Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

From the 1940s to the 1960s, the Supreme Court decided a series of cases that explained when a confession’s admission in a criminal trial violates the Fifth Amendment’s self-incrimination doctrine. In its 1943 decision in McNabb v. United States,1 the Supreme Court held that confessions obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest could not be admitted in criminal trials.2 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts3 and hence not applicable to the states,4 was designed to implement guarantees that the Federal Rules of Criminal Procedure provides to defendants.5 The rule was informed by concern over incommunicado interrogation and coerced confessions.6 Although the Court never specified a minimum time after which delay in presenting a suspect for arraignment could invalidate a confession, Congress in 1968 legislated a six-hour period for interrogation following arrest before the suspect must be presented.7

Supreme Court cases from this time period addressed when a confession would become inadmissible because it had been obtained through coercive interrogation tactics. Many of the early cases disclosed clear instances of coercion that the Court determined had produced involuntary confessions. For example, the Court had little difficulty concluding that physical torture was coercive.8 Moreover, in its first confession case arising from a state court proceeding, the Supreme Court set aside a conviction based solely on confessions obtained through repeated whippings of the defendant with ropes and studded belts.9 However, the Court also condemned other overtly coercive tactics that did not amount to physical torture. For example, in Chambers v. Florida,10 the Court held that five days of prolonged questioning and incommunicado detention made subsequent confessions involuntary.

Although the Court did not hold that prolonged questioning by itself made a resulting confession involuntary,11 it increasingly found coercion present even in intermittent questioning over a period of days of incommunicado detention.12 In Ashcraft v. Tennessee,13 the Court held that a confession was inadmissible when it was obtained after almost 36 hours of continuous questioning under powerful electric lights by multiple officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas voided a conviction based on a confession obtained after three days of questioning during which the defendant was driven from county to county and told falsely of a danger of lynching.14 In Stein v. New York,15 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of 32 hours of incommunicado detention. The majority stressed that the correct approach was to balance “the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.” 16

In resolving cases involving confessions during interrogation, the Court attempted by considering the “totality of the circumstances” to determine whether a confession was “voluntary” and admissible or “coerced” and inadmissible. The Court attempted to balance law enforcement’s need to question suspects against concerns about undue coercion.17 Although the Court has often focused on the nature of the coercion without regard to the individual characteristics of the suspect,18 the Court has occasionally determined that some suspects are susceptible to even mild coercion because of their age or intelligence.19 In some cases, a single factor indicated that the confession was involuntary.20 However, in other cases, the Court recited a number of contributing factors without ranking any factor above the others, including the defendant’s age and intelligence; whether the defendant was held incommunicado, denied requested counsel, or deprived of access to friends; and whether the authorities employed trickery in obtaining a confession.21 The Court also held that confessions induced through the exploitation of some illegal action, such as an illegal arrest22 or an unlawful search and seizure,23 were inadmissible.

Footnotes

1

318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943).

2

In Upshaw v. United States, 335 U.S. 410 (1948), the Court held that a confession obtained after a thirty-hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944).

3

McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule did not apply in military courts.

4

Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951); Stein v. New York, 346 U.S. 156, 187–88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599–602 (1961).

5

Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957). Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge against him; must warn him that what he says may be used against him; must tell him of his right to counsel and his right to remain silent; and must also provide for the terms of bail.

6

McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States, 354 U.S. 449, 452–53 (1957).

7

The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c).

8

Brown v. Mississippi, 297 U.S. 278 (1936).

9

Id. The Brown Court stated: “[T]he question of the right of the State to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to a confession is a different matter . . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.” Id. at 285, 286.

10

309 U.S. 227 (1940)

11

Lisenba v. California, 314 U.S. 219 (1941).

12

Watts v. Indiana, 338 U.S. 49 (1949) (suspect held incommunicado without arraignment for seven days without being advised of his rights in solitary confinement in a cell with no place to sleep but the floor and subject to questioning each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights and subject to questioning by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, held incommunicado, and subject to questioning for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft).

13

322 U.S. 143 (1944).

14

316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 U.S. 544 (1941); Vernon v. Alabama, 313 U.S. 540 (1941).

15

346 U.S. 156 (1953).

16

Id. at 185.

17

Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961).

18

373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (after eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on the suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado sixteen days but periods of interrogation each day were about an hour); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968).

19

Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have the suspect’s children taken from her and to have her taken off the welfare relief rolls. But a suspect’s mental state alone—even schizophrenia—is insufficient to establish involuntariness absent some coercive police activity. Colorado v. Connelly, 479 U.S. 157 (1986).

20

E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of “truth serum” to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects).

21

E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina, 384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 (1958); Thomas v. Arizona, 356 U.S. 390 (1958)

22

Wong Sun v. United States, 371 U.S. 471 (1963).

23

Fahy v. Connecticut, 375 U.S. 85 (1963).