Custodial Interrogation: Doctrine from 1940s to 1960s

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.

McNabb-Mallory Doctrine

Perhaps one reason the Court did not squarely confront the application of the Self-Incrimination Clause to police interrogation and the admissibility of confessions in federal courts was that, in McNabb v. United States,1 it promulgated a rule excluding confessions obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest.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 the guarantees assured to a defendant by the Federal Rules of Criminal Procedure,5 and was clearly informed with concern over incommunicado interrogation and coerced confessions.6 Although the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment could invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented.7 (c).

State Confession Cases Before Miranda

In its first encounter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions extorted through repeated whippings with ropes and studded belts.8 For some 30 years thereafter the Court attempted through a consideration of the “totality of the circumstances” surrounding interrogation to determine whether a confession was “voluntary” and admissible or “coerced” and inadmissible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it.9 “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” 10 Obviously, a court seeking to determine whether a confession was voluntary operated under a severe handicap, as the interrogation process was in secret with only police and the suspect witness to it, and as the concept of voluntariness referred to the defendant’s mental condition.11 Despite, then, a bountiful number of cases, binding precedents were few.

On the one hand, many of the early cases disclosed clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture,12 but other overtly coercive tactics as well were condemned. Chambers v. Florida13 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee14 held inadmissible a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas,15 voided a conviction based on a confession obtained from a suspect who had been questioned continuously over the course of three days while being driven from county to county and told falsely of a danger of lynching. “Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’ A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.” 16

Although the Court would not hold that prolonged questioning by itself made a resultant confession involuntary,17 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention.18 In Stein v. New York,19 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado detention. Although the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance “the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.” 20 By the time of the decision in Haynes v. Washington,21 however, which held inadmissible a confession made by an experienced criminal because of the “unfair and inherently coercive context” in which the confession was made, it was clear that the Court often focused more on the nature of the coercion without regard to the individual characteristics of the suspect.22 Nevertheless, the Court did continue to cite at times age and intelligence as demonstrating the susceptibility of the particular suspects to even mild coercion.23

The “totality of the circumstances” was looked to in determining admissibility. In some of the cases a single factor could be thought to stand out as indicating the involuntariness of the confession,24 but in other cases the Court recited a number of contributing factors, including age, intelligence, incommunicado detention, denial of requested counsel, denial of access to friends, trickery, and other things, without seeming to rank any factor above the others.25 Confessions induced through the exploitation of some illegal action, such as an illegal arrest26 or an unlawful search and seizure,27 were found inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court did not assume that the subsequent confession was similarly involuntary, but independently evaluated whether the coercive actions which produced the first continued to produce the later confession.28

From the Voluntariness Standard to Miranda

Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona.29 Though the historical basis of the rule excluding coerced and involuntary confessions, in both early state confession cases30 and earlier cases from the lower federal courts,31 was their untrustworthiness,32 in Lisenba v. California,33 Justice Roberts drew a distinction between the common law confession rule and the standard of due process. “[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness.34

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that, in Rogers v. Richmond,35 Justice Frankfurter spoke for six other Justices in writing: “Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.” Nevertheless, Justice Frankfurter said in another case, “[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved.” 36 Three years later, in Malloy v. Hogan,37 in the process of applying the Self-Incrimination Clause to the states, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi38 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that, beginning with Lisenba v. California,39 a “federal standard” had been developed. The Court had engaged in a “shift [that] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.” Today, continued Justice Brennan, “the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,” when Bram v. United States had announced that the Self-Incrimination Clause furnished the basis for admitting or excluding evidence in federal courts.40

One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms: although it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois,41 it held inadmissible a confession obtained from a suspect in custody who repeatedly had requested and been refused an opportunity to consult with his retained counsel, who was at the police station seeking to gain access to his client.42 Although Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights.43

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 rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirty-hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944).

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) (Justice Frankfurter announcing judgment of the Court).

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

9

Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court).

10

367 U.S. at 602.

11

“The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.” 367 U.S. at 603. See Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 973–82 (1966).

12

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

13

309 U.S. 227 (1940).

14

322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts protested that “interrogation per se is not, while violence per se is, an outlaw.” A confession made after interrogation was not truly “voluntary” because all questioning is “inherently coercive,” because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they insisted, determine whether the suspect was in possession of his own will and self-control and not look alone to the length or intensity of the interrogation. They accused the majority of “read[ing] an indiscriminating hostility to mere interrogation into the Constitution” and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions.

15

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).

16

Blackburn v. Alabama, 361 U.S. 199, 206 (1960).

17

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

18

Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession may be corroborated by independent means. 338 U.S. at 57.

19

346 U.S. 156 (1953).

20

346 U.S. at 185.

21

373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family).

22

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 suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968).

23

Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls. 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).

24

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).

25

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).

26

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

27

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

28

United States v. Bayer, 331 U.S. 532 (1947); Lyons v. Oklahoma, 322 U.S. 596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); Darwin v. Connecticut, 391 U.S. 346 (1968).

29

384 U.S. 436 (1966).

30

Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); White v. Texas, 310 U.S. 530 (1940).

31

Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613 (1896).

32

3 J. Wigmore, A Treatise on the Anglo-American System of Evidence § 882, at 246 (3d ed. 1940).

33

314 U.S. 219, 236 (1941).

34

Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due process-fairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.

35

365 U.S. 534, 540–41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that “the conceptions underlying the rule excluding coerced confessions and the privilege again self-incrimination have become, to some extent, assimilated.”

36

Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963).

37

378 U.S. 1 (1964).

38

297 U.S. 278 (1936).

39

314 U.S. 219 (1941).

40

Malloy v. Hogan, 378 U.S. 1, 6–7 (1964). Protesting that this was “post facto reasoning at best,” Justice Harlan contended that the “majority is simply wrong” in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States, 168 U.S. 532 (1897), is discussed under “Confessions: Police Interrogation, Due Process, and Self-Incrimination,” supra.

41

378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.

42

Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). See discussion of “Custodial Interrogation” under Sixth Amendment, infra.

43

Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing assertions of the suspect’s “absolute right to remain silent” in the context of police warnings prior to interrogation).