Custodial Interrogation: Early Doctrine

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Amdt5. Custodial Interrogation: Early Doctrine

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.

By the latter part of the eighteenth century English and early American courts had developed a rule that coerced confessions were potentially excludable from admission at trial because they were testimonially untrustworthy.1 The Supreme Court at times continued to ground exclusion of involuntary confessions on this common law foundation of unreliability without any mention of the constitutional bar against self-incrimination. Consider this dictum from an 1884 opinion: “[V]oluntary confession of guilt is among the most effectual proofs in the law, . . . [b]ut the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.” 2 Subsequent cases followed essentially the same line of thought.3

Then, language in the 1897 case of Bram v. United States opened the door to eventually extending the doctrinal basis for analyzing the admissibility of a confession beyond the common-law test that focused on voluntariness as an indicator of the confession's trustworthiness as evidence. “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’” 4 However, though this approach5 and the case itself were subsequently approved in several cases,6 the Court would still hold in 1912 that a confession should not be excluded merely because the authorities had not warned a suspect of his right to remain silent,7 and more than once later opinions could doubt “whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment’s protection against self-incrimination, or from a rule that forced confessions are untrustworthy. . . .” 8 One reason for this was that the Self-Incrimination Clause had not yet been made applicable to the states, thereby requiring that the admissibility of confessions in state courts be determined under due process standards developed from common-law principles. It was only after the Court extended the Self-Incrimination Clause to the states that a divided Court reaffirmed and extended the 1897 Bram ruling and imposed on both federal and state trial courts new rules for admitting or excluding confessions and other admissions made to police during custodial interrogation.9

3 J. Wigmore, A Treatise on the Anglo-American System of Evidence § 823 (3d ed. 1940); Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 954–59 (1966). back
Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory and subject to direct federal judicial supervision. back
Pierce v. United States, 160 U.S. 335 (1896); Sparf and Hansen v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility. back
Bram v. United States, 168 U.S. 532, 542 (1897). back
Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession. back
Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States, 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963). back
Powers v. United States, 223 U.S. 303 (1912). back
United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953). back
Miranda v. Arizona, 384 U.S. 436 (1966). According to Wigmore, “there never was any historical connection . . . between the constitutional [self-incrimination] clause and the [common law] confession-doctrine,” 3 J. Wigmore, A Treatise on the Anglo-American System of Evidence § 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id. at § 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately—the bar against self-incrimination deriving primarily from notions of liberty and fairness, proscriptions against involuntary confessions deriving primarily from notions of reliability — they did stem from some of the same considerations, and, in fact, the confession rule may be considered in important respects to be an off-shoot of the privilege against self-incrimination. See L. Levy, Origins of the Fifth Amendment: The Right against Self-Incrimination 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court). back

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