A CRITICAL VIEW OF THE MODERN CONFESSION RULE: SOME OBSERVATIONS ON KEY CONFESSION CASES WILLIAM GANGI Reprinted trom ARKANSAS LAW REVIEW Volume 28, Number 1, Spring 1974 © Arkansas Law Review and Bar Association Journal, Inc, 1975ARKANSAS LAW REVIEW and BAR ASSOCIATION JOURNAL Member National and Southern Conferences of Law Reviews Volume 28 Spring 1974 Number 1 A Critical View of the Modern Confession Rule: Some Observations on Key Confession Cases William Gangi* L._Intnopveron ‘The debate over police investigative procedures and the via- bility of the exclusionary rule, submerged for several years, soon will resurface in legal and popular literature. Since the con- firmations of Chief Justice Burger, and Justices Blackmun, Powell and Rehnquist, the winds of change have begun to sweep over the spectrum of law and order issues. Over the past decade the Warren majority extended significantly the controversial ex- clusionary rule pertaining to the admissibility of evidence in a criminal proceeding. Today the premises upon which this rule ‘was based are the subject of an assault by the Burger court, This article anticipates the forthcoming battle. It contends that Miranda v. Arizona, as well as the exclusionary rule are slated for revision. Moreover it is argued that these legal prin- ciples should be reexamined because the positions taken therein are not legally, theoretically, or practically sound, Continued subscription to the premises those decisions embody only can con- tinue to produce disastrous results. An illustrative example is the startling notion that in order to sustain the continued viabil- john’s University, Ja- maica, New Miranda v. Arizono, US. 486 (1968).‘iiitanee ARKANSAS LAW REVIEW [Vol 28:1 ity of Miranda, perjury should be sanctioned as a lesser evil: In short, the fictions at the core of Miranda and similar eases ‘ean be sustained only by ereating additional absurdities. In this context, the Warren decisions must be reexamined This author is mindful of admonitions that reversal and/or major revision of judicial precedent should not be taken lightly. isanda and the exclusionary rule should be abandoned and/or revised only in favor of sound legal principles and prudential judgments, ‘The burden of proof rests with the advocator of change and the author accepts his responsibility, No claim is nade that the avthor's approach is the only possible one, only that this approach provides insight into a recognizably complex problem. Prefacing the argument, some comment in regard to the structure of the article follows. ‘This article is the first of two installments tentatively to be published in this journal on the subject of the modern confession rule. ‘The first installment itself is further divided into two parts, It begins with an attempt to provide the reader with a brief review of the “voluntary-involuntary” confession termin- ology and history. The second part consists of a critical analysis of what the author contends are ultimately the underlying theor- tical assumptions of the Warren majority confession rule. ‘The sequel to this article, to be published at a later date, will carry fa more specific and detailed analysis of prospects for future de- velopments, A. The Voluntary-Involuntary Terminology It is impossible to approach confession cases without almost immediately confronting a terminological problem, namely, the radically different interpretations of the terms voluntary and in- voluntary. In fact, these terms are supported by two distinct rationales, one being truthfulness and the other relating to the exercise of free choice. The two rationales are sketched briefly below. 1. Trustworthy Rationale—Under the common law confes- sion rule courts sought to prevent the conviction of innocent men by unreliable evidence. Accordingly, truth became the focal point. Confessions were considered “voluntary,” therefore ad- ible, only if corroborated by independent evidence, Unsub- stantiated confessions were considered involuntary and excluded. 2. Harris v. New York, 401 U.S. 222 (1971), 2304! ee text accompanying note 300, infra ‘and tee text 1974] ‘The proba the confes tive facto coercion ¥ 2 Fr rule, othe: an accuse: silent. Ur confession sidered is irrelev: cluded if The c tary in a that cons’ ample, wl distinct courts oft: dating wh or (2) abs when the indicating rationale ultimate « despite ce paramoun spite its tx 3. Di land the va tionale (in: ance 35 81 2250, 2263, State Conf Lie LF fessions, 79 ments}! Gs Cases Dect. ‘rune Socier 4 Se missibility cited as Pr 154-57 (195 note 3 at 61974] MODERN CONFESSION RULE 3 ‘The probability that the confession was trustworthy, not whether the confession was a product of free choice, was the determina- tive factor. If the confession proved truthful, trickery and/or coercion were immaterial to the issue of admissibility." 2. Free Choice Rationale—In contrast to the trustworthy rule, other courts sought to assure that at the time of confession an-accused had been free either to admit guilt, deny it, or remain silent, Under this rationale, the determinative factor is how the confession was obtained. Only confessions made freely are con- sidered “voluntary” and admissible. The truth of the confession is irrelevant since even true, corroborated confessions are ex- cluded if not freely made. B. Interaction of Rationales ‘The complexity of interpreting the use of voluntary-involun- tary in any particular case is compounded further by the fact that considerations of truth and free choice overlap. For ex- ample, where the confessor has been coerced, there also is the distinct possibility that his confession is false. Accordingly, courts often excluded confessions as “involuntary” without eluci- dating whether the dispositive factor had been (1) unreliability or (2) absence of free choice. In actual practice, moreover, only when the truth of a confession is confirmed under circumstances indieating denial of free choice must a court clearly adopt one rationale or the other, In such an instance, if reliability is the ultimate concem, the court must hold the confession admissible despite denial of free choice. Conversely, if free choice is the paramount concern, a coerced confession must be excluded de- spite its truth, 3. Discussion of the stages in the confession rule's development, land the various modes of expressing and applying the trustworthy ra- tionale (infra notes 41 and 49) have been omitted, See 3 Wientonr, Ev1- pence §§ 817-21, 858-59 (Chadbourn rev. 1970); 8 Wranoxs, Evinexce, §§ 2260, 2263, 2270 (MeNaughton rev. 196i); Ritz, Twenty-Five Years of ‘State Confession Cases in the United States Supreme Court, 19 Wasi & Lex L. Rev. 35, 41-44 (1962); Note, Developments in the Law—Con- fessione, 70 Hanv. L. Rev, 935, 955-56 (1968) [hereafter cited Develop- Inente}; Gangi, The English Common Law Confession Rule and Early Cazes Decided by the United States Supreme Court, Antesican JuDICA- ‘runs Socier¥ 205, Twronmamion Revont Senies (September, 1973) 4. See McCormick, Some Problems and Developments in the Ad- iiesibitity of Confessions, 24 Tex. L. Rev. 239, 250 (1945-46) [hereafter cited as Problems]; McCormick, Haxpoox oN THE Law or Evinence 156-57 (1954); Macuune, Evivence or Gunur $§ 12, 21 (1959); Gangi, supra note 3 at 6-27 3 ‘ i 4 : } | i |ARKANSAS LAW REVIEW {Vol 28:1 Since both rationales can coexist peacefully, the meaning of “voluntary” is obscured in early decisions of the Supreme Court Nevertheless, anciysis indicates that the three major confession cases decided prior to Bram v. United States* probably were de- cided on non-constitutional common law trustworthy grounds. Although free choice may have been a factor in those cases, free choice clearly did not indicate that confessions must be made in milien free from police pressure. Indeed, these eases estab- lished confessions need not be excluded from evidence even where the confessor was in custody, uncounseled and ignorant of his right to silence. C. Final Introductory Remarks ‘The remainder of this article is divided into eight sections. Sections II, III, IV and V discuss in detail four major confession cases: Bram v. United States, Ziang Sun Wan v. United States, Brown v. Mississippi and Lisenba v. California, ‘These cases specifically were selected because of their place in the evolution of the modera confession rule and their relative importance as precedent. If the burden of proof is on the advocator of change, then detailed rebuttal of prior legal decisions is required. Seotion VI discusses briefly developments in confession rule evolution between 1941 and 1966, Section VII, using Escobedo v. [linois and Miranda 0, Arizona, as the jumping off point, con- centrates on an analysis and theoretical critique of the modem confession rule, Finally, Section VIII briefly reviews recent de- velopments, namely Harris v. New York. TL, Brant v. Usitep States. A. Facts Brown originally had been accused of murder on the high seas, He claimed, however, that he had witnessed Bram commit the murders, As a result, both men had been placed in irons, arrived in Halifax, a foreign port, they were brought before a local policeman. On that occasion, Bram was 5, Bram v, United States, 198 U.S. 592 (1897) 8 Hoot v, People of Utah, 110 U.S. 575, 584-85 (1884); Spart v United States, 156 U.S. 51, 55 (895); Wilson v. United States, 162 U.S. (612, 693 (1096); Wrestone, suore note 3, §§ 824, 836; Betsex, Cosmos, OvER Tuscan, Exroncesiant oF tuk Crrsuwat, LAW 87 (1935); Binley, Who is on Triat—The Police? “The Courts?” Or the Criminally Aceused?, 57 J Cane LC. & PS. 379, 300 (1968) 1974] stripped ar Power, lat curred: When are try! position and he said: “He stat fied tha Brown, done ail say 80, shoulde, the shir anythin, In the trio over the 0 by Bram + voluntary, ‘The m be divided language ¢ ‘Mr. Justice 1. Vo held that is constitute : Bram was ¢ Under Engl acting in hy Sowzt, Pout 238, 1.36 (pi note 5, at 8 Bram was ¢ counsel and ment may 1 standards, ¢ violence, 3. 168 9. Id. foundation of this pape. First, at Bram ease i have been ‘See Maccim1974] MODERN CONFESSION RULE 5 stripped and searched; he offered no resistance. The policeman, Power, later testified that the following conversation had oc- curred: When Mr. Bram came into my office, I said to him: “Bram, we are trying to unravel this Horrible mystery,” I said: “Your position is rather an awkward one. I have Brown in this office and he made a statement that he saw you do the murder.” He Said: “He could not have seen me: where was he?” I said: “He states he was at the wheel,” “Well,” he said, “he could not see me from there.” T said: “Now, look here, Bram, I am satis- fied that you Killed the captain from all Thave heard from Mr. Brown, “But,” I said, "some of us here think you could not have done ail that erime alone. If you had an accomplice, you should ‘say 20, and not have the blame of this horrible crime on your shoulders.” He said: “Well, T think and many others on board the ship think, that Brown is the murderer: but T don't know ‘anything about it In the trial court this “confession” was admitted into evidence over the objection of Bram’s attorney that no statement made by Bram while in custody could be considered either free and voluntary, or competent.’ B. Opinion of the Court The majority opinion, delivered by Mr. Justice White, can be divided into four parts. In setting forth these divisions, the language of the court will be quoted in order to fairly present ‘Mr. Justice White's reasoning. 1. Voluntariness and the Fifth Amendment—The Court held that introduction of Bram’s remarks as a ‘‘confession” would constitute reversible error if indeed they were involuntary. ‘The 7 Bram v. United States, 168 U.S. 582, 582-40 passim (1607). First, Bram was questioned by a police officer trom and in a foreign country. Under English law, Power, unquestionably was a “person in authority," acting in his “official eapacity.” This fact is pertinent to some; sce Sowzn, Pouice Powe anp INDTvinual Frepom; ‘Tux Quest For BaLaNce 288, n.50 (perm. ed. rev. 1960) but irrelevant to others; see Brrset, supra note 5, at 87. Cf, text accompanying notes 40 and 43, infra. Second, Bram was subjected to stripping before or during interrogation. Both counsel and the Court stressed this fact. 168 U.S. at 590, 561. Such treat- ment may be considered an inducement under traditional trustworthy standards, that is, creating the fear that stripping is a prelude to physical ‘violence. ‘3. 168 U.S. at 539. 9. Id. at 541-43, ‘The discussion usually is credited as being the foundation for the “automatic reversal” rule, a topie outside the scope of this paper. First, at no time did Bram confess. As one commentator put it, the Bram case is “a curious one in which the ‘coerced confession’ seems to have been neither a confession nor coerced.” See Sowsx, supra note 7. See Macuine, supra note 4, at 112, At the very worst Bram's statement6 ARKANSAS LAW REVIEW [vol 28:1 issue as to whether a confession is voluntary, and hence admis- ble, is controlled by the privilege against self-incrimination Clause of the fifth amendment.” Quoting from several texts, the Court asserted that a confession is admissible only if given free from ang influence, threats, or promises." ‘Moving beyond the mere statement that the fifth amend- ment privilege controlled the issue of voluntariness, the Court concluded that “the generic language of the Amendment was but crystallization of the doctrine as to confessions, well settled when the Amendment was adopted. . . .""* The court had recog- vized the fifth amendment as the embodiment of the common w confession rule when in Wilson v. United States"? it stated: “In short, the true test of admissibility is that the confession is. made freely, voluntarily and without compulsion or inducement ofany sort.” he English Common Law Confession Rule—Once Mr. Justice White posited the identity of the common law confession rule and the privilege against compulsory self-incrimination, he ‘nay be considered an admission. Had the prosecution introduced Bram's Ticement as exculpatory, it could have been used only to impeach the Tnithfulness of Bram’s other statements. Exculpatory statements may Eenevally be used either by showing them to be fabricated as cireumstan~ [etecidenee of guilty conscience of as self-contradictions impeaching the Credibility of the accused as a witness. See generally WraMone, supra hate 3. To prove these statements related to a guilty conscience, or were Contradictory appears unlikely since the remaining evidence against Gram was slmost non-existent. Unlike the situation in Witson, 163 US. G19. 1600), there is litle in Bram’s remarks that could have been con Fadicted. ‘Thus, even under trustworthy criteria, admissibility of Bram's Confession wes doubtful. Second, it is not clear whether Bram testified fn'his own defense and the entire matter is complicated by the Court's Cmnphasis on the possible inference of guilt which could have been used Suainst Bram if he remained silent, See text and comment accompany= ing notes 25, 27-28, 89 and 47, infra 10. 108 US, at 542-43, 11, Ide citing Hope v. Utah, 10 U.S. 574 (1888); Sparf v. United States, 158° US. 31 (1805); Pieree v, United States, 160 US. 355 (1896); Wilson v. United States, 162 US. 613 (1296). 12,168 US. at 542 162 US, 618 (1996) [i Id, at 623. While, in Wilson, the Court used the “voluntary” language, the faclwal circumstances of the ease make a free choice inter= jretstion inappropriate. th Wilson the Court asserted that “no compul- Hon or inducement of any sort” was permissible, yet held that none of {he following circumstances was sufficient per se to exclude Wilson's ex= eulpsiory statements: a) being in custody, whether or not in irons; b) fhreat ef mnob action; c) examination without eaution; d) failure to ad~ Vise the accused of his right to lence; e) the absence of a caution against NGL inccimination; and f) failure to inform the accused of the right to, iis well ag absence of, counsel. See Gangl, supra note 3, at 13-15, 1974] assumed { developm: rest on th voluntary tical cone rejected ¢ confessio: hope or fr aay jected the given to found pi federal c: Indiana, proof of « ating tes admissior fendant \ BT sions of th note 3. F dents and eal and elt argument 16, 17 18, 19, 20 21 23, 23,1974] MODERN CONFESSION RULE 7 assumed they were identical during each stage of their historical developments.'> The Court then asserted that each case must rest on the facts peculiar to it since a confession rendered in- voluntary by facts in one case did not necessarily lead to an iden- tical conclusion in a second case."* Mr. Justice White, however, rejected the conclusion that many courts had drawn from this, case-by-case method of analysis, that “there was no general rule of law by which the admissibility of a confession can be deter- mined." ‘The Court reiterated the general rule: ‘The rule is not that in order to render a statement admis- sible the proof must be adequate to establish that the particular communications contsined “in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that isto say, that from the causes, ‘which the law treats as legally sufficient to engender in the rind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, shen but forthe improper influences he would bave remained ‘To summarize, the Court concluded that the English rule in 1897 was “what it was prior to and at the adoption of the Fifth Amendment," that is, whether on the facts of each case the confession was “produced by inducements engendering either hope or fear. " 3. The Conjession Rule in the United States—The Court re- jected those English precedents which had held that a confession igiven to a police officer was per se inadmissible.** Justice White found prior state court decisions consistent with the English and federal cases he had cited previously,”* with two exceptions. In Indiana, a statute provided “that a conviction cannot be had by proof of a confession made under inducement, ‘without corrobor- ating testimony." Similarly, a Texas statute prohibited the admission into evidence of any confession obtained from a de- fendant who was in custody or confined when he confessed, un- 15, 168 US. at 549-40, ‘The difficulty of reconciling various expr sions of the common law confession rule is discussed in Wigmore, supra note 9. Finally, at this juncture Justice White considered English prece- ents and contended that the privilege and confession rules were identi- fal and clearly consistent with the cases cited (168 U.S. at 49-55). The ‘argument is not very convincing. See WieMonr, above, and note 22, infra 16, 168 US. at 548-49, 11, Id, at 549. Infra note 40. 1 id. 19, Tat 557. 20, Td. at 558. D1. Id. at §96-51, See Wremors, supra note 3, at §§ 827-30, 866. 22, 168 US. at $58, 28, 168 U'S. at 858 citing Ino, Rev, Star. 1802 (1881).8 ARKANSAS LAW REVIEW [Vol 28:1 less he stated certain facts in the confession which are subse- quently found to be true, such as where the stolen property is hidden 4, Application of the Test—The Court held that Bram’s situation when he “confessed” negated any presumption that his confession resulted from purely voluntary mental action. First, the general circumstances at the time would tend to confuse Bram, Second, his silence in circumstances calling for a denial of guilt might be interpreted as an admission establishing guilt* Focusing upon this factor,** the Court concluded that the state- ment by Power urging Bram to tell of his role in the erime, im- plied some benefit—such as mitigation of punishment.*7 Thus, this inducement rendered Bram’s confession involuntary,** and 24, 168 U.S. at 558 citing Tex. Rev. Star. Civ. Paoc. § 750 (1879) 25, Id. at 562-63, First, Bram was tried in a federal court. Why were state court procedures’ on comment on silence invoked to create Bram’s dilemma? "Second, was comment on silence then also permissible in federal courts? ‘The Court stated it was only taking cognizance of the practice in some state courts of “commenting” on the silence of the ac used. Yet, an identical inference of guilt was sanctioned in Sparf,196 USS at 88, 4 fact not referred to by the Brum Court, Though Bram did rot remain silent there i8 a distinction between Sparf and Bram. In Sparf, Green and Larsen were not “persons in authority,” whereas Power was such a person in Bram. See supra note 7. This fact, however. is not crucial, See note 21 supra. Third, even If the inference in Sparf can be reconciled with the conderanation of a similar Inference in Bram, it still {is necessary to explain the factual circumstances in Wilson. See text and comment af note 14, supra and note 27 infra, Had Wilson refused to say “Something”, there is no reason to believe that an unfavorable inference, as in Spar}, would not have been made, See note 27 infra 26." The court listed the following factors as pertinent: a) the statements were made in Halifax, a foreign port; b) the conduct of the detective toward the acctised: ¢) being brought from confinement; d) be {ng alone with the detective; e) belng interrogated while being stripped ‘or having been stripped, and f) the exercise of complete authority and control. 168 US. at 363 27, Id, at 864-65, the Court referring to the already quoted com- menis of Power, see iext accompanying note 7 supra. But see the cit= cumstances in Wilson, Supra notes 9, 14, 25: infra note 30. In addition, Brown may have been Iying. He made nossibly contradictory statements regarding nis whereabouts during the murders. 168 U.S. at 588, 589, 584, 568, 872-78. The ambiguous statements by Bram and the contradictory statements by Brown apparently convinced authorities that both men ‘were involved, explaining why both men were tried together. ‘The Gov= ernment may have been convinced, not unreasonably, that all three mur= Gers could not have been perpetrated by one man. "Unless the murders were to be ignored, the prosecution had t0 introduce the evidence in its possession, Brown's testimony and Bram's “confession,” were all they had, ‘28, Id, at 564-65, The dissenting opinion mede several points. First, iting Hopt, Sparf and Wilson, they spoke of hess,” and added that the fact Bram was in custody did not destroy the 1974] required r The s section isc opinion ar ca The sole the privil privilege policy con in determ ary soure claiming gins? Th. ilege cont no such ft a. Op spared th would ens would res the devel against ur ‘confession’ “positively of inducerr iteven int lured by ) Power.” ' Bram madi 29, Te 30, T article, hos ‘opment is 31.5) ‘This is the ceases. No privilege 1 {to BEISEL, privilege’: Defense c instead on 32,R ‘scone, sup What is (2963): P Sean. L. ‘Axp Com,1974] MODERN CONFESSION RULE 9 required reversal of his conviction.** C, Analysis ‘The subsequent analysis is divided into three parts. Each section isolates only the more important features of the Court's opinion and coincides with the presentation of Justice White. 1. The Common Law Confession Rule and the Privilege— ‘The sole legitimate question is the purpose and application of the privilege in 1897.29 The Court asserted the identity of the privilege and common law confession rule and stated that the policy considerations of the privilege are the controlling factors in determining whether a confession is voluntary." The second- ary sources agree, however, that the Court was incorrect in claiming that the two rules possessed a common historical ori- gin. The Court also appears incorrect in claiming that the pr flege controls the issue of voluntariness, the privilege performing no such function up to the time of the Bram decision. a. Operation of the Privilege: Originally, the privilege spared the accused from choosing between worldly harm that would ensue if he told the truth and the eternal damnation that would result from his lie. In addition, the privilege paralleled the development of jury trials that provided a defensive device against unpopular laws. Since no inference was allowed simply contession’s “competency.” Second, they contended Power had testified “Dositively,” as did the officer in Hopt, 110 U.S. at 583-84, that no threats of inducements had been made. Third, they noted, “It is strange to hear it even intimated that Bram up to this time was impelled by fear or al- lured by hope catised in the slightest degree by these statements of Power.” They observed that the alleged inducment came only after Bram made the statements he sought excluded, 168 U.S. at 509-70. 29, 1d. at 568, Bram apparently was never retried. 50, The current status of the privilege is outside the scope of this article, however, in light of the potential expansionary language, devel- ‘opment is not unreasonable. Infra note 36, 31, See text accompanying notes 10, 12, supra. In addition: (A) ‘This is the first time the Court cited constitutional criteria in confession cases, No congressional act was in question, and the application of the privilege is dictum, See BeiseL, supra note 6, at 87-88. (B) Contrary {> Berser, supra note 6 While found the confession involuntary, and the privilege served merely as the rationale to reach that conclusion. | (C) Defense counsel apparently did not cite the Fifth Amendment, relying instead on traditional confession language. ‘32. Ritz, supra note 3, at 43; MeCorneicx, supra note 3, at § 75; Wic~ sons, supra note 3, § 822; Developments, supra note 3, at 935; Kamisar, What is an Involuntary Confession”, 17 Rutoens L.’ Rev. 728, 742-4 (1963); Paulsen, The Fourteenth Amendment and the Third Degree, 6 Sean, L. Rev. 411, 418, (1952-53); Macums, Evmence, Common Sexse ‘AnD Connon LAW at 122. (1947).10 ARKANSAS LAW REVIEW Evol. 28: because the privilege was asserted, a jury of peers could easily return a verdiet of not guilty. b, Operation of the Common Law Confession Rule: During preliminary examination the privilege traditionally had been ac- corded only to those who asserted it. The mere fact that inerim- inating statements were made was not construed as a violation of the accused's right to silence even in the face of interrogation where the police had not informed the accused of his right to silence. The admissibility of confessions depended rather on their “voluntariness,” a term often employed to connote reli- ability, not free choice.s* To conclude, in 1897 the common law confession rule and the privilege were identical neither in origin nor in purpose. Why the Court failed to grasp the distinction between the ap- plication of the two rules is difficult to assess, and Professor Beisel already has gone about as far as analysis of Bram per- mits,2* 2. Consequences of the Identity Posited—Throughout his opinion, Justice White uses phrases traditionally identified with the common law confession rule, There are, for example, re- peated references to “any sort” of threat or violence, direct or implied promises, “however slight” and “any degree of influ- ence.” Tn Bram, such language apparently is construed as equiv- alent to the compulsion prohibited by the fifth amendment.!? Justice White, however, fails to explain how the prohibition of 33, Pittman, The Fifth Amendment: Yesterday, Today and Tomor- row, 42 AB.A.J. 509, 510 (1956). ‘34. Levy, Omscins Or Tax Fires Ansenonenavr at $75 (1968). 35. See text accompanying note 3, supra, 36. Briset, supra note 6, at 89-00. Read as a whole, Beisel’s book is critical of the original trustworthy rale, which explains ‘Belsel's reluc- tance to see the privilege incorporating only the common law confession rule, While Professor Beisel probably saw the privilege as @ possible remedy for the alleged defects in application of the trustworthy rule (namely, inability to resolve conflicts in testimony and providing insutfi- cient protection to the guilty), he insisted upon preserving the different origin and policy considerations of the privilege and common law con- fession rule. Beise’s standards, id. at 90, do not inevitably necessitate the growth or evolution of the privilege, "On the contrary, sound legal policy under modern conditions may necessitate either its stability or re- cession. See Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Crxx. L. Rev. 671 (1068), 37, See text accompanying notes 1, 13, 22, and 27 supra; but see comments accompanying note 40, infra, ' The point that “compulsion” ‘waa Interpreted originally aa “moral” corapulsion and applied in a court room, not to preliminary procedures, already has been made. "See text accompanying notes 35-34, supra, 1974] “any sort” of In Hopt, Spar; to bear on the sible; consider dent if not cle privilege ties though the “fc sistencies of t and the privi points may be First, unax rule and that t pressing the c free choice, Ju precedent as ¢ of the privileg that he fails to tion by subse component of 38. See not 30, 165 US 8, 15, and 22, sw is confusion rest admissions and some exposition In Wilson, the r ‘while in Bram.‘ to prove guilt.” permissible for t operate indirect! cause...” 168 U a profusion of co: able inferences such contradietic such inferences ¢ 40. "See tex a list of factors « Wiemonr, supra 250. Finally, it rule could be fon the circumstance: 383, 41. Degrees elsewhere, Wicn firmation by sut worthy rule) mu exclusion of “ille ‘means consistent, note 4, at 126-26 Allen, ‘The Supre1974] MODERN CONFESSION RULE un “any sort” of threats was in “entire accord” with prior decisions. In Hopt, Spar} and Wilson significant pressure had been brought to bear on the defendants but their statements were found admis- sible; considerations of trustworthiness in these cases were evi- dent if not clearly articulated.** For Justice White, however, the privilege ties all these precedents together in “harmony” al- though the “form” is “different,” and he never escapes the in‘ sistencies of trying to render compatible elements of reliability and the privilege’s guarantee of free choice.” Several other points may be made. First, unaware of both the different origins of the confession rule and that the term “voluntary” had been only one way of ex- pressing the common law concern for reliability, rather than the free choice, Justice White automatically read “voluntary” in each precedent as guaranteeing free choice.” Second, the relevancy of the privilege to confession cases so preoccupies Justice White that he fails to grasp the significance of the doctrine of confirma- tion by subsequently discovered facts, originally an essential component of the trustworthy rule! Under this doctrine con- 38, See note 6, supra, for citations 30, 168 USS. at 543. ‘See text and sources accompanying notes 2- 6, 15, and 22, supra, and note 40, infra, In both Bram and Wilson there is confusion resulting from lumping together confessions, guilty conduct, ‘admissions and exculpatory statements. In Wilson, however, there is Some exposition of the governing principles. Two problems remain: (a) In Wilson, the matter went to “Weight of credibility,” 162 U.S, at 624, ‘while in Bram “we are not concerned with how far the confession tended to prove guilt.” "108 U.S. at 541. Later, however, the Court stated it is permissible for the testimony of Brown to be admitted though “it might Dperate indirectly to fortify the eredit of such person as a witness in the cause...” 168 U.S, at 568. (b) In Wilson, defendant was caught in such 4 profusion of contradictory stories that the Court supported the unfavor= able inferences that could be drawa, 162 U.S. at 618-21. In Bram, no Such contradictions were available, and the Court apparently held that ‘uch inferences could not be made in any case. '40., See text accompanying notes 13, 15, 18, 21 and 99, supra, For a list of factors contributing to the confusion in English precedents, see Wrontons, supra note 3, But see McCormick, Problems, supra note 4 at 250, Finally, it was Justice Harlan in Hopt who said’ that no general rule could be formulated, meaning only that each case must depend upon the circumstances under Which the confession was obtained. 110 U.S. at 583, 41, Degrees of admissibility of confirmed confessions is discussed elsewhere, Wieore, sipra note 3, §§ 856-859, 2250. The doctrine of con- firmation by subsequently discovered facts ‘(supplementing the trust ‘worthy rule), must be distinguished from the more modern doctrine of exclusion of “illegally” obtained evidence. The two doctrines are by no ‘means consistent. For a discussion of both doctrines see MAGUIRE, supra note 4, at 128-28 nun, 18-19; but see McConnsice, supra note 4, at 187 n.18; Allen, The Supreme Court, Federalism, and State Systems of Criminal i ‘ nee LR RETA TNNCCNN INTRASTATE2 ARKANSAS LAW REVIEW [Vol 28:1 fessions obtained in the presence of inducements were admissible if evidence was found indicating the probable truth of the con- fessions. In this context, the importance of the language of the Indiana and Texas statutes completely escapes Justice White.‘ ‘Third, persisting in his initial assumption of the confession rule- privilege identity, Justice White becomes oblivious of what could cast doubt on that assumption, Aside from the Indiana and ‘Texas statutes, this fact also is demonstrated by his comment that “no doubt or obscurity can arise as to the rule itself, since it is found in the text of the Constitution.”* Finally, while not- ing that English courts often condemned police questioning, he fails to appreciate that police questioning was considered a mat- ter distinct from violations of the privilege.t* 3. Difficulties in Application—In asserting that to be ad- missible Bram’s remarks must have been a “purely voluntary mental action,” Justice White implies an absolute right to silence. Yet, he holds that custody or police interrogation does not neces- sarily render confessions involuntary.“ On the contrary, the de- termination of voluntariness must rest upon the factual circum- stanees actually present.* Two problems emerge, the first of which is the failure of the Court to define the compulsion pro- hibited by the fifth amendment. In fact, the only definition 1974] of “voluntary” cumstances cit necessity, the Bram loses wh these phrases ¢ of falsity exis doctrine of sub in fact reliable ever, considera guage construc In Bram, Despite use 0! not radically 6 on the circum and/or questic involuntary. tariness” emer ‘The conte progressive lez supported by Justice, 8 DePaut, L, Rev, 213, 239-240 (1959); Plumb, Illegal Enforce- ‘ment of the Law, 24 Conwmut, L.Q. 337, 382 nun. 227-228 (1938-29); Note, Proof of the Corpus Delict Aluinde—The Defendant's Confession, 108 U. Pa. L, Rev. 688, 642-77 (1955); Enker and Elsen, Counsel for the Suspect? Massiah v. United States and Escobedo v. Illinois, 49 Mixx. L. Rev. 41, ‘51 (1964); Kamisar, Illegal Searches or Seizures ond Contemporancous Ineriminating Statements: A Dialogue on a Neglected Area of Criminal Procedure 801 U- Tix L Fowune 78 2 (1961) ‘See text accompanying notes 23-24, supra GE Tos GS ar 300, Sectaloo tent atcompenying notes 18 and 22 supra, th 168 U.S. at 857. See also text accompanying notes 37-29, supra 45. See text accompanying notes 21, 44, supra. 48. See text accompanying notes 18, 26,38, supra. 41, See text and comment accompanying note 26, supra, For ex- ample, in the context of the factual circumstances, would the Court have reverted Bram's convietion if Power had not stated his belief in Bram's guilt, or if the prosecutor had introduced Bram's remarks as an admission, or, if the prosecution, as in Wilson, had sufficient evidence to impeach Bram’s credibility? See notes 9, 25, 29, supra. In addition, the Court at this point reflects Selden’s principle of mental agitation, " This prin iple lea broad rule of exclusion that not only excluded confession proper, but exculpatory statements and admissions as well. As Wigmore demonstrates, this principle is deficient, proving only that statements professing innocence, and meant to do just that, may be false. Tt does ‘ot prove that avowals of guilt are necessarily untrustworthy. See Wic~ More, supra not as 48, See tex 49. A com ble. The ratior individuals, one and mental ch: guilty man (bu fo cover up the by innocence). are greater sour note 8, at 41-44 a stereotype “ir men, stronger ¢ the question he image, plus or n fession revealed pra note 4, at 24 ations and Sor 30. See te infra note 52.7 conviction may 8. Second, the der the particu prohibited only land contrary e ‘to Escobedo v. 11974] MODERN CONFESSION RULE 13 of “voluntary” or “compulsion” to emerge is that, under the ei- cumstances eited, Bram’s conviction was reversed. Second, by necessity, the traditional inducement language employed in Bram loses whatever practical utility it had possessed.'* While ‘these phrases originally connoted circumstances where a fair risk of falsity existed, the prosecution could establish, through the doctrine of subsequently discovered facts, that the confession was in fact reliable. With the emphasis in Bram on free choice, how- ever, considerations of reliability, as well as the inducement lan- ‘guage constructed in its wake, no longer remains viable.*® D. Conclusion In Bram, “voluntary” is interpreted in free choice terms. Despite use of the fifth amendment, however, the Court does not radically depart from prior holdings. Admissibility depends on the circumstances present, and the fact of being in custody and/or questioning is not sufficient per se to render confessions involuntary.° No clearer definition of “compulsion” or “involun- tariness” emerges. ‘The contention that the Bram majority intended to take a progressive leap forward by utilizing the fifth amendment is not supported by the opinion. In fact, if a radical departure from Jone, supra note 3, §€ 645, 850; see also Macumr, supra note 4, at 112 AB. 48, See text accompanying notes 31-89, 43-46, supra. 49, A complete summary of the trustworthy rationale is not possi- ble, ‘The rationale, however, hinged on the following formula: if two individuals, one guilty and one innocent (possessing the same physical and ‘mental characteristics), were subject to the same pressures, the Guilty man (burdened by guilt and the necessity of lying consistently {cover up the truth) would confess before the innocent man (fortified by innocence). To deny this would be to deny that truth and innocence axe greater sources of strength than falsehood and guilt.” See Ritz, supra pole 3, at 41-44. What is Unique about this formula is the ereation of B'stercotype “image” of the accused. Instead of considering how other nen, stronger or weaker in character, would react to certain pressure, The ‘question here was how the accused reacted in comparison to i mage, plus or minus guilt or innocence as the truth or falsity of the con fession revealed, See Wresone, supra note 3; McCormick, Problems, su~ fra note & at 24i; but see Warden, Miranda—Some History, Some Obeer- Dations ond Some Questions, 20:1 Vaxoensnt L, Rev. 39, 40-51 (1966). 50. ‘See text accompanying notes 46-45, 51-33, supra; and see also infra note 82. Two points should be made. First, the reversal of Bram's Conviction may be justified solely on trustworthy grounds. Supra note §. "Second, the Bram decision Indeed may be read narrowly, that is, un— Ger the particular ciccumstances described (supra note 47), the Court prohibited only the introduction of exculpatory statements as confessions Pid contrary evidence wes lacking. This principle is applicable equally to Escobedo v. Ilinois, 378 U.S. 478 (1964)“4 ARKANSAS LAW REVIEW [Vol 28:1 precedent was intended, such a departure would include a con- spiracy of silence on the part of the dissenting justices. The minority simply utilized traditional confession language to reach an opposite result and pointed out what they considered to be lapses of logic on the part of the majority. Furthermore, the dissenters completely ignored the majority's reference to the privilege. This omission either can be attributed to the minor- ity's recognition of the privilege-confession rule identity or to their dismissal of the privilege’s use as pure form. In either case, this omission adds nothing to the validity of the majority's as- sumption that the confession rule and privilege were identical in origin and function. In this regard, it is entirely possible that modem commentators attribute more significance to the use of the privilege than the majority in Bram intended.** Why the privilege was used remains a matter of conjecture. Attempting to bring order and consistency to English prece- dents, Justice White contended that the privilege was the sole unifying principle in confession cases. In short, the history of the privilege was but “a crystalization of the doctrine as to con- fessions."** Operating under this assumption, he proceeded to marshal a host of what appeared to him to be consistent prece- dents, hence giving the opinion a superficially logical consis- tency.* By using the privilege rationale the Court apparently wished to demonstrate the consistency between its opinion and English, federal and state precedents. While Justice White failed, there is little reason to reject this objective as the purpose of his opinion. In this context, Bram is a well-intentioned, poor decision. Modern scholars, however, have the conceptual tools and historical evidence to demonstrate that the precedents cited in Bram stemmed from different considerations, shaped at dif- ferent times and formulated under a variety of circumstances. To perpetrate the errors in Bram while continuing to ignore the difficulties which they entail, can no longer be justified.** Bi, See note 28 supra. 52, Justice Harlan joined the majority while Chiet Justice Fuller joined the dissent. ‘Though none of the earlier cases enunciated the trust- worthy rule, the opinions of Justice Harlan in Hopt and Sparf appear to tbe less precise than the opinion of Chief Justice Fuller in Wilson. See note 6 supra for citations, 58. ‘The Bram Court is not aware of the consequences of invoking the privilege, See Bristt, supra note 8, at 86-89, and Developments, su= pra note 8, at 960-01, 54, 168 US. at 542. 35. See text accompanying notes 14-15, 18, 22 supra 58. Compare Stein v, New York, 346 U.S. 156, 190-91 n.35, 197-99 (1952) with’ Culombe v. Connecticut, 373 U.S. 568, 600 n. 52 (1961) and 1974] ur After Bram for providing in degree” police t more police pra fessions involur typifies this per ‘Wan was st ton, D.C. Two suffering from residing. Wan the detectives t was taken to a: detained for mc Wan was sick, see his brother jected to persist object of whick his brother's gu On the eigt of the murders. to floor minute triple murder a ations, and to Haynes v, Washi 310 US. 49, 52 ( ¥, Mlinois, 378 U. Ya1-62, 526. (196i (970). "See com comments accom 37. Chafee, 429 (122) MeCo 58. 256 US. 50. fa. at 10 sation are taken poted, quotations 0. Ta, at 1. 81. Td, Susi at the murder sce ‘The places w with "whieh staan the the discharge Inurdered. me Bloody handle1974) MODERN CONFESSION RULE 16 TIL Zrana Sune Wan v. Unrrep Staves After Bram the common law trustworthy rule was criticized for providing insufficient protection to those subjected to “third degree” police tactics. Common law critics advocated that many more police practices be declared serious enough to render con- fessions involuntary." Ziang Sung Wan v. United Statess typifies this period of confession history. A. Facts Wan was suspected of murdering three people in Washing- ton, D.C. Two detectives journeyed to New York where Wan, suffering from influenza and chronic stomach trouble, was then residing. Wan claimed to be ill but consented to accompanying the detectives to Washington, Instead of being arrested,"? Wan was taken to a secluded hotel room in Washington where he was detained for more than a week. During this period of detention Wan was sick, remained in bed and was refused permission to see his brother also detained in another room. Wan was “sub- Jected to persistent, lengthy and repeated cross-examination,” the object of which was to entrap Wan into confessing his own or his brother's guilt." ‘On the eighth day of detention Wan was taken to the scene of the murders. For ten hours ‘this sick man was led from floor to floor minutely to examine and reexamine the scene of the triple murder and every object connected with it, to give explan- ations, and to answer questions.” On the ninth day, denied Haynes v. Washington, 973 U.S. 508, 13 (1963); Gallegos v. Colorado, 310 U.S. 49, 52 (1961); Malloy v. Hogan, 378 U.S. 1, 7 (1964); Escobedo ¥, linois, 378 U.S. 478, 485-86 (1964); Miranda v. Arizona, 384 US. 436, 461-62, 526 (1966), and Brady v. United States, 397 US. 142, 753-53 (1970). See comments, supra notes 18, 22, 25, 28 and 30 and text and comments accompartying notes 31-38, supra. 51. Chafee, The Progress of the Law, 1919-1922, 35 Hanv. L, Rev. 428 (1922) ; MeCormici, Problems, supra note 4; and see note 96, infra. 58, 266 US. 1 (1904), 59, Id. at 16. ‘The factual circumstances surrounding Wan's interro- gation are taken from the opinions of the Court, and ‘unless otherwise noted, quotations may be attributed to Justice Brandeis, 86. Id. at 11 61. Id, Justice Brandeis outlined the kinds of information related at the murder scene: ‘The places where the dead men were discovered; the revolver with ‘which presumably the murder was committed, the blood stains and the finger prints thereon; the bullet holes in the walls: {the discharged cartridges found upon the Tloor; the clothes of the murdered men; the blood stains on the floor and the stairs: bloody handkerchief; the coat and pillow whieh had been found16 ARKANSAS LAW REVIEW [Vol. 28:1 sleep through repeated interrogation during the previous night, Wan was formally arrested. The interrogation still continued with police pointing out alleged contradictions in Wan’s alibi and urging him to confess lest his brother be convicted of the crime. On the twelfth day, Wan signed a verbatim typewritten report of a formal interrogation." On the thirteenth day, Wan was visited for the first time by the chief medical officer of the jail. He testified at the trial that Wan was weak, exhausted and ema- ciated, and, if Wan “was as sick as that and in as great pain as that, he would do anything to have the torture stopped."" ‘Wan was convicted of murder, and the Court of Appeals affirmed the convietion. Before the Supreme Court, defense counsel, citing Bram, ar- gued that under the conditions under which Wan confessed, his confession should have been held inadmissible regardless of whether it was obtained in the absence of any “specific” threats or promises. Wan further contended that his “suggested confes- sion” was not “corroborated by subsequently discovered fact and inconsistent with many facts shown by the record.” Finally, again citing Bram, Wan contended that his fifth amendment priv- ilege against compulsory self-incrimination was violated.'* In support of the conviction the government argued that only confessions obtained by specific threats or promises can be considered involuntary. Furthermore, attempting to distin- guish Bram, the government first argued that Bram had been placed in fear while Wan was merely placed in custody. Second, Bram was placed in a situation where his silence could possibly be used against him. Only in this context, said the government, was Bram “compelled” to make a statement which violated the fifth amendment? covering the dead men’s faces; photographs, taken by police, of the men as they lay dead; the doors and windows through which the murderer might have entered or made his escape; photostat opies of writings by meanaof whieh ie wna sought to prove that ‘Wan was implicated ina forgery incident to the murder; all these were shown him, Id. at 11-12. bx Td at 12-13. 62, Td. at 19-14 64. Ia. at 4 88. 88. Id. at 8 81, Id. "There is language in Bram to support the Solicitor Gen- eral's contention that the facts he emphasized played an important role {inthe Bram decision, Id, See notes 46, 47, 50, supra and accompanying text, 1974] M The Supreme confession inadmi: a pertinent portic is set forth below. _ , A confessic fact, voluntarily uuntarily, althou tody, and in ans a confession obt may have been compulsion wa: pe The undisp’ Taken as a ¥ a familiar duality teria. On the or Wan's ability to f the other hand, 1 assuring reliabilit than Wan's state cumstantial evide of defense counse corroborated by ¢ ‘The existenc: requires further also must be pla defense counsel, Court of Appeal: and Court of Ap depends upon wt benefit or harm of whether the ¢ such a threat or | interpretation of determination of ‘the government 68, 288 US. a 690. Id at On 10, See texta 1, 266 US. a the confession rath the contention of supra,1974] MODERN CONFESSION RULE 7 B. Opinion of the Court ‘The Supreme Court, in reversing Wan's conviction, held his confession inadmissible. For the purpose of subsequent analysis, a pertinent portion of the Court’s opinion by Justice Brandeis is set forth belo . . A confession is voluntary in law if, and only if, it was, in ‘sei, voluntarily made. A confession may have been given vol- untarily, although it was made to police officers, while in cus tody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever ay have been the character of the compulsion, and whether the compulsion was applied in judicial proceedings or otherwise, cethe undisputed facts show that compulsion Was applied. "= ©. Analysis ‘Taken as a whole, the opinion of Justice Brandeis contains a familiar duality, a blending of reliability and free choice eri- teria. On the one hand, he appears to define voluntariness as ‘Wan's ability to freely admit or deny guilt or remain silent. On the other hand, he implicitly utilizes standards associated with assuring reliability by stating, in his second footnote, that other than Wan's statements, “the Government introduced only cir- cumstantial evidence."** Brandeis also accepted the contention of defense counsel that the confession was a suggested one, un- corroborated by other evidence.” ‘The existence of this duality within the opinion of the Court requires further explication. ‘The position of Justice Brandeis ‘also must be placed in the context of the arguments made by defense counsel, on the one hand, and the Solicitor General and Court of Appeals, on the other. The Solicitor General argued and Court of Appeals decided that the admission of confessions depends upon whether a “clear” or “specific” threat of temporal benefit or harm has been made, rather than upon an evaluation of whether the circumstances present were sufficient to convey such a threat or promise."! Rejecting the government's “formal” interpretation of precedents, Justice Brandeis concluded that the determination of voluntariness is not to be resolved in favor of the government by merely establishing that no “specific” or 68. 266 US. at 14-16. 69, Id. at 9nd. TN. See text accompanying note 64, supra TH, 266 U.S. at 4 and 14 In light of the various modes of expressing, the confession rationale (supra, note 15) and the conflicting precedents, the contention of the Solicitor General is understandable. See note 49 supra,18 ARKANSAS LAW REVIEW Evol. 28:1 “clear” threat or promise had been made: ‘The rejection of the government's argument, however, does not resolve the question of whether exclusion was based on trust- worthy or free choice grounds. Admittedly, free choice is ele- vated by the Court's references to testimony regarding the inter- rogation of Wan and his medical condition. Yet, other state~ ments relating to the untrustworthiness of Wan’s confession can- not be ignored. This unreliability aspect of the Court's rationale is indicated, first, in the footnote recognizing the absence of other substantial evidence and Wan’s continued proclamation of inno- cence and willingness to testify in his own behalf."* Second, the Court mentions at least one specific inducement which, under traditional trustworthy criteria could have affected the admis- sibility of the confessions, the implied threat to prosecute Wan’s brother." ‘Third, since the detectives had acquainted Wan with every piece of physical evidence, a consideration described in some detail by Brandeis, this added weight to the claim that the confession was false and “suggested.” Fourth, the testimony of the medical officer raised the possibility that under the pres- sure Wan experienced, even an innocent man would have con- 72, Id. at 14. “In the federal courts, the requisite of voluntariness {ig not gatistied by establishing merely that the confession was not in~ duced by a promise or a threat. Id. Brandeis infers that, in federal ‘ourts, the determination of voluntariness is to be made on the basis of whether any actual inducements were present. Justice Brandeis may hhave believed that the teat in state courts, as contrasted to federal courts, required a "clear" inducement. 73. Id. at 9n.2._ See Wilson, 162 U.S. at 623-624, where “voluntary” was construed to permit considerable pressure, and reliability played an Important role, See, supra notes 14-25 and 39.” Brandeis, elsewhere, rec- ‘ognized that there is an unfavorable inference of guilt stemming from the silence of the aceused. United States ex rel. Bilokumsky v. Tod, 263 USS. 149, 153-154 (1923). Why not, in the absence of conclusive evidence to the contrary, draw a favorable inference from the fact that Wan testi~ {ed in his oven behalt? 74, 268 US. at 12. In addition, there appears to be at least one claim of an actual threat of physical abuse, 1d. at 18-16, n5. 75, See text and comments accompanying notes 61, 64 supra. No ‘one questions the fact that some police practices must be condemned per se a5 being inconsistent with trustworthiness. One concrete example of the problems created by the police interrogation of Wan also was evident in the New York, Whitmore ease. See Bickel, The Role Of The Supreme Court Of The United States, 44 Tex. L. Ray. $54, 958 (1900); Sutherland, Crime and Confession, 19 Harv, L. Rev. 21, 38 (2965). ‘Thus, one of the most dangerous police practices is well illustrated by both the Wan and Whitmore cases: ‘The practice ". . . [o]f interrogation that unfairly feeds a suspect facts and then siphons them back again...” Kuh, The ‘Rest Of Us in the ‘Policing the Police’ Controversy, 51 J. Cras. L. C. & PS, 244, 246 (1966) 1974] ™ fessed."* In shor onstrate that War the pressure app reasonable doubt reliable.” ‘The discussio must be analyzed and reliability pe in law, if, and o sentence requires clarifies the meat is stated that a c the defendant is parent, then, that as per se constitt tence, “compulsic of the Court in th Justice Bran: ‘compulsion must acter of the com then, that in con tained during ct by “compulsion” is no attempt to what types of po ness and compul may be assumed pulsion” may con circumstances cre “involuntary” wi or promise? Th 76, 206 US. 1, Th. Ha. at 15-1 ‘78. See comm: to those comments Developments, sup! Note, Failure to G Interrogation Viola nation, 1968 Urax I 7, 266 US. 1 juncture, Brandeis ‘cases noted previo 0, See text a 81, 286 US. at 82, See note 7 to include elements1974] MODERN CONFESSION RULE 19 fessed.!" In short, Justice Brandeis went to great pains to dem- onstrate that Wan was subjected to significant pressure and that the pressure applied was sufficient, in law and fact, to create reasonable doubt that the confession was freely made and/or reliable." ‘The discussion of the federal confession standard, therefore, ‘must be analyzed in the context that considerations of free choice and reliability pervade the opinion. “A confession is voluntary in law, if, and only if, it was, in fact, voluntarily made.” This, sentence requires clarification." In a negative sense, the Court clarifies the meaning of voluntary in the next sentence where it is stated that a confession still can be found voluntary although the defendant is questioned while in police custody. It is ap- parent, then, that in-custody interrogation is not being prohibited as per se constituting, what Brandeis condemns in his next sen- tence, “compulsion.” Wan did not depart from prior decisions of the Court in this respect." Justice Brandeis then states: “[A] confession obtained by compulsion must be excluded whatever may have been the char- acter of the compulsion. . . "The proposition appears to be, then, that in contrast to a “voluntary” confession which is ob- tained during custody and questioning, a confession obtained by “compulsion” must be excluded. In Wan, as in Bram, there is no attempt to clearly define the meaning of “compulsion” or what types of police pressure cross the line between voluntari- ness and compulsion. From his prior statements, however, it may be assumed that for Justice Brandeis the “character of com- pulsion” may consist of actual physical or mental coercion. Such circumstances create an inducement which renders a confession “involuntary” whether or not there has been a specific threat, or promise? Thus, though “compulsion” is defined to the extent 76. 266 US. 1, 18-14 See notes 62, 63, 73 and 75, supra, Th, Id.at 18-16 as. "78. See comments accompanying notes 3 and 4, supra. With respect to those commentators utilizing only the first sentence, see generally, Developments, supra note 3 at $61; McComnarck, supra note 4, at 155 n.8; Note, Failure to Give Warning of Constitutional Rights Prior to Police Interrogation Violates Fifth Amendment Privilege Against Self-Incrimi- ‘nation, 1968 Utast L. Rev. 687, 689 m.12 (1968) 7B, 266 US. 1, 14; see text accompanying note 68 supra. At this juneture, Brandeis cited for authority, but did not discuss, many of the cages noted previously. Id. at 14, n.3; see notes 4, 14, supra. 30,” See text accompanying note 4, supra. BI, 266 U.S, at 14; see text accompanying note 68, supra 82, See note 72, supra. While the term “voluntary” may be utilized to include elements of reliability as well as free choice, Brandeis empha-20 ARKANSAS LAW REVIEW [Vol. 28:1 that the circumstances under which Wan confessed were suf- ficient to exclude his statements, the actual basis of the exclusion is not clearly articulated. ‘The prohibited compulsion may have rendered Wan’s statements untrustworthy or denied him the ability to exercise free choice. As noted above, there is sufficient evidence to support both rationales, and there is no reason to assume that in fact both were not used to justify exclusion of Wan’s statements.#* Several other aspects of the Court's analysis may be exam- ined, First, although defense counsel specifically cited the fifth amendment argument used in Bram, at no time does Justice Brandeis explicitly approve the applicability of the amendment to confession cases.** Second, if Brandeis meant to place empha sis on the right to silence, he failed to discuss the cases he cited with approval. In those cases, the right to remain silent was seriously undermined.” Third, Brandeis employs a rather 1974] puzzling phrast confessions obt concludes that was applied in no explanation requests the clear whether ences or the 5 authorities. B or the confessi While such a1 ties, definite ¢ phrase are imp tention were what should br testimony whi ‘sizes tree choice. Once before, Justice Brandeis used “compulsion” in the context of the traditional confession standard, that is, a threat or promise. See Bilokumaky v. Tod, 268 U.S, 149, 151 (1923). £83, Perhape the most that can be concluded with regard to the cita tion of Bram by the Court and defense is that “. . . [alt the least, it is clear that the Court has never rejected the use of ‘the privilege in arrest Situations...” See Note, Adoptive Admissions, Arrest and the Prio- lege Against Self-Inerimination: A Suggested Constitutional Impera tive, 91.U. Cut, L, Rev. 596, 563 (1964) [hereafter cited as Adoptive Ad~ ‘misiions.) This conclusion provides no evidence in support of the Original and crucial contention in Bram that the confession rule and the privilege were identical in origin and function. See text accompanying otes 31-33, supra, ‘B,_See text accompanying note 64, supra, Defense counsel cited or quoted Bram four times, eiting only page 849, See 266 U.S. at 2-4; and See also notes 43 and 45, supra, Justice Brandeis cites Bram iwice during ‘the course of his opinion, but only to page 558. 266 US. at 14 n.3 and {br ‘The specific page in Bram referred to by Brandeis is different from counsel, and the difference either buttresses the argument that Bram and Wan do not prohibit police interrogation, or inject elements of reliability into Wan, ‘The failure of Brandeis to approve the fifth amendment argument in Bram probably stema from the lack of clarity, the weak authority, the facts of the case, and the consequences of doing s0, as argued by the So- {icitor General, 266 U.S, at 6 and 7. While the question of what exactly ‘Bram held is important, it is not discussed in Wan. See Adoptive Admis~ ‘ions, supra note 63 at 563-64, See sources at note 56, supra 5. See note 4, supra. ‘The Court admits without clarification, that ‘the confession of Wan would have been admissible if, in fact, it had been “voluntary,” ‘This statement implies that the factual circumstances were decisive. ‘There is no reason to conclude that the presumption of coercion could not have been rebutted. Wigmore, supra note 3 § 851. Moreover, there appears to be some evidence that the Court did not wish to rely on Bram, and in fact found it difficult to reconcile the language in Bram with the situation in Wilson v. United States, 162 US. 613 (1696). In Powers v. Unite: v. United States, and instead turn 2665 US lege mz identity of the comparison bets Court's use of ec compulsion may proceedings. In Sufficient to ren or promise can t of the opinion. supra, The cite Wan or Bram, pra note 88. 'F {introduced the r 88. Specult the text (at 15) footnote (at 151 Tustice Brandei ‘th amendmer Moreover, it Wi Interpreted lite: in Hardy v. Uni used. traditional fifth amendmen Third, Justice E at 16 na. In ar tion to other co Bram altogethe in the omission note three?1974] MODERN CONFESSION RULE aa puzzling phrase in reference to compulsion. When he states that confessions obtained through compulsion are to be excluded, he concludes that they will be excluded “whether the compulsion was applied in a judicial proceeding or otherwise."** There is, no explanation of this phrase, and, although the Court's footnote requests the reader to compare the cited authorities, it is not clear whether the reader should take cognizance of the differ- ences or the similarities that exist between the two groups of authorities, Brandeis may have meant that either the privilege or the confession rule could be used to invalidate confessions.** While such a position may or may not impose inherent difficul- ties, definite conclusions as to what Brandeis intended by the phrase are impossible.** Fourth, the facts surrounding Wan’s de- tention were “undisputed.” Although there was dispute over what should be deduced from the facts, there was no conflicting testimony which substantially put in doubt what had occurred. Powers v, United States, 25 US. 208 (1912), defense counsel cited Bram ¥- United States, 168 US. 852 (1807), but the Court ignored the reference instead turned to Wilson v. United States, supra Sp, "26e U.S. 1, 15. 4; and aee also text accompanying note 68, supra. 87, 288 US. 1, 181. 4. If elther the common law confession rule or the privilege may be a basis for exclusion, this division jeopardizes the identity of the two rules posited by the Court in Bram. Moreover, a comparison between the authorities cited leads to reflection upon the Gourt's use of compulsion in this sentence. In the latter string of cases, Compulsion may refer to the legal power to compel testimony in judicial froweedings. In the former string of eases, compulsion refers to coercion Ritticient fo render a confession “involuntary,” whether a specific threat br promise cen be proved. This position is consistent with other sections Of the opinion, See text and comment accompanying notes 77 and 82, Supra, “The lied authorities, however, held that a caution and counsel Srore unnecessary. ‘Thus, even if the fifth amendment was employed in Won or Bram, there is a rather liberal interpretation of the waiver. Su- pra note 58, ‘Finally, she citation of Hale v. Henkel, 201 US. 43 (1906), Introduced the problem of search and seizure. 8. Speculation, however, is possible. First, the Brom reference in the text (at 18) is followed immediately by the Wilson reference in the footnote (at 15.4), but Wilson did not utilize the fifth amendment, Did Thatice Brandeis believe that all previous cases implicitly utilized the fifth amendment? If so, upon what evidence was his belief based. Moreover, f Wilson remains good law, then “compulsion” could not be Interpreted literally as "any inducement.” See note 14, supra. Second, in Hardy v, United States, 186 U'S. 224 (1902), the Court cited Bram but Mued traditional confession language and omitted any reference to the {itth amendment, not to mention the emphasis on truth, Id. at 228-30, ‘Third, Justice Brandeis cited Powers in the first group of cases, 268 U.S. fat 1b ne. In another case, Bilakumsky, Brandeis put Powers in oppo fon to ether confession cases, including Hardy and Wilson and omitted Bram altogether. 263 US. at 157 n8. Fourth, is there any significance in the omission of some cases in footnote four which were cited in foot- note three?4 ARKANSAS LAW REVIEW [Vol, 28:1 police illegalities."® It is clear from analyses performed by other scholars that the Report influenced subsequent decisions of the Court." AL Facts In Brown, prosecution testimony showed that the prisoners, all uneducated Negroes, had been beaten with a metal-buckled leather strap until they confessed to murder. At trial it was established that the whippings continued until “[t]hey changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers.”°? The deputy in charge admitted the whippings but stated his opinion that their severity was “not too much for a negro; not as much as I would have done if it were left to me."!°9 ‘The entire process of confes- sion, indictment, arraignment, trial, and sentencing took only five days. In reversing the Mississippi Supreme Court, the Court characterized the proceedings as “a mere pretense""** and “void for want of the essential elements of due process... 20° B. Opinion of the Court Mr. Chief Justice Hughes stated that the issue of the case “is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence, are consistent with the due process of law re- quired by the fourteenth amendment of the Constitution of the United States."""" In concluding that such convictions were not consistent with the fourteenth amendment, the Court explained that “the due process clause requires ‘that state action . . . shall be consistent with the fundamental principles of iberty and jus- tice which lie at the base of all our civil and political institu- tions." Since the Mississippi Court had refused to set aside the conviction because defense counsel had committed a pro- 100, Td, at 24-37, 101, See Comment, Confessions in State Courts, 26 Trxx, L, Rev, 201, 291-93 and 297 (1959); Paulsen, The Fourteenth Amendment and the ‘Third Degree, 6 Stax. L. Rev. 411, 412 n, 7 and 414 n. 12 (1954); Ritz, State Criminal Confession Cazes, 19 Was, & Lae L, Rev, 202, 202-208 (2962); and Ritz, supra note 8, at 88 n, 123, 102, 207 US. at 282, 408. Ia. at 204. 304, Id. at 286, 105, Id. at 287. See Paulsen, supra note 101, at 415; Ritz, supra note 101 at 204 106. 297 US. at 279, 10T, Td. at 286, 1974] M cedural error, th: process guarantee “mere rules of p and “wherever th exist, it will reft the corrective.” In its conclus! defendant's right pronouncing sent disputed evidence procured” and “t conviction and se supreme court's right, “fully esta was violative of d In the opini Hughes said that not here involvec tinction between crimination claus through the due the “compulsion” ‘The former is ap accused “may be Compulsion by t ter.”"2 The dic sociated with cou ‘eion associated in practice and i sion rule identity ‘The convieti supported confer 108, Id. at 287 109, Ta. 10, Id, But s Criminal Procedur 101, at 208-209 sur LIL, Id. at 285 ng 1a, 113. See text mentioned in Brot 189-91 (1952).1974) MODERN CONFESSION RULE 25 cedural error, the Court explained that in enforcing the due Process guarantees the state courts have the duty to set aside “mere rules of procedure” to protect the rights of defendants, and “wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective."108 In its conclusion the Court found that the trial court violated defendant's right to due process by permitting conviction and pronouncing sentence although it was “fully advised by the un- disputed evidence of the way in which the confessions had been procured” and “that there was no other evidence upon which conviction and sentence could be based." Further, the state supreme court's refusal to enforce petitioner’s constitutional right, “fully established and specially set up and claimed .. .” ‘was violative of due process."° C. Analysis In the opinion for a unanimous Court, Mr. Chief Justice Hughes said that “[t]he privilege against self-incrimination is not here involved."""" By so doing, he made the traditional dis- tinction between the “compulsion” prohibited by the self-in- crimination clause of the fifth amendment as applied to the states through the due process clause of the fourteenth amendment and the “compulsion” prohibited by the common law confession rule. The former is applicable to the “processes of justice” where the accused “may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different mat- ter."""? The dichotomy between the procedural compulsion as- sociated with court proceedings and the physical and mental coer- cion associated with out-of-court confessions is difficult to apply in practice and is diametrically opposed to the privilege/confes- sion rule identity posited in Bram.!'* The conviction and sentencing of these defendants on un- supported confessions, obtained by violence, was considered by 108, 1d. at 287, 109, 1a. 110. Id. But see Boskey and Pickering, Federal Restrictions on State Criminal Procedure, 13 U. Cut. L. Rev. 266, 283 1.57 and Ritz, supra note 101, at 203-208 supra, M1 dd. at 288. ua ia 118. See text accompanying notes 45-51 supra, The Bram case is not ‘mentioned in Brown v. Mississippi, See Stein v. New York, 248 US, 156, 189-91 (1952).26 ARKANSAS LAW REVIEW Evol. 28:1 the Court to be a clear violation of due process of law. Because of this holding one commentator has characterized Brown as elevating the “exclusionary rule to one of constitutional law.”"™* This argument that Brown goes beyond reliability, however, completely ignores the Court’s repeated references to the com: pulsion involved in producing the confessions and the lack of evidence other than the coerced confessions to substantiate the prosecution’s charges. It is more reasonable to give a narrower reading to the holding in Brown—it was the use of coerced con- fessions to obtain a conviction rather than the police practices per se whieh violated due process. D. Conclusion The Brown case is important in developing the chronology of confession rules because for the first time the common law confession rule was garbed in the constitutional cloak of due process. And, while the confession was clearly excludable under both the trustworthy and denial of free choice tests, the Court does not phrase the issue in terms of voluntary-involuntary, but rather whether the use of evidence obtained under the facts in Brown is consistent with due process of law. Brown was the first case in which the Supreme Court re- viewed a state court conviction involving a coerced confession. In reviewing constitutional challenges to state action it was nor- mal that the appellant invoked the due process clause of the fourteenth amendment. Likewise, it was natural for the Court to base its holding on due process because of the Court’s rejection of the theory that the fourteenth amendment totally incor- porated the Bill of Rights and made them applicable in every respect to the states, Further, based on the facts of Brown, a defendant's right to due process is violated only when a convic- tion is obtained by an uncorroborated confession, undeniably ex- torted by violence. ‘Thus, it is submitted that in Brown, due process of law includes only the common law confession rule that a defendant will not be convicted on untrustworthy evidence and that the Court elevates only the common law confession rule to one of federal constitutional proportions. While the Supreme Court extended its jurisdiction over state criminal procedure, the actual holding in Brown was limited. ‘The question of whether due process would be violated by the Tid Note, Supreme Court Review of State Findings of Fact in Four- teenth’ Amendment Cases, 14 Stan. L, Rav. 328, 398 (1962). But see Stein, supra note 113. 1974] Mo admission of a coer: before the Court. vd Between 1936 2 ceases.!"° In Chamt ants’ convictions b guards. The Cou “third degree” polic of the Wickersham on how the confe: Brown decison to i ture. The decision tion of a new doctr formulated in Lisen Lisenba and an Lisenba had been s tioning during the ‘Testimony conflicte On the last day of from jail, taken by to the District Att said nothing, Subs cafe where he mac sions at his trial. 1 of California affir United States Lese 118. 314 US. 219, 116, Canty v. Ala 580 (1940); Veron v. 318 US. 544 (1940), 117, 300 U.S, 237 118, Id. at 287-88, 95, 98 supra, Tip. Paulsen, sup 120, McCormick, 121, 314 US. at 2 duced to the effect ti ‘The Court upheld the dence was admissibl. acts may be shown t ‘The reader should tu in injury or death for 122,” Id, at 221,1974] MODERN CONFESSION RULE 27 admission of a coerced, but true, confession was still to be raised before the Court. ‘V. Lisewea v, Cauirornta (1941) Between 1936 and 1941 the Court decided several confession cases.'! In Chambers v. Florida," the Court reversed defend- ants’ convictions based on the necessity for procedural safe- guards. The Court condemned “widespread,” inquisitional, “third degree” police tactics and generally reflected the findings of the Wickersham Report." The emphasis in Chambers fell on how the confessions had been obtained,” extending the Brown decison to include psychological as well as physical tor- ture, The decision “went far to set the pattern for the applica tion of a new doctrine.” The parameters of that doctrine are formulated in Lisenba. A. Facts Lisenba and an accomplice, Hope, were charged with murder. Lisenba had been subjected to intermittent but persistent ques- tioning during the first two days of a fourteen day confinement. ‘Testimony conflicted over Lisenba’s charges of physical abuse?! (On the last day of confinement Lisenba was illegally removed from jail, taken by police to his former home and then brought to the District Attorney's office where he was questioned. He said nothing. Subsequently, he was taken to dinner at a public cafe where he made the statements later introduced as confes- sions at his trial. Lisenba was convicted and the Supreme Court of California affirmed? Before the Supreme Court of the United States Lesenba contended that the use of the confessions 118. 914 U.S. 219 (1941). 116. Canty v. Alabama, 309 U.S, 629 (1989) ; White v. Texas, 810 U.S. 530 (1940); Veron v, Alabama, 313 U.S. 547 (1040), and Lomax v. Texas, 313 US. 544 (1840), 117,” 309 US, 227 (1990) 118, Td, t 297-38, 240-41 95, 98 supra. 119, Paulsen, supra note 101, at 415. 120, McCormick, Problems, supra note 4, at 160. 121, 314 US. at 230. Over Lisenba's objections evidence was intr duced to the effect that a former wife of his also had died “accidently. ‘The Court upheld the state Supreme Court's prior ruling that such ev dence was admissible “on the widely recognized principle that similar facts may be shown to establish intent, design and system.” Id. at 227 ‘The reader should turn to Lisenba's history of “accident,” usually ending in injury or death for his wives, Id. at 23-24 122 Td. at 221, e text and comments accompanying notes28 ARKANSAS LAW REVIEW [Vol 28:1 rendered his conviction a deprivation of life without due process of law.!39 B. Opinion of the Court Writing for the Court majority, Justice Roberts affirmed Lisenba’s conviction. The opinion may be summarized in the fol- lowing manner. 1. State Law Versus Federal Due Process—Police violations of “local law” did not necessarily answer the due process issue."** ‘The purpose of state confession admissibility tests was to exclude false evidence, while resolution of the due process issue had a different point of departure. “The aim of the requirement of due process is not to exelude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”"* Unlike mere violations of local law, denials of due process were characterized by Justice Roberts as the “failure to observe that fundamental fairness essential to the very concept of justice.” Condemned practices must have “fa- tally infected the trial” as when a coerced confession is employed to obtain a guilty verdiet.12* 2 State and Federal Court Jurisdiction—When confronted by an alleged denial of due process, the Court was bound to make an “independent examination,” an inquiry not precluded by the “finding of a court, or the verdict of a jury, or both.” The Court, might review and reverse lower court findings in those cases where the evidence is “uncontradicted” by utilizing the same standards as had been applied in the lower courts. Where, how- ever, as in this case, the “evidence as to the methods employed 128. 1d. at 225-26. His four other contentions are not without in- terest. First, his argument police behavior toward him denied equal pro- tection was rejected. Id, at 226. Second, his argument that Hope's testi= mony had been false and obtained by deceit, fraud, etc, was not an ade quate showing. Id. at 227. Third, the question whether testimony re arding his former wife's death should have been inadmissible, should be left to lower court supra note 121, Fourth, the argument that the in- ‘troduction of snakes at trial inflamed jury was rejected. Id. at 226-29, 124, Td. at 235, "The gravamen of his complaint is the unfairness of the use of his confessions, and what occurred in their procurement is relevant only as it bears on that issue.” Id 125, Td, at 286 126, Td. at 236-97. Roberts enumerated instances in the past where the Court also found denials of fundamental fairness, citing (a) Brown ¥. Mississippi, 297 US. 278 (1938) (torture); (b) Moore v. Dempsey, 261 US, 86 (1823) (mob violence); (ec). Mooney v. Holohan, 294 U.S. 103 (1935) (perjury): Chambers v. Florida, 309 U.S. 227 (1889) (threats) See Bader, Coerced Confessions and the Due Process Clause, 18 BRoor= yw L. Rev. 51, 58 (1948). 1974] Mt to obtain a confes the determination in support in the € fundamental unfai 3. Application due process in the on California, “a q employed previous versed there only circumstances” fr power of the offit Lisenba was in fu the statements he + In Lisenda, t guished.” First, with reliability. lower federal cou choice!” Accord adopted either the ing could not prec question of whet denial of due prc requirement was of evidence, whet Court to answer t 127, 314 US. at 128, Id, at 239-« 129. Td. at 236. 130, Id. Throv tary” io mean free standard (that is, t ‘contentions that in tary” had been em meaning probable t ial, 314 US, 392. Td. femph Lisenba's confessio» mon concept of ord Gue process of law: foner, bel incomm Tong periods, and « serutinize the rec: police “took them « hhot coerce the con ‘mous with freedom1974] MODERN CONFESSION RULE 29 to obtain a confession is conflicting,” the Court would “accept the determination of the triers of fact, unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process.”"*" 3. Application of Standards—In order to find a denial of due process in the instant case, the Court would have to impose on California, “a quasi-sovereign”, a “stricter rule” than had been employed previously in federal courts. Convictions had been re- versed there only when confessions had been “extorted in graver circumstances” irom untutored persons in “whose minds the power of the officers was greatly magnified.” Here, however, Lisenba was in full possession of his faculties and freely made ‘the statements he did.12* Cc. Analysis In Lisenba, two categories of confession tests are distin. guished.” First, there are state court tests dealing primarily ‘with reliability. Second, there are tests fashioned for use in lower federal courts which apparently are concerned with free choice."™ According to Justice Roberts, California could have adopted either the state or federal tests, but the test of her choos- ing eould not preclude an inquiry by the Court into the separate question of whether the use of the confessions constituted a denial of due process.'®! Because the aim of the due process requirement was to “prevent fundamental unfaimess in the use of evidence, whether true or false,""*? the standards used by the Court to answer the due process question “may differ from those 127, 314 US. at 237-38. 128, Id. at 239-41. 129, Ia. at 236. 130, 14, Throughout Lisenba Justice Roberts interpreted “volun~ tary" to mean free choice, Roberts believed that free choice was the fitdaara ‘that is the “test”) in federal courts. He fails to suprort his Contentions that in each of the federal cases cited for authority, “volun {ary had been employed to guarantee free choice, or that “voluntary,” caning probable truth, In state courts is incorrect. Supra, note 88 131. 314 US, at 236. 182, 1d. femphasis added). The Court fails to find the admission of LLisenba’s confession “so fundamentally unfair, so contrary to the com- Ion concept of ordered liberty, as to amount fo a taking of life without Jue process of law.” 314 U.S. at 298, Roberts notes that “when a pris ae Phheld incommunicado, is subjected to questioning by officers for Yong’ periods, and deprived of the advise of counsel,” the Court would sefulinize the record with care.” Though the lawless practices of the police “tock them close to the fine” (Td. at 240] the police behavior did Hot coerce the confessions, Td, In Licenba, free choice is not synony- mous with freedom from all police pressure.30 ARKANSAS LAW REVIEW [Vol. 28:1 appertaining to the State's rule as to the admissibility of a con- fession.”** In cases where evidence was conflicting over the methods employed to obtain a confession after an “independent examina- tion,” the Supreme Court could determine whether the due proc- cess issue had been resolved by the confession admissibility stand- ards employed by the lower state courts." After the required examination, the Court concluded that (1) there was no violation of local law sufficient per se to constitute a denial of due process, and (2) California had correctly held that Lisenba confessed freely. Therefore, under the criteria established by the Court, the confession test employed by California courts also answered the due process question, The California courts had not con- sidered the truth of the confession as the sole test of admissibil- ity. Conclusion. ‘There are two levels of due process pertinent to confession cases. First, there are certain methods where any evidence pro- cured through their use must be automatically excluded. Sec- ond, there is a minimum due process requirement." Lower courts must find that the confessions were “voluntary,” a deter- mination reached without consideration of the truth of the con- Fession, It is submitted, therefore, that California was not ul- timately free to adopt just any state or federal test.1** In fact, California must have adopted the federal “voluntary” test that Justice Roberts unjustifiably but implicitly concludes had been the test of {ree choice." California could not have interpreted “voluntary” to guarantee only the reliability of the confession because that test would not have answered adequately the due process issue, an issue where reliability is irrelevant. Had Cali- fornia courts found the confession “voluntary,” meaning simply trustworthy, the criteria utilized in determining the due process issue would have differed from California's. When answering the due process question, the state courts, as well as any inde- 133. 14, 124, Id, at 297 and eee text accompanying note 127, supra. ‘The juris on of the Court differs in the two above situations, at least theoreti- tally, ‘Though the Court has the final say in both types of cases, a liberal Feading of conflicts in evidence proportionately extends the Court's Juris Aletion. See Supreme Court Review, supra note 114, at 339-40. 185, Td, at 238, 136. See text accompanying note 126, supra. 137, See text accompanying note 128, supra. 138. Supra note 130. 1974] pendent exa the confessi it found the be exeludec “constitutios setting asic sions.” By 194) confusing p confessions of free cho under certa fessions_mi though the seled and i tained pote enba, howe determine « an act cond In brief, th provided lit at clarificat Before 139, Her petition the tests ‘contessic 140. it that alate oc Th was, ther Ta. at 35, Ut. “Bro panying note 2. Zis Lisenba v. C 207 US, at 239-4 a8. Cor at. 18, See1974) MODERN CONFESSION RULE 31 pendent examination by the Court, would be directed to whether the confession had been “voluntary,” meaning freely made. If it found the confession was true but not freely made, it must be excluded." Thus, Lisenba marks the Court's search for a “constitutional, as distinguished from a common law, basis for setting aside state convictions based on involuntary confes- sions. "40 ‘VL Yeans or Cranirication (1941-1966) By 1941, the admissibility of confessions rested on several confusing propositions: (1) Confessions must be reliable;!* (2) confessions must be made freely, and in determining the question of free choice the truth of the confession is irrelevant;'*? (3) under certain circumstances even true and/or freely made con- fessions may be excluded; (4) confessions are admissible though the accused is in custody, unaware of his rights, uncoun- seled and interrogated." The test of fairness in Lisenba con- tained potential for disciplining illegal police conduct." Lis- enba, however, left unanswered how the Court did, or would, determine which illegal acts violated due process, and whether an act condemned in one case would be condemned in all cases, In brief, the often ambiguous standards employed by the Court provided little direction to lower courts.“ Subsequent attempts at clarification are discussed below. A. The McNabb-Mallory Rule Before the Court articulated additional confession standards 100, Her, judge and jury passed on the question wheiher the Petioners cobfdions wort faci "and’ vlan mee the tests applied in answering shat question rendeved the deue Hon one tat algo answored the question whether the use of ie Consistent with past practice the Court refused to overrule con- flicting precedents," apparently preferring the process of grad- ual sterilization. E. Fifth and Sixth Amendment Rationales Beginning with Mapp v. Ohio!" the Court applied the doctrine known as selective incorporation.\"® Moreover, the Court had given every indication’*® of reexamining those prec- edents which held that the fifth amendment prohibition against ‘compulsory self-incrimination and the sixth amendment guaran- tee of assistance of counsel had limited application to state con- fession cases.'* In Malloy v, Hogan'*? and Gideon v. Wain- wright, the Court held, respectively, that the fifth and sixth amendments were applicable to the states. Speculation on the 171, Blackburn v. Alabama, 361 U.S. 199, 207 (1960); Rogers v. Rich- ‘mond, 365 U.S, 534, 540-541 (1960); and Haynes v. Washington, 373 U.S. 503, 518-20 (1963) 172,” Comment, The Curious Confusion Surrounding Escobedo v. I~ rnois, 32 U, Cutz, L. Rev. 560, 565 (1964). 173,_ Blackburn v. Alabama, 361 U.S. 199, 207 (1960); Rogers v. Rich~ ‘mond, 365 U.S. 534, 540-41 (1961); and Culombe v. Connecticut, 367 US. 568, 583 m.25' (1961), 114, See sources note 187 supra. 115. Crooker v. California, 357 U.S, 433 (1958). 176. Compare the factual circumstances in cases at notes 170, 171 and 173, supra, with cases at note 6, supra, See also Gallegos v. Nebraska, 342'U.S. 55 (1951) and Stein v. New York, 346 U.S, 156 (1052). 177, Israel, Gideon v. Wainwright: The ‘Ar? of Overruling, 1903 Tue ‘Soe, Cr. Rev. 211 (1963), 178, 367 USS. 643 (1961) 179,_ Henkin, “Selective Incorporation” in the Fourteenth Amend~ ment, 73 Yate LJ. 74 (1983). 180, Gallegos v. Colorado, 370 U.S. 49 (1962); Wong Sun v. United States, 371 U.S. 471 (1963); Massiah v. United States, 377 U.S. 201 (1964). 161. ‘Twining v. New Jersey, 211 US. 78 (1908); Synder v. Massa~ chusetis, 291 US. 97 (1994); Palko v, Connecticut, 202 U.S. 319 (1937); ‘Adamson v. California, 332 U.S, 46 (1947); Powel v. Alabama, 287 U.S, 45 (1932); Betts v. Brady, $16 U.S, 455 (1942); Crooker v. California, 387 USS, 433 (1958) 162. 378 US. 1 (1968) 188, 372 US. 395 (1968).36 ARKANSAS LAW REVIEW {Vol 28:1 effect of these decisions on confession cases was answered shortly in Escobedo v. Ilinois'™ and Miranda v. Arizona.!*® ‘The holding in the latter case may be summarized. First, before a person in custody may be interrogated he must receive a four-fold warn- ing from police, “that he has a right to remain silent, that any- thing he says may be used against him, that he has a right to have present an attorney during questioning, and that if indigent he has a right to a lawyer without charge." Second, while an accused may waive these rights, the waiver must be intelligent and knowing—the burden of proof resting squarely on the state# ‘Third, the Court condemned those police tactics de- signed to threaten, trick or cajole an accused out of these rights."** Fourth, interrogation must cease when desired by the accused or when a lawyer is requested.'®* Whatever weaknesses exist in Miranda," it provided rigorous standards for police interrogation and confession admissibility. Ambiguity no longer characterized the Supreme Court doctrine on confessions. ‘VII. Escoszpo anp Miranna: ANALYSIS AND CriTiqQuE By 1966, the Supreme Court voluntary confession doctrine had evolved from a prohibition against use of false evidence, to the guarantee of free choice, to, finally, assertion of fifth and sixth amendment rights. In view of this transition, corollaries constructed and used to guarantee voluntariness (that is, prob- able truth) could not be applied subsequently to assure volun- tariness (that is, free choice). Corollaries associated with either “voluntary” definition were ultimately irrelevant as voluntari- ness faded before fifth and sixth amendment rights, This fact 184, 373 US. 478 (1984). 185. 384 U.S, 436 (1900). 186. Id. at'504 (Harlan, dissenting). This summary is the most con- cise found, but, for a review of the specific holdings see Miranda, 384 US. at 444-45, 407-77. 100, The waiver ia the next issue of contention, that is, whether the accused waived his rights voluntarily, knowingly and intelligently. | See ‘Thompson, Detention After Arrest and In-Custody Investigation: Some Ezelusionary Principles, 1966 U. Tut, L. F. 390, 420 (1900); Nedrud, The New Fifth Amendment’ Concepts: Self-Incrimination Redefined, 2'Nat. Dist, Arr, Ass. J. 112, 115 (1868); Rothblatt and Pitler, Police Interro- ‘gation: Warnings and’ Watvers—Where do We Go From Here, 42 Noms Danen Lawven 479, 489 (1967); Warden, Miranda—Some History, Some Observations and Some Questions, 20 Vax. L. Rev. 39, 47 (1968); and Comment, Consent Searches: A Reappraisal After Miranda v. Arizona, {81 Cot. L, Rav. 180, 138 (1967). 1974] ™ was made abunde defendant’s state: terms. Our conc: fifth amendment ee A shift from parallels the evo once there are co: or innocence,'* t cept of justice th: larity becomes ar Jonger is consider to more recent d examine critically Miranda.™ Whi shed light on thos, approach. It tres berg in Escobedo equally to Miranc strable there bee: of the Chief Justi ‘The first pre stitution,” not ar of the fifth and : tion with, for exe 191. Miranda y 192, Packer. T 1,17 984). 193, Blackburr 194, Packer, su pense of Truth.” A 1, Kaw. L, Rev. 421 195, See text a 198, 378 US. 4 107, 384 US. 4 198, 378 US. 8 109, 34 US. 4 200. Escobedo vy, Arizona, 384 UE ‘201, Bacobedo 202, The Sovir1974] MODERN CONFESSION RULE 37 was made abundantly clear in Miranda: “We might not find the defendant's statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious fifth amendment rights is, of course, not lessened in the slight- etn A shift from “factual innocence” to “legal innocence” also Parallels the evolution of the confession doctrine.®? In brief, once there are considerations that transcend the question of guilt or innocence, *** the Court constructs and enforces a broader con- cept of justice than had been used in the past. Procedural regu- larity becomes an essential facet of justice, and factual guilt no longer is considered an integral component.** Before proceeding to more recent developments,i* it is necessary to analyze and examine critically the underlying assumptions in Escobedo! and Miranda." While the minority and other commentators have shed light on those cases, this analysis takes a somewhat different approach. It treats specifically only the opinion of Justice Gold- berg in Escobedo v. Iinois.°* While the critique is applicable equally to Miranda, the premises are not as economically demon- strable there because they are scattered throughout the opinion of the Chief Justice." A. Those Precious Rights a, jaOut Constitution, unlike some others, strikes the balance in favor of the right of the accused to be advised of his privilege ainst self-incrimination, 209 ‘The first premise in Escobedo and Miranda is that the “Con- stitution,” not a majority of Justices, defined the specific meaning of the fifth and sixth amendments.*"' Comparing our Constitu: tion with, for example, that of the Soviet Union,” Goldberg cites 191. Miranda v. Arizona, 304 U.S. 436, 457 (1966). 192, Packer. Two Models of the Criminal Process, 113 U. Pa. L. Rav. 1,17 G64). 193. Blackburn v. Alabama, 361 U.S. 199, 206 (1959). 194 Packer, supra note 192, at 16-17, and Snyder, Justice At the Ex- pense of Truth: A Comment on the Opinion in Rogers v. Richmond, 10 ‘U. Kaw. L, Rev. 426 (1962). 195. See text and comment accompanying notes 268-300 infra, 196, 378 U.S. 478 (1964). 197, 384 U.S. 436 (1966). 198. 378 US. at 458-01, 199. 384 U.S. 436 and 436-92 (particularly at 479-82), 200. Escobedo v. Ilinois, 378 U.S. 478, 488 (1964), See also Miranda v. Arizona, 384 US. 436, 477 (1966) 201. Escobedo v. Minois, 378 U.S. at 488, 489 n.11; infra, note 251, 202. The Soviet Union represents an “inquisitorial” system of gov-38 ARKANSAS LAW REVIEW (Vol. 28:1 the presence of the privilege against self-incrimination and, sub- sequently, the “assistance” of counsel in a “criminal prosecution.” Our Constitution, however, defines the relevant terms (“com- pelled,” “witness,” “assistance,” and “criminal prosecution”) with no more precision than the definition of “unreasonable” in the fourth amendment. Rather, in performing its function, the Court developed criteria for ascertaining the text's meaning, at- tempting not only to discover the original usage of terms but to apply the pertinent principles to existing circumstances." Accordingly, in these cases, the majority contrary to precedent, defined the pertinent constitutional text to guarantee certai rights and enforce these definitions by the exclusionary rul ‘The majority, however, not the Constitution, demanded it. B. Lessons of History: Imagined and Real Lesson 1 We have learned the lesson of history, ancient and modern, ‘hat a system of eriminal law enforcement whieh comes to de- pené'on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on e: frinsic evidence independently secured through skillful invest gation... 207 1, Lesson Misconstrued—Condemnation of confessions is by no means consistent with the “lesson of history” purportedly summarized by Justice Goldberg.*"* If the great bulk of histori ‘ernment, while ours is “accusatorial” in nature, The comparison is evi dent alsd in Miranda v, Arizona, 384 U.S, at 477. 203. U.S. Const, amendments IV, V, and VI. 204. McCulloch v. Maryland, 17 US. (4 Wheat.) 316, 407 (1819). In Miranda, Justice White outlined the function of the Court as the inter= preter of the pertinent constitutional text. 384 U.S. 486, 531 ‘205, See Friendly, The Bill of Rights as a Code of Criminal Proce- dure, 38 Cat, L. REV. 929, 944 (1965): English, Lawyers in the Station House, 51 J. Cunt. L. Co. & PS. 283, 204 (1986); Pope, Escobedo, Then Miranda, and Now Johnson v. New Jersey, 5 Ane. Cum LQ. 72, 15 (1967); and Warden, supra note 190 at 70-71. 206, Robinson, Massiah, Escobedo and Rationales for the Exclusion of Confessions, 58 J. Crime. L. Co. & PS. 412, 427. 207, Escobedo v. Mlinois, 378 U.S. 478, 488 (1964), 208, Professor Robinson's “thesis” is pertinent for “the reach of cur- rent confession exclusion doctrines can be justified only in terms of pro- tecting the interests of guilty defendants desiring to avoid conviction.” Robineon, eupra note 208, at 424, The contention that “effective repre- sentation at trial means winning” should not be dismissed. Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Oo STATE LJ, 449, 497 (1064). How else may one interpret the Miranda position that exculpatory statements must be excluded because they could be used to “impeach his testimony at trial or to demonstrate untruths in ‘the statement given under interrogation and thus prove guilt by implica 1974] ™ cal experience, a1 confessions obtait confessions, show. surrounding the distinguishing a : it, a facet of confe 2 Effect of often have been exist to confirm Goldberg speaks pendency on cor under fatal ind covered facts. It law enforeement is “less reliable” investigation?" or that abuses o¢ demn the use of Goldberg paying if “modern” hist fs the irrelevanc Chief Justice: evidence produce tion?” s84US. 47 28 and 89, supra. 200. See ‘Wrox been the essential however, the Cour never discusses Ese dently was not coe) ‘See Wilson, Crime 291, 298 (1966). 7 Escobedo's stateme: Ta Miranda, th 384 US. at 457, 36 the doctrine of vo ‘but on the fifth am ination. 384 U.S. ‘question raised by amendment, contr: pressure, 384 US majority resorted ‘exclusion of such $ 210, As with " fine “abuses.” “Or amendment did “a Ian, supra note 209 ‘M1. Enker anc 212, 3640S. at40 ARKANSAS LAW REVIEW [Vol. 28:1 3. Lack of Empirical Data—When read in its entirety the quoted paragraph assumes that “extrinsic evidence independ- ently secured though skillful investigation,” can be obtained in all cases; that such evidence is more reliable than “‘the ‘confes- sion,” and that it in fact would be sufficient to convince a jury fof guilt beyond a reasonable doubt.¥* In support of such as- sumptions Goldberg offers neither statistical data nor the test ‘mony of practical experience.™™* Lesson 2 We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizen’s abdica- ton through unawareness of their constitutional rights. No sys- tem worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, ‘nd exercise, these rights. If the exercise of constitutional rights ‘will thwart the effectiveness of a system of law enforeement, then there is something very wrong with that system. 1. Underlying Premise—The “constitutional rights" several times alluded to in this paragraph appear to be none other than ‘those announced for the first time in Escobedo.""® In fact, the “companion lesson of history” acquires meaning only in the con- text that the “constitutional rights” detailed by Goldberg for the first time always existed*"? Goldberg certainly did not arrive 21a, Miranda v. Arizona, “That quote suagests if only police ‘will work a litle harder they can get this extrinsic evidence; hat "really there is'no need for confession; all we need 18 @ policeman who will be a policeman instead of a third-degree Under bright lights, if you will” Kamisar, Has the Court Left the Attorney General Behind? ‘The Bazelon-Katzenbach Letters on Poverty, Equality and the Administration of Criminal Justice, 54 Ky. LJ, 404, 501 (1905), 214, Friendly, eupra note 205, at 955 n.138. In addition, refer to De- velopments, supra note 3, at 941-044; Miller, Balancing the Rights of the Accused and the Public, 53 Ast. B. Ass, J. 1048-48 (November, 1967); Robinson, supra note 206, at 425, 428-20; Barrett, Potice Practices and the ‘Lax—From Arrest to Release ot Charge, 50 Cat. L, Rev. 80 (1962); Cralg, To Police the Judges —Not Just Judge the Police, 81 J. Cums, LC. & PS, 310 (1968). 215, Bicobedo v. Ilinois, 378 U.S. 478, 490 (1964). 216. In Escobedo, the Court held that the accused has an absolute right to silence; that & “criminal prosecution” is initiated when the police investigation “focuses” on the suspect; that the “assistance” of counsel apparently includes the role of tactical advisor; that advice of counsel to remain silent, both between arrests and the gesture to Escobedo at the police station, were insufficient to qualify as “sssistance;” that before ‘questioning, the accused must in effect waive counsel. Escobedo v. IIli- ois, 378 US. 478, 485-86, 488, 494 (1964). 217, ‘The Courts have assured us, again and again, that our un- derstanding of the right against compulsory self-Incrimination 1s 1974] MC at this lesson afte ‘where the system. upon “abdication { rights analogous t existed. If historic ently considered s0 2A Moral Le seribed by Goldber, system of justice = the American is “v depends for its effe independently sect Court asks only thi constitution” by thi dently feared that amendment rights effectiveness of lav quite firm in mair and irrelevant. If thwart the effectiv there is ‘something’ cee Seting “Ghat the meats. Freee ote ate pect) oem gar aes eee eee Set rere err ene a ere nae sores ment es renee aes os ee Ee ee sens Eo orc ane pees eto Genes cine angen ay eee1974] MODERN CONFESSION RULE 29 cal experience, ancient and moder, teaches anything it that confessions obiained under particular circumstances, not tnt confessions, should be received with great caution’ Tre ey Surrounding the admission of confessions was the diffeaen distinguishing a proven confession from the process of preps ita fact of confession history ignored entirely by Galdgeree 2 Effect of Dependeney Upon Confessions —Contesions often have been found to be inherently believable and menos exist to confirm their trustworthiness Tm Breobedn, noes Goldberg speaks only of dependency on the confession’ wate endeney on confessions that are unreliable becuse oven, under fatal inducements or unconfirmed by subsequent et covered facts. It is misleading to imply, as Galdhers dees law enforcement that depends on perfectly reliable women is “less relinble” than law enforcement that depends oo cena investigation** The fact that some eonfesions are ere or that abuses occur, had not been sullicient previously tee demn the use of all confessions. Tn fact, iti surprany oy Goldberg paying any attention tothe reliability of cosfeginnt if “modem” history from 1941 to 1968 contain any "ies is the irrelevancy of reliability. As subsequently pur cn Chief Justice: “The existence of independent tf evidence produced at trial i, ofcourse, irrelevant it tion?” 384 U.S. 476-77. Compare text and comment accom 28 and 49, supra. 209, See Wiemone, supra note 3. Some argue that tree choice hax been the essential ingredient for confession admissibility, tn feco as however, the Court argues thet coerced confessions are unaicee never dideusses Escobedo's statement in free choice terms, reine 2d dently vas not coerced into saying that DiGerlando, nat he set agent See Wilson, Crime, The Courts ond the Police, 57'J- Cue eer 291, 293 (1986). The dissenters in Excobedo, 378 US at iol soc BS Escobedo's statement had been “voluntary” in traditional street J Miranda, the Court did demand that confessions be Icey made as US, at 451, 404-85. "Yel the thee choice requirement wie ate {he doctrine of voluntariness (see text accompanying nate lal, mu but om the fitth amendment’ probibtion against compulsory soy erm) ination, “364 US. at 460-61, In fact, the majonty never ange ee Question raised by Justice Harlan, that is, why”, “Competed i epi amendment, contrary to precedent, had to be interpre fo ni pressure, $84 U.S, at 506-007, 513. In the final ahalveig ie majority’ resorted io authority, that is. the “Constitute? exclusion of such statements. “See 384 U.S. at 470, 210, As with ‘voluntary and “extort.” it depends on how you de- fine “abuses” Only under the Miranda Cott seating ike at amendment did “any pressure” become an abuse, See releencce it lan, supra note 208. BLL. Enker and Elsen, supra note 4, at 62, 22, 364 US, al 481 052, any required the1974] MODERN CONFESSION RULE 41 at this lesson after painstaking examination of past societies where the system of justice had depended for its effectiveness upon “abdication through unawareness” of its citizens’ rights, Tights analogous to those announced. Such a society never existed. If historical evidence is available, this lesson is appar- ently considered so well known that no evidence is offered!" 2. A Moral Lesson—Rather than historical, the lesson de- seribed by Goldberg is moral. It deseribes what an “accusatorial” system of justice should be like. Only systems of justice like the American is “worth preserving” because, unlike “others,” it depends for its effectiveness upon the use of “extrinsic evidence independently secured through skillful investigation.”"* The Court asks only that the nation live up to the ideals put in “our constitution” by the Founding Fathers. In the past, Justices evi- dently feared that by giving full meaning to fifth and sixth amendment rights the Court would have been detrimental to the effectiveness of law enforcement. Justice Goldberg, however, is quite firm in maintaining that such “fear” is both unfounded and irrelevant. If the rights required by the Constitution “will ‘thwart the effectiveness of the system of law enforcement, then there is ‘something’ very wrong with that system,” pendent nen hkl, Chie Fantze Warren tor exampig Seti tht The ight Yves "hued eneseg ar", for example Hated hat ine “reasons for his nchustrria 1 Cua Re ie Recetas presresece sae yee comston and of hlioy."Hitolata have steely” doped Gg eee spite reliance of juste upon thes. “Tate Gea ey Se, forging of the sigh “Ene than Sot The point here isnot tat the cclusons reached by Levy are val bout cnly Bhat is was the ast book on tee neetes 218, Goldberg, writing the majority opinion in Escobedo v. Illinois, a8 Us, i, a0 C100) sted Wipe for ahah ape Hla Cult fo comelude with Distice White af 918 US. ws Yauner tg cats that Wigmore provides nt an “ioe of soporte nee ON) Fellance'on Wigmore ail a open to question, inate ee tae Cully surrounding: Wigmore use of the terra “ranked i, fd “joure of pont there are the cotuideretone ae ag Concetned primarily with insocence in confonion eases eat more stringent standards for the admissbiigy of conse, pose Bowed tse ofthe exelusonary rule to semedy ggantemons: (©) ope pre note 8 Tin Miranda the Chlet Justice otfred other evidence sich as PBL practices the English Judges Hele and sine Sedona ease {oreign countries In each instance, horever, the Ce tera eee which i tie tinal anaiyasrendess the esaogies Seis Ses Boe a Be 521-42 (dlsentng opinion) ‘Stephena: the Seems Cousens ‘ions or Gun (1918) 193-1), ‘The relevancy of us wen eae {Tonal eiera Is doubit, ‘See text aeompariiey caso Bio Supra otes 201, 213;inj noe 9 420, Supra note 216°42 ARKANSAS LAW REVIEW [Vol. 28:1 ‘This is a truly extraordinary position. First, by implication, past attempts of the Court to define the meaning of the fifth ind sixth amendments, with an eye on practical consequences, are deemed misguided if not inherently unconstitutional. The Court, Goldberg implies, simply does not have the power to com- promise on the meaning of the amendments. This view is echoed In Miranda where the Chief Justice contends that ‘the Constitu- tion has preseribed the rights of the individual,” striking in favor of the accused the “balance” between individual rights and effec- tive law enforcement.*#! Second, should the rights defined in Escobedo for some reason in fact jeopardize the effectiveness of law enforcement, the loss in effectiveness does not necessitate re-examination of the rights proclaimed. Escobedo and Miranda fare not open to this type of evaluation unless “our Constitution,” which establishes these rights, is questioned through the amend- ment process.*#? The traditional but implicit view, that the pre~ Cise definition of rights should and must be judged in the context of existing circumstances simply is discarded as heresy. It is re- placed by another working premise: “That in the end life and iberty can be as much endangered from illegal methods used to conviet those thought to be criminals as from the actual crim- {nals themselves.”*"* C. Reconstruction of the Modern Confession Rationale For Justice Goldberg, as well as Chief Justice Warren, a morally superior system of justice does not depend on “the con- fession” but instead requires dependence upon skillful investiga tion2!* Goldberg and Warren appear to utilize concepts articu- lated and developed most clearly by Justice Frankfurter. Justice Frankfurter had put forth the view that through a proc- ess of ethical maturing a system of justice becomes “civilized,” ‘221, 384 US, at 479, In traditional political philosophy there is a “peat fegime.” if for one reason or another the “best regime” cannot be actualized, “other” regimes are both legitimate and worthy of preser- pesion. Less than perfect regimes are to be preserved in order to retain SAAT justice they provide until and unless the obstacles can be overcome, ‘Staves, Naronat Rica aND History 138-40 (1953) O22, Miranda v. Arizona, 284 U.S. 436, 487 (1966); Friendly, swyra note 36. ‘228. Speno v, New York, 360 U.S. 915, 320-21 (1959) Zot, See text accompanying note 207, supra, With respect to the moral foundation of Justice Goldberg's remarks see Devetopments, supra Fote b, at 941-944; Robinson, supra note 206, at 414-16, 420-21; Herman, Renee note 208, at 497-800; Finley, supra note 6, at 399-97; and Note, 10 Rooms L. Rev, 111, 194-29 (1968). 1974) M evolving from ing lessons gleaned ti realizes the existe of tenderness for certain stage of civ system becomes pa zation is reached ¥ instrument of his « cured illegally. Ir cures conviction of selves to a prog essential componer ““The quality of a methods it uses in t ‘The many face 225. On the sim views see Robinson, 391-98'end Miran mands of an ‘advers rome Court ofthe Ur 226. Stein New “me statement that sales ofthe criminal on Tals fact wes Culombe v. Connetic forreconele the tf inc sma peablere ton, The Deve of D Tran 33 Oem. B Gaistional” often dep therpractoes employee spon rig analyte S ‘urrmgeand dientng ‘fon a883) cals 221 McNabb ¥. U Matey v. Obi, 2 US Tiana 398-08 4 tn, 100.201 C082)" finten On te ae tor eceent nthe the demands of due belie that the peivilog teceaary in a evils mised that the precede ear tystem of Juste, :dlemma is pea MUS. 25 (oid) and bee Miranda « vali and State Cr1974] MODERN CONFESSION RULE 43 fxolving from inquisitional to accusatorial in nature." From lessons gleaned through bitter historical experience a society realizes the existence of certain standards of decency, “not ory Of tenderness for the accused but because we have reached ¢ certain stage of civilization.”=* Progress toward the accusaterial instrument of his own convietion nor convicted on evidenee sc, cured illegally. In such a civilized society, the government co. sures convietion of the guilty “by methods that commend them, felves to a progressive and self-confident society." The SSapntial components of this rationale were quoted in Miranda: ath auality of a nation’s civilization ean be measured by the ‘methods it uses in the enforcement of its criminal laws? "2" ‘The many facets of the accusatorial or adversary system of Robinson, supra note 206, st Comte’, fact a8, Tecognized “apparently by Justice Prankeqee tt eres X, Connecticut, 367 US, 566, 663 25 (Bet), where tees Taratgancile the two poles of the dilemma, "in Escobed, the Cee on The engtlems with respect to use of the term "focus See These Tran tS UG OF Due Process im Criminal. Detection, Detertin ae quits: Giz, ls REV. 657, 672 (1966). In brief, the mesma ey ame Tre prsctegttte® depends more on whether or not a writer anerres po neues employed and how intensely he felt about them, seerey the Lponlsid analysis. See Watts v. Indiana, 338 U.S, 48, 061 (aie oe Fr Tansee saasenting opinion); Stein v. New York, 948 U.S. 198, Soa 97, 199-200 (1952) (dissenting opinion) ey, MeNabb . United States, 318 US. 392, 344 (1943), See also Fee ONS, 882 US. 556, 605-608 (1048) (contursing opmions Wee? 156 oc ee Ab 58-54 (1949); and Stein v, New York, 24a" Bis the Hoseeagnt gd the inherent limitations on judicial interpreeloect Pnficrimands of due process. On the other hand, they reveal nee tn Pellet that the privilege and the acceptance of the exclusioeery. ale se Mined tt tae pulled” system of justice. Justice Frankfurter seerre Due aytiat the precedent for which hie had sich great respect lente tig dea Cf tustice, under his criteria, ap uncivilized. “The det oe S38 Carne PeTbaps most ebvious in his opinions in Wolf vs Ginter 5398,US. 25 (1949) and Rogers v. Richmond, 305 U.S 334 (oat) ism and gtiranda v. Arizona, 364 U.S, 486, 480 (1988): Schaeter, Fed- ratiem and State Criminal Procedure, 70 Hanv. L. Rev. 1 36 caases4 ARKANSAS LAW REVIEW [Vol. 28:1 justice have been described in the “Due Process Model,”** and the values elevated in the Model are considered essential to the “nature of a free society,” anything less ‘‘jeopardizes that society itself." Consistent with this position, Goldberg in Escobedo and Warren in Miranda argue that the Founding Fathers were aware of and subscribed to the features of an accusatorial sys: tem of justice. The Founders well understood the lessons of history purportedly stemming from dependency on confessions. In effect, the fourth, fifth and sixth amendments were incor- porated into the Constitution in order to establish what is now considered the nature of a free society. ‘The Bill of Rights was intended to assure the preservation of individual liberty, serving as an absolute bar to the potential abuse of governmental power." The Court, therefore, is obliged to make concrete these individual rights as soon as and as fully as possible. Full imple- mentation may be accomplished by eliminating existing barriers to the exercise of these rights, namely, ignorance of their moral correctness and constitutional origin.2%* D. Critique It is contended here that the assumptions of the Court re- garding the nature of the American political tradition, the accus- atorial system of justice and the lessons of confession history can- not be supported by evidence that is in accord with what until recently were accepted canons of scholarship.’ Indeed, in the process of constructing procedural “safeguards,” the Court has 229. See Packer, supra note 192, at 6, 17. 230. Note, supra note 224, at 137. 231, Miranda v, Arizona, 384 U.S. 436, 460 (1968). For a critical ap- praisal of this view of the American political tradition see Kexpatt, ax Caney, Tux Basic Svamors or Tux AneniCan POLITICAL TRADITION (1070) For works that generally support these views see Rossires, Tus Finer AMBHICAN REVOLUTION (1961); FRAENKEL, THE SUPREME COURT AND CIV Limes (1960); Seicen, Tue: Sureeate COURT AND FUNDAMENTAL Fi pons (1959); SuiwentaNb, Consrvumionatisar I AMERICA (1965), 22. 304 U.S, at 480; Packer, supra note 102, at 16 233. Contrast Touchy, The New Legality, 68 ABA. 544 (1961) with ‘Turnbull, Another View of the ‘New Legality’, $8 ABA, 1015 (1967) With respect to workmanship see Kurland, 1970 Term: Notes on the Emergence of the Burger Court, 1971 Sur. Cr. REV. (1071), at 144-45; Choper, On the Warren Court and Judicial Review, 17 Cami. UL. Rev, 20 (1961) ; BiexsL, Tux Suen Cour axp rae IDEs oF Proctrss (1070) Brent, Tus Lear Dancenous Branci (1962); Barron, The Ambiguity of Judicial Review: A Response to Professor Bickel, Duxk 1.5. i01 (G90); Doykin, The Constitutional Doctrine of Incorporation, Re-F:-~ amined, U.S. Prax. L. Rey,, at 61-69 (1970); and Wright, Professor Bickel, ‘The Scholarly Tradition, and the Supreme Court, 64 Hany. L. Kev, 769 (1970). 1974] i been forced to iy questions associ: the problem of tt 1, Natural R ponent, if not t trine, constructs what is commot and aspirations." sake of private) of natural law, {s the common ¢ law is determin him is, in the le uutilities.”* As not in. . . justi or ‘rules of the g ‘There is no private utility. good and the ge that the former any indication c identification of assurance that would fit togetk of a community eventually was visible hand,” 2 self-regulating } and individual hand makes unt good, the belie faith.2% ‘These to the Escobedo 2. The Firs bedo, as well ¢ 234, 384 US, vicisnt (1969) at « 238, See Nim ‘Twe Poscte Tiere 26, Id at 6, 231. Lasteazc Loexe 188 (1918) 28, NieMEve 29. Td,1974] MODERN CONFESSION RULE 45 been forced to ignore elements of reality and, hence, suppressed questions associated with practical experience, most obviously the problem of the common good. 1. Natural Rights Inheritance—John Locke, the foremost ex- Ponent, if not the author, of the modern “natural rights” doc- ‘rine, constructs a concept of political community based “not on what is common to men but rather on men’s individual needs and aspirations.” For Locke, civil society exists simply for the sake of private utility, and while he acknowledges the existence of natural law, “it is no longer the substance of the dike that is the common element of men, The content of Locke's natural law is determined by pleasure and pain, so that natural law for him is, in the last analysis, nothing but an aggregate of private utilities." As conceived by Locke “civil society . . . centers not in. . . justice but rather, in calculable, manipulable legality, or ‘rules of the game’ "28¢ ‘There is no concept of common good transcending individual private utility. ‘Locke did not distinguish between the common good and the good of each separate person, but assumed always that the former included the latter. ... Locke does not give any indication of having realized that there is a problem in this identification of private and public interests,’"="* Without an assurance that “somehow the strivings of individual appetites would fit together into a whole, one could not go on conceiving of a community based on private utility."""* ‘This deficiency eventually was remedied by Adam Smith’s suggestion of an “in- visible hand,” a suggestion that provided “the assumption of a self-regulating harmony between individual appetitive activities and individual satisfactions.” While the concept of an invisible hand makes unnecessary specific political action for the common good, the belief in the self-regulating harmony is an act of faith. These criteria, it is submitted, are applicable equally to the Escobedo and Miranda majority opinions. 2. The First Act of Faith: Skillful Investigation—tn Esco bedo, as well as Miranda, a gap exists between the command 234, 884 US. at 442. See Vorceuin, Science, Porrmics AND AcNos- ‘Ticisat (1969) at 44 for discussion of the common good. 25, See Numexvm, Public Interest v, Private Utility in Nowos V: ‘Tue Pustic Iremnesr (1962, ed.) 5-8, 236. Id. at 6. 237, Lanrmicur, Tw Monat axo PouricaL Puttvosorny or Jon Loci 135 (1918). 238. Nreaeves, supra note 235, at 7. 239. Td,6 ARKANSAS LAW REVIEW [Vol. 28:1 that “constitutional rights” be exercised and the assurance that such exercise will not adversely affect the common good. Fur- thermore, it is asserted in Escobedo that if police work was af- fected adversely, something was “very wrong with that sys- tem."“° Two questions must be raised: (a) What evidence exists to support the contention that the Court’s fifth and sixth amendment definitions would not handicap law enforcement? () What precisely is “very wrong with that system” that pre- vents, as an alternative, questioning the wisdom of the Escobedo and Miranda holdings?" ‘The Court answers both question simultaneously in Escobedo by invoking an invisible hand, that is, a new self-regulating har- mony, the specific content of which is the admonishment to police to depend upon methods other than police-obtained confessions to secure convictions, Briefly stated, if the exercise of “consti- tutional rights” thwarts police effectiveness, this loss reveals pre- cisely that “something” which is “very wrong with that system,” that is, the unwillingness of police to pursue the more difficult but infinitely more “civilized” course of action—the search for “extrinsic evidence independently secured through skillful inves- tigation.” The fact that Goldberg, as noted, presented no evi- dence to support the viability of skillful investigation to replace police interrogation is part of the majority's act of faith"? For, if after further study, the invisible hand of skillful investigation proves to be inadequate to assure police effectiveness in some or many cases,* there is no reason to conclude from Escobedo 240, See text and materials accompanying note 216, supra. 241, See text and materials accompanying notes 218, 231, supra. 242, See note 214 supra. 243, ‘The Court failed to meet the problem of police interrogation. For several examples of the critical literature see sources listed at note 214, supra, and Gang, ‘And Set the Guilty Free,’ 8 Taz Pxosecuron 479 (1813). As noted by Judge Friendly, supra note 206, at 955 n.13B, it is Impossible to know what evidence is sufficient to convict until the trial is conducted and the verdict rendered. Even if the more apparent diffi- culties surrounding the viability of skillful investigation can be over- ‘come, practical questions remain such as a) are there in fact enough po- Ice trained sufficiently both to recognize and pursue independent evi-

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