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.325 Though the historical basis of the rule excluding coerced and involuntary confessions, in both early state confession cases326 and earlier cases from the lower federal courts,327 was their untrustworthiness,328 in Lisenba v. California,329 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.330

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that, in Rogers v. Richmond,331 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.”332 Three years later, in Malloy v. Hogan,333 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. Mississippi334 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that, beginning with Lisenba v. California,335 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.336

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,337 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.338 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.339

Footnotes

325
384 U.S. 436 (1966). back
326
Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); White v. Texas, 310 U.S. 530 (1940). back
327
Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613 (1896). back
328
3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 882, at 246 (3d ed. 1940). back
329
314 U.S. 219, 236 (1941). back
330
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. back
331
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.” back
332
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). back
333
378 U.S. 1 (1964). back
334
297 U.S. 278 (1936). back
335
314 U.S. 219 (1941). back
336
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. back
337
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. back
338
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. back
339
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). back