ-ences of a public trial in an open court room."80

Justice Stewart, concurring in Spano v. NewYork, 81 put the matter dramatically:

"Our Constitution guarantees the assist-ance of counsel to a man on trial for his life inan orderly courtroom, presided over by ajudge, open to the public, and protected by allthe procedural safeguards of the law. Surely aConstitution which promises that much canvouchsafe no less to the same man under mid-night inquisition in the squad room of a policestation.""2Justice Douglas, in a concurring opinion joined

by Justices Black and Brennan, wrote in similarvein.y Justice Stewart had an opportunity to in-corporate this view into the majority opinion inMassiah v. United States.8' He took advantageof it.8,

Similarly, in 1962 Justice Douglas wrote theopinion of the Court in Gallegos v. Colorado,86

a case presenting a strikingly equalitarian ra-tionale. The defendant was a fourteen year oldboy who had been convicted of murder. He had

confessed while in juvenile custody prior to the

death of the victim. In holding that the admissionof the confession violated due process the Court

stated:" .. . A lawyer or an adult relative or friend

79 322 U.S. 143 (1944).80 Id. at 154 (footnotes omitted).81360 U.S. 315 (1959).Id. at 327.

83Id. at 424-426.377 U.S. 201 (1964).

85 Id. at 204.86 370 U.S. 49.

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DAVID ROBINSON, JR.

could have given the petitioner the protectionwhich his own immaturity could not. Adult advicewould have put him on a less unequal footing withhis interrogators .... 7

A closely related view is contained in frequentassertion that American criminal justice is accusa-torial rather than inquisitorial in nature. This lan-guage may be traced to Watts v. Indiana,8s a case

involving extensive detention and interrogation ofthe accused, in which Justice Frankfurter wrote forthe Court:

"To turn the detention of an accused into aprocess of wrenching from him evidence whichcould not be extorted in open court with all itssafeguards, is so grave an abuse of the power ofarrest as to offend the procedural standards ofdue process.

This is so because it violates the underlyingprinciple in our enforcement of the criminallaw. Ours is the accusatorial as opposed to theinquisitorial system. Such has been the char-acteristic of Anglo-American criminal justicesince it freed itself from practices borrowed bythe Star Chamber from the Continent wherebyan accused was interrogated in secret for hourson end. ... Under our system society carriesthe burden of proving its charge against theaccused not out of his own mouth. It must es-tablish its case, not by interrogation of the ac-cused even under judicial safeguards, but byevidence independently secured through skill-ful investigation. . ... 89

Of course the statement that the adversary sys-tem characterized investigatory stages of thecriminal case simply was not true.90 JusticeFrankfurter himself recognized this in his opinionin Culombe v. Connecticut.

91

"Despite modern advances in the technol-ogy of crime detection, offenses frequently oc-cur about which things cannot be made tospeak. And where there cannot be found inno-cent human witnesses to such offenses, nothingremains-if police investigation is not to bebalked before it has fairly begun-but to seekout possibly guilty witnesses and ask themquestions, witnesses, that is, who are suspected

87 Id. at 54.88338 U.S. 49 k1949).89 Id. at 54.90 See 3 WIGoM o'zN EVIDENCE §§817-820 (3d ed.

1940); Barrett, Police Practices and the Law-FromArrest to Release or Charge, 50 CAL. L. REv. 11, 16-18(1962).

91367 U.S. 568 (1961).

of knowing something about the offense pre-cisely because they are suspected of implica-tion in it.... In any event, whatever its outcome,

such questioning is often indispensable tocrime detection. Its compelling necessity hasbeen judicially recognized as its sufficient justi-fication, even in a society which, like ours,stands strongly and constitutionally com-mitted to the principle that persons accusedof crime cannot be made to convict themselvesout of their own mouths."Whether the typical use of questioning of sus-

pects in the investigative stage of a case is char-acterized as "inquisitorial" seems to depend onwhether the writer disapproves of the practice anddesires to argue his position with emotive lan-guage-'

The question of importance is not whether thereis a difference between the trial process and the in-vestigative process, but whether the difference isjustified. It is submitted that it is. The adversarysystem at the time of preparation for trial and trial,including making available assistance of counsel,serves to collect and present evidence and lawrelevant to the resolution of the dispute. The de-cision in Gideon v. Wainwright,1 was without dis-sent. It required substantial change in practice inonly four of the states.95 The adversary system,however, functions differently during the investi-gation of a case, particularly during the questioningof suspects. The adversary system during the ques-tioning of suspects functions to suppress evidencein the case of the guilty, rather than to present it.Counsel at such a proceeding serves not only toprevent abusive questioning techniques, but toprevent all questioning.

This is not a matter of a suspect being advisedof his constitutional rights. Counsel's primary func-tion is surely not to advise the client that he isunder no obligation to speak. Counsel's job is togive him tactical advice not to speak.9 6

9 Id. at 571. (Emphasis supplied.)11 See Watts v. Indiana, 338 U.S. 49, 60 (1948).

(Concurring opinion of Jackson, J.)94372 U.S. 335 (1963) (holding that due process

required the availability of defense counsel at thetrial of felony cases).

11 See Note, 73 YALE L.J. 1000, 1015 (1964).98 ".... no competent counsel will allow his client

to confess (especially would this be true in the case ofappointed counsel whose failings are laid to the state),if only to avoid the ever increasing risk of having hiscompetency attacked on another day and in anotherforum ..... Brief for Respondent, pp. 40-41, Escobedov. Illinois, 378 U.S. 478(1964). See also Enker & Elsen,

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It is true that since the large scale abandonmentof the common law principle that evidence was notto be excluded, if relevant, on the basis that it wasobtained by illegal means, defense counsel has asignificant role to play in seeking to suppress evi-dence at the trial. Whether this role should be ex-panded to prevent the collection of evidence priorto trial-or more precisely, how far it should beexpanded-remains open however.

It should be noted that immediately after thecommission of the crime the perpetrator normally isin possession of extensive information concerningit. Frequently there are no innocent witnesses.Even when this is not the case, the witnesses mayhave imperfectly perceived the event, particularlywhen the offense was a violent one, or be unable toaccurately recall it. Many will be unwilling to comeforward to testify. Fingerprints are rarely re-coverable.

Furthermore, it is almost invariably insufficientto show merely that a person accused of a seriouscrime committed the criminal act. There must beproof of criminal intent. Did the accused kill thedeceased out of malice or in self defense? Did theaccused take the vehicle with the intent to deprivethe owner of its possession permanently or did hetake it merely for a ride? Or did he believe that theowner consented to his use of it? Was the accused'spresence in the building accompanied by burglar-ous intent, or was he engaged in a mere trespass?The answers to such questions are frequentlyknown only to the perpetrators of the crimes. Itsurely is not obvious that the adversary system andnotions of equalitarianism should be extended tosecure the continuation of this situation in statusquo. Justification for such an extension must befound in terms other than the adversary systemitself.

VI. PRIVACY AND THE DIGNrYOF THE INDIVIDUAL

While the interest in individual privacy is pri-marily protected by the fourth amendment pro-hibition against unreasonable search and seizures,a close relationship to a broadly conceived privilegeagainst self-incrimination has been frequentlynoted.0 Perhaps the gravest interference with this

Counsel for the Suspect: Massiah v. United States andEscobedo v. Illinois, 49 Mum. L. REv., 47, 66(1964);Cf. Herman, The Suprenme Court and Restrictions onPolice Interrogation, 25 Omo ST. L. J. 449, 498(1964).

9 See, e.g., Boyd v. United States, 116 U.S. 616,630 (1886); Mapp v. Ohio, 367 U.S. 643, 646 (opinionof the Court) and 661-666 (concurring opinion ofJustice Black) (1961).

interest in privacy occurs when an arrest is madefor purposes of interrogation in the absence ofprobable cause. 91 An intermediate situation isfrequently presented when the police have suffi-cient evidence to constitute probable cause for anarrest but insufficient basis to justify the filing of aformal charge. 99 Assuming a case in which there issufficient reason to justify an arrest, or assumingquestioning in the absence of an arrest, do interestsin privacy and individual dignity preclude ques-tioning?

At the outset it must be observed that such con-cepts are not unlike notions of "civilized conduct"in that they tend to depend on individual attitudesand values. Yet conventionally we have notthought that such interests prevent the putting ofquestions to witnesses and even suspects, in theabsence of very prolonged interrogation or otherabusive practices. We have, for example, even per-mitted grand jury subpoenas for witnesses and sus-pects.

Furthermore, there is evidence which suggeststhat the amount of time ordinarily required to in-terrogate a suspect is surprisingly short. A study inthe District of Columbia °00 indicated that in 1960,of 172 persons arrested for investigation and sub-sequently charged 87 were charged after one houror less and all except 7 were charged in under 12hours. In 1961 of 138 persons arrested for investi-gation and subsequently charged the charge wasfiled in all but 10 cases within 8 hours or less.

A study of arrest and interrogation practices inCalifornia in two unidentified medium sized citiesshowed a range of interrogation times which variedbetween no interrogation and eight hours. Themedian in each case was between one and twohours.10t

Bentham long ago observed in the context of the

98 Cf. Foote, Safeguards in the Law of Arrest, 52Nw. U.L. Rev. 16 (1958); District of Columbia Com-mittee on Arrests for Investigation, Report andRecommendations (1962); La Fave, Arrest (1965)Ch. 16; compare Barrett, Police Practices and theLaw-From Arrest to Release or Charge, 50 CAL. L.REv. 47-50 (1962), (indicating situations where it isargued that detention in the absence of probable causeto charge is justified).

91 See LA FAVE, ARREST (1965) Chs. 15, 17; Kamisarand Choper, The Right to Counsel in Minnesota: SomeField Findings and Legal-Policy Observations, 48 Mime.L. REv. 1, 49 (1963) (indicating this situation to bequite common).

100 District of Columbia Committee on Police Ar-rests for Investigation, Report and Recommendations(1962). See Barrett, op. cit. infra. n. 134 at 35-45.

101 Escobedo confessed after approximately 11 hoursof interrogation. Brief for Respondent, p. 1.

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privilege against self-incrimination that the hard-ship involved in obtaining evidence of guilt fromthe suspect himself was essentially the hardship ofthe eventual punishment rather than the interroga-tion.

"What, then, is the hardship of a man'sbeing thus made to criminate himself? Thesame as that of his being punished: the samein kind, but inferior in degree: inferior, in asfar as, in the chance of an evil, there is lesshardship than in the certainty of it. Suppose,in both cases, conviction to be the result: doesit matter to a man, would he give a pin tochoose, whether it is out of his own mouththat the evidence is to come, or out ofanother's?"102

Those familiar with background investigationsinvolving detailed probing of the subject's prioractivities, friendships, and associations may realizethat alternative means of investigation can im-pinge more harshly on notions of dignity of the in-dividual and privacy than direct questioning ofsuspects. Questioning also appears to be more pro-tective of individual privacy than is infiltration ofgroups suspected of criminality by persons actingin cooperation with police.

It must be remembered that interests in indi-vidual dignity and privacy are threatened not onlyby police interrogation but by the incidence ofcrime in our society as well. A country in which thecity of Baltimore is said to have a higher homiciderate than the entire United Kingdom, 10 3 cannotconsider these values to be jeopardized by thepossibility of police intrusion alone. Unless notionsof the absolute importance of freedom from officialinquiry are felt to be so supremely important as topreclude limitation in terms of competing needs ofa highly interdependent society, the necessity forattempting to strike a balance and to decide howmuch privacy is to be sought to be protected by thelaw of confessions remains.

VII. TIE INTEREST OF DEFENDANTS

IN AVOIDING CoNvIcroN

It is a thesis of this article that the reach of cur-rent confession exclusion doctrines can be justifiedonly in terms of protecting the interests of guiltydefendants desiring to avoid conviction. Such arationale has a long history. It will be recalled that

i02 RATIONALE OF JUDICIAL EVIDENCE, 230-231(1827).

103 Meyer, Farewell to Washington, New Statesman,April 2, 1965, p. 564, col. 3.

the privilege against self-incrimination itself arosein England at a time when compulsory answers tojudicial inquiries were required to enforce sub-stantive law proscribing political and religiousnonconformity.101 It should not be surprising thata nation reacting to evidence of gross abuses ofpolice powers by contemporary totalitarian states,and which is developing greater sensitivity toracial, economic, and other group tensions at home,would be inclined to adopt procedures tending togrant freedom to the suspect.

Nor is it unlikely that the frequent gulf betweensubstantive criminal law and common behavior waswithout effect. Professor Louis B. Schwartz has ob-served:

"Kinsey has tabulated our extensive sexualmisdeeds. The Bureau of Internal Revenue isthe great archive of our false swearing andcheating. The highway death statistics in-adequately record our predilection for man-slaughter. 100% law enforcement would notleave enough people at large to build and manthe prisons in which the rest of us wouldreside .... ,05

While the argument seems inapposite to manytypes of offenses, particularly assaultive ones, witha little bit of sentiment it may appear to some tocover the field.

Although again the empirical evidence is notfully satisfying, the Supreme Court, prior to thedecisions in Massiah and Escobedo, had reason tobelieve that substantial restrictions on the utiliza-tion of evidence obtained from the questioning ofsuspects would have an important effect upon theability of the states to successfully prosecute crimi-nal cases. The fact that the Supreme Court's ownexperiment with the far less restrictive McNabb-Mallory rule has not been followed by the stateswas itself suggestive. 06 The failure of the courts of49 states to utilize right to counsel rationales toexclude confessions was also illuminating107

104 See 8 Wioo ON EvIDENCE, §2250 (McNaugh.Rev. 1961); MAGUIRE, EVIDENCE or GUILT 12, n.3(1959).10 Schwartz, On Current Proposals to Legalize Wire

Tapping, 103 U.PA. L. REv. 157 (1954).106 Cf. Allen, Due Process and State Criminal Pro-

cedures, 48 Nw. U.L. REv. 16-30 (1953).107 Apparently the sole exception was the State of

New York, which understandably had been led toexpect new constitutional doctrine by concurringopinions relying on right to counsel in a case specificallyaddressed to itself: Spano v. New York, 360 U.S. 315(1959). See People v. Donovan, 13 N.Y. 2d, 148, 15N.E.2d 628 (1963); but see People v. Gunner 193N.Y.2d 226, 205 N.E.2d 852 (1965).

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True, it has sometimes been asserted that theFederal Bureau of Investigation functions success-fully without reliance on confessions comparable tothat of the states, but the radically different natureof the types of crimes which are the subject of fed-eral prosecution outside the District of Columbiahas also been noted. 08 There is reason to believethat restrictions on the use of confessions has itsheaviest impact in cases involving crimes of vio-lence."0 9 Such offenses are probably foremost intheir disturbance to the community and foremostin the concern of local law enforcement. Yet hereextrinsic evidence sufficient to convict is oftenunavailable. On the other hand, crimes of fraud,whether state or federal, seem much less dependenton confessions for their solution. Common exam-ples are provided by crimes involving the forgeryor uttering of false bank checks, tax frauds, andmail frauds.

In this connection it may also be observed thatprior to 1964 the Supreme Court wrote opinions in33 cases in which questions of the admission ofconfessions were decided. These cases included 25of murder, 4 of rape, 2 of robbery, 1 of man-slaughter, and 1 of narcotics." 0 The significance ofthese figures is subject to strong reservation, ofcourse, because of selective application for andallowance of Supreme Court review.

The record before the Court has frequently in-dicated that a case depended for its solution uponobtaining a confession. Three famous exampleswere decided on the same day: Watts v. Indiana,"'Turner v. Pennsylvania,"' and Harris v. South Caro-lina.13 Mr. Justice Jackson, concurring in the firstand dissenting in the latter two, observed:

"These three cases, from widely separatedstates, present essentially the same problem.Its recurrence suggests that it has roots insome condition fundamental and general toour criminal system.

In each case police were confronted with one

100 See, e.g., District of Columbia Committee onPolice Arrests for Investigation, Report and Recom-mendations 50-51 (1962).

109 See Confessions and Police Detention, HearingsPursuant to S. Res. 234 [Mallory Rule] Before the Sub-committee on Constitutional Rights of the Committeeon Judiciary, 85th Cong., 2d Sess. 107-116 (1958).But see Packer, Policing the Police, The New Republic17, 20 (Sept. 4, 1965).

010 See Comment, The Coerced Confession Cases inSearch of a Rationale, 31 U. Cm. L. REv. 313, 327(1964).M 338 U.S. 49 (1949).

' 338 U.S. 62 (1949).11 338 U.S. 68 (1949).

or more brutal murders which the authoritieswere under the highest duty to solve. Each ofthese murders was unwitnessed, and the onlypositive knowledge on which a solution couldbe based was possessed by the killer. In eachthere was reasonable ground to suspect an in-dividual but not enough legal evidence tocharge him with guilt. In each the police at-tempted to meet the situation by taking thesuspect into custody and interrogating him.This extended over varying periods. In each,confessions were made and received in evi-dence at the trial. Checked with external evi-dence, they are inherently believable, and werenot shaken as to truth by anything that oc-curred at the trial. Each confessor wasconvicted by a jury and state courts affirmed.This Court sets all three convictions aside.

The seriousness of the Court's judgment isthat no one suggests that any course heldpromise of solution of these murders otherthan to take the suspect into custody for ques-tioning. The alternative was to close the bookson the crime and forget it, with the suspect atlarge. This is a grave choice for a society inwhich two-thirds of the murders already areclosed out as insoluble."" 4

Some notion of the significance of confessions incases which have been taken before the SupremeCourt is given in a review of their subsequent his-tories. In a study of 22 cases reversed because of

4 Id. at 57-58. See also opinion of Justice Frank-furter in Culombe v. Connecticut, 367 U.S. 568,578-580 (1961):

"The critical elements of the problem may bequickly isolated in light of what has already beensaid. Its first pole is the recognition that 'Questioningsuspects is indispensable in law enforcement' ...But if it is once admitted that questioning of suspectsis permissible, whatever reasonable means are neededto make the questioning effective must also be con-ceded to the police. Often prolongation of the interroga-tion period will be essential, so that a suspect's storycan be checked and, if it proves untrue, he can beconfronted with the lie; if true, released without charge.Often the place of questioning will have to be a policeinterrogation room, both because it is important toassure the proper atmosphere of privacy and non-distraction if questioning is to be made productiveand because, where a suspect is questioned but nottaken into custody, he-and in some cases his as-sociates-may take prompt warning and flee the prem-ises. Legal counsel for the suspect will generally provea thorough obstruction to the investigation. Indeed,even to inform the suspect of his legal right to keepsilent will prove an obstruction. Whatever fortifiesthe suspect or seconds him in his capacity to keep hismouth closed is a potential obstacle to the solution ofcrime. "

19651

DAVID ROBINSON, JR.

coerced confessions and remanded to state courts,it was reported that 11 of the defendants were con-victed of the same or of a lesser offense, 10 werereleased, and one was murdered by the husband ofthe victim of the offense during the third re-trialof the case.1 5 In a number of these 11 cases thesubsequent convictions were based on pleas ofguilty. Furthermore, the study does not indicatein how many, if any, of the cases which were re-tried, confessions, admissions, or the fruits thereof,were received in evidence." 6

In Escobedo itself the defendant's confession wasthe evidence connecting him to the crime."7 Itseems fair to conclude that the Court assumedthat Escobedo's confessed instigation of the homi-cide could not be proven without his confession." 8

Indeed a consciousness that the court was fur-thering the interest of guilty defendants in avoidingconviction in deciding Escobedo is suggested by thestatement toward the end of the majority opinion:

"Nothing we have said today affects thepowers of the police to investigate 'an unsolvedcrime,' Spano v. New York, 360 U.S. 315, 327,79 S.Ct. 1202, 1209 (Stewart, J., concurring),by gathering information from witnesses andby other 'proper investigative efforts,' Haynesv. Washington, 373 U.S. 503, 519, 83 S.Ct.1336, 1346 .... ,9

The Court in Haynes-again recalling that it wasthe same majority speaking through the samejustice-had written:

"... And, certainly, we do not mean to sug-gest that all interrogation of witnesses and sus-pects is impermissible. Such questioning is un-

"5 Ritz, State Criminal Confession Cases: SubsequentDevelopments in Cases Reversed by the U.S. SnpremeCourt and Somne Current Problems, 19 WASH. & LEL. REv. 202, 208-9 (1962).

116 Presumably the confessions ordered excludedwere not received on re-trial. However, it has notbeen uncommon for defendants to have made con-fessions or admissions other than the ones ruled in-competent by the Supreme Court. See, e.g., Malinskyv. New York 324 U.S. 401 (1945); Haynes v. Washing-ton, 373 U.S. 503 (1963).

117 See People v. Escobedo, 28 Ill. 2d 41, 42, 190N.E.2d 825, 826 (1963).

118 After remand the case against Escobedo wasdismissed. Time, April 23, 1965, p. 46, col. 1. (Theinference is further supported by the absence of anyobservation comparable to the one by the same ma-jority of the Court speaking through the same Justicein Haynes v. Washington, 373 U.S. 503, 519 (1963),that in that case the argument that interrogation wasneeded to solve the case was inapplicable, because ofother evidence there available.)

"' 378 U.S. at 492 (Emphasis added.)

doubtedly an essential tool in effective law en-forcement .... 120

For a number of years prior to Massiah andEscobedo the focus of Supreme Court controversyhad been shifting from the question of what con-stituted a voluntary confession to the question ofwhether confessions of any sort should be allowedin evidence against a defendant. When the balancestruck in earlier cases was before the Court forreconsideration in Escobedo it had before it a brieffor petitioner which put the argument of the needof defendants to avoid confessions with unusualcandor:

"The right to counsel, if it is to have anyefficacy at all, must obtain when the need forthe advice of counsel is crucial.... Especiallyis this so in the case at bar where the adviceof counsel would have precluded the elicitingof the statement of petitioner upon which hisconviction was solely based .... ,121

In a brief amicus curiae the American CivilLiberties Union argued that the position taken inCrooker and Cicenia (that counsel at the policestation will unduly interfere with criminal investi-gation and successful prosecution) should be dis-regarded, because "the variables which can de-termine the efficiency of criminal investigation andsuccessful prosecution are so complex that no onereally knows the extent to which seemingly more re-strictive rules in this area actually do or willhamper the police....,,

Perhaps more rationally, the A. C. L. U. pointedout a possible intermediate basis for decision, not-ing that a denial of a specific request for counselmay be deemed more coercive than failure to makecounsel available without such a request.in In gen-eral, however, the amicus brief urged broadergrounds for decision: an end to private police ques-tioning of arrested persons."'

The brief for the State of Illinois recalled that the

120 373 U.S. 503, 515 (Emphasis added.)"2 Brief for Petitioner, pp. 8-9.1 2 Brief for ACLU as Amicus Curiae, p. 15 (Emphasis

added.) Even if the Court were to ignore the interestsof Illinois under the record before it and even if itwere to decide that its own experience and the othermaterials available to it were too limited for confidentprediction of the extent of impairment of police func-tions, one would hope that this would be a reason forexperimenting under the supervisory power exercisedby the Court over the federal system, rather than amatter for constitutional imposition on the nation asa whole.

12 Id. at 9.124 E.g., id. at 11.

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majority of five justices which had reversed theconviction in Hayes had conceded that the ques-tioning of suspects was essential to law enforce-ment. It then argued that allowance of requests forcounsel could hardly be confined to those who haveattorneys, in view of cases such as Gideon andGriffin v. Illinois."' In addition, the brief for Illi-nois argued, if criminal defendants are entitled tocounsel from the moment of arrest, such right doesnot depend upon a request, in view of the doctrineof Carnley v. Cochran.Y6 The conclusion would bethe ending of police questioning of suspects eventhough conceding its indispensibility to law en-forcement."2

In the majority opinion in Escobedo the dilemmawas noted and resolved as follows:

"It is argued that if the right to counsel isafforded prior to indictment, the number ofconfessions obtained by the police will di-minish significantly, because most confessionsare obtained during the period between arrestand indictment, and 'any lawyer worth his saltwill tell the suspect in no uncertain terms tomake no statement to police under any circum-stances.' Watts v. Indiana, 338 U.S. 49, 59,69 S.Ct. 1347, 1357, 93 L.Ed. 1801 (Jackson,J., concurring in part and dissenting in part).This argument, of course, cuts two ways. Thefact that many confessions are obtained duringthis period points up its critical nature as a'stage when legal aid and advice' are surelyneeded.... [Citations omitted.] The right toCounsel would indeed be hollow if it began at aperiod when few confessions were obtained.There is necessarily a direct relationship be-tween the importance of a stage to the policein their quest for a confession and the criti-calness of that stage to the accused in his needfor legal advice. Our Constitution, unlike someothers, strikes the balance in favor of the rightof the accused to be advised by his lawyer ofhis privilege against self-incrimination. Seenote, 73 Yale L.J. 1000, 1048-1051 (1964).""2Thus the crucial issue 2 9 of adjusting the com-

peting interests of society and the individual sus-pected of crime was resolved by claiming, in effect,that the judgment had been made by the Consti-

-5 351 U.S. 12 (1956).6 369 U.S. 506, 513 (1962) (Counsel at trial not

waived by failure to make request, in absence of factsindicating purposeful and informed waiver.)

InBrief for the Respondent, 39-41.-8 378 U.S. at 488.2 Professors Kamisar and Choper have referred to

tution, since defendants have a critical need toavoid making confessions.3 0

Of course it is not here contended that the in-terest of a guilty accused in avoiding convictionhas now been recognized by a majority of the Courtas sufficient, standing alone, to reverse a convic-tion. Each case must still present a constitutionalquestion which is capable of being phrased in con-ventional terminology. Cases such as Massiah,however, indicate that the Court approaches thetask of posing such issues with considerable flexi-bility and ingenuity. Once that is done, the in-terest of the state in enforcing its criminal law ap-pears to be largely discounted and the interest ofthe defendant to the contrary preferred.

In his Escobedo dissenting opinion, Mr. JusticeWhite noted that the Court in Massiah had heldthat as of the date of the indictment the prosecu-tion was disentitled to secure admissions from theaccused and that in Escobedo the time was movedback to when suspicion begins to "focus on the ac-cused."' 3' There is an important respect, however,in which Massiah reaches beyond Escobedo.Massiah did not confess under the psychologicalstimuli of in-custody interrogation. Although con-fident prediction must await further clarificationby the Court, it may be suggested that whileEscobedo might be thought to push the Massiahimmunity back from the time of indictment to thetime that suspicion is focused on the defendant atleast when he is in custody, Massiah may push theEscobedo immunity back through the pre-arrestsituation. Furthermore, there is no more logicalbasis to restrict Escobedo to situations where it

the question of when the right to counsel begins as"the most pervasive question in the field of constitu-tional-criminal procedure today." See Kamisar andChoper, The Right to Counsel in Minnesota: SomeFidd Findings and Legal-Policy Obsenations, 48MiNr. L. Rnv. 1, 33 (1963). In view of the sweepingannounced bases for decision in Escobedo and the nar-row statement of what was held, it is difficult to con-clude to what extent the question has been answered.130 Compare the similar effort to disclaim judgment

of competing interests in two recent opinions writtenin cases concerning the reach of the double jeopardyprohibiting of the Fifth Amendment: Douglas, J., inDownum v. United States, 372 U.S. 734, 738 (1963):"We resolve any doubt 'in favor of the liberty of thecitizen, rather than exercise what would be an un-limited, uncertain and arbitrary judicial discretion.'"(citing United States v. Watson, 28 Fed. Cas. 499, 501(1868)). Compare Goldberg, J., dissenting in UnitedStates v. Tateo, 377 U.S. 463, 475: "With all deferenceI suggest the Constitution has resolved this questionof competing interests of the government and theindividual in favor of protecting the individual ......

"3 378 U.S. at 495.

DA 1ID ROBINSON, JR.

may be said that suspicion has focused on the sus-pect, than there is to support a rule limiting im-munity from interrogation to the time followingindictment. The net result would be the exclusionof admissions whenever obtained.

Alternatively-or perhaps supplementarily-admissions made prior to focus of suspicion may beexcludable on fourth as well as fifth and sixthamendments rationales. If the admission is madewhile a defendant is deemed to be under arrest-and with a functional test rather little may be re-quired to permit the conclusion of an arrest-thedoctrine of Wong Sun v. United States3 2 may ex-clude a confession obtained after an arrest withoutprobable cause, although the reach of Wong Sun,like that of Massiah and Escobedo, is still largelyunclarified. 13

At least this is clear: If the sole considerationcontrolling the resolution of these questions con-tinues to be the needs of suspects, no stopping pointis apparent.

VIII. FURTHER OBSERVATION

AND CONCLUSIONS

(1) The problem of attempting to achieve a sat-isfactory level of law enforcement while providinghumane treatment of suspected offenders is mis-conceived if it is put solely in terms of a conflict be-tween security and liberty.134 It is astonishing tonote the degree of restriction in liberty of move-ment about our cities because of the anticipateddangers of becoming the victim of crime. This fearmust be added to loss of liberty resulting from ac-tual subjection to criminality. To say this is not tominimize the extent to which freedom may be lostthrough activity of police; it is merely to emphasizethat both must be considered. The maximizationof total liberty is unlikely to be achieved by solelyconcerning ourselves with the liberty of persons sus-pected of crime.

It is also unlikely to be achieved on the assump-tion that the hard questions of constitutional-criminal procedure may be answered by merely

'- 371 U.S. 471 (1962), probably already extendedto the states in the per curiain vacation of judgmentand remand of Traub v. Connecticut, 374 U.S. 493(1963).

13 See Herman, The Sapreme Court and Restrictionsupon Police Interrogations, 25 Osuo ST. L.J. 449 (1964);Kamisar, Equal Justice in the Gatehouse and Mansionsof Criminal Procedure, reproduced in HowARD, Ctmi-NAL JUSTICE IN OUR Tm-E (1965).

14 See Barrett, Police Practices and the Law- FromArrest to Release or Charge, 50 CAL. L. REv. 11, 14-16(1962).

examining the text of the Constitution, its histori-cal origins, by making facile generalizations aboutthe lessons of history or the nature of the Anglo-American system of criminal justice, by inflatingindividual value-preferences into constitutionalcommands, or even by examining previous de-cisions of the Supreme Court.

(2) The problem is also misconceived if thebattle is deemed one between cops and robbers.Except to the extent that they may be particularlyvulnerable to criminal attack, a special police needdoes not appear to be involved. Indeed one mightaccurately suppose that the higher the level ofcriminality and the less efficient the approvedtechniques of enforcement, the greater will be theresources which must be allocated to police. Theinterest in maintaining an adequate level of lawenforcement is truly a societal one, as is the in-terest in maintaining an adequate level of indi-vidual freedom from personal interference andinhumane treatment in the course of law enforce-ment.

(3) Although the accuracy of statistics indicat-ing the incidence of crime in the United States islimited by different classifications of offenses bydifferent states, and by differences in reportingand recording practices, the available evidence in-dicates that the level of crime is rising and that it isdoing so at a rapid and accelerating rate. 35

(4) While empirical studies are largely non-existent, there is reason to fear loss of respect forlaw and consequent loss of self-enforcement of lawif the legal system is believed to be unable to en-force the law, 136 and also if the police techniques soalienate substantial segments of our population asto result in loss of respect for and cooperation withlaw enforcement efforts."l It is suggested thatprogress here can best be accomplished by avoiding"sentimentalism about combatting crime too ener-getically,"138 while preserving a sensitivity both tothe needs of effective administration of the criminallaw and for maintenance of humane treatment ofsuspected offenders.

"' See Uniform Crime Reports-1964, pp. 2-22,50-53 (1965). With respect to the statistics, see, e.g.,Beattie, Criminal Statistics in the United States-1960,51 J. Cpm. L., C. & P.S., 49 (1960). For views criticalto the crime statistics, see, e.g., Foote, Safeguards inthe Law of Arrest, 52 Nw. U. L. REv. 16 (1958); NewYork Times, March 22, 1965, p. 1, col. 4.

136 See Barrett, op. cit. supra, n. 134, at 11.1 See Kamisar, On the Tactics of Police-Prosecution

Oriented Critics of the Courts, 49 CORNELL L. Q. 436,454 (1964).

138 Rochin v. California, 342 U.S. 165, 172 (1951).

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Furthermore, the objectives of administration ofthe criminal law cannot be accurately conceivedsolely, or perhaps even primarily, in terms of gen-eral deterrence. 39 The social need for incapacita-tion and treatment of dangerous offenders mustalso be considered.

(5) It is perhaps easier to form opinions on whatwe would prefer our police not to do than to formopinions on what we would prefer our police to do.We must recognize that much of the relevant evi-dence of crime theoretically available is subject toreservation, not only by the squeamish and thehypersensitive. Physical evidence presents fourthand fifth amendment problems. The questioning ofsuspects and witnesses presents fourth, fifth andsixth amendment issues. The use of undercoveragents now presents sixth amendment problems.The list could be expanded to include other con-stitutional problems, wiretap objections, privilegedcommunications, and on.

(6) The wholesale exclusion of credible evidenceitself poses grave dangers to the truth-seekingprocess, even if that process is considered solely interms of acquitting the innocent. As has been pre-viously noted, the deterrent efficacy of exclusionaryrules is difficult to predict. But assuming that theirbroadening will have significant though incompleteeffect in deterring proscribed police activity, anumber of dangers to the reliability of the acquittalof the innocent may be foreseen. The explanationsof the innocent, unless verified as soon as possible,may be beyond corroboration. 40 It may be too lateafter defense counsel arrives. In addition, a witnesserroneously suspected of a crime may be chargedand convicted because the actual perpetrator wasnot questioned. 4'

Non-interrogation of suspects may result in thefiling of formal charges in situations where ex-planations obtained in the course of questioningwould result in release. Once such charges havebeen filed there is a tendency on the part of policeand prosecution to assume that they have beenproperly brought and to press for conviction. Whileexplanations can be made subsequent to charge,they may be less believed because of the time avail-able for fabricating a story and because the oppor-tunities for corroboration may be reduced. The

139 They appear to be so interpreted in Schwartz,On Current .Proposals to Legalize Wire Tapping, 103U. PA. L.R. 157 (1954); note, An Historical Argumentfor the Right to Counsd During Police Interrogation,73 YAr. L.J. 1000, 1047-1948 (1964).

140 See 3 Wigmore, Evidence, §867 (3d ed. 1940).14 See footnote 15, supra.

reputation of many members of the criminal de-fense bar is such that explanations made after con-sultation with them may be significantly dis-counted. Furthermore, even reputable defensecounsel may determine that it is tactically advis-able to save the defense case until the time of trial,rather than take a chance that it may be weakenedif disclosed to the prosecution in advance of trial.By the time the trial begins the prosecution islikely to be highly motivated to attempt to win itscase. Then all of the multitude of factors, many ofwhich--such as respective ability of counsel, thenature of the crime, the attractiveness of defendantand complainant, the nature of the jury-arelargely irrelevant to the merits of the case, may re-sult in an unjust conviction. It surely seems de-sirable that the prosecution process typically, atleast, be begun only when the prosecutor believeshe has a very strong case, if the incidence of con-viction of the innocent is not to significantly rise.One can imagine some conscientious investigatorsattempting to continue regular interrogation prac-tices for the assistance which it would provide infurther investigative and prosecutive decisions,even though it is believed that admissions thus ob-tained could not be introduced into evidence.

A wide gap between the constitutional standardsfor admissibility of evidence and of common sensenotions of its reliability also creates danger thatlaw enforcement agents will be encouraged to givefalse testimony. A practice of what may seem to theofficer to be a necessary telling of "white lies" onwhat he believes to be legalistic issues can easilyreduce the trustworthiness of the guilt-determiningprocess. Increased pressure to obtain accompliceand informer testimony and to coach other wit-nesses involve further perils to the innocent.

What has been said is directed solely to the re-liability of the release of the innocent; it seems ap-parent that severe restriction or elimination ofconfession evidence will greatly reduce the abilityto convict those who otherwise would confess, anindeterminate, though I suspect a very small per-centage of whom are innocent.

(7) Humility and realism suggest that there areserious limits as to what can be effected throughadmissibility of evidence doctrines in eliminatingpractices of law enforcement which are concededlyabusive. Many of the inadequacies of local law en-forcement are probably beyond the reach of con-stitutional corrective efforts, which in any eventcan not eliminate lack of resources, political pres-

DA V1D ROBINSON, JR.

sures, and structural inflexibility in the thousandsof state and local governmental units having pri-mary responsibility for law enforcement.42 Thereis the possibility of calling for the assistance of thefederal government with greater frequency in areasof law enforcement traditionally left to local con-trol. That, too, has its perils.'43

(8) It is unnecessary to eliminate or severelyrestrict the use of confession evidence in order tostimulate investigation of other sources of evidence.The nortorious preference of prosecutors for over-whelming cases includes a desire for as much evi-dence as can be secured. Thus there is strong in-centive to obtain independent evidence, if possible,in any event.'" To the extent that achieving thisobjective is made difficult by the limited investi-gative resources which may be available, thereseems to be no basis for expending these resourcesat less efficient means of acquiring evidence, in theabsence of a showing-which has not been made-that confession evidence is less reliable than itsreplacement. There seems to be no rational basisfor preference of less efficient means of investiga-tion as such.

(9) While considerations of cost are not oftendeemed controlling, the expense of a system of ad-ministration of criminal justice cannot be com-pletely disregarded. In the past the great majorityof criminal cases have been decided by pleas ofguilty. There is reason to believe that restrictionson the admissibility of confessions will greatly re-duce such pleas, and place an enormously greaterburden upon the courts and upon the legal pro-fession.14' Furthermore, less direct and efficientmeans of law enforcement may require very largeexpansion in the numbers of police personnel. 146

And if large numbers of cases are to be presented tothe courts without screening by questioning of thedefendants, a very considerable increase in judicialand legal facilities will have to be provided aswell. 47 While in the abstract one may be willing to

1 See Wigmore, Evidence §851 (3d ed. 1940); Inbau,Restrictions on the Law of Interrogations and Con-fessions, 52 Nw. U. L. REv. 77 (1957).

4 See Malloy v. Hogan, 378 U.S. 1, 28 (1964) (opin-ion of Harlan, J., dissenting).

14 See 8 Wigmore, Evidence §2251 (McNaugh. Rev.1961).

's See Barrett, Police Practices and the Law-FromArrest to Release or Charge, 50 CAL. L. REV. 11, 45(1962).

'"This expansion, while helpful in dealing withcrime on the streets, would seem to promise less as-sistance in solving crimes occurring elsewhere, as wasthe case in Mlassiah and Escobedo.

17 See Barrett, op. cit. supra, n.134, at 45.

pay an unlimited price for justice, it must be bornein mind that the funds thus poured into the ad-ministration of the criminal law could alternativelybe utilized in other needed social services.

(10) The fact remains that secret interrogation isobviously subject to possibilities of abuse. Theaccused ordinarily will only have his own testi-mony to demonstrate such abuse when it occurs.The circumstances of the obtaining of the con-fession are highly relevant to its trustworthiness,even where they do not result in its exclusionunder evidentiary or constitutional standards. Inaddition, accurate disclosure of the events sur-ounding a confession is likely to have a deterrenteffect upon abusive practive.

A number of thoughtful commentators haveproposed that questioning be conducted underjudicial control.'" It is difficult to believe, how-ever, that judicially supervised questioning wouldtoday be a viable alternative to present policepractices. In White v. Maryland,'" the SupremeCourt reviewed the conviction of a defendantwho had stated that he pleaded guilty at a pre-liminary hearing. No plea at this stage of the pro-ceeding was required. Evidence of this admissionhad been received at the trial. The conviction wasreversed for denial of right to counsel. Assumingdefense counsel's presence at a judicially super-vised inquiry, one could not expect to obtainconfessions.

A more hopeful approach to reform would bemore accurate record keeping at police interroga-tions, perhaps utilizing recording devices or inde-pendent observers. It would seem that tape-re-corders, for example, could easily be installed inpolice interrogation rooms. They could also beroutinely supplied to police vehicles. Absence ofsuch a record in spite of feasibility in a particularcase in which the circumstances of a confessionare disputed could well be made an importantfactor in due process evaluation. The use of suchdevices would itself tend to curb abuse and enablethe courts and juries to penetrate to a substantialextent the otherwise frequently opaque conflict intestimony between police and defendants." 0

148 See Pound, Legal Interrogation of Persons Ac-cused or Suspected of Crime, 24 J. CRI. L. & CRi.1014, 1017 (1934); 3 Wigmore, Evidence §851 (3d ed.1940).

149 373 U.S. 59 (1963).150 See 3 Wigmore, Evidence §§798a, 851 (3d ed.

1940) (suggesting sound motion pictures); Weisberg,Police Interrogation of Arrested Persons: A SkepticalView, 52 J. Cnms. L., C. & P.S. 21, 45-46 (1962);

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The discussion of possible ways to minimizeabuses in police questioning while preserving itssocial and individual advantages is of little mo-ment, of course, if the reach of the fourth, fifth,sixth and fourteenth amendments is extended so asto eliminate the questioning of suspects entirely.

AN EPILOGUE

The views which have been expressed in thisarticle are concededly inconsistent with the trendof recent decisions. The writer believes that thesecases do not point the way to a desirable or even

Enker & Elsen, Counsel for the Suspect: Massiah v.United Stales and Escobedo v. Illinwis, 49 MINN. L.Rxv. 47, 84-91 (1964).

viable system of law enforcement. But it must beadmitted that we are now embarked on a newadventure, and past experience does not foreclosethe possibility that the constitutional experimentswill be satisfactory ones. Much still undoubtedlydepends upon details of procedural requirementswhich are yet to be worked out.

If pessimism turns out to be justified, in thelong run events may be expected to generate pres-sures which must be recognized even by a legalsystem which has been placed as far from popularcontrol as ours. The skeptical may perhaps takesome comfort from the realization that constitu-tional decisions in matters of criminal procedureare particularly subject to reexamination.