Confessions

Developments in the Law: Confessions
Source: Harvard Law Review , Mar., 1966, Vol. 79, No. 5 (Mar., 1966), pp. 935-1119
Published by: The Harvard Law Review Association
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DEVELOPMENTS IN THE LAW
CONFESSIONS
Ours is the accusatorial as opposed to, the inquisitorial system ....

[S]ociety carries the burden of proving its charge against the accused
not out of his own mouth . . . but by evidence independently secured
through skillful investigation. - Frankfurter, J., in Watts v. Indiana,
338 U.S. 49, 54 (949).
[O]ffenses frequently occur [in wlickl . . . nothing remains --if
police investigation is not to be balked before it has fairly begun - but
to seek out possibly guilty witnesses and ask them questions . . .
[S] uck questioning is often indispensable to crime detection. - Frank-
furter, J., in Culombe v. Connecticut, 367 U.S. 568, 57I (I96I).
TABLE OF CONTENTS
PAGE
I. INTRODUCTION ... . . .938
Police Interrogation Practices . . . .939
I. The Issues . . .939
(a) The Extent of Coercive Interrogation ....... ........... 939
(b) The Desirability of and Need for Noncoercive Interrogation 941
(i) Desirability ........... ............................ 94I
(ii) Need ............................................. 94I
2. Varieties of Interrogation .................................. 945
(a) "Field Interrogation" ......................... .9 45
(b) After Arrest .......................... .9 45
(c) After Preliminary Hearing ................ .9 47
(d) The Formal Interrogation ........... .. ................ 947
(e) Conclusion ......................... . 95I
II. THE THEORY OF ADMISSIBILITY OF A CRIM
COURT STATEMENTS . ............................................
III. SUBSTANTIE RULES GOVERNING THE ADMISSIBIMITY

A. Voluntariness ............................................... 954
I. The Common Law Rules .................................. 954
2. The Common Law Rules in the Federal Courts .............. 959
3. Due Process and Confessions ........ ...................... 96i
(a) Due.Process and Testimonial Reliability ...... .......... 964
(i) The Early Cases ......... ......................... 964
(ii) Beyond the Common Law Rules ....... ........... 966
(iii) Beyond Reliability .............. ................. 968
(b) Due Process and Police Practices .......... ............. 969
(i) "Outrageous" Conduct ........ ..................... 970
(ii) "Illegal" Conduct ......... ........................ 97I
(iii) "Unwarranted" Conduct ........... ............... 972
(c) Due Process and "Free and Rational Choice" ...... ........ 973
(i) Definition ............. .e .......................... 973
(ii) The Suspect's Powers of Resistance ....... .......... 974
(iii) Special Weaknesses .............. ................. 976
(iv) Knowledgeableness .............. ................. 977
(v) Bargaining ............ ........................... 978
(vi) Trickery .................. ...................... 980
(vii) The Right to Silence ........ .................... 98
935

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PAGE
4. Interrogation and the Privilege Against Self-Incrimination .... 982
5. Conclusion . ............................................... 983
B. Confessions Obtained During Illegal Delays in Arraignment ...... 984
I. The Genesis of the McNabb Doctrine ........ ................ 984
2. The Policies Underlying the McNabb Doctrine ........... ... 985
3. Application of the Doctrine ............................... 988
(a) Definition of Arrest ................ ................... 988
(b) Inapplicability of 5(a) Because Detention on Another
Charge Was Lawful ................ .................. 989
(c) "Unnecessary Delay" .. ................ .................. 989
(i) Delay for Interrogation ....... ..................... 989
(ii) Other Justifications for Delay .........99............ i
(iii) Waiver of Right to Prompt Arraignment; Effect of
Presence of Counsel . .................. 092
(d) Confessions Obtained Before Detention Became Illegal .... 992
(e) Federal-State Problems ......... ....................... 992
4. Evaluation ......... 994
C. Confessions Obtained in the Absence of Counsel . . . 996
I. The Development of a Pretrial Right to Counsel . .. 996
2. Massiah and Escobedo .. . 998
3. The Implications of Escobedo ..O...
(a) Request for Counsel .. I002
(b) Fifth Amendment Warning . . 1003
(c) The Dimensions of the Right to Counsel . . I005
(d) Waiver and Warning of Right to Counsel . . ioo6
4. "Focus" and "Purpose". .. I007
5. Questioning by Authorities Other Than the Police . .. I2
6. Retroactivity . ............................. 1013
7. Evaluation: Policies Supporting a Right to Counsel During
Police Interrogation ........................... ............ IOI4
(a) The Trial-Pretrial Equation . ......................... IOI4
(b) Equality Among Accused Persons . .ioi8
(c) Implementing the Voluntariness Standard . .ioi8
(i) Prophylaxis Against Coercion .ioi8
(ii) Furtherance of "Free and Rational Choice. . I020
8. Evaluation: The Balancing Problem . . . I020
9. Evaluation: The Legislative Alternative . . . I022
D. The "Fruit of the Poisonous Tree" I.. . . . 024
I. The Reason for Exclusion . . . I024
2. Confessions Obtained Through Unconstitutional Arrests and
Searches. . . I025
3. Confessions Induced by Confrontation with Unconstitutionally
Obtained Evidence ............... 1026
(a) Real Evidence . . 1026
(b) Prior Confessions . . 1027
4. Real Evidence Obtained Through Inadmissible Confessions 1028
5. Use of Inadmissible Confessions To Impeach .1029
IV. THE SCOPE OF THE EXCLUSIONARY RULES .1030
V. TACIT ADMISSIONS: REACTIONS OF THE ACCUSED TO STATEMENTS MADE

IN HIS PRESENCE .............................................. 1036
A. Silence ............ ......................................... 1036
B. Evasive or Equivocal Replies .......... ...................... 1040
C. Constitutional Limitations ............. ...................... 104I
VI. ADMISSIBILITY OF WITHDRAWN GUILTY PLEAS ................... 1044
VII. PROCEDURAL TREATMENT OF CONFESSIONS ...... ............... 1047

A. Before Trial .......... ...................................... I047
I. Discovery of Confessions ...............1.................. I047
2. Motions To Suppress Illegally Obtained Confessions ........ I052
3. Illegally Obtained Confessions as Grounds for Quashing the
Grand Jury Indictment ..................... 055
B. Procedure in the Trial Court ..... ............................. I058
I. Preliminary Hearing on Voluntariness .......... ............. I058
(a) Traditional Procedures .......... ...................... I058
(b) The Rule of Jackson v. Denno ....... .................. 059
936

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PAGE
(c) The Effect of Jackson v. Denno .................... ... I063

(i) Cases Decided Before Jackson ...... ............... I063
(ii) Trial Court Procedure After Jackson ........... .... io66
2. Burdens of Proof ................................. . I069
V III. CORROBORATION .............................................. I I I072

A. Rationale for a Special Rule Requiring Independent Evidence of
the Corpus Delicti ................... ....................... I073
B. Application of the Corpus Delicti Requirement ...... .......... I073
I. Facts That Must Be Shown ........ ....................... I073
2. Type of Evidence That Can Be Used ..... ................. I075
3. Amount of Independent Evidence Required .............. ... I076
4. Relationship of the Confession to the Independent Evidence . I077
C. When the Rule Applies ................. .................... I078
I. Type of Statement ........... ............................ 1078
2. To Whom the Statement Was Made ...... ................. 1079
3. Where the Statement Was Made ....... ................... 1079
4. Type of Crime Involved .................... io8o
D. Functions of Judge and Jury ........ ....................... io8i
E. Evaluation of the Corpus Delicti Requirement .............. .. I082
F. Conclusion ...............,.,,.,.,....................... I084
IX. MIMITARY LAW .......................0.......................... I84
A. Interrogation Procedures in Regard to Confessions ..... ........ I085
B. Trial Procedures in Regard to Confessions ..... ................ io88
C. Conclusion .................................................. I089
X. EXPERIENCE IN OTHER COUNTRIES .. . ............................. I090

A. England .................................................... I09I
I. Investigation ............. ................................ I09I
2. Trial .................................................... I095
3. Current Problems .......... .............................. I096
B. Scotland ........ ............. .. ............................ I097
i. Investigation ............. ................................ I097
2. T rial .................................................... IIOO
3. Current Problems ............. ............................ IIOI
C. Canada ..................................................... IIOI
i. Investigation ................. ............................ IIOI
2. T rial .1..................................... ............ . II04
3. Current Problems .............. II05
D. India ...................................................... iio6
i. Investigation .......... iio6
2. Trial ..................................................... IIIO
3. Current Problems ............. ............................ III2
E. The Civil Law View ........................ . III4
i. Introduction .................. ........................... III4
2. France ........1115 III5
937

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I. INTRODUCTION
Interrogation as a method of investigating violations of the law has a
long history. Within the first few pages of the Old Testament, Adam is
asked, "Hast thou eaten of the tree . . . ?" and Cain replies to the de-
mand "Where is Abel thy brother?" with an evasive "Am I my brother's
keeper?" I But official interrogation of those suspected of crime, accepted
as normal and proper procedure in many contemporary societies,2 has
been regarded with deep suspicion in Anglo-American culture. This
distrust was engendered by the inquisitorial practices of the prerogative
courts of Star Chamber and High Commission, and it finds one promi-
nent expression in the fifth amendment to the United States Constitu-
tion. Police interrogation for the purpose of obtaining confessions from
suspects has been a subject of special concern in this country for more
than thirty years. In 193I the Wickersham Commission published its
famous report on police abuses,3 and in I936 the Supreme Court relied
upon the broad contours of due process to reverse a state conviction
based on confessions obtained by whipping with steel-studded belts.4
No one disputes that such barbarity merits proscription. But today
the Court's involvement in the "confessions problem" has resulted in
a proliferation of exclusionary rules, and has reached policy issues of
the utmost complexity. Whether the police should be allowed any
significant opportunity to interrogate suspects is currently the subject
of heated debate in both national magazines and law reviews, and the
front pages of the press report the latest pronouncements of judges at-
tempting to resolve the competing claims of crime detection and fairness
to the accused.
The critics of police questioning darkly hint that every incriminating
statement is the product of klieg-lit beatings; the policeman is depicted
as a ruthless hunter, to whom the lone accused is " 'game' to be stalked
and cornered." 5 The "flaming demands of justice and humanity" 6
are invoked, and the argument that confessions are needed for effective
law enforcement is dismissed because the lash and rack were justified
on similar grounds. On the other hand, fervid spokesmen for the
police and prosecutors cry that the "civil liberties binge that the courts
are on" 7 will "render the police powerless . . . against the criminal
army." 8 Judges and professors who advocate greater restrictions on the
I Genesis 3:II, 4:9-IO. The nature of a typical response by those subject to
interrogation does not seem to have changed much over time. Compare Adam's
"the woman whom thou gavest to be with me, she gave me of the tree, and I
did eat," with Escobedo's "I didn't shoot Manuel, . . . [DiGerlando] did it."
Escobedo v. Illinois, 378 U.S. 478, 483 (I964).
2 See, e.g., Cohen, The Criminal Process in the People's Republic of China:
An Introduction, 79 HARV. L. REV. 469, 503-04 (i966). See also pp. III4-I9 infra.
34 U.S. NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT, REPORT
ON LAWLESSNESS IN LAW ENFORCEMENT (I93I).
4 Brown v. Mississippi, 297 U.S. 278, 282 (1936).
5 Kamisar, Equal Justice in the Gatehouses and Mansions of American Crimi-
nal Procedure, in CRIMINAL JUSTICE IN OUR TIME I, 20 (Howard ed. I965).
6MCCORMICK, EVIDENCE ? 75, at 156 (1954).
" A Forum on the Interrogation of the Accused, 49 'CORNELL L.Q. 382, 398
(I964) (remarks of Professor Fred E. Inbau).
8PARKER, The Cahan Decision Made Life Easier for the Criminal, in POLICE
113, II8 (I956).
938

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I966] DEVELOPMENTS - CONFESSIONS 939
use of confessions are condemned as soft-hearted or soft-h

of rape, murder, and robbery. It is urged that "In our concern for
criminals, we should not forget that nice people have some rights too." 9
Rhetoric flowers when the judgments to be made are founded on
values too deep for resolution by logic alone. But the realities of the
"confessions problem" - its history, its complex ramifications, and the
efforts of courts to deal with it- are a necessary background for the
ultimate choices that must be made. This Note attempts to portray and
analyze that background.'0
Police Interrogation Practices
i. The Issues. - The heat of the confessions controversy is unfor-

tunately not matched by clarity in the formulation of the issues at
stake. The arguments of one side are frequently not responsive
to those of the other,' and the proof usually offered by the protagonists
in support of their positions is even more disappointing. However,
the basic issues in dispute appear to be two: whether coercive practices
are generally relied on in the questioning process; and whether, even
if coercion is not employed by the police, interrogation of suspects
should be condoned.
(a) The Extent of Coercive Interrogation. - Advocates of severe
restrictions on interrogation suggest that the secrecy in which most
systematic police questioning is carried on serves as a cloak to conceal
violence, protracted questioning, and other coercive tactics. They
point to the fact that the law reports are filled with cases involving
claims of brutal police conduct.2 Although recognizing that most of
these claims are ultimately found to be groundless, they attribute this
to the fact that, since typically no record of the interrogation is pre-
served for judicial scrutiny,3 the issue necessarily resolves itself into
a swearing contest between the police and the defendant in which
judicial sympathy for the police makes the defendant's chances of
being believed very slight.
Those who believe that interrogation should be restricted also rely
heavily on notorious incidents involving false confessions made after
abusive police treatment.4 The supporters of interrogation counter with
the contention that such incidents do not justify hostility to all question-
9 Killough v. United States, 3I5 F.2d 24I, 265 (D.C. Cir. i962) (Miller, C. J.,
dissenting).
10 The only major field of the law of confessions that has been omitted is that
of confessions used at joint trials, see, e.g., Delli Paoli v. United States, 352 U.S.
232 (1957); the complex issues involved in that field are not unique to confes-
sions.
' Compare Kamisar, Public Safety v. Individual Liberties, 53 J. CRIM. L., C. &
P.S. I7I (i962), with Inbau, More About Public Safety and Individual Civil
Liberties, 53 J. CRIM. L., C. & P.S. 329 (i962), with Kamisar, Some Reflections on
Criticizing the Courts and "Policing the Police," 53 J. CRIM. L., C. & P.S. 453
(i962).
2 See, e.g., People v. Cunningham, 30 Ill. 2d 433, 197 N.E.2d 40 (I964) (und
puted claim of beating); People v. Ruocco, ii App. Div. 2d 807, 205 N.Y.S.2d
(ig60) (per curiam) (same).
3 See Herman, The Supreme Court and Restrictions on Police Interrogation,
25 OMO ST. L.J. 449, 498 (I964).
'E.g., Sutherland, Crime and Confession, 79 HARV. L. REV. 21, 37-40 (I965).

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940 HARVARD LAW REVIEW [Vol. 79:938
ing because they are extraordinary cases, having no relation to the

ordinary day-to-day operations of a police department. Unfortunately,
there is virtually no factual data available to serve as a basis for
evaluating these competing claims. Indeed, the obscurity in which the
controversy is carried on has provoked frequent calls for increased
study of the facts about police interrogation. The survey of the
administration of criminal justice in the United States by the American
Bar Foundation 5 will include a volume on detection of crime,6 and
a recently passed statute authorizes the Attorney General to make
investigations of police practices.7
Unable to marshal factual evidence in support of their claims, the
participants in the controversy attempt to rely on logic. The supporters
of interrogation argue that it is unreasonable to presume that police will
violate the law by abusing suspects in the course of their duties.8 The
opposing side replies that the very proximity of the police to crime and
criminals has a tendency to brutalize them, and points to statements 9 by
both policemen and judges to the effect that society is at war with the
criminal and in war anything goes. Though admitting that such an
attitude on the part of the police is unlikely when the suspect is a
respectable citizen, the champions of this view claim that the attitude
is quite prevalent in cases involving members of minority groups and
the lower orders of society, who comprise the majority of criminal sus-
pects.'0
Opponents of interrogation also argue that the insistence of the police
on conducting interrogations in secrecy"l casts doubt on their claim
that they do not engage in abusive conduct. Police hostility to proposals
for civilian review boards to scrutinize police conduct is also considered
suspicious. Of course, one answer to these points may be that the
police reject the idea of outside supervision of their activities out of
resentment at suggestions of improprieties. However, given the fact
that insistence on secrecy may lead to a drastic curtailment of police
activities-and, in particular, of interrogation -such an explanation
is not wholly convincing. Another justification frequently offered by
the police is that relative privacy is usually necessary if confessions are
to be secured by even the most innocuous questioning.'2 However,
this difficulty could be eliminated by stationing an outside observer
behind one-way glass.'3 In any case, none of these arguments is so
I See AMERICAN BAR FOUNDATION, THE ADMINISTRATION OF CRIMINAL JUSTICE

IN THE UNITED STATES -PLAN FOR A SURVEY (1955).
6 One volume of the series has appeared to date. LAFAVE, ARREST -THE DE-
CISION To TAKE A SuspEcr INTO CUSTODY (I965) [hereinafter cited as LAFAVE].
F Law Enforcement Assistance Act of I965, ? 6, 79 Stat. 828.
8 See Escobedo v. Illinois, 378 U.S. 478, 498-99 (I964) (White, J., dissenting).
9 See generally Mills, The Detective, Life, Dec. 3, I965, p. goD.
10E.g., Kamisar, Equal Justice in the Gatehouses and Mansions of American
Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIME I, 69 (Howard ed. I965).
1" See Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, in
POLICE POWER AND INDIVIDUAL FREEDOM 153, 179-80 (Sowle ed. I962) [hereinafter
cited as Weisberg].
12 See p. 948 infra.
13 It may be argued that impartial observers will be difficult to find. If they
are employed by the government they might be subject to pressures from the
police. The only volunteers likely to be available are the suspect's friends, family,

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I966] DEVELOPMENTS - CONFESSIONS 94I
compelling as to furnish a definite answer to the question whether

police interrogation is frequently abused. The answers currently being
offered are thus basically the product of their proponents' preconcep-
tions or biases. It cannot be doubted, however, that the police could
go a long way toward settling the controversy by being more receptive
to proposals for impartial observation of their interrogation practices.
(b) The Desirability of and Need for Noncoercive Interrogation.-
(i) Desirability. - Even if it could be conclusively demonstrated that
police interrogation only rarely entails improper tactics, its use as a sig-
nificant investigative tool would be unacceptable to many critics. Per-
haps because interrogation is thought to resemble the examination of
a witness at trial,14 they argue that the incongruity between the cir-
cumstances of even an informal police interrogation and those of a
judicial inquiry is destructive of the values embodied in the concept of
procedural due process.'5 Although there has been advanced the further
argument that in the long run secret interrogation and police reliance
on confessions will have a deleterious effect on the operation of the
criminal law,16 this point has recently been questioned by Judge
Friendly: 17
[D]oes anyone truly know that, as asserted in Escobedo . . . "a system

of criminal law enforcement which comes to depend on the 'confession'
will, in the long run, be less reliable and more subject to abuses than a
system which depends on extrinsic evidence independently secured
through skillful investigation" - if we assume a "system" with appropri-
ate safeguards against identifiable "abuses"?
If Judge Friendly is correct in interpreting Mr. Justice Goldberg's

statement as a factual prediction, then he seems also correct in imply-
ing that such a prediction is not subject to verification. However, Mr.
Justice Goldberg's statement seems rather to reflect the view that
police interrogation for the purpose of obtaining confessions as presently
practiced is at variance with the judgment embodied in the fifth amend-
ment's guarantee against compulsory self-incrimination. In this light,
the arguments of those involved in the confessions controversy ulti-
mately involve a conclusion about the fundamental purposes and values
of the "system," arrived at not through the scientific inquiry implicitly
called for by Judge Friendly, but by a decision about whether the
institution of secret police interrogation comports with concepts of
"fundamental fairness" in the administration of the laws.
(ii) Need. - In evaluating the desirability of using confessions as
a means of law enforcement, it would be useful to know to what extent
or lawyer -all of whom may be less than impartial. However, it does not seem
impossible to secure relatively impartial observers, either volunteer (for example,
police reporters), salaried (civil servants), or mechanical (movies or tape re-
corders).
14 Moreover, at common law some examination of suspects was conducted by a
magistrate in court. See Note, An Historical Argument for the Right to Counsel
During Police Interrogation, 73 YALE L.J. IOOO, I034-4I (I964).
15 E.g ., Weisberg I54-54, I79-8I.
16 Escobedo v. Illinois, 378 U.S. 478, 488-89 (I964).
17 Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CALIF. L.
REV. 929, 955 n.I38 (I965).

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interrogation is presently relied on for the solution of crimes. Although

the very heat of the controversy suggests that confessions are in wide
and frequent use, virtually no statistical information on this point is
available. In one of the few studies directed at the problem, the belief
that confessions are vital to obtaining convictions has recently been
challenged. In a widely publicized article Judge Nathan Sobel con-
cludes, on the basis of a survey of the "procedures adopted by police
and prosecutors in Kings County," New York, that "'confessions'
constitute part of the evidence in less than io per cent of all indict-
ments."18 Judge Sobel implies that the fraction is no different if only
crimes of violence are considered.19 He further notes that a recent
New York statute requires the prosecution to give the defense notice
of intent to offer incriminating statements of the accused in evidence,20
and that of i,ooo recent cases, the statutory notice was given in only
eighty-six. He explains these striking figures as follows:21
In the great majority of cases . . . guilt [is] established without the

police . . . ever having questioned the defendant at all.
The basic reason for this is that most serious crimes are cleared by
the factor -astonishing to the uninformed -that in nearly all assaults;
in 35 per cent of robberies and in 45 per cent of forcible rapes, the
protagonists-the victim and the perpetrator-were known to one
another prior to the commission of the crime....
Thus [for example], 8o per cent of all murders are committed within
the family or among "friends."
Notwithstanding this assertion, Judge Sobel also states that interroga-

tions occur frequently. Indeed, he says that "police interrogate in all
cases. Prosecutors interrogate in serious cases . . .. 22 This observa-
tion seems inconsistent with his remark about the manner in which
"iguilt is established," unless when he speaks of "establishing guilt"
and "clearing" a crime he is referring to the district attorney's decision
to dispose of it by prosecution.23 If this is what Judge Sobel means,
then perhaps the interrogations "in all cases" are often for purposes
of obtaining statements for use at trial. However, assuming that the
New York statute is complied with in most cases, his figures indicate
that the use of confessions at trial is relatively rare. This fact might
then suggest that the prosecutor attempts, whenever possible, to obtain
leads to physical evidence and witnesses from the statements obtained
18 Sobel, The Exclusionary Rules in the Law of Confessions: A Legal Perspective

-A Practical Perspective, N.Y.L.J., Nov. 22, I965, P. I, col. 4 [hereinafter cited
as Sobel].
19 Thus he states that in the period of his study, "nine murder indictments
were filed. In not a single instance was a 'confession' involved." Of course, the
period of his study was six months after the decision in Escobedo. Cf. D.C. COM-
MITTEE ON POLICE ARRESTS FOR INTERROGATION, REPORT AND RECOMMENDATIONS
(THE HORSKY REPORT) 7 (I962), noting that arrests for investigation in the Dis-
trict of Columbia fell off sharply when the committee's forthcoming study of the
practice was announced.
20 N.Y. CODE CRIM. PROC. ? 8I3-f. The statute does not in terms provide that
failure to give notice of intent makes a confession inadmissible.
21 Sobel, p. 5, col. I.
22Id. at p. 4, col. 7.
23 See pp. 945-46 infra.

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i966] DEVELOPMENTS - CONFESSIONS 943
during interrogation, and to rely on these "fruits" of the confession

at trial 24 -perhaps because the admissibility of confessions as such has
become so problematical. Thus even if the introduction of confessions
at trial is not necessary to obtain most convictions, Judge Sobel's study
hardly demonstrates that confessions are not an important tool in
modern law enforcement. Moreover, he admits that he was unable to
measure the use of confessions to induce guilty pleas, yet such pleas
are surely made in a large number of cases.25
In any case, Judge Sobel's statements have been criticized as in-
accurate by District Attorney Hogan of New York County, who stated
that in 27 per cent of the homicide cases then pending in his jurisdic-
tion an indictment would not have been obtained without a confession.
He further noted that in 68 per cent of these pending cases, he planned to
offer confessions in evidence.26 The disparity in statistics might
simply reflect differences between Kings County and New York County.
However, in light of Judge Sobel's suggestion that his figures should
be valid outside Kings County, the disparity must be explained either in
terms of error with respect to the statistics relating to use of confessions
in trials, or by concluding that the Kings County district attorney's office
does not consider compliance with the notice of intent statute to be
mandatory.
Judge Sobel also suggests that statistics on the use of confessions at
trial are not reliable indications of their importance in obtaining con-
victions because proof beyond a reasonable doubt exists without the
confession in many of the cases in which the prosecution proffers one.
Should this suggestion be true, the significance of District Attorney
Hogan's figures would be undercut. But the suggestion is unverifiable;
pending a far more elaborate study of confessions than presently exists,
the most that can be said is that no definite conclusion regarding the im-
portance of confessions can be made.
Another question at the heart of the confessions controversy relates
to the availability of alternative techniques of crime detection. It is
suggested by critics of the confession system that the current reliance
on interrogation does not stem from a lack of other investigative ap-
proaches.27 It is implied that laziness or lack of imagination on the part
of the police is responsible for the system, and that it in turn encourages
these vices. But Judge Friendly asks: "[DI oes anyone truly know . . .
about such things as the possibilities of 'skillful investigation' of crimes
without witnesses, about the increases in the police force necessary if
interrogation were curtailed, and about the risk that this curtailment
24 See pp. I024-30 infra.

25See note 79 infra.
26 N.Y. Times, Dec. 2, I965, p. I, col. I.
27 See, e.g., Escobedo v. Illinois, 378 U.S. 478, 488-go (I964). For a discussion
of crime statistics in the District of Columbia before and after the adoption of the
McNabb doctrine, see Kamisar, On the Tactics of the Police-Prosecution Oriented
Critics of the Courts, 49 CORNELL L.Q. 436, 464-71 (I964).
However, the police claim not only that they are unable to produce enough
physical evidence to convict, but that they have difficulty even in finding enough
to convince the suspect that his guilt can be proved and thus to induce a con-
fession. DEUTSCH, THE TROUBLE WITH COPS 220-21 (1955).

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might lead to increased dependence on unreliable identifications?" 28

The paucity of answers on one side is matched by the general failure
of the police to define the kinds of cases in which interrogation is
necessary; usually they say only that the need is greatest in investiga-
tions into crimes of violence-assault, rape, robbery, and homicide.29
Although Professor Inbau calls such a statement a matter of "simple
logic," it is difficult to see why these offenses should be impossible to
solve by means other than a confession. Perhaps in cases of rapes and
muggings the attempt to establish a list of suspects on the basis of
motive often proves fruitless.30 Moreover, since these crimes are typi-
cally committed without deliberation, it may be that little paraphernalia
is usually left behind to provide physical evidence.3' Finally, the fact
that these offenses may often take place in deserted areas usually makes
it impossible to find witnesses, accomplices, or willing informers.
These arguments hardly prove the logical necessity of relying on
confessions. Indeed, some points may cut the other way: an unpremedi-
tated offense is, for example, likely to be committed carelessly, and
incriminating physical evidence may often be left behind. But other
arguments might be made to support the view that the alternatives to
interrogation are unfeasible. For example, the inadequate size and
budgets of many police forces may make the logical possibility of exten-
sive investigation a practical impossibility. And, even if they do not
logically prove the impossibility of maintaining present levels of crime
control while imposing strict limitations on the use of interrogation,
many of the police arguments seem persuasive.
Judge Sobel's approach is typical of that taken by many of those
persons who are critical of reliance on confessions; his argument pur-
ports to meet the necessity argument on its own terms by showing that
tighter restrictions on interrogation would not reduce the current level
of crime control. And the opinion in Escobedo also implies that the
choice to limit interrogation and to substitute "independent investiga-
tion" as a major technique of crime detection can be made without an
adverse impact on law enforcement.32 However, it may be said that
this conclusion is less than candid in light of Mr. Justice Goldberg's em-
phasis on the immorality of relying on confessions - a factor that does
not depend on their usefulness. Frankly stated, the basic premise of
Escobedo would seem to be that the confession system should be termi-
nated even at the cost of a loss in police efficiency. The problem is that
no one knows just how great such a loss would be. If it were relatively
slight, the assumption made by the advocates of the necessity argument
- that less law enforcement is unthinkable - would become at least
F8 Friendly, supra note i7, at 955 n.138.

29 See A Forum on the Interrogation of the Accused, 49 CORNELL L.Q. 382, 38
89 (i964) (remarks of Professor Inbau).
30 But see p. 942 supra.
31 It is probably these crimes that are meant when, even in a work that argu
for increased reliance on scientific criminology, it is conceded that some investiga-
tions cannot succeed without the "information" that interrogation yields. See
O'HARA & OSTERBURG, AN INTRODUCTION TO CRThIMALISTICS 694-95 (I949).
32 Escobedo v. Illinois, 378 U.S. 478, 488 (i964).

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questionable. Unfortunately, the question of the extent to which the

cessation of police interrogation would affect law enforcement is, like so
many others in this area, both unanswered and perhaps unanswerable.
2. Varieties of Interrogation. - The term "interrogation," which
has never been carefully defined, is popularly employed to describe all
questioning by police. Useful distinctions can, however, be drawn be-
tween kinds of questioning, depending on the stage of an investigation
at which the questioning occurs, the skill of the police officer involved,
and the physical circumstances in which it is conducted.
(a) "Field Interrogation." - Although the controversy over interro-
gation has centered on examination of the suspect in custody, question-
ing is used as an investigative device in other circumstances as well.
So-called "field interrogations" are conducted, not only at the scene of
a crime, but, more frequently, whenever a patrolman encounters sus-
picious characters in the course of his rounds. The right of a policeman
to stop and question people on the streets is not clear,33 but the police
have assumed that they have such a right and some departments have
created their own law to determine when such an interrogation is
"legal." 34 The practice has been described as "a significant investigative
technique in current law enforcement," 35 and it is likely to be relied on
increasingly as constitutional restrictions on in-custody interrogation
become more severe.
Field interrogation is used primarily to establish probable cause to
arrest. An officer must rely on little more than a hunch in approaching
persons for questioning, and must be especially careful not to antago-
nize, since the subject may be merely an innocent passer-by.36 The
policeman will often rely heavily on bluff to elicit incriminating admis-
sions, and on general questions to keep the subject talking, since if the
individual simply remains silent the officer cannot legally take further
action. Even if the interrogation does not yield an arrest, the practice
has been recommended on the ground that "frequent stopping and
questioning of suspicious persons usually tends to reduce the crime
rate in a given district." 37 And undesirables such as homosexuals are
frequently questioned, despite the fact that no further proceedings are
contemplated by the officer.38
(b) After Arrest. - Even when a suspect has been legally arrested 39
and brought to the station house, there may not be sufficient evidence
33 See generally Remington, The Law Relating to "On the Street" Detention,
Questioning and Frisking of Suspected Persons and Police Arrest Privileges in Gen-
eral, in POLICE POWER AND INDMDUAL FREEDOM II (Sowle ed. I962). New
York has recently sanctioned the practice in its "stop-and-frisk" law, N.Y.
CODE CRIM. PROC. ? i8o-a, 78 HARV. L. REV. 473 (I964).
34 See BRISTOw, FIELD INTERROGATION 88-9I (2d ed. I964), contrasting "prob-
able cause to interrogate" with "probable cause to arrest"; Remington, supra note
33' at I4 n.22.
35 LAFAVE 344 nf7.
36 See BRISTOW, op. cit. supra note 34, at 31-46.
371d. at 5.
38 See RECHY, CITY OF NIGHT I3I-33 (Grove Press ed. I963).
3' The issue of interrogation is often connected with the issue of the legality
of a suspect's detention. For a discussion of the use of illegal arrest in order to
interrogate, see generally LAFAvE 342-63.

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of his guilt to justify a prosecutor in going forward with a prosecution.40

Some kinds of evidence that may support a legal arrest - for example,
hearsay 41 - will be disregarded by the prosecutor in deciding whether
he can obtain a conviction. In addition, an arresting officer may have
properly resolved doubts in favor of arrest because of the need to pre-
vent flight or the destruction of evidence, factors that are irrelevant to
the prosecutor's decision.42 Thus many more people are arrested than
charged; questioning at this stage serves a "screening" function, en-
abling the prosecutor or in many cases the police themselves to order
the release of some suspects.
Though the further investigation required to make the charging de-
cision may require fairly prolonged detention,43 it is often accomplished
by a brief interrogation. One study reports that informal questioning
at this stage is extremely effective in obtaining incriminating state-
ments. In one police department, nearly half the interrogations sur-
veyed lasted only a half hour, although a significant percentage lasted
two hours or longer. Almost 6o per cent of the suspects questioned made
incriminating statements.44 Informal questioning of this kind is often
conversational; or the interrogating officer may merely follow a form
questionnaire that he fills in as he goes along. In either event, "relatively
little use is made of specialized and skilled interrogation techniques." 45
Often the results of this questioning are admissions that will help to
convict the suspect even if he does not make a full confession; or he
may admit enough to give the police leads to witnesses, accomplices, or
physical evidence.46 The suspect's statements are likely to be the
product of his disorientation in the police station 47 and inability to
prepare his defenses quickly.48 Presumably he attempts either to fabri-
cate a story or to explain his way out of an incriminating set of circum-
stances and is caught in a contradiction. Of course it is also possible
that informal questioning will quickly produce a convincing alibi and
that the suspect will then be released.
The degree of informality that characterizes the vast majority of
interrogations held shortly after arrest is probably dependent in part
upon the personality of the officer in charge. He is likely to be the
40 See generally id. at 3I9-27.
41 See Draper v. United States
7i Cal. App. 2d 773, i63 P.2d 498 (Dist. Ct. App. 1945).
42 Some courts accept this argument in making a distinction betwe
able cause to arrest and probable cause to charge, e.g., Goldsmith v. United States,
277 F.2d 335 (D.C. Cir.), cert. denied, 364 U.S. 863 (ig60), but others apparently
do not, e.g., People v. Ingle, 53 Cal. 2d 407, 348 P.2d 577, 2 Cal. Rptr. i4, cert.
denied, 364 U.S. 841 (ig60).
4 This is achieved (a) by simply not bringing the suspect before a magistrate,
(b) by asking a complaisant magistrate to grant a twenty-four or forty-eight
hour continuance in the preliminary hearing, (c) by obtaining a conviction for a
second offense, or (d) if detention is challenged by a habeas corpus proceeding, by
obtaining a continuance in that proceeding. See LAFAVE 300oo8, 354.
44Barrett, Police Practices and the Law -From Arrest to Release or Charge,
50 CALIF. L. REV. II, 40-44 (I962).
45 LAFAvE 304.
46 See id. at 3i6 n.43, 386.
47 WOOD & WAITE, CRIME AND ITS TREATMENT 397 nf.4 (I94I).
48 Kerr, Practical Police Interrogation, in CRIMINAL INVESTIGATION AND INTERRO-
GATION 392, 394-95 (Gerber & Schroeder eds. i962) [hereinafter cited as GERBER &
SCEROEDER].

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arresting patrolman or a desk officer on duty when the suspect was

brought in. These men are less skilled and resourceful than members
of the detective squad, who will usually be assigned to conduct a formal
interrogation only when the suspect's case proves difficult. Detectives
are often not available to direct the questioning held immediately after
arrest,49 but when they are involved, fairly sophisticated interrogative
tactics may be used as early as the screening stage.50
Even if it has been decided not to charge, the suspect may be
arrested again for more questioning, especially in cases involving serious
crimes.51 But once a decision to charge has been made, the suspect is
entitled to be brought before a judicial officer for a preliminary hearing.
However, suspects are often detained for further interrogation even
after the decision to charge has been made in order to obtain the con-
fession that will "clinch" the case.52 Such "questioning . . . [not] in
the course of investigating an unsolved crime" 53 has been sharply
criticized by courts, even those willing to tolerate questioning to find
probable cause to charge prior to production in court.54 As a practical
matter, however, it is difficult to determine when a "suspect" becomes
an "accused." 55 It would seem likely that it is only at this stage, when
independent evidence of guilt has been found that is sufficient to con-
vince the police but probably insufficient to convict, that more intensive
interrogation, in a more formal setting, will occur.
(c) After Preliminary Hearing. - Even if the suspect is properly
arraigned, the police may retain control of him if he is unable to make
bail or is charged with a nonbailable offense. However, an unbailed
accused will normally not be remanded to the station-house lockup,
but will be sent to the county jail to await trial. There it is more dif-
ficult for the police to gain access to him, but not impossible.56 Since
time permits an extensive checking of outside sources before a post-
arraignment interrogation, it is likely to be a more demanding examina-
tion than the general inquiry that follows arrest. In other words, it is
likely to be a formal interrogation.
(d) The Formal Interrogation. - At any stage, when a suspect whom
the police believe to be guilty proves unresponsive to informal question-
ing, he may be subjected to a more intensive interrogation, with the
police employing the techniques explained in interrogation manuals
such as that of Inbau and Reid.57 Cases indicate that these techniques
are sometimes used,58 and some courses of study in police science in-
49 LAFAVE 303 & nn.I4-i6.

50:See Mills, supra note 9, at io7.
51 These were the facts in Escobedo v. Illinois, 378 U.S. 478 (i964).
52 LAFAVE 367-72.
53 Spano v. New York, 360 U.S. 315, 327 (i959) (Stewart, J., concurring).
54 See, e.g., People v. Hamilton, 359 Mich. 4IO, I02 N.W.2d 738 (I960).
55 Escobedo purports to make this the moment at which, under some circum-
stances, see pp. I007-I2, infra, a right to counsel attaches. 378 U.S. at 490-9I.
56 LAFAVE 402-03. In India, where an analogous practice is required, the courts
have insisted that the investigating police have no access to the "magistrate's
jail" in which the accused is held. See p. iio8 infra.
5 INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS (i962) [herein-
after cited as INBAU & REID].
58 See, e.g., the dialogue reported in State v. Biron, 266 Minn. 272, I23 N.W.2d
392 (i963). The attempt by interrogating detectives to induce an accused to lay

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lude instruction in such questioning tactics; 59 thus the manuals prob-

ably give a good indication of actual practices.
Detectives are advised by all the police manual writers to conduct
formal interrogations in privacy 60 - not in the squad-room, where rou-
tine interrogation usually takes place, but rather in a special room in a
quiet area of the station house, bare of decoration or anything, such as a
telephone, that might distract the suspect from the questioning.6' Only
the suspect and the interrogator should be in the room: the goal of the
interrogation is to lead the suspect to trust and ultimately to confide
in the investigator, and it is said that the presence of a crowd is no
more conducive to the making of a confession than to any other confi-
dence.62 The interrogator is likely to be intelligent and experienced.
The manuals often stress the importance of his preparation for the
interrogation, including thorough familiarity with the suspect's personal
history and a detailed understanding of the circumstances of the offense
under investigation. The first is important because it permits the
interrogator to appear omniscient; for example, by mentioning to the
suspect the name of the minister who married him.63 The second en-
ables the interrogator to detect subtle contradictions and falsehoods
and eliminates the risk that the interrogator will be caught in a bluff,
in which case the suspect's psychological position would be strength-
ened.64 In addition, the interrogator must be psychologically prepared.
Since his first job is simply to keep the suspect talking,65 he must be
willing to listen patiently to a rambling, self-justificatory monologue
and must strive to appear sympathetic to someone whose character and
deeds may be repellent to him. Recent writers urge the interrogator to
be aware, especially in dealing with juvenile offenders, that his conduct
will influence the subject's future attitude toward the police and the
law generally.66 This injunction to display genuine concern rather
than merely to manipulate the suspect is in sharp contrast with the
attitude advised and justified by Inbau and Reid in their more widely
circulated manual.67
Since in most cases the accused will initially demonstrate an unwill-
the blame on his accomplice, as, for example, in Escobedo, 378 U.S. at 482-83, is
recommended in INBAU & REID 87-88.
59 Germann, Scientific Training for Cops?, 50 J. CRIM. L., C. & P.S. 206, 208
(I959).
60 See, e.g., INBAU & REID I-7.
61 AUBRY & CAPUTO, CRIMINAL INTERROGATION 62-72 (I965) [hereinafter cited
as AUBRY & CAPUTO]
62 ARTHER & CAPUTO, INTERROGATION FOR INVESTIGATORS 5 (I959). Inbau and
Reid urge the presence of an officer-witness (behind a "one-way mirror") when
female suspects are being quizzed, in order to guard against later charges of im-
proper advances. INBAU & REID 4, 8-9. In some precincts, newspaper reporters
are present at some interrogations. See LAFAVE 399-400.
3 FISHER, THE ART OF DETECTION 68 (I948).
64 See AUBRY & CAPUTO 87.
65 Staff of the Law-Medicine Center, Psychology of Interrogation, in GERBER
& SCHROEDER 247, 262.
66 E.g., Bentley, Scientific Interrogation in Criminal Cases, in SOUTHWESTERN
LAW ENFORCEMENT INSTITUTE, INSTITUTE ON CRIMINAL INVESTIGATION I20-2I
(I962).
67 "Of necessity, criminal interrogators must deal with criminal offenders o
somewhat lower moral plane than that upon which ethical, law-abiding citizens
are expected to conduct their everyday affairs." INBAU & REID 208.

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ingness to speak, the officer is fundamentally engaged in the task of

persuasion. Two broad themes predominate in the manuals: (a)
appeals to the suspect's conscience, and (b) appeals to his more "ma-
terial" self-interest. The first group 68 includes telling the suspect that
he will "feel better" if he confesses, that he is probably thirsty because
guilt and fear of discovery dry up the mouth and that only a confession
will ease his discomfort,69 or that his wife or mother would want him to
pay his debt to society. The effectiveness of such appeals is likely to be
greatest on first offenders, who may well be upset and conscience-stricken.
The same psychology underlies the frequently made recommendation
that the suspect be supplied with justifications for his conduct: the
thief should be told that he was driven to crime by an extravagant wife
or too high taxes; the sex offender should be told that he was probably
teased by the no doubt skimpily dressed victim and that the officer
himself might have had a hard time resisting such temptation; the
murderer, of course, should be told that he was provoked and acted on
impulse. The goal of these techniques is to free the suspect from his
reluctance to speak, and to induce him to make an admission of some
incriminatory fact; once "the cat [is] out of the bag," 70 the officer will
usually have little difficulty in obtaining a complete confession. Be-
cause these kinds of appeals are more likely to be successful if the officer
has convinced the suspect of his sympathy, it is important that the
officer be dressed in civilian clothes, and that he use language that is
not pejorative - for example, "take" rather than "steal" - in describ-
ing the suspect's acts.71 The manner of questioning should be flexible;
once the interrogator has opened the suspect up a little, he should be
vague in his remarks and say only enough to keep the suspect talking.
As one manual puts it, "the best interviewing question in the world is
'Hm?'." 72
A less remorseful suspect must be overwhelmed by the interrogator's
tenacity and apparent confidence in the suspect's guilt.73 When it be-
comes apparent that the interrogator must play an aggressive role, he
should impress the suspect with the weight of the circumstantial evi-
dence, while disclaiming any authority or intention to offer leniency.74
The officer's manner must be more hortatory than receptive, expressing
a profound disbelief in the suspect's assertions of his innocence. When
several suspects are believed to have been involved in the crime, they
should be "played off" one against another by being told that their
confederates have confessed and that further denial can therefore only
be prejudicial.75 A subtle version of this technique is to sit one suspect
in a stenographer's office while she sharpens pencils and prepares her
notebook ostensibly to take the statement of another suspect in the
interrogation room.
68 See generally AUBRY & CAPUTO I72-79.

69 INBAU & REID 3I-32.
70 United States v. Bayer, 33I U.S. 532, 540 (I947).
71 INBAU & REID I4-I8.
72 Staff of the Law-Medicine Center, supra note 65, at 265-66.
73 See AUBRY & CAPUTO I64-7I.
74 INBAU & REID II2-13.
75 See generally id. at 8I-88; CAPOTE, IN COLD BLOOD 2I4-48 (I966).

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Police interrogation very frequently includes a "lie detector" examina-

tion of the suspect.76 Often the reputation of the device is employed
to scare the suspect into confessing.77 One precinct house of the Detroit
Police Department has an empty metal box, studded with lights and
dials, that the interrogator points out to a recalcitrant suspect with
the warning that it will prove that he is lying.78 The device, properly
used, is apparently very successful in leading suspects to confess; 79
such confessions are valid evidence,80 since use of a polygraph does
not ordinarily render a subsequent confession inadmissible in the
absence of other coercive circumstances.8'
Although the interrogating officer should not distract the suspect by
taking notes,82 the manuals urge the importance of obtaining a written
statement in order to forestall denials at trial.83 When it comes time
to prepare a written confession, the officer must choose between nar-
rative and question-and-answer form.84 In either event, the statement
must be in the suspect's English, not the Queen's, and when it is typed,
it should be liberally sprinkled with spelling and factual errors that the
suspect is meant to correct and initial as he reads it through. This
foresight will make it difficult for him to claim at trial that he never
read what he signed.85 Of course, the statement should include a decla-
ration that the suspect has been advised of his rights and knows that
he need not make a confession.86 It is apparently not the general
practice among police forces to give warnings prior to this point,87
although the FBI 88 and some state police do so as a matter of course.
The FBI is supposed to warn the suspect of his right to counsel as
76 See Inbau & Reid, The Lie-Detector Technique: A Reliable and Valuable
Investigative Aid, 50 A.B.A.J. 470 (I964).
77 DEUTSCH, THE TROUBLE WITH COPS 157-58, I63 (1955); Skolnick, Scientific
Theory and Scientific Evidence: An Analysis of Lie Detection, 70 YALE L.J. 694,
722 (I96I).
78 LAFAVE 304 n.20; see A Forum on the Interrogation of the Accused, supra
note 29, at 401-02.
79 See Paull, A $$$ Evaluation of the Polygraph, The Police Chief, Aug. I964,
PP. 45-46:
From June I, I960 to December I, I963, I administered 465 polygraph ex-
aminations for our county [San Mateo County, California], in 267 of which
the persons were reported to be lying. Of these, 20I confessed to felonies and
another 27 confessed to misdemeanors. Of the 228 who confessed, 227 sub-
sequently pleaded guilty in court! Multiply these confessions by merely the
average cost of a court trial -a saving of over $zoo,ooo per year is realized,
and almost Ioo per cent convictions are obtained!
" The results of lie detector tests are not admissible in evidence even if the
defendant has signed a waiver, except per stipulation at trial. E.g., State v.
Trimble, 68 N.M. 406, 362 P.2d 788 (i96i).
81 Compare United States v. McDevitt, 328 F.2d 282 (6th Cir. I964) (confes-
sion admitted), with People v. Sims, 395 Ill. 69, 69 N.E.2d 336 (I946) (confes-
sion excluded).
82 FISHER, op. cit. supra note 63, at 53.
83 E.g., Mulbar, Technique of Criminal Interrogation, in SNYDER, HOMICIDE
INVESTIGATION 37, 42 (1944).
84 Each form has its advantages. The narrative confession has the virtue of
being the suspect's authentic account, while the question-and-answer type is likely
to be more clear and precise.
85 INBAU & REID I28-29.
86Id. at 129.
87 Weisberg I 74.
88 See Hoover, Civil Liberties and Law Enforcement: The Role of the FBI,
37 IOWA L. REV. I75, I82 (1952).

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I966] DEVELOPMENTS - CONFESSIONS 95I
well, a practice that is infrequent among state police.89 Where a caution

is required, the usual experience is that it does not interfere inordinately
with the obtaining of confessions,90 although this conclusion may de-
pend on how and when the caution is given.
In cases in which the suspect has confessed to the crime under investi-
gation, he is frequently asked questions about other outstanding offenses
of the same type. A confession by the suspect to such an offense
"clears" the police books of it. "Clearing interrogation" 91 is important
to the police because their efficiency rating in many systems of crime
reporting is determined by the percentage of crimes cleared; 92 suspects
will thus sometimes be assured that the crimes in regard to which they
are being questioned are "free offenses" for which they will not be
prosecuted.
(e) Conclusion. - The manuals all contain assertions that the prac-
tices they suggest are consonant with the law governing the admissibility
of confessions.93 In addition, most attempt to lay out that law, pre-
sumably to provide guidance to the police in deciding whether an inter-
rogation technique not described in the manual may properly be em-
ployed. But these efforts are not very successful; Inbau and Reid, for
example, suggest that the main constitutional requirement is that noth-
ing be said or done that would produce a false confession.94 However,
they do emphasize the uncertainty that surrounds the law of confessions,
and admit that they may be mistaken in their conclusions. It is doubtful
whether, under the Supreme Court's due process voluntariness test,95
many of their tactics could withstand a constitutional challenge. And,
if Escobedo is interpreted to require the presence of counsel at an inter-
rogation,96 there will probably be little opportunity for their use in the
future.
II. THE THEORY OF ADMISSIBILITY OF A CRIMINAL DEFENDANT'S

OUT-OF-COURT STATEMENTS
The introduction in evidence of a defendant's out-of-court statement

implicating himself in the crime charged is a significant step in the
prosecution's attempt to obtain a conviction. The impact of such a
statement stems not only from its contents, but also from its tendency
to make the prosecution's entire case seem credible. In fact, the nature
of this evidence is such that the common law of every jurisdiction re-
quires that a confession be voluntary in order to be admissible.' This
89 See LAFAVE 393-94.
90 Herman, The Supreme Court and Restrictions on Police Interrogation, 25
OrnIO ST. L.J. 449, 475 & nn.157, 158 (I964).
91 See generally LAFAVE 3 72-76.
92 SKOLNICK, JUSTICE WITHOUT TRIAL I64-8I (i966).
93 See, e.g., INBAU & RED Vii.
94 Id. at I57; cf. AUBRY & CAPUTO 193.
95See pp. 973-82 infra.
1 Although the rules of voluntariness are the most significant qualifications

placed upon the use of an accused's out-of-court statements at his trial, they are
by no means the only such qualifications. Most important from the point of view
of the accused is the rule that a defendant is entitled to have those portions of his
statements that are favorable to him reach the jury. See, e.g., Gray v. State, i8i

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term -"confession"- identifies the most important subcategory of

out-of-court statements by a defendant. Although there is no agree-
ment upon a precise definition, in this Note the term will be taken to
refer to a substantial acknowledgment of guilt; a statement that is less
than a confession, and that in many jurisdictions is not subject to the
same voluntariness rules,2 will be termed an admission; and any state-
ment that was intended to be an assertion of innocence when it was
made, even though it may amount to a confession or admission by the
time of trial, will be referred to as an exculpatory statement.
The most important use of these statements is to establish the truth
of the matters that they assert; but of course any of them may be used
to impeach the credibility of the accused as a witness. Exculpatory state-
ments that do not directly admit a fact in issue are nonetheless ad-
missible to show a defendant's guilty conscience; for example, the
prosecution may introduce a statement made in response to questions
relating to the crime in order to show that the defendant lied 3 or has
at least given contradictory explanations.4
As a general proposition, the rules of evidence exclude most out-of-
court statements - either oral or written - if they are offered to prove
the truth of the matters asserted in them. However, there are several
exceptions to the "hearsay" rule, one of the most important of which
permits the prosecution to introduce in a criminal trial any relevant
out-of-court statement made by the defendant. The theoretical bases
that have been advanced in support of admitting such statements are
not entirely satisfactory. Wigmore, in adopting the approach first set
forth by Professor Morgan,5 has grouped in one exception to the hearsay
rule all statements made by a criminal accused and those made by a
party to a civil litigation.6 He claims that the major justification for
the hearsay rule is to ensure that the side not offering the evidence has
an opportunity to cross-examine the original declarant. And he con-
cludes that whenever the declarant is the party against whom the evi-
dence is being offered, the reason for invoking the hearsay rule is
absent: if the defendant wishes to contradict the truth of his former
assertion, he has only to take the stand. However, this argument does
Md. 439, 30 A.2d 744 (i943). And although oral as well as written statements are
admissible in all jurisdictions, some states require that once a statement is written
down, the written version must be introduced unless its absence can be satisfacto-
rily explained. Compare id., with People v. Giro, I97 N.Y. 152, 9o N.E. 432 (IgIo).
In New York, a defendant's statement is admissible only if the prosecutor has
given reasonable written notice of his intention to rely on it. N.Y. CODE CRIM.
PROC. ? 8I3-f. See also pp. I047-52 infra (rules of pretrial discovery and examina-
tion of confessions). In Texas, no statement made while the accused is in custody is
admissible unless either made before an examining court, or corroborated inde-
pendently, or set down in a writing signed by the defendant; in the latter
instance, the statement must contain a declaration that the accused was advised
of his right to remain silent and was aware that anything he said might be used
against him. TEX. CODE CRIM. PROC. art. 727 (I948).
2 See, e.g., State v. Lucero, 70 N.M. 268, 372 P.2d 837 (i962). The validity of
this distinction will be discussed pp. I030-36 infra.
3 See, e.g., McDonel v. State, go Ind. 320 (0883).
4 See, e.g., State v. Holden, 42 Minn. 350, 44 N.W. 123 (1890).
Morgan, Admissions as an Exception to the Hearsay Rule, 30 YALE L.J. 355
(192I).
6 4 WIGMORE, EVIDENCE ? I048 (3d ed. I940) [hereinafter cited as WIGMORE1].

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not provide a satisfactory historical explanation for the exception be-

cause until fairly recently neither an accused nor a party to a civil
litigation was competent to testify.7 The opportunity for the defendant
to refute his earlier statement was thus limited to the possibility of
presenting the full story to the jury through other witnesses.
Most statements of an accused would appear to fall within the
generally recognized exception to the hearsay rule for declarations
against interest. But there are several limitations on declarations
against interest that do not apply to the introduction of a defendant's
out-of-court statements.8 For example, such a declaration must be
against the declarant's interest at the time it was uttered; and a state-
ment is a declaration against interest only if it is against a pecuniary or
property interest of the declarant.9 Wigmore concedes that the rationale
for both exceptions is similar: all declarations against interest and most
out-of-court statements by a defendant are likely to be trustworthy
because it is improbable that any person will make a statement against
his own interest unless it is true.10 But because exculpatory state-
ments - which may not have been against the declarant's interest when
they were made - do not fit this rationale, Wigmore and Morgan reject
the theory entirely, since they insist upon finding a single justification
for the introduction of all statements of an accused.11 In fact, exculpa-
tory statements are often admitted with almost no explanation:12
many courts equate them with the statements of a party to a civil action,
and admit them under a blanket rule for all that has been said by an
opposing party.13
Perhaps the approach taken by the court in Jones v. United States
offers the most satisfactory explanation for admitting all statements by
a defendant: "Basically, these statements, being relevant, material, and
competent, are admissible. The problem is whether any specific rule
excludes them, whether there is some idiosyncrasy which denies to them
the general basic rule of admissibility otherwise applicable." 14 The
problem of trustworthiness would not seem to be overwhelming even in
the case of exculpatory statements since "the narrator professes to have
been himself the chief participant in the incident he recounts." 15
Because the accused is today competent to testify in his own behalf, he
may refute his prior assertions or explain their meaning. True, this
would entail at least a partial surrender of his privilege against self-
incrimination,16 and it might be argued that the introduction of his
statement puts such pressure upon him as virtually to "compel" such
72 id. ? 575
8 See 4 id. ? I049; Morgan, supra note 5, at 359.
9 See, e.g., Donnelly v. United States, 228 U.S. 243, 273 (I9I3) (dictum). The
limitation is criticized at 5 WIGMORE ? I476.
10 3 WIGMORE ? 866; 5 id. ? I457.
1 See also I GREENLEAF, EVIDENCE ? I69 (6th ed. I852).
12 See, e.g., State v. Mowry, 2i R.I. 376, 384, 43 Atl. 87I, 874 (i899): "Whether
the testimony objected to was strictly a declaration against interest or not, we
think that it was admissible, as being the defendant's statement of what took place
- . .on the night of the murder."
13 See, e.g., State v. Anderson, io Ore. 448 (I882).
14296 F.2d 398, 403-04 (D.C. Cir. i96i), cert. denied, 370 U.S. 9I3 (i962).
15 MCCORMICK, EVIDENCE ? IO9, at 225 (1954).
16 See generally MAGURE, EViDFDNCE oF GUILT 82-98 (I959).

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a surrender, in violation of the privilege. But provided that the state-

ments were themselves obtained legally, the defendant can hardly argue
that his actions before trial can result in violation of his constitutional
rights when they are used by the prosecution at trial. Since the state-
ments are by-and-large trustworthy, since there is no legitimate interest
of the declarant to protect, and since the statements are by hypothesis
relevant, there seems to be no reason to keep them from the trier of
fact.
III. SUBSTANTIVE RULES GOVERNING THE

ADMISSIBILITY OF CONFESSIONS
A. Voluntariness
i. The Common Law Rules.- At early common law, confessions
were admissible at trial without restrictions.' Not even the fact that
a confession had been obtained by torture required its exclusion.2 But
in the latter part of the eighteenth century 3 there emerged the princi-
ple that to "a confession forced from the mind by the flattery of hope,
or by the torture of fear . . . no credit ought to be given." 4 This rule
of excluding confessions prompted by "improper inducements" came
into being more than a century after the last recorded instance of
torture in English law,5 yet when it received its first complete state-
ment in Tke King v. Warickshall, Mr. Justice Nares explained that it
was meant to ensure that only trustworthy evidence was admitted.6 The
reason for the sudden emergence of a concern with the reliability of
confessions is not clear. No traces of the confession rules are apparent
a century and a half before, at the time of the abolition of the Star
Chamber and the High Commission - the most notorious users of
torture in judicial proceedings; it was at that time that the privilege
against self-incrimination, which protected against another great abuse
of these organs, examinations on ex officio oath, was established.7
Since confessions furnish "the strongest evidence of imputed guilt," 8
it was early decided in England and the United States that acceptance
of a false confession was likely to result in the grave injustice of an
unwarranted conviction; confessions were thus to be carefully scruti-
nized before being admitted. In order to simplify the judge's task of
sifting reliable from unreliable confessions, a variety of tests were de-
veloped to determine the circumstances in which it was considered that
a confession might be untrue.9 The tests were formulated (a) often in
13 WIGMopRE, EviDENCE ? 8i8, at 235-36 (3d ed. 1940) [hereinafter cited as

WIGMORE].
2 Morgan, The Privilege Against Self-Incrimination, 34 MINN. L. REV. I, I4-I6,
I8 (I949).
3 See The King v. Rudd, I Leach C.L. II5, i68 Eng. Rep. i6o (K.B. i775).
'The King v. Warickshall, I Leach C.L. 263-64, i68 Eng. Rep. 234, 235 (K.B.
1783).
5 See Lowell, The Judicial Use of Torture, II, II HARV. L. REV. 290, 293 (I897)
MCCORMICK, EVIDENCE ? 75, at I55-56 n.II (954).
6 The point decided by the case was that physical evidence discovered
through information contained in an inadmissible confession was itself admissible.
7 See 8 WIGMORE ? 2250, at 287 n.89 (McNaughton rev. I96I).
8 Commonwealth v. Dillon, 4 Dall. ii6, ii8 (Pa. I792).
9 JOY, ON THE ADMISSIBILITY OF CONFESSIONS 5I (1842).

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I 966] DEVELOPMENTS - CONFESSIONS 955
terms of whether the defendant had been induced to confess by a

promise of benefit or a threat of harm,10 (b) sometimes as a direct
inquiry into whether the defendant had spoken under circumstances that
impaired the reliability of his statements,1" but (c) most often in terms
of whether the confession had been made "voluntarily." 12 Although it
might be thought that the scope of the exclusionary rule was different
under the different tests, in practice judges looked for a promise of bene-
fit or threat of harm regardless of what formulation they articulated.
Confessions that failed to satisfy the tests were excluded entirely
from the jury's consideration, rather than being sent to it with caution-
ary instructions. The confessions rules were thus rules of admissibility,
not of weight. This unusual treatment of evidence stemmed perhaps
from a judicial fear that juries would not readily appreciate the possi-
bility that a person might accuse himself falsely.13 Yet in early nine-
teenth century England, the tests for admissibility were so strictly
applied that it is difficult not to suspect that they were supported by
some value in addition to preventing convictions based on untrustworthy
evidence. Thus in Regina v. Morton,14 confessions given in response to
a caution 15 were excluded on the ground that the statement "anything
you can say in your defense, we shall be ready to hear" was an improper
inducement.1'
Morton was repudiated by the Court of Criminal Appeal in Regina
v. Baldry,17 in which the assurance of reliability was asserted to be the
goal of the rules. As several of the judges in the case were careful to
point out, however, a confession was to be excluded not because the law
"presume [s] that [the confession] . . . is untrue; but rather that it is
uncertain whether a statement so made is true." 18 In other words, not all
confessions following upon inducements are necessarily untrue, but
since some confessions caused by an inducement may be false, all are
excluded. The tests did not measure the effect of an inducement on a
particular suspect; personal strengths and weaknesses were not con-
10 See, e.g., Regina v. Moore, 2 Den. C.C. 522, I69 Eng. Rep. 6o8 (Ct. Crim. App.
I852). This formula still provides the basic test of admissibility in England and
Canada. See pp. IO9I, II03 infra. Scotland and India have adopted stricter rules.
See pp. IO97-98, iio6 infra.
" The notion that a direct inquiry into reliability is the proper test is Wig-
more's, cf. MCCORMICK, op. cit. supra note 5, at I55, and the cases adopting it
tend to be American cases influenced - as is the present discussion - by his
analysis. See, e.g., People v. Fox, 3I9 Ill. 6o6, I50 N.E. 347 (I925).
12 See, e.g., Regina v. Garner, I Den. C.C. 329, I69 Eng. Rep. 267 (Ct. Crim.
App. I848).
13 Cf. Smith v. United States, 348 U.S. I47, I53 (1954). On the other hand, it
was the practice in some jurisdictions to have the jury as the trier of the prelimi-
nary fact of admissibility, 2 WHARTON, CRIMINAL EVIDENCE ? 355, at 54-56 & nn.
I4-I6 (Anderson ed. I955); and a minority of the jurisdictions where the judge
made the ruling did not require the sequestration of the jury during the preliminary
hearing, id. ? 35I, at 42 & n.I3.
14 2 Mood. & R. 5I4, I74 Eng. Rep. 367 (n.p. I843).
"5A caution was later required by the statute of II & I2 Vict. c. 42, ? I8 (I848),
upon examination before a committing magistrate. Prior to the passage of the law
-in interesting contrast to the rules today (see p. IO9I infra) - failure to
caution did not require exclusion, while use of the caution might. Joy, op. cit.
supra note 9, at 45-48.
1 Accord, Regina v. Drew, 8 Car. & P. I40, I73 Eng. Rep. 433 (n.p. I837)
17 2 Den. C. C. 430, I69 Eng. Rep. 568 (Ct. Crim. App. I852),
181d. at 432, I69 Eng. Rep. at 569.

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sidered, "for the law cannot measure the force of the influence used,
or decide upon its effect upon the mind of the prisoner." 19 However,
certain kinds of extreme susceptibility, such as would have rendered a
person an incompetent witness - for example, insanity or drunkenness
to the point of "mania" 20 generally required exclusion.
Under the common law rules, which courts continue to apply to the
extent that they are not inconsistent with or superseded by constitu-
tional requirements,2' confessions obtained by physical violence or
threats of harm are inadmissible, as are those given in return for
promises not to prosecute,22 or to provide lenient treatment after the
conviction.23 While it seems clear that these inducements create a
real risk of unreliability, other cases appear much less consistent with
the reliability rationale. On the one hand, very mild promises or threats
have been held, especially in older cases, to vitiate a confession given
in response to them; for example, remarks that "it will be better to
make a full disclosure" 24 and "if [you] . . . set the . . . fire, [you]
. . . had better own it" 25 made resulting statements inadmissible. On
the other hand, the coercive effects of today's police interrogation are not
taken into account by the traditional rules,26 presumably because at
the time the rules originally developed, police forces had just begun
to come into existence, and the systematic practice of interrogation was
unknown.27 Additionally, many of the cases applying the rules in-
volved confessions given to private individuals, who typically would
be the initiators of a common law prosecution.28 This fact may explain
why the privilege against self-incrimination, traditional bastion against
official inquisitorial pressures, was distinguished from the voluntariness
test by many courts.29 Such a conclusion is supported by the fur-
ther fact that a less artificial standard of "voluntariness" was
used when the confession had been given before a magistrate.30 Wig-
more defends the rules' comparative indifference to the circumstances of
questioning with the argument that "there is nothing in the mere cir-
cumstance of compulsion to speak in general . . . which creates any
risk of untruth." 31 In cases decided after the creation of police forces,
19 3 RUSSELL, CRIMES 478 (6th ed. I896).

20 See notes i8i, i84, infra.
21 Cf. Petition of Pate, 37I P.2d 500, 505 (Okla. Crim. App. i962), cert. denied,
373 U.S. 9I5 (i963).
22 E.g., State v. Chamberlain, 263 N.C. 406, I39 S.E.2d 620 (i965).
23 E.g., State v. White, 316 Mo. 576, 292 S.W. 4II (I927).
24 People v. Barric, 49 Cal. 342, 345 (i874). Under some circumstances, an ex-
hortation to tell the truth can be quite menacing -as when a police surgeon says
it while examining the suspect's genitals. Kier v. State, 2I3 Md. 556, I32 A.2d
4942(957).
25 State v. York, 37 N.H. I75, I84 (i858).
28 See Rex v. Thornton, I Mood. 27, i68 Eng. Rep. II71 (i824).
27 See Note, An Historical Argument for the Right to Counsel During Police In-
terrogation, 73 YALE L.J. IOOO, I034-35 (I964).
28 See Regina v. Moore, 2 Den. C.C. 522, I69 Eng. Rep. 6o8 (Ct. Crim. App.
I852).
29 See, e.g., Hendrickson v. People, io N.Y. I3, 32-33 (i854) (dissentin
ion).
30 See, e.g., Regina v. Pettit, 4 Cox Crim. Cas. i64 (n.p. I850).
31 3 WIGMORE ? 843, at 285. A few cases formulated a theory of "mental agita-
tion" to justify consideration of such compulsion in determining probable relia-
bility. See id. ? 845. It has recently been suggested that the most serious risk of

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many American courts treated the facts of being in custody and subject
to questioning as irrelevant to the admissibility of a confession, al-
though the jury could consider them in determining the weight to be
given to defendant's words.2
The limitation of the reliability inquiry to a search for a promise
or threat has produced bizarre results. In People v. Cobb,33 the in
terrogated suspect had recently received a blood transfusion, had ad-
mittedly been under the influence of drugs, and had been in poor physi-
cal condition, so that his confession was probably of dubious reliability;
yet it was admitted, because no formula of inducement had been pro-
nounced by interrogating officers. It is undeniable that the inducement
test has the virtue of being easy to administer. But since the common
law rules do not purport to forbid certain interrogation tactics as
offensive in themselves, but only render a confession given under certain
circumstances not creditable as a matter of law, a distinction between
the confession of a weak suspect -made in order to obtain relief from
lawful questioning -and one made in return for an illegal promise
would seem arbitrary.
The common law rules exhibit some further oddities. They did
not distinguish among the kinds of offenses confessed to, although it
would seem that certain inducements might prompt false confessions to
minor crimes but not to major ones. In addition, certain inducements
generally described as promises of "indirect benefit" or "collateral in-
ducements" - collateral to the suspect's treatment in respect to the
offense under investigation - did not make a resulting confession inad-
missible; instead it was sent to the jury with a description of the induce-
ments in order to guide jurors in deciding the weight the confession
merited.34 The promises grouped under this rubric would seem more
likely to influence some suspects to confess falsely than those that
required exclusion in other cases. For example, a confession given in
return for a promise not to arrest or prosecute a relative was often held
admissible,35 as was even a confession given by a narcotics addict after
having been promised drugs.36
Promises of "direct benefits" did not lead to exclusion unless they
were made by a "person in authority," that is, one whom the suspect
could reasonably have believed had the ability to carry out the promise.
Traditionally, any person even colorably associated with prosecutorial or
judicial functions is regarded as "in authority" within the rule; thus the
promise of a lie detector operator has been held to invalidate a con-
fession.37 Moreover, many English courts had believed that members of
unreliability lies in the statements of someone who has committed some wrongful
act but who, under the circumstances of interrogation, is not able to describe pre-
cisely what he has done. Herman, The Supreme Court and Restrictions on Police
Interrogation, 25 OHIO ST. L.J. 449, 454 n.25 (I964).
3 See generally MCCORMICK, op. cit. supra note 5, ? iii, at 232-33. In Eng-
land, the evolution in the treatment of confessions once criminal investigation was
entrusted to professional police was very different. See pp. I09I, I093 infra.
33 45 Cal. 2d I58, 287 P.2d 752 (I955).
34 E.g., Commonwealth v. Wilson, i86 Pa. I, 4o Atl. 283 (i898).
35 E.g., Elmore v. State, 223 Ala. 490, I37 So. I85 (I93I).
36 State v. Woo Dak San, 35 N.M. I05, 290 Pac. 322 (1930).
37 People v. Brown, i98 Cal. App. 2d 253, i7 Cal. Rptr. 884 (Dist, Ct. App.
ig6i).

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the lower orders of society often have difficulty in distinguishing among

their betters, and had accordingly held that the confession of a servant
to a master, if the product of an improper inducement, was inad-
missible.38 In Regina v. Moore,39 which expressed an attitude of hos-
tility toward the continuing expansion of the confession rules, these
cases were disapproved, and it was declared that only those private
individuals with an interest in the prosecution (such as the prosecuting
witness) would thenceforth be deemed "persons in authority." Ameri-
can courts, however, do not seem to have accepted this limitation, and
accordingly a confession given in response to an employer's promise not
to inform the authorities has been held to be inadmissible.40 A con-
fession obtained by threats and beatings is, of course, inadmissible
without reference to the "authority" of the assailant.41
The common law rules, not being concerned with fairness to the
defendant apart from assuring a trial free of unreliable evidence, do
not exclude confessions obtained by trickery. As one court put the
matter: "Society and the criminal are at war, and capture by surprise,
or ambush, or masked battery is as permissible in one case as in the
other." 42 Only deceptive tactics that might have produced a false con-
fession vitiated resulting confessions.43 Thus a confession would be
admitted even though it had been induced by lying to the defendant
about the amount of evidence against him.44 And confessions made to
fellow prisoners who are secretly in the services of the police are ad-
missible under the traditional rules.45 Even a confession obtained by
promises to keep it confidential in the police department files 46 has
been admitted, although it would seem that a confession given in such
circumstances is just as likely to be unreliable as many of the confessions
excluded under the common law rules.
Besides being affected by the expanding scope of Supreme Court
decisions in the confessions area,47 the rules have been altered in some
jurisdictions by statute. Although several states have enacted the
most extreme formulations of the common law standards,48 others
have sought to limit the traditional protection. Washington, for ex-
ample, abandoned the "promise of benefit" half of the common law rule,
providing that only a confession induced by violence or fear of violence
should be excluded.49 Kentucky long ago enacted an "anti-sweating
38 See 3 WIGMORE ? 829, at 257-58.

39 2 Den. C.C. 522, I69 Eng. Rep. 6o8 (Ct. Crim. App. i852).
4 Fisher v. State, 379 S.W.2d goo (Tex. Crim. App. I964).
41 People v. Berve, 5I Cal. 2d 286, 332 P.2d 97 (958).
42 Commonwealth v. Cressinger, I93 Pa. 326, 337, 44 Atl. 433 (I899).
3 See, e.g., State v. Green, I28 Ore. 49, 273 Pac. 38i (I929). Moral reserva-
tions about other misleading techniques were, however, often expressed. See, e.g.,
People v. Connelly, I95 Cal. 584, 597, 234 Pac. 374, 379 (I925).
" See, e.g., Lewis v. United States, 74 F.2d I73 (gth Cir. I934). Contra,
State v. Brockman, 46 Mo. 566 (I870).
45 E.g., People v. Lopez, 6o Cal. 2d 223, 384 P.2d i6, 32 Cal. Rptr. 424 (i963),
cert. denied, 375 U.S. 994 (i964).
46 E.g., State v. Thompson, 38 Wash. 2d 774, 232 P.2d 87 (95I).
47 See pp. 973-8I infra.
48 See, e.g., GA. CODE ANN. ? 38-4II (1954): "To make a confession admis-
sible, it must have been made voluntarily, without being induced by another, by
the slightest hope of benefit or remotest fear of injury."
'9WAsH. REV. CODE ? IO.58.030 (095I). In Haynes v. Washington, 373 U.S.

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statute" that prohibits the police from "plying [a suspect] with ques-
tions," 50 and requires exclusion of any confession so obtained. But the
courts of that state seem to have ignored the provision.51
In practice, many of the requirements described above have been
honored only in the breach by state courts. Though the refusal to
follow the strictest common law cases 52 may reflect simply a common-
sense judgment that they were inconsistent with the reliability ra-
tionale,53 other cases 54 seem explicable only as expressions of judicial
hostility toward the underlying assumption of the common law rules-
that confessions often present serious problems of reliability. The
general refusal of the state courts to adapt the common law rules to
take account of the fact that confessions have come to be typically the
product of police interrogation may also reflect a reluctance to see such
questioning restricted.55 The apparently inconsistent retention by some
of these courts of some of the traditional rules is probably attributable
to judicial inertia and considerations of stare decisis.
2. The Common Law Rules in the Federal Courts. -In its early
decisions involving the admissibility of confessions in the federal cour
the Supreme Court adopted the traditional view that confessions re-
quired special scrutiny because of the grave consequences of their
acceptance if they were untrue. In these cases, the Court was acting in
its role as the highest appellate court of the federal system; the rules
of evidence it established were based almost exclusively on English
precedents. In Hopt v. Utah,56 the Court affirmed a murder convic-
tion resting in part on a challenged confession. Relying on Regina v.
Baldry and several text writers, it held the confession "voluntary
within the meaning of the law," and therefore admissible, because not
given "in consequence of inducements of a temporal nature, held out
by one in authority, touching the charge preferred, or because of a threat
or promise by or in the presence of such person . . . ." When such
inducements, threats, or promises appear in the record, the Court stated,
"the presumption upon which weight is given to such evidence, namely,
that one who is innocent will not imperil his safety or prejudice his
interests by an untrue statement, ceases . ... 57
In subsequent cases, the Court developed the inducement doctrine
along familiar lines,58 rejecting the contention that confessions obtained
while the suspect was in custody and in chains were ipso facto involun-
tary, and rejecting also the strict nineteenth century English decisions
503 (I963), the Court indicated that the limited protection offered by the statute
did not fulfill the requirements of the due process voluntariness test.
50 Ky. REV. STAT. ? 422.IIO (I962).
5' See Bauer v. Commonwealth, 364 S.W.2d 655 (Ky. I963) (twelve hours of
continuous questioning).
52 See, e.g., Commonwealth v. Mabey, 299 Mass. 96, I2 N.E.2d 6i (I937).
53 See the remark of Holmes, C.J., in Commonwealth v. Chance, I74 Mass.
245, 249, 54 N.E. 55I, 553 (i899): "We have no disposition to make the rule of
exclusion stricter than it is . . . . It goes to the verge of good sense, at least."
54 E.g., State v. Turner, I22 La. 37I 47 So. 685 (I908).
55 See, e.g., Buschy v. People, 73 Colo. 472, 2I6 Pac. 5I9 (I923). Contra, People
v. Quan Gim Gow, 23 Cal. App. 507, I38 Pac. 9I8 (Dist. Ct. App. I9I3); see
pp. 966-68 infra.
56 'IO U.S. 574 (I884).
57 Id. at 585.
58 See, e.g., Pierce v. United States, i6o U.S. 355 (I896).

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holding an exhortation to "tell the truth" to be a forbidden induce-

ment.59 As the Court had said in Hopt, "the rule against . . . admissi-
bility has sometimes been carried too far, and in its application justice
and common sense have too frequently been sacrificed at the shrine
of mercy."60 In Wilson v. United States, the Court rejected the
argument that the failure to provide counsel or warn the suspect of his
right to remain silent bore on the admissibility of the statement, com-
menting that "these were matters which went to the weight or credi-
bility of what he said . . .. 61
In Bram v. United States, however, the Court seemed to adopt a
radically different approach to confessions:62
In criminal trials, in the courts of the United States, wherever a question

arises whether a confession is incompetent because not voluntary, the
issue is controlled by that portion of the Fifth Amendment to the Con-
stitution of the United States, commanding that no person "shall be
compelled in any criminal case to be a witness against himself."
The assertion of a constitutional basis for the confession rules implied

the adoption of a new standard by which the admissibility of a confes-
sion would be judged. Yet the opinion was puzzling in several respects.
In the first place, the Court did not overrule its prior decisions in con-
fession cases; indeed, there is no indication that the Bram Court was
aware of the difference between its reasoning and that of the past.
The Court relied on an historical analysis of extremely doubtful ac-
curacy, concluding that the fifth amendment privilege against self-
incrimination "was but a crystallization of the doctrine relative to con-
fessions." 63 This assertion appears to be simply erroneous.64 As Wig-
more states, "there never was any historical connection . . . between
the constitutional clause and the confession-doctrine." 65 The privilege,
whatever its justification, was not intended to protect against unreliable
evidence.66 Moreover, though the Bram Court was eloquent in its
praise of the wisdom and mercy of the policies underlying the privilege,
it was silent on such questions as whether a caution should be adminis-
tered or counsel provided as conditions precedent to a valid waiver.67
This silence may be explicable by reference to the facts of the case, in
which the defendant, a murder suspect, was first stripped and then
questioned in an arguably coercive fashion. Thus the situation was
probably not one in which a novel application of the privilege would ex-
clude the confession, but the confession rules would not. And it may
be that the holding was not meant to be as innovational as the language
would imply.68
59 Sparf v. United States, i56 U.S. 51 (I895).
60 IIo U.S. at 584.
61 i62 U.S. 6I3, 624 (I896).
62 I68 U.S. 532, 542 (i897).
63 Id. at 543.
64 See McCormick, The Scope of Privilege in the Law of Evidence, i6 TEXAs L.
REV. 447, 453 (i938).
653 WIGMORE ? 823, at 250 n.5. But see pp. 982-83 infra; cf. FiSCH, NEW
YORK EVIDENCE ? 707, at 362 (959).
ee Accord, Tehan v. United States ex rel. Shott, 86 Sup. Ct. 459, 464-65 (I966).
67 See pp. 98I-83, Ioo6-07 infra.
68 Cf. BEISEL, CONTROL OVER ILLEGAL ENFORCEMENT OF THE CRIMINAL LAW:

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i966] DEVELOPMENTS - CONFESSIONS 96I
If the decision was based upon the privilege, i

by the Court's refusal in a later case to exclude a confession given be-
fore the suspect had been warned of a privilege not to speak.69 And the
Court could, in United States v. Carignan, express doubt about "whe-
ther involuntary confessions are excluded from federal criminal trials
on the ground of a violation of the Fifth Amendment's protection
against self-incrimination, or from a rule that forced confessions are
untrustworthy ...." 70 However, Bram added to the doctrine of earlier
cases the requirement that the coercion inherent in official questioning
be considered in determining voluntariness. The test was now neither a
direct inquiry into reliability, nor a search for a forbidden inducement;
as Mr. Justice Brandeis said in Ziang Sun Wan v. United States,
"in the federal courts, the requisite of voluntariness is not satisfied by
establishing merely that the confession was not induced by a promise
or a threat. A confession is voluntary in law if, and only if, it was, in
fact, voluntarily made." 7 In Wan, the petitioner had been kept in-
communicado and questioned for a week while deathly ill. The Court
was thus rejecting the inducement test 72 and declaring relevant -in-
deed controlling -the circumstances of detention and interrogation.
Bram was cited for this proposition.
In a later case from a state court, Lisenba v. California, the Court
referred to this standard as the federal test for guarding against unre-
liable confessions and distinguished its purpose from that of due process
limitations on the reception of confessions -"to prevent fundamental
unfairness in the use of evidence, whether true or false." 7 However,
the standard seems to have merged into the definition of due process
voluntariness developed in the state court cases subsequently decided by
the Court.74 Since the Court's decision in McNabb v. United States,75
which sought to deal with the confessions problem by severely limiting
permissible postarrest interrogation,76 it has further developed the stand-
ard only in cases from the state courts. And recent lower federal court
decisions involving confessions obtained under circumstances that satisfy
the McNabb rule -and whose admissibility at trial therefore de-
pends solely on whether police interrogation comported with the stand-
ard described above -ignore any distinction, and rely indifferently on
Supreme Court cases from the federal and state courts.77
3. Due Process and Confessions. - At common law the circumstances
under which a confession was made were relevant to its admissibility
only insofar as they affected its probative value. Yet implicit in this,
ROLE OF THE SUPREME COURT 89 (I955). The Court vaguely explained that the
rule was not that the "statement [must have been] voluntarily made, but . ..
that the making of the statement was [legally] voluntary." i68 U.S. at 549.
69 Powers v. United States, 223 U.S. 303 (I9I2).
70 342 U.S. 36, 4I (I95I) (Footnotes omitted); cf. Stein v. New York, 346 U.S.
I56, I90 n.35 (I953) -
71 266 U.S. I, I4 (I924).
72 The Government in its argument relied in part on this test, id. at 6, as had
the court of appeals, 289 Fed. 908, 9I3 (D.C. Cir. I923).
73 3I4 U.S. 2I9, 236 (I94I).
74 Cf. Malloy v. Hogan, 378 U.S. I, 7 (i964).
753I8 U.S. 332 (943).
77 E.g., McHenry v. United States, 308 F.2d 700 (ioth Cir. i962).

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as in many other rules of evidence, was a basic belief that fundamental

notions of fairness require a trial to be conducted according to
procedures that ensure a high degree of accuracy in fact-finding. Even
among rules of evidence, the confessions rules were especially strict,
perhaps embodying the notion that the greatest certainty should be
required of evidence so likely to produce a conviction. There was,
however, no conception that the interrogation that yielded the confes-
sion should conform to a standard of procedural regularity, or that
institutional safeguards had to be provided during interrogation as they
were at trial,78 or that the extent to which such regularity or safeguards
were lacking bore directly on the admissibility of a confession.79
But in a series of decisions beginning in I936 with Brown v. Missis-
Sippi,80 the Supreme Court radically changed the law; it has imposed
limitations on the admissibility of confessions, deriving from the funda-
mental notion that the interrogation at which a confession is obtained is
a part of the process by which the state procures a conviction, and there-
fore subject to the requirements of the due process clause of the four-
teenth amendment. The necessity and justice of some such control is
rarely disputed, but the Court has encountered great difficulties in decid-
ing just what process is due at interrogation. Its decisions in this area
prior to Escobedo v. Illinois 81 were based on the premise that "the public
interest requires that interrogation, . . . at a police station, not com-
pletely be forbidden, so long as it is conducted fairly .... 82 For this
reason the Court concluded that institutional safeguards are not an ap-
propriate means of protecting suspects' rights at interrogation since they
are likely to be too obstructive to the solution of crimes. Instead of re-
quiring production before a magistrate on arrest or provision of counsel,
the Court sought to develop a definition of the process due to persons
subjected to interrogation, and expected the lower courts to scrutinize
the record of an interrogation to decide whether these interests had been
impaired.83 But the Court has been less than successful in describing
the specific interests of the defendant deemed to be secured against state
infringement. Indeed, on occasion the Court has exhibited a surprising
disinterest in the task. In Blackburn v. Alabama, for example, it held
that a madman's confession was inadmissible, declaring that use of the
confession at trial affronted "a most basic sense of justice," and continu-
ing on to say that "this judgment can without difficulty be articulated in
terms of the unreliability of the confession, the lack of rational choice of
the accused, or simply a strong conviction that our system of law en-
78 See generally Barrett, Police Practices and the Law - From Arrest to Release
or Charge, 50 CALIF. L. REV. II, I8-2I (I962).
"7 Cf. State v. Murphy, 87 N.J.L. 5I5, 529-3I, 94 Atl. 640, 646 (Ct. Err. & App.
I9I5).
80297 U.S. 278.
81 378 U.S. 478 (i964) (right to counsel applies during interrogation).
82 State v. Smith, 32 N.J. 50I, 534, i6i A.2d 520, 537 (ig60), quoted in Culombe
v. Connecticut, 367 U.S. 568, 578 (i96i) (opinion of Frankfurter, J.).
83 Not all the Justices have accepted this approach. Mr. Justice Douglas has
long believed that something like the McNabb rule should be applied to the
states, see, e.g., his concurring opinion in Watts v. Indiana, 338 U.S. 49, 56-57
(I949). He and other Justices have also maintained that a confession given after
refusal of a request for counsel should be inadmissible. See, e.g., Culombe v.
Connecticut, 367 U.S. 568, 637-4I (i96i) (opinion of Douglas, J.).

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forcement should not operate so as to take adva

fashion." 84 Such pronouncements were bound to
out a clear idea of which circumstances surroun
especially relevant to the due process issue. The vacuum has been filled
by a great variety of attempts by lower federal courts, state supreme
courts, and commentators to state the requirement of due process in this
context.
It is quite possible that Escobedo renders these attempts outdated, and
that henceforth the protection of a suspect's legal and constitutional in-
terests at interrogation, however defined, will be entrusted to a lawyer,
not retroactively vindicated by application of an exclusionary rule at
trial.85 Indeed, the Court may have been led to the doctrine of Escobedo
by the difficulties experienced in applying its previous decisions. How-
ever, the earlier cases remain significant not only because they furnish
a useful historical preface to a consideration of recent developments,
but because they will be of continuing importance if the right to counsel
declared in Escobedo is held to be easily waivable. In that event courts
will be required to pass upon the propriety of police interrogations
according to the law of the earlier decisions.
The Supreme Court's pre-Escobedo confession cases are usually
described as voluntariness cases, because the Court has frequently used
that term in enunciating the requisites for admissibility under the due
process clause and also, perhaps, because the inquiry called for by
these opinions is reminiscent of that employed in applying the common
law voluntariness rules - an examination of the circumstances sur-
rounding the making of a confession. In Culombe v. Connecticut, the
due process voluntariness analysis was described by Mr. Justice Frank-
furter as a "three-phased process": 86
First, there is the business of finding the crude, historical facts, the
external "phenomenological" occurrences and events surrounding the
confession. Second, because the concept of "voluntariness" is one which
concerns a mental state, there is the imaginative recreation, largely
inferential, of internal, "psychological" fact. Third, there is the appli-
cation to this psychological fact of standards for judgment informed by
the larger legal conceptions ordinarily characterized as rules of law but
which, also, comprehend both induction from, and anticipation of, factual
circumstances.
Mr. Justice Frankfurter noted that " 'voluntariness' is . . . an am-

phibian. It purports at once to describe an internal psychic state and to
characterize that state for legal purposes." 87 But without a clear un-
derstanding of the applicable "legal purposes" as a guide, the fact of
voluntariness is extremely difficult to find, since it represents not an ob-
servable physical phenomenon but a characterization of varying con-
catenations of facts. The purposes that dictate a requirement of volun-
tariness must determine when that requirement is satisfied. The Court's
cases suggest that the due process voluntariness standard has three
84 36I U.S. I99, 207 (I960).
85 See pp. 996-I023 infra.
86 367 U.S. 568, 603 (I96I).
87 Id. at 6o5.

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possible goals: (i) ensuring that convictions are based on reliable evi-
dence; (2) deterring improper police conduct; or (3) assuring that a de-
fendant's confession is the product of his free and rational choice. The
sections immediately following attempt to assess the extent to which the
Court's decisions are consistent with these goals.
(a) Due Process and Testimonial Reliability. - (i) The Early Cases.
- In some of the cases in which the Court has held confessions im-
properly admitted, the confessions were clearly of doubtful reliability.
In Brown v. Mississippi,88 the Negro petitioners had been convicted of
the murder of a white man solely on the basis of confessions obtained
by whipping them with steel-studded belts. The Supreme Court of
Mississippi had affirmed on the ground that, while defense counsel had
objected to the admission of the confessions, he had not moved for their
exclusion, and the trial court's failure to exclude them in the absence
of such a motion was not a denial of due process.89 The United States
Supreme Court held that this analysis "proceeds upon a misconcep-
tion of the nature of petitioners' complaint," and that "the conviction and
sentence were void for want of the essential elements of due process and
. . could be challenged in any appropriate manner." 90 In the next con-
fession case decided by the Court, Chambers v. Florida,91 the challenged
murder convictions were based on confessions obtained after persistent
interrogation during a week of incommunicado detention, culminating
in an all-night examination that yielded the incriminating statements.
Although the risk of falseness might seem vastly smaller on these facts
than on those in Brown, the Court emphasized that the petitioners,
"surrounded by [their] accusers and others, interrogated by men who
held their very lives - so far as these ignorant [men] . . . could know
- in the balance," 92 may have been so terrorized that they would
have said whatever was necessary to obtain their momentary freedom.
Similarly, in Ward v. Texas,93 the Texas rangers had taken the peti-
tioner, an "ignorant Negro," and ferried him at night from jail into
the deserted countryside in order to interrogate him. The Court relied
heavily on the petitioner's statement to the county attorney that "he
would be glad to make any statement . . . desired." 94 And subse-
quently the Court has made several explicit avowals that reliability is a
goal of the due process test. Thus, in Lyons v. Oklahoma, the opinion
stated that "a coerced confession is offensive to basic standards of justice
. . . because declarations procured by torture are not premises from
which a civilized forum will infer guilt." 95 And in Stein v. New York,
the Court asserted that "reliance on a coerced confession vitiates a con-
viction because such a confession combines the persuasiveness of ap-
parent conclusiveness with what judicial experience shows to be illusory
and deceptive evidence." 96
88 297 U.S. 278 (1936).
89 Brown v. State, I73 Miss. 542, i6i So. 465 (I935).
90 297 U.S. at 286, 287.
91 309 U.S. 227 (1940).
92 Id at 240.
93 3I6 U.S. 547 (I942).
94 Id. at 555.
95 322 U.S. 596, 605 (I944).
96346 U.S,. I56, I92 (I953).

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Some of the other early cases, however, contain affirmative indica-

tions that the Court's finding of unfairness was not based on grounds of
probable unreliability. Indeed, in Lisenba v. California, it contrasted
the purposes of the common law and due process voluntariness require-
ments as follows:97
The aim of the rule that a confession is inadmissible unless it was
voluntarily made is to exclude false evidence. Tests are invoked to
determine whether the inducement to speak was such that there is a
fair risk the confession is false. . . . The aim of the requirement of
due process is not to exclude presumptively false evidence, but to pre-
vent fundamental unfairness in the use of evidence, whether true or
false.
In Brown itself, the Court, though emphasizing the states' freedom un-
der then current interpretations of the fourteenth amendment to dis-
pense with the forms of procedure required by the Bill of Rights, none-
theless concluded that due process requires that the essence of those
forms must be preserved, and that "because a State may dispense with
jury trial, it does not follow that it may substitute trial by ordeal." 98
The Court was thus declaring constitutionally invalid a conviction that
as a practical matter had been obtained by methods radically dissimilar
to the adversary trial - that made of the trial "a mere pretense."
Brown was an extreme case, since the evidence of beating was undis-
puted 979 and known to the trial court, and the state offered no other evi
dence of guilt. But even on less extreme facts, the Court reversed con-
victions resting on confessions obtained by pretrial conduct that would
be impermissible at trial - for that reason alone, it seems, and not on the
ground that the evidence was unreliable.100 In Ashcraft v. Tennessee, ?1
97 3I4 U.S. 219, 236 (:940). Compare Rochin v. California, 342 U.S. i65,
172-73 (1952) (dictum): "States may not base convictions upon confessions, how-
ever much verified, obtained by coercion."
98 297 U.S. at 285.
99 In later cases, when the testimony has been conflicting, the Court has applied
the standard for scope of review first used in Brown. It makes "an inde-
pendent determination on the undisputed facts," Malinski v. New York, 324 U.S.
40I, 404 (1945). If, from those circumstances alone, the Court concludes that the
confession was not voluntary, it will reverse. Although "voluntariness," under the
Court's test, is in itself partly a fact, the Court deems itself free, on the undis-
puted record, to redetermine that ultimate fact, since this "characterization is the
very issue 'to review which this Court sits' . . .." Culombe v. Connecticut, 367
U.S. 568, 605 (I96I) (opinion of Frankfurter, J.). See generally Note, Supreme
Court Review of State Findings of Fact in Fourteenth Amendment Cases, 14 STAN.
L. REV. 328 (I962).
No standard seems to have developed to determine what is a petitioner's burden
of proof in the Supreme Court in establishing, on the undisputed facts, the ulti-
mate fact of involuntariness. Although the Court has said that "we accept the
determination of the triers of fact, unless it is so lacking in support in the evi-
dence that to give it effect would work that fundamental unfairness which is at
war with due process," Lisenba v. California, 314 U.S. 2I9, 238 (I941), vaguer
statements have been more frequent - for example, "on all the circumstances of this
record we are compelled to conclude that these confessions were not voluntary."
Culombe v. Connecticut, supra at 62I. Cf. pp. IO69-72 infra.
00 The Court's concern with police methods as such was probably stimulated
by the publication, five years before Brown, of the Wickersham Commission Re-
port, 4 U.S. NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT, RE-
PORT ON LAWLESSNESS IN LAW ENFORCEMENT (1931), exposing the extent of
secret detention and horrendous abuses then common in police interrogation. See
Chambers v. Florida, 309 U.S. 227, 240 n.I5 (1940).
101 322 U.S. I43 (Ig44).

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it was held that a confession obtained after thirty-six hours of con-

tinuous questioning was inadmissible. The Court overrode a finding
below that the confession had been voluntary, saying:102
It is inconceivable that any court of justice in the land, conducted as

our courts are, open to the public, would permit prosecutors serving in
relays to keep a defendant witness under continuous cross-examination
for thirty-six hours without rest or sleep in an effort to extract a "volun-
tary" confession. Nor can we, consistently with Constitutional due
process of law, hold voluntary a confession where prosecutors do the
same thing away from the restraining influences of a public trial in an
open court room.
Emphasis on the safeguards of a trial is not necessarily inconsistent

with a concern for reliability. Due process requires the adversary sys-
tem that was circumvented by the state in Brown partly on the basis of
a judgment that such a system is the most consistent guarantee of ac-
curacy in factfinding. While the common law test looked at the circum-
stances under which the confession was made in order to determine re-
liability, a different analysis might proceed from the assumption that
any confession obtained under circumstances varying greatly from
those of a trial is unreliable, and the question would then be whether the
variance in a given case was too great. But it is difficult to separate
out the factfinding virtues of the adversary system from the other
values that the system protects, and the Court's emphasis on the differ-
ences between police interrogation and trial suggests stricter limits on the
use of confessions than merely a rule against the use of untrustworthy
evidence.
(ii) Beyond the Common Law Rules. - In any event, the Court's
frequent description of its due process requirement as one of "volun-
tariness," coupled with its explicit references to the problem of unrelia-
bility when applying the "voluntariness" test in other cases,103 led the
great majority of state courts to conclude that it was concerned solely
with unreliability.104 In Lyons v. Oklahoma, decided only a month
after Ashcraft, the Court stated that "the admissibility of the confes-
sion [under the due process clause] depends upon . . . [whether it]
is . . . voluntary," and concluded:105
When the state-approved instruction fairly raises the question of whether

or not the challenged confession was voluntary, as this instruction did,
the requirements of due process, under the Fourteenth Amendment, are
satisfied and this Court will not require a modification of local practice
to meet views that it might have as to the advantages of concreteness.
The Court seemed to be saying that it was doing no more than policing
the states' administration of their reliability tests - ensuring, in short,
102 id. at I154.

103 See generally Cohn, Federal Constitutional Limitations on the Use of Coerced
Confessions in the State Courts, 50 J. CRIM. L., C. & P.S. 265 (959).
104 E.g., Commonwealth v. Agoston, 364 Pa. 464, 72 A.2d 575, cert. denied, 340
U.S. 844 (1950); People v. Burwell, 44 Cal. 2d i6, 279 P.2d 744, cert. denied,
349 U.S- 936 ('955).
105 322 U.S. .59, 6oi (IQ44).

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that the state employed a fair standard in adjudicating common law

involuntariness claims.'06 Likewise, in Stein v. New York, the Court
said: "When the [voluntariness] issue has been fairly tried and reviewed
and there is no indication that constitutional standards of judgment
have been disregarded, we will accord to the state's own decision great
. . .respect." 107
The reference to constitutional standards does suggest that the Court
was using a limited review to lead the states towards a more rational
and more equitable reliability test than the traditional common law
rules. By emphasizing the circumstances of an interrogation, the Court
appeared in some cases to be calling for a more realistic analysis of the
pressures applied in police questioning, in accordance with the approach
it had previously adopted in the federal cases.'08 In Ashcraft, for ex-
ample, the trial court had instructed the jury to consider the challenged
confession if it found that the "statements [were] made by the defend-
ants freely and voluntarily and without fear of punishment or hope of
reward . .... 109 In holding a thirty-six-hour interrogation "inher-
ently coercive," the Court could have been saying that a voluntariness
test that does not give controlling importance to the circumstances of
an interrogation as they bear on reliability is fatally undiscriminating.
This was the view taken by the Supreme Court of Minnesota in State v.
Schabert: 1O
[U]nfairness in violation of due process exists when a confession is

obtained by means of pressure exerted upon the accused under such
circumstances that it affects the testimonial trustworthiness of the
-confession. . . Certainly, delay in arraignment is a circumstance to
be considered . . . tending to show that the accused was subjected to
pressure to obtain a confession.
The court reversed a murder conviction based on a confession obtained

by intermittent questioning during two days' incommunicado detention.
The Court also gave examples in its opinions of a voluntariness test
more sophisticated than that of the common law. In Gallegos v. Ne-
braska, in which the petitioner was an illiterate Mexican who had been
illegally detained for three weeks, the Court said: "We have carefully
weighed the circumstances of the petitioner's lack of education and
familiarity with our law, his experience and condition in life, his need
for advice of counsel as to the law of homicide, and the probable effect on
such a man of interrogation during confinement." "I' Its articulation
of the circumstances that it deemed relevant to a determination of
voluntariness seemed to state courts to call for more imaginative evalu-
ations of the reliability of challenged confessions. In State v. Archer 112
106 Cf. Mooney v. Holohan, 294 U.S. I03 (i935) (state must provide pro-
cedure for hearing claim of prosecution's knowing use of perjury).
107 346 U.S. I56, i82 (953).
108 See p. 96I supra.
109 322 U.S. at I46. The state trial court's instructions on voluntariness made
reference to "the condition of the minds of the prisoners owing to their arrest,
but the traditional language of "hope or fear" predominated. Id. at I46-47.
110 2X8 Minn. i, 6, I5 N.W.2d 585, 587-88 (i944).
"'342 U-S. 55, 66-67 (x95I).
112 244 Iowa I045, 58 N.W.2d 44 0953).

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the Iowa Supreme Court took such a view of its constitutional obligation;
it went beyond the common law test to exclude a confession as too un-
trustworthy because the defendant was a stranger to the community,
had been subjected to long questioning, and was simple-minded.
(iii) Beyond Reliability. - In the past few years the Court has
made it clear that its requirement of voluntariness is not aimed at the
exclusion of false confessions. In Rogers v. Richmond,"13 the Court was
presented with a case in which the petitioner had been led to confess by
the police stratagem of pretending, in his presence, to order the arrest
of his ailing wife for questioning. The state court had charged the
jury that "the fact that a confession was procured by the employment
of some artifice or deception does not exclude the confession . . . if the
artifice or deception was not calculated to procure an untrue state-
ment." 114 The Court held that the use of a legal standard that took into
account the "probable truth or falsity" of the confession was "not . . .
permissible . . . under the Due Process Clause of the Fourteenth
Amendment." 115
Even after this holding, some state courts apparently still think that
the Court's primary concern is with reliability."16 Of course, this lan-
guage in Rogers does not finally dispose of the possibility that reliability
is the goal of the Supreme Court's rules. The possibility remains that,
although the reliability of a particular confession may not be considered,
the requirement of voluntariness is intended solely to prevent the use of
police tactics likely to cause a false confession. The fact that certain
tactics may not have produced an untrustworthy statement in a given
case would be relevant only as a guide to the determination of the
likely effect of the tactics in the general run of cases."7 However, this
analysis not only runs afoul of the fact that in Rogers the state trial
court's instruction was couched in terms of the "calculated" effect of
the measure used by the police, but seems rebutted by a dictum in the
Supreme 'Court's opinion going directly to this point:"18
[C] onvictions following the admission into evidence of confessions
which are . . . the product[s] of coercion . . . cannot stand . . . not
because such confessions are unlikely to be true but because the methods
used to extract them offend an underlying principle in the enforcement
of our criminal law: that ours is an accusatorial and not an inquisitorial
system . .
It would seem strange if the states were precluded by the Constitution,

not only from considering the truth or falsity of a given confession as a
factor in their tests for admissibility, but from orienting a proper test
to the purpose of weeding out unreliable evidence while giving proper
weight to certain other purposes. It is more probable that the Court
is assuming that proper application of the due process test called for
113 365 U.S. 534 (i96i).

11' Id. at 542.
1151d at 543-44.
116 See, e.g., Rainsberger v. State, 399 P.2d I29, I33-34 (Nev. i965).
117 Cf. Kamisar, What Is an "Involuntary" Confession?, I7 RUTGERS L. REV.
728, 753 (I963).
118 365 U.S. at 540-4I.

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in its decisions will ensure, at least as adequately as the common law

tests, that untrustworthy evidence will not be used in a criminal trial.
Since it would seem possible to apply both tests to a proffered confession
without slighting those interests specially protected by the due process
test, there is no reason to read Rogers as forbidding such a procedure.119
(b) Due Process and Police Practices. - The emphasis in cases
such as Rogers on the presence in the record of claims of "coercion"
has led many courts and commentators 120 to interpret the exclusionary
rule of the Supreme Court confession cases as analogous to the rule
excluding the products of an unlawful search or seizure.'21 The Court
has been seen as treating "outrageous" or "illegal" conduct during in-
terrogation as the unconstitutional primary activity of the police; the
exclusionary rule for confessions, like that in the search and seizure
cases, is thought to provide an effective remedy to victims of improper
conduct and to deter improper interrogations by removing any incentive
to engage in them. The state of mind of the suspect when he confessed -
which the use of the term "voluntary" implicitly makes relevant to the
determination of admissibility - should not be considered by a judge
in disposing of a constitutional challenge to a confession; indeed, one
of the virtues claimed for the test is that it provides a purely objective
manner of deciding the issue.'22
Ashcraft v. Tennessee 123 has been regarded as the first case apply-
ing the police practices analysis.'24 In that case Mr. Justice Black
seemed to treat the testimony in the trial court to the effect that the peti-
tioner, when he confessed, had been in control of himself and did not
have bloodshot eyes or show other signs of fatigue, as irrelevant to the
decision. This might suggest the question in the case was not the
effect of the thirty-six hours of questioning on this petitioner, but the
propriety of the police conduct - which the Court condemned as
reminiscent of the tactics used by "governments which convict individ-
uals with testimony obtained by police organizations possessed of an
unrestrained power to seize persons . . . , hold them in secret custody,
and wring from them confessions by physical or mental torture." 125 A
police practices analysis is also suggested by the fact that some of the
Court's decisions most lacking in clear analysis are filled instead with
rhetorical denunciations of police conduct. Thus in Haley v. Okio,'26
Mr. Justice Douglas described in vivid language the refusal of the police
to let the youthful petitioner see his lawyer or mother for several days
119 Cf. MAGUIRE, WEINSTEIN, CHADBOURN & MANSFIELD, CASES ON EVIDENCE

838 (5th ed. I965).
120E.g., Paulsen, The Fourteenth Amendment and the Third Degree, 6 STA
L. REV. 4II, 4I 7-23, 429-3I (I954); Ritz, Twenty-five Years of State Criminal C
fession Cases in the U.S. Supreme Court, I9 WASH. & LEE L. REV. 35, 42-43 (I96
121 See Mapp v. Ohio, 367 U.S. 643 (I96I).
122 BEISEL, CONTROL OVER ILLEGAL ENFORCEMENT OF THE CRIMINAL LAW: RO
OF THE SUPREME COURT 85 (I 955). See generally Comment, Justice Black
Inherent Coercion: An Analytical Study of the Standard for Determining t
Voluntariness of a Confession, IO AM. U.L. REV. 53 (I96I).
123 322 U.S. I43 (I944).
124 Comment, The Decade of Change Since the Ashcraft Case, 32 TExAS L. REV.
429, 430 (954)-
125322 U.S. at i55.
126 332 U.S. 596 (I948).

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after he had confessed. Although conceding the irrelevance of this

conduct to the question for decision,'27 he persisted: "When the police
are so unmindful of . . . basic standards of conduct in their public
dealings, their secret treatment of a i 5-year-old boy behind c
doors in the dead of night becomes darkly suspicious." 128 Moreover,
in the cases in which the Court has affirmed convictions based on con-
fessions, it has often emphasized that it considered the conduct of the
police towards the suspect to be unobjectionable. In Ashdown v. Utah,129
for example, a woman had been examined for four and a half hours
before she confessed, although for most of the time the police had just
listened to her without questioning. The Court stated that the "inter-
view with petitioner was temperate and courteous . . . . [T]he officers
did not intend to take advantage of petitioner ... .130
(i) "Outrageous" Conduct. - Though the Court has never re-
versed a conviction explicitly on the ground that the police interroga-
tion in question was "outrageous," its severe condemnation of some
practices is reminiscent of the test enunciated in Rockin v. Cali-
fornia, in which a conviction was reversed on the ground that the ev
dence on which it was based had been obtained in a fashion that
"shocks the conscience." 131 The confession decisions were cited in that
case as "instances of the general requirement that States in their prose-
cutions respect certain decencies of civilized conduct." The application
of the Rochin test was said to call for a balancing approach: "In each
case, 'due process of law' requires an evaluation based . . . on the de-
tached consideration of conflicting claims, . . . on a judgment not ad
hoc and episodic but duly mindful of reconciling the needs both of
continuity and of change in a progressive society." 132
Mr. Justice Frankfurter, who wrote the majority opinion in Rockin,
sought to explicate the analysis in his dissenting opinion in Irvine v.
California: "While there is in the case before us, as there was in
Rockin, an element of unreasonable search and seizure, what is decisive
here, as in Rockin, is additional aggravating conduct which the Court
finds repulsive." 133 But Mr. Justice Jackson, for the majority in Irvine,
persuasively argued against such an approach. Rejecting a suggestion
that the Court hold that Wolf v. Colorado! 134 "applies only to searches
and seizures which produce on our minds a mild shock, while if the
shock is more serious, . . . we will reverse the conviction," he declared:
"We think . . . that a distinction of the kind urged would leave the rule
so indefinite that no state court could know what it should rule in order
to keep its processes on solid constitutional ground." 135
The same objection seems applicable to the "outrageous police
127 Cf. United States v. Mitchell, 322 U.S. 65 (I944); p. 992 infra.
128332 U.S. at 6oo.
129 357 U.S. 426 (I958).
'30 Id. at 430-3I.
13142 U3.S. i65, I72-73 (1952).
132 Id. at 172 .
133 347 U.S. I28, I44-45 (954)-
134 338 U.S. 25 (I949) .
135 347 U.S. at I33-34.

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practices" approach to the problem of confessions.'36 The extraordinary

divisions in the Court on confessions issues 137 weakens the plausibility
of relying on what Mr. Justice Frankfurter called "considerations that
are fused in the whole nature of the judicial process" 138 to produce such
a standard, especially when the issue involves not physical brutality or
long-continued interrogations, but "modern methods and devices for
discovering wrongdoers and bringing them to book."139 Moreover, it
would seem unwise to leave to trial courts for decision in each case the
balance to be struck between the need for confessions and the suspect's
interest in privacy and decent treatment. Finding this balance is at
the heart of the "confession dilemma," and the Court must provide
reasonably explicit guidelines rather than merely calling state courts'
attention to the existence of the problem.
The police practices analysis has given those state courts hostile to
limitations on police interrogation a convenient means of not comply-
ing with the Court's requirements.140 These courts, playing with the
objective character of the test, "color-match" the facts of the case be-
fore them with those of Supreme Court cases and, finding none "on all
fours," conclude that the police have not acted outrageously.'41 Al-
though the Court has criticized this practice,'42 it has denied certiorari
in most cases decided in this fashion,143 presumably because of the
press of its business.'44 Even those courts sincerely searching for an
administrable standard find themselves forced to make such subjective
judgments as "the circumstances smack of catharsis rather than the
knout." 145
(ii) "Illegal" Conduct. - In Malloy v. Hogan, Mr. Justice Brennan
interpreted the confession cases and concluded that "the constitutional
inquiry is not whether the conduct of state officers in obtaining the con-
fession was shocking ....', 146 But the rejection of the outrageous
conduct approach may reflect merely a general retreat from the direct
due process inquiry implicit in that approach.'47 The police practices
analysis of the confession cases has been stated in other, apparently
more precise, terms. On this view, the Court is regarded as controlling
136 But see Paulsen, supra note I20, at 43i n.70.

137 See Ritz, supra note I20, at 68-69.
138Rochin v. California, 342 U.S. 165, I70 (1952).
139Id. at I74.
140For example, in Commonwealth ex rel. Kern v. Banmiller, i99 Pa. Supe
599, i87 A.2d i85 (i962), cert. denied, 374 U.S. 852 (i963), the court decided that
its conscience was not shocked by the fact that a suspect had been stripped before
he was interrogated. But see Malinski v. New York, 324 U.S. 40I (i945).
141 E.g., Collins v. State, i7i Tex. Crim. 585, 352 S.W.2d 84I (I96I), cert.
denied, 369 U.S. 88i (i962); cf. Paulsen, supra note I20, at 434 n.75.
142 See Reck v. Pate, 367 U.S. 433, 442 (i96i). See generally Spanogle, The
Use of Coerced Confessions in State Courts, i7 VAND. L. REV. 42I, 457-60 (I964).
143 See, e.g., Commonwealth ex rel. Kern v. Banmiller, i99 Pa. Super. 599, i87
A.2d I85 (I962), cert. denied, 374 U.S. 852 (I963).
144 See Hart, Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84,
95-96 (I959).
145 People v. Freeland, 2i8 Cal. App. 2d I99, 205, 32 Cal. Rptr. I32, I36-37
(Dist. Ct. App. i963).
146 378 U.S. I, 7 (i964).
147 See generally Friendly, The Bill of Rights as a Code of Criminal Procedure,
53 CAriF. L. REV. 020, 933-38 (To65).

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"illegal" rather than "outrageous" police conduct. As the Court said in

Spano v. New York:148
[T]he abhorrence of society to the use of involuntary confessions . . .

also turns on the deep-rooted feeling that the police must obey the law
while enforcing the law; that in the end life and liberty can be as much
endangered from illegal methods used to convict those thought to be
criminals as from the actual criminals themselves.
This view draws support from the fact that the Court has made fre-
quent reference in its opinions to violations of state laws calling for
prompt production of arrested persons before a magistrate 149 or re-
quiring opportunity to consult counsel.150
The difficulty with such a view is that it ignores the fact that the
Court has repeatedly declined to reverse convictions based on confes-
sions concededly obtained in violation of state statutes,151 and has re-
quired exclusion of confessions in cases not involving such viola-
tions.152 The Court's references to the illegality of police conduct can
be explained by its belief that statutes prohibiting incommunicado de-
tention and requiring prompt arraignment represent attempts to pre-
vent offensive conduct by the police. The Court utilizes the fact that
a violation of such a statute occurred to bolster its decision that abuses
of constitutional dimension were present in a given case. For example,
in finding a confession to be inadmissible in Haynes v. Washington, the
Court mentioned the fact that the petitioner's incommunicado deten-
tion for sixteen hours was in violation of a state statute.'53 It went on
to say, however, that "the basic techniques present here - the secret
and incommunicado detention and interrogation - are devices adapted
and used to extort confessions from suspects." 154 The conclusion of the
Court that the police conduct involved was offensive seems to have
been based on a judgment about the conduct itself and its effects, rather
than on any inference drawn from the statutory violation.
(iii) "Unwarranted" Conduct. - Related to the "police practices"
analysis are certain statements in some of the Court's opinions to the
effect that the right of the police to exert pressure is somehow related
to the stage of the proceeding at which interrogation occurred. In
cases in which investigation has already produced enough evidence so
that the police were satisfied of the suspect's guilt before they interro-
gated him, a showing of even very weak pressure seems to be enough
to require the exclusion of a subsequent confession.155 In Spano v.
New York,156 for example, the Court emphasized the fact that in-
terrogation had occurred only after an indictment had been returned.
In Haynes, the suspect had made two oral confessions before the police
148 360 U.S. 3I5, 320-2I (I959).
149 See Comment, supra note I22, at 54-55.
150 E.g., Haynes v. Washington, 373 U.s. 503 (I963).
151 E.g., Gallegos v. Nebraska, 342 U.S. 55 (I95I).
152 E.g., Townsend v. Sain, 372 U.S. 293 (I963).
153 373 U.s. 503, 5I0 n.7 (I963).
154 Id. at 5I4.
155 Accord, State v. Hoyt, 2I Wis. 2d 284, I28 N.W.2d 645 (I964), affirming
on rehearing 2I Wis. 2d 3I0, I24 N.W.2d 47 (I963).
156 360 U.S. 3I5 (I959)-

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sought the written statement on which the ca

reversing, observed that "the procedures here are . . . perhaps more
unwarranted because so unnecessary." 157 It may, however, be ques-
tion-begging to refer to the police's conduct as unnecessary; a written
confession is often very useful at trial since it tends to eliminate con-
tentions that the police are misreporting the defendant's statements.
The Court's willingness to tolerate pressure only when it is investiga-
tory, not when it is a search for evidence,158 overlooks the fact that the
function of the police is to help obtain convictions, not merely to secure
enough evidence to justify charging a suspect. In any event, this factor
never seems to have been controlling in any of the Court's decisions,
but rather seems, like references to "illegal" conduct, to shore up
judgments arrived at by another route. Indeed, the very idea of con-
centrating exclusively upon police conduct seems to be inconsistent with
the Court's concern in many cases for the effects of such conduct upon
the suspect.159.
(c) Due Process and "Free and Rational Choice." - (i) Definition.
-The inquiry that the Supreme Court has most consistently made in
the voluntariness cases has been into the defendant's state of mind at
the time a challenged confession was made. This inquiry focuses on
the defendant's psychological responses to the pressures exerted by the
police during the detention and interrogation that resulted in the con-
fession. The approach assumes that the constitutionally protected in-
terest of the accused is a right to decide, free from unfair pressure,
whether he wants to confess. The offensiveness of interrogation tactics
is gauged by the extent to which they violate this right.
The definition of "unfair pressure" has evolved considerably in the
course of the past thirty years. In one of the early cases it was stated
that interrogation was acceptable provided that it did not deprive the
suspect of "his free choice to admit, to deny, or to refuse to answer," 160
while in another case it was required that the confession be "the offspring
of a reasoned choice." 161 Because of the shocking facts of most of the
early cases in which convictions based on challenged confessions were
overturned, the Court's I944 definition of a "free" and "reasoned"
choice was simply one that was not the "result of torture, physical or
psychological." 162 Subsequent cases continued to employ the terminol-
ogy of free and reasoned choice in describing the state of mind required
for the confession of a defendant subjected to police interrogation to
be admissible.163 But "as law enforcement officers [have] become more
157373 U.S. 503, 5I9 (I963).

158 See p. I007 infra.
159 It is not necessarily true that consideration of the stage of the proce
at which an interrogation occurred is inconsistent with concern for the eff
interrogation upon the suspect; the Court may believe that interrogation af
crime is in some sense "solved" is so likely to degenerate into a "grilling" th
factor should militate against admissibility in all cases in which it appea
P. 947 supra.
160Lisenba v. California, 314 U.S. 2I9, 24I (I94I).
161 United States v. Mitchell, 322 U.S. 65, 68 (I944) (dictum).
162Id. at 6 8.
163 See, e.g., Blackburn v. Alabama, 36I U.S. I99, 207 (I960) ("ratio
choice") ; Watts v. Indiana, 338 U.S. 49, 53 (I949) ("free choice").

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responsible, and the methods used to extract confessions more sophisti-

cated," 164 the application of the "free and rational" choice test has
become more sophisticated as well.
The present requirement that a confession be the product of a free
and reasoned choice seems to be an attempt by the Court to articulate
what it increasingly recognizes as the fundamental value at stake in the
interrogation context: protection of the individual's trial rights from
pretrial subversion by unfair methods.165 The Court realizes that the
success of the state's prosecution often depends upon the results of an
interrogation, and it is concerned to ascertain whether a suspect was
able to make a free and rational assessment of what his interest dic-
tated. This emphasis may produce different results from an emphasis
on penalizing improper police conduct. Thus in Townsend v. Sain,166
the Court indicated that the absence of conscious wrongdoing by the
police was not controlling on the issue of admissibility. In that case
the ailing suspect had been given hyoscine - a drug with the properties
of a "truth serum" - to ease his pain. Although the police were ignorant
of the drug's effect, the Court held the use of the suspect's resulting
confession to be impermissible. "It is not significant," it said, "that the
drug may have been administered and the questions asked by per-
sons unfamiliar with hyoscine's properties as a 'truth serum,' if these
properties exist. Any questioning by police officers which in fact pro-
duces a confession which is not the product of free intellect renders that
confession inadmissible." 167 Moreover, in a handful of lower court de-
cisions confessions that were improperly obtained by private persons
have been excluded,168 presumably on the theory that use of such a
confession would unfairly prejudice the defendant as much as one im-
properly obtained by police.169
The very nature of the Court's inquiry, however, presupposes the
constitutionality of using interrogation to procure confessions. This
basic judgment was made by the Court through a balancing process in
which the need to exert some pressure to obtain confessions was
weighed against the constitutional values of individual privacy and
liberty. To the extent that pressure is permitted, "free and rational
choice" is necessarily a term of art, since it cannot mean the choice a
man would make while sitting in his study and giving the question the
most careful consideration. But the test does seem to require a trial
judge to bear in mind that such a reflective choice is the ideal envisioned
by the Court. Thus in practice the question in any particular case is
essentially a quantitative one-whether the pressures exerted by the
police or the mental state of the defendant proved too great an obstacle
to the defendant's exercise of his own judgment.
(ii) The Suspect's Powers of Resistance. - The Court very early in
its use of the balancing process set a definite ceiling on the police pres-
164 Spano v. New York, 360 U.S. 3I5, 321 (0959).

165 See, e.g., Comment, The Coerced Confession Cases in Search of a Rational,
3I U. CHI. L. REV. 3I3, 32I (I964).
166 372 U.S. 293 (I963).
167 Id. at 307-08.
168 E.g., State v. Ely, 237 Ore. 329, 390 P.2d 348 (I964).
169 See People v. Berve, 5T Cal. 2d 286, 332 P.2d 97 (I958).

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sure that it would tolerate. Thus the inflicti

of injury, or deprivation of the necessities
sible, regardless of the suspect's individual characteristics. But be-
yond these obviously offensive measures the issues become more diffi-
cult, since when the influence of protracted or persuasive conversation
is in question, criteria for judgments of fairness are not easy to find.
Some of the Court's opinions assert that in the absence of extreme
circumstances the permissibility of interrogation techniques depends on
the personal characteristics of a particular suspect. Thus in Stein v.
New York, Mr. Justice Jackson described the iCourt's approach to de-
termining admissibility as weighing "the circumstances of pressure
against the power of resistance of the person confessing. What would
be overpowering to the weak of will or mind might be utterly ineffective
against an experienced criminal." 170 The Court in Stein affirmed con-
victions based on confessions obtained after twelve hours of intermittent
questioning over a period of thirty-two hours of incommunicado deten-
tion, holding that such facts were not sufficient to establish "psychologi-
cal coercion." It noted that "these men were not young, soft, ignorant
or timid. They were not inexperienced in the ways of crime or its de-
tection, nor were they dumb as to their rights." 171
On the other hand, in Askcraft v. Tennessee, the Court had held that
the thirty-six hours of continuous interrogation of the suspect was
"inherently coercive." 172 This approach rejected the necessity for the
very difficult inquiry into the psychological response of the particular
suspect to the circumstances of his interrogation. A suspect would have
to possess extraordinary powers of resistance for his confession in the
Ashcraft circumstances to be the product of a "free" choice. Thus the
Court's use of the term "inherently coercive" suggests that it was simply
refusing to consider the possibility of such a rare case and was lowering
the ceiling on the pressure it would tolerate in any case so that any
seriously protracted interrogation would be forbidden. Support for this
proposition is furnished by the cases of Watts v. Indiana,'73 Turner
v. Pennsylvania,174 and Harris v. South Carolina,'75 in which the
Court overturned convictions based on confessions obtained by inter-
mittent interrogation over a period of five or six days of incommunicado
detention.
Stein, which followed these cases by several years, was thought
by some to have repudiated their approach.176 But the interrogation
involved in Stein was far less protracted than in the prior cases. More-
over, the recent case of Haynes v. Washington 177 may in turn have over-
ruled Stein on this point. Although the petitioner in Haynes was almost
as experienced a criminal as the suspects in Stein, the "inherently co-
170 346 U.S. I56, I85 (I953).
171 Id. at I85-86.
172322 U.S. I43, I54 (I944). Compare Haynes v. Washington, 373 U.S. 503
(I963).
173 338 U.S. 49 (I949).
174 338 U.S. 62 (I949).
175 338 U.S. 68 (I949).
176 See Cohn, Federal Constitutional Limitations on the Use of Coerced Con-
fessions in the State Courts, 50 J. CRIM. L., C. & P.S. 265, 270-73 (I959).
177 373 U.S. 503 (I963).

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ercive" pressure held excessive was intermittent questioning during

sixteen hours of incommunicado detention, including refusals of per-
mission to make a phone call until Haynes signed a written confes-
sion. It is significant that the Court relied on Lynumn v. Illinois,178
which would seem distinguishable on the ground that the suspect in
that case was a woman, without any criminal experience. The Haynes
opinion does contain a good deal of language about the difficult psycho-
logical judgments required to be made in deciding claims of denial of
due process in interrogation, suggesting that Haynes's characteristics
were relevant to the decision. But nowhere does the opinion describe
the kind of person Haynes was. Rather the Court seemed to be decid-
ing without reference to the likely effect of long detention on this par-
ticular suspect that, since the effect of such police conduct on the
ordinary suspect might be coercive, it would refuse the police the right
to engage in such conduct with any suspect. State courts and federal
habeas courts have cited the psychological judgments language and
continued to rely on a particular suspect's criminal experience.179 In
doing so, however, they seem to be following what the Court said in
Haynes, rather than what it did.180
(iii) Special Weaknesses. - Perhaps more important than the factor
of experience, in deciding what amount of pressure may be applied, are
certain personal weaknesses of some suspects. Thus in Blackburn v.
Alabama,'8' the Court held that a conviction could not stand when it
was based on the confession of a madman who had been institutionalized
during the four years immediately prior to the crime and the interroga-
tion. Though Blackburn's complete incompetence made his confession
unreliable, forms of mental illness less incapacitating than his might be
thought relevant to the determination of admissibility. For example,
the studies of some psychologists 182 suggest that many suspects may
have an uncontrollable urge to admit guilt. If this "compulsion to
confess" is considered irrational, it might be thought unfair to question
such people. Yet such a phenomenon closely resembles the product of
a guilt-stricken conscience, and it would be strange if it were constitu-
tionally impermissible for the police to take advantage of the latter
motivation. It may often be virtually impossible for a court to dis-
178 372 U.S. 528 (I963).

179E.g., State v. Darst, 399 P.2d 6i8 (Wash. i965); cf. Lundberg v. Buch-
koe, 338 F.2d 62, 68 (6th Cir. i964).
180 Cf. LOCKHART, KAMISAR & CHOPER, CONSTITUTIONAL CRIMINAL PROCEDURE
I34-35 (i964).
18136I U.S. igg (i96o). Cf. Combs v. State, 237 Md. 428, 206 A.2d 7I8 (i965
(claustrophobia). The courts have not been able to evolve and apply a clear
standard for "insanity" in this context. Many of them say that an accused
must be an "incompetent witness" in order for his confession to be excluded, e.g.,
Vasquez v. State, i63 Tex. Crim. i6, 288 S.W.2d IOO (1956). Another widely used
test is that of California: the accused alleging that he was insane at the time of the
confession must not have been capable of "understanding the meaning and effect
of his confession." People v. Tipton, 48 Cal. 2d 389, 394, 309 P.2d 8I3, 8i7
(i957), cert. denied, 355 U.S. 846 (1958). A third standard is that of fitness to
assist in the defense. E.g., State v. Aviles, 45 N.J. I52, 2Ii A.2d 796 (i965).
182 See, e.g., ALEXANDER & STAUB, THE CRIMINAL, THE JUDGE, AND THE PUBLIC
94-95 (1956); MENNINGER, MAN AGAINST HIMSELF 203 (1938). Freud is more
cautious in accepting the accuracy of this explanation of criminal conduct. See 4
FREUD, COLLECTED PAPERS 342-44 (Riviere ed. I925).

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i966] DEVELOPMENTS- CONFESSIONS 977
tinguish the promptings of conscience from the pressures of morbid

guilt feelings in passing on the admissibility of a confession. Thus it
could be argued that, once it is clear that the suspect's incompetence
is not so great as to create serious doubts about the reliability of his
confession, his mental defects should not be considered in deciding
whether the police can question him, but should bear solely on his
ultimate treatment. Whether the Court will accept such a limitation
on the "rational" half of its voluntariness test is open to question.
In addition to insanity, the Court requires consideration of other
special weaknesses. For example, it has repeatedly held that feeble-
mindedness reduces the amount of pressure the police may apply.183
While these results may express merely a judgment that an ignorant
suspect is unlikely to be able to resist harsh questioning, they also impl
a standard of fitness on which to base such a judgment.184 In the con-
text of interrogation, it would seem that the definition of the standard
should logically bear some relation to the suspect's ability to cope with
the situation in which he finds himself. This notion is most clearly
recognized in the language of Gallegos v. Colorado, in which the Court
reversed a conviction based on a fourteen-year-old boy's confession
because he had "no way of knowing what the consequences of his con-
fession were without advice as to his rights - from someone concerned
with securing him those rights - and without the aid of more mature
judgment . "... 185 The Court explained that "he cannot be compared
with an adult in full possession of his senses and knowledgeable of the
consequences of his admissions." 186
(iv) Knowledgeableness. - Although youthful suspects are no doubt
entitled to special treatment,187 Gallegos is particularly interesting be-
cause of its suggestion that "knowledgeableness" may bear on admis-
sibility in all cases. Presumably, even young Gallegos was aware of the
most likely "consequence" of his admissions - that he would go to
jail - so the Court must have had in mind the suspect's ignorance of
the tactical advantages, such as bargaining for a reduced sentence or
183' E.g., Fikes v. Alabama, 352 U.S. IgI (1957). "Baby" Fikes's story is re-
counted in PRETTYMAN, DEATH AND THE SUPREME COURT 5-46 (I96I). Cf. Reck
v. Pate, 367 U.S. 433 (i96i) (withdrawal from narcotics addiction).
184 The rules as to confessions made under the influence of stimulants
unclear. Traditionally, intoxication affects only the weight to be accorded a con-
fession, see Eiffe v. State, 226 Ind. 57, 77 N.E.2d 750 (1948), unless the suspect's
drunken condition amounted to "mania," see State v. Anderson, 247 Minn. 469,
78 N.W.2d 320 (1956). However, some jurisdictions have rejected the "mania" rule
in favor of a direct inquiry into voluntariness. E.g., Wiggins v. State, 235 Md. 97,
2oo A.2d 683, cert. denied, 379 U.S. 86i (i964). It seems to be the general practice
to apply the "mania" rule to confessions made under the influence of drugs. See,
e.g., Reddish v. State, i67 So. 2d 858 (Fla. i964).
185 370 U.S. 49, 54 (i962) (4-to-3 decision).
18 Ibid.
187 See The Supreme Court, I96I Term, 76 HARV. L. REV. io8, IIO-II (I9
New York, like several other jurisdictions, has provided by statute that police m
not bring a child to the station house, but must release him at once to his par
the family court, or a child center. N.Y. FAMIMY CT. ACT ? 724. A confession
obtained in violation of this statute was excluded in In the Matter of Rutane, 37
Misc. 2d 234, 234 N.Y.S.2d 777 (Family Ct. i962). The District of Columbia Circuit
has adopted a similar rule by decision. Harling v. United States, 295 F.2d i6i
(I96I). But see LAFAVE, ARREST -THE DECISION To TAKE A SUSPECT INTO CUS-
TODY 400-OI (I965); cf. Note, Juvenile Delinquents: The Police, State Courts, and
Individualized Justice, 79 HARV. L. REV. 775, 779-8i (i966).

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lesser charge in return for a guilty plea, that can be gained by silence
during interrogation. But it may be doubted whether the typical adult
suspect is much more conscious of considerations of this order during
a police interrogation, and his ignorance may be a major factor in pro-
ducing a confession that is otherwise free and, in some sense, rational.
A recognition of these facts may explain why, in several pre-Escobedo
opinions,188 the Court held that the absence of counsel bore on the de-
termination of voluntariness. For absence of counsel would seem rele-
vant to an inquiry into the voluntariness of a suspect's confession only if
rationality in the "free and rational choice" test is defined to include
some element of knowledge "of the consequences of admissions."
The introduction of knowledgeableness as a factor in deciding
whether a choice to confess was free and rational raises difficult ques-
tions. For the line between confessions induced by persuasion and those
made out of ignorance is in practice almost impossible to draw. Sup-
pose, for example, that the police tell a suspect, "We've got the goods
on you, so you might as well confess." A judge attempting to decide
whether a suspect's reply to such a statement was "knowledgeable"
would find himself in a quagmire of speculations as to the facts at the
time,189 the suspect's awareness of those facts, and the suspect's ability
to interpret that information. An emphasis on knowledge might, how-
ever, require only that the police inform a suspect of his legal situation
before they attempt to "persuade" him to confess.190 But the police
are unlikely to be able effectively to convey all the information that
would be of use to a suspect in this situation; 191 and even if they were
able to do so he would usually lack the requisite background to evalu-
ate the facts imparted. Thus it is hard to see how a requirement of
knowledgeableness is to be subsumed under the voluntariness test.
(v) Bargaining. - Even if the defendant is considered to be "knowl-
edgeable" enough to be subjected to "persuasion" by the police, some
forms of reasoned persuasion may not be permissible pressure under
some of the Court's opinions. The definition of "pressure" as developed
by the Court may, for example, include attempts at bargaining. Of
those state courts that reverse when confessions are obtained by a
"promise of benefit," some rely on common law reliability grounds,'92
while others apparently have concluded that the common law rule is
embodied in the due process voluntariness test.193
In Malloy v. Hogan,194 the Court, discussing the voluntariness cases,
quoted from Bram v. United States 195 to the effect that a confession
must not be "obtained by any direct or implied promises, however
188 E.g., Payne v. Arkansas, 356 U.S. 560 (I958).

189 If the police were lying to the suspect, and the lie appears to have produced
the confession, it may be excluded for that reason. See pp. 980-8I infra.
90 But see United States ex rel. Hart v. Maroney, 230 F. Supp. 468 (W.D. Pa.
i964).
191 In Scotland the practice of confronting the accused with the evidence a
him has been explicitly condemned. See p. Io97 infra.
192 E.g., Fisher v. State, 379 S.W.2d goo (Tex. Crim. App. i964).
13 E.g., State v. Hoyt, 2I Wis. 2d 284, 128 N.W.2d 645 (i964), affirming on
rehearing 2I Wis. 2d 310, I24 N.W.2d 47 (i963).
194 378 U.S. i, 7 (i964).
195 i68 U.S. 532, 542-43 (i897).

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slight." But as a matter of language it seems difficult to see how a

promise of benefit can be considered "coercion" or "compulsion."
Given the fact that the constitutional requirement is one of free and
rational choice, such promises do not seem offensive,196 since if they
are honored, they may well constitute a sensible reason for confessing.197
In Stein v. New York,'98 the suspect agreed to confess after having
received assurances that his father would be released and his brother
would not be prosecuted for parole violation. Mr. Justice Jackson em-
phasized this fact in finding the confession voluntary: 199
At the very end of his interrogation, the spectacle of Cooper naming

his own terms for confession, deciding for himself with whom he would
negotiate, getting what he wanted as a consideration for telling what he
knew, reduces to absurdity his present claim that he was coerced into
confession.
However, in Lynumn v. Illinois,200 the Court held a confession involun-

tary when the police had told the suspect that if she "cooperated," "it
would go easier on her," while if she did not, and was convicted, her
children might be taken from her. The Court emphasized that the
woman's lack of prior contacts with the law gave her "no reason not
to believe that the police had ample power to carry out their threats." 201
However, it seems that the officers made no threats, but rather that
they promised leniency in return for a confession. If the Court was
disapproving such bargaining, it is unclear which of two grounds it was
relying upon: either that the promise was not kept - in which case it
amounted to a lie 202 - or that, even if it had been kept, the petitioner
was not sufficiently sophisticated to strike a fair bargain. If the latter
interpretation is correct, Stein and Lynumn may be reconciled as per-
mitting admissibility of a confession induced by a promise if the suspect
was a person of experience and judgment. This reading would seem
reasonable, since such interrogation tactics implicitly call for the sus-
pect to confess after making the fairly sophisticated calculation that
conviction would be likely even without the confession.
Some state courts, however, do not seem to have made this distinction
between experienced and inexperienced suspects. Thus in People v.
Quinn,203 the mature and experienced defendant was advised by a
probation officer to confess because it would improve his chance for
probation, and the court, without consideration of whether the promise
had been kept, held a confession so obtained to be constitutionally inad-
missible per se. An automatic rule excluding confessions gotten by bar-
gaining might be defended on the ground that the decision required of
196See United States ex rel. Johnson v. Yeager, 327 F.2d 3II, 3I7 (3d Cir.),
(dictum), cert. denied, 377 U.S. 984 (i964).
197 It is a familiar fact that trial judges deciding on a sentence consider coop-
erativeness as an indication of contrition. See, e.g., United States v. Wiley, i84
F. Supp. 679, 687 (N.D. Ill. ig60).
9 346 U.S,. I56 (953).
99'Id. at i86.
200 372 U.S. 528 (i963).
201 Id. at 534.
202 See pp. 980-8i infra.
203 6i Cal. 2d 55I, 393 P.2d 705, 39 Cal. Rptr. 393 (i964).

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a trial judge as to whether the defendant at the time he made a

confession was capable of rationally accepting or rejecting such an offer
is rather difficult. However, the same difficulties of decision exist in
applying the voluntariness test to other interrogation tactics. Thus, it is
hard to understand why this rule is so strictly enforced.204 Perhaps the
explanation is that the terms of these promises of benefit are such that
it is often difficult to determine whether they have been kept. Or there
may be a lingering concern that unreliable confessions may frequently
result, although the Court has indicated its disbelief in the significance
of this problem.205 But possibly the special disfavor with which bar-
gaining is regarded stems from a feeling that it calls upon the suspect to
evaluate legal questions of a kind that he should not have to resolve
without the aid of a lawyer.
(vi) Trickery. -Regardless of whether and how far the Court ex-
tends the requirement that the suspect's "free and rational" choice to
confess be knowledgeable, it seems probable that the police may not em-
ploy tactics that actually misrepresent or distort the facts of the suspect's
situation. In Spano v. New York,206 the petitioner had been subjected
to lengthy questioning, late at night. But the technique that actually
produced the confession and on which the Court therefore concen-
trated was the use of a rookie policeman, a boyhood friend of Spano,
to play on the suspect's sympathies. Officer Bruno falsely told Spano
that he might be fired if Spano did not confess, and that Bruno's ailing
wife would be in great distress and his children would have to suffer
deprivation. The fourth time Bruno made this appeal Spano agreed to
confess. The Court found that "petitioner's will was overborne by
official pressure, fatigue and sympathy falsely aroused." 207 The objec-
tion to such deception would seem to be that it misrepresents the state
of facts on which a suspect is to base his decision; 208 presumably there
would have been nothing offensive in Bruno's pleas if they had been
true, since a rational decision to confess could be based on concern for
a friend's well-being.209 Spano seems to express a policy against mis-
leading the suspect about the seriousness of his situation and the gravity
of a decision to confess - a common tactic of the modern inter-
rogator.210
Other common techniques of interrogation, such as falsely telling one
suspect that his alleged accomplice has confessed and implicated him,
would also seem vulnerable to constitutional attack.21' In People v.
A tchley,212 the defendant made gravely damaging statements to his
insurance broker, who had formerly been a police officer and who had
204 See, e.g., Crawford v. United States, 2ig F.2d 207 (5th Cir. I955).
205 See pp. 968-69 supra.
206 360 U.S. 3I5 (i959).

207 Id. at 323.
208 For a different objection to the use of trickery in interrogation, see Koess
The Admissibility of Confessions Obtained by Trickery, 50 A.B.A.J. 648 (i964
209 See State v. Keck, 389 S.W.2d 8i6 (Mo. i965). But a confession induced
by an express threat to harm a friend or relative if the suspect remains silent is
inadmissible. People v. Trout, 54 Cal. 2d 576, 354 P.2d 23i, 6 Cal. Rptr. 759 (I960).
210 See pp. 948-49 Supra.
211 Cf. Turner v. Pennsylvania, 338 U.S. 62 (i949).
212 53 Cal. 2d i6O, 346 P.2d 764 (i959), cert. dismissed, 366 U.S. 207 (I960).

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x966] DEVELOPMENTS- CONFESSIONS 98I
agreed to question defendant in order that a recording could be made.

Although defendant knew neither of these facts, the court found that
no "mental coercion" had been applied by the police and that the
statements were therefore admissible. According to the free and ra-
tional choice analysis, this result seems unacceptable; a fundamental
prerequisite to any "free and rational" confession would seem to be
an awareness by the suspect that he actually is making a statement
that will be of decisive legal effect.213
(vii) The Right to Silence. -While the common law voluntariness
rules were concerned with whether the suspect had spoken truly, the
due process voluntariness test is concerned with whether he freely
chose to speak at all. The suspect's due process right to "refusal of
disclosure" 214 obviously bears a strong resemblance to the fifth amend-
ment privilege against self-incrimination, although it was recognized by
the Court as a part of fourteenth amendment due process long before 215
the privilege was declared enforceable against the states in Malloy v.
Hogan.216 The existence of this option and the necessity for allowing
the suspect a reasonable opportunity to exercise it seem implicit in
the Court's frequent statement that "ours is the accusatorial as opposed
to the inquisitorial system." 217 Yet the acceptance of secret police
interrogation of suspects, on which the due process voluntariness test
has proceeded, is, as has been pointed out,218 to some extent incon-
sistent with the goals of "freedom" and "rationality" toward which the
test has been directed. The uncounseled suspect subjected to police
questioning in a hostile atmosphere is likely to believe that there is an
obligation to respond, even in the absence of coercive conduct by the
police. That he may be wrong in his belief does not alter the fact that
in such a case interrogation "compels" him to enter into a dialogue with
the police. In order to prevent such misapprehensions by suspects, the
free and rational choice test might well come to require the police to
inform a suspect of his option not to speak and of their inability to
make him do so. Although the Court's opinions attribute increasing
importance in the determination of voluntariness to the giving of a
warning,219 it would seem that the absence of one should not merely be
recognized as a "factor" among others but rather should result in auto-
matic exclusion of a confession.220 There can be no presumption that
suspects are aware of their immunity and, even if such a presumption
were justified, their awareness is undoubtedly undermined when they
are brought to the station house and interrogated in secret. Moreover,
even those who are aware should be informed in order that they may be
213 Cf. Brock v. United States, 223 F.2d 68i (5th Cir. I955).
214 Watts v. Indiana, 338 U.S. 49, 54 (I949).
215 Compare Brown v. Mississippi, 297 U.S. 278, 285-86 (1936); Ward v. Texas,
316 U.S. 547, 555 (1942).
216378 U.S. i (I964).
217 See, e.g., Watts v. Indiana, 338 U.S. 49, 54 (I949).
218 See p. 974 supra.
219 Compare Culombe v. Connecticut, 367 U.S. 568, 6oi (196I) (opinion of
Frankfurter, J.), with Haynes v. Washington, 373 U.S. 503, 5I6-I7 (I963).
220 England and Scotland require that persons being questioned be warned of
their right to remain silent as soon as suspicion has focused on them. See pp.
I09I-92, I098, I099 infra. In Canada the warning need not be given until arrest.
See p. II02 infra.

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certain that the interrogator appreciates the limits on his questioning.

4. Interrogation and the Privilege Against Self-Incrimination.
Discussion concerning the relation of the fifth amendment privilege
against self-incrimination to interrogation was stimulated by the
Court's decision two Terms ago in Malloy v. Hogan,221 holding that
Connecticut could not imprison for contempt a witness who refused to
answer certain questions at a legislative hearing. Although Connecticut
recognizes a privilege as a matter of state law, Malloy held that the
federal standard for determining when a claim of privilege must be
respected is enforceable against the states. In thus overruling Twining
v. New Jersey,222 the Court relied heavily on the confession cases for
the argument that "the right of a person to remain silent unless he
chooses to speak in the unfettered exercise of his own will" 223 is basic
to the American system of justice. The inquiry in the confession cases,
the Court asserted, was whether the defendant had been compelled to
incriminate himself.
But the implications of Malloy are unclear. Rephrasing the volun-
tariness test as an inquiry into whether the defendant was "compelled"
would not seem necessarily to alter its scope, since the free and
rational choice test for voluntariness has often been articulated in
terms of prohibiting "coercion." 224 However, it is possible that specific
reliance on the privilege against self-incrimination may imply that the
level of pressure tolerated in an interrogation will be markedly reduced.
Indeed, it might cast doubt on all questioning, since the privilege in
other contexts forbids pressures much less serious than those inherent
in even the mildest police interrogation.225
A few commentators suggested that Malloy's references to the priv-
ilege meant that thereafter a "waiver" at interrogation would be
required before a confession would be admissible.226 However, such a
suggestion takes a rather simplistic view of the nature of the privilege.
By its terms, the privilege forbids compulsion to speak, and at trial
this compulsion consists of the legal sanctions that may be imposed
against the defendant who takes the stand and refuses to answer. Since
at trial the defendant has an absolute right not to testify, it may
make sense to speak of his decision to take the stand and become
subject to sanctions for silence as involving a waiver of his privilege not
to be compelled to speak. If the privilege applies to police interrogation,
one would have to interpret "compulsion" not as the threat of legal
sanctions for silence, since these are inapplicable, but as something
functionally similar. The natural equivalent would be the existence of
police pressures that significantly undermine a suspect's capacity to
make a free and rational choice to speak. But the accused cannot
meaningfully "waive" the privilege to be free from these pressures,
221378 U.S. I (1964).
222 2II U.S. 78 (I908).
223378 U.S. at 8.
224 See, e.g., Rogers v. Richmond, 365 U.S. 534, 54I (I96I).
225 Cf. Blair v. Commonwealth, i66 Va. 7I5, I85 S.E. 900 (I936). Ind
accused cannot be made to take the stand to claim his privilege. See, e.g., U
RULE OF EVDENCE 23(I).
226 E.g., Herman, The Supreme Court and Restrictions on Police Inter
25 OHIO ST. L.J. 449, 466 (1964).

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since any ensuing confession would be excludable under the due process
voluntariness test. It would be paradoxical to speak of a person volun-
tarily being coerced. Thus it seems that the inquiry into whether a
suspect "waived" his right to remain silent is indistinguishable from
the inquiry into whether his decision to speak was "free and rational."
The language of waiver is helpful only in that it suggests that the
application of the fifth amendment privilege to interrogation may resul
in putting a greater burden on the police to show that a defendant's
confession was "voluntary."
Given the fact that knowledge of a right is a prerequisite to its waiver
at trial,227 the Court's use of the term does suggest that the suspect
must be cautioned prior to interrogation,228 and some state courts have
so held.229 However, before waiving his privilege and taking the stand
at trial, a defendant ordinarily not only is informed of the existence of
the privilege, but also is advised by a lawyer of the tactical consider-
ations involved in so doing. Since a defendant has a constitutional
right to a lawyer at trial to assist him in making such decisions, an
equation of waiver at trial and pretrial might indicate that counsel is
required at both times. Such a view is suggested in Escobedo v. II-
linois.230 The Court in Escobedo indicated that, when the petitioner
made the challenged confession, he had not waived his privilege, and
in sweeping terms it seemed to say that such a waiver could not occur
except on the advice of counsel.231 "Our Constitution," it said, "unlike
some others, strikes the balance in favor of the right of the accused to
be advised by his lawyer of his privilege against self-incrimination." 232
But the opinion does not clarify the meaning of the privilege when the
suspect is unrepresented - assuming that counsel will not be required
in every case. However, it may imply that, in applying the voluntari-
ness test to confessions made in the absence of counsel, the Court will be
increasingly concerned with the question of whether the suspect was
sufficiently knowledgeable to recognize what his tactical self-interest
required.
5. Conclusion. - Fear that provision of counsel "would effectively
preclude police questioning - fair as well as unfair" 233 -and the
implicit belief that there is such a distinction have led the Court in the
voluntariness cases to stop short of requiring true congruence between
the trial and pretrial stages of a criminal proceeding. The defense of a
suspect's right to fair treatment has been entrusted to the trial judge,
who is expected to apply the sophisticated voluntariness test framed in
terms of free and rational choice so as to assure that the suspect's con-
fession was deliberately and knowingly given.
However, once it is required that the decision to confess be in
some sense "reasoned" or "rational," a difficulty presents itself in th
227 See Fay v. Noia, 372 U.S. 39I, 439 (1963).

228 Cf. pp. I003-04 infra.
229 E.g., State v. Neely, 239 Ore. 487, 395 P.2d 557 (I964), modified on reh
ing, 398 P.2d 482 (Ore. I965).
230 378 U.S. 478 (I964).
231 For the implications of requiring counsel, see pp. I005-07, IOI6-I7 infra.
2323 78 U.S. at 488.
'33 Crooker v. California, 357 U.S. 433, 44I (I958).

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rationality in the context of a legal proceeding seems to include the

ability to make an assessment of a variety of considerations that may
be beyond the abilities of the typical criminal suspect. To the extent
that this factor is important in the test courts are to apply to a chal-
lenged confession, the application of that test becomes a formidable
task indeed. This would be so even if the historical facts on which the
voluntariness test is to be applied could be reliably determined. But
the lack of a record of an interrogation is the rule, and this fundamental
fact undercuts the soundness of the use of a judicial test as a method
for protecting the defendant's rights. Moreover, even when the record
is clear, trial courts - and even appellate courts - have all too often
been much less than zealous in the role assigned to them by the Court's
decisions. These difficulties may have caused the Court to go beyond
the voluntariness test in an effort to provide safeguards for the de-
fendant at a stage of the criminal process historically lacking in them.
B. Confessions Obtained During Illegal Delays in Arraignment

i. The Genesis of the McNabb Doctrine. -Rule 5(a) of the Fed-
eral Rules of Criminal Procedure requires an officer making an arrest
to "take the arrested person without unnecessary delay before the
nearest available" committing magistrate.' Although the rule does not
itself specify sanctions for its violation, the Supreme Court has held
that a confession obtained after an "unnecessary delay" in arraign-
ment 2 is inadmissible in a federal prosecution. This exclusionary rule
was first announced in McNabb v. United States,3 decided in I943.
Defendants had been arrested and detained in jail by federal officers.
It appeared from the record that they had been questioned for periods
of time ranging from six hours to two days before they confessed,
and that only then had they been arraigned.4 The defendants were
convicted; the trial and circuit courts rejected the claim that the pro-
longed interrogation had rendered the confessions involuntary and
therefore constitutionally inadmissible. In an opinion by Mr. Justice
Frankfurter, the Supreme Court reversed, but explicitly avoided the
constitutional issue. The Court found that the delays in arraignment
1 FED. R. CRIM. P. 5 (a):

An officer making an arrest under a warrant issued upon a complaint or any
person making an arrest without a warrant shall take the arrested person
without unnecessary delay before the nearest available commissioner or before
any other nearby officer empowered to commit persons charged with offenses
against the laws of the United States. When a person arrested without a
warrant is brought before a commissioner or other officer, a complaint shall
be filed forthwith.
The rule superseded a number of statutory arraignment provisions, including those
cited in note 5 infra. See note of the Advisory Committee on the Federal Rules of
Criminal Procedure, accompanying FED. R. CRIM. P. 5.
2 In accordance with the common parlance of decisions and commentary, the
5(a) appearance before a committing magistrate will be hereinafter termed the
"arraignment," although the Federal Rules of Criminal Procedure reserve that term
for the hearing under rule iO at which a plea to the indictment is entered.
33I8 U.S. 332 (I943).
'On retrial, the prosecution proved that arraignment had occured promptly,
and defendants were convicted. McNabb v. United States, I42 F.2d 904 (6th Cir.),
cert. denied, 323 U.S. 77I (I944).

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violated federal law, and cited several statutes - precursors of rule

5(a) - requiring that arrested persons be arraigned before the "near-
est" magistrate; "immediately"; and "forthwith." 5 The opinion
declared that these statutes embodied a congressional purpose of pre-
venting the third degree and other evils of secret interrogation, and
added that to admit a confession obtained after violation of the statutes
would frustrate the congressional policy and implicate the courts in
practices that were illegal and contrary to civilized standards of law
enforcement. Drawing on its supervisory power over the lower federal
courts,6 the Court concluded that the confessions should have been
excluded.
The McNabb opinion also stressed the youth and inexperience of the
particular defendants and the intensiveness of the interrogation, stating
that the confessions were inadmissible "in the circumstances disclosed
here." This aspect of the decision led some lower courts to interpret
McNabb as merely establishing a new federal test of voluntariness, in
which an illegal delay in arraignment was an important but not neces-
sarily decisive factor. Accordingly, these courts held that, absent other
coercive elements, confessions obtained after an overlong delay in ar-
raignment were admissible.7 But in I948 a closely divided Supreme
Court ruled that a confession obtained after a thirty-hour delay in
arraignment was automatically inadmissible.8 A few lower courts
nevertheless continued to hold that a confession was inadmissible only
if it was "induced" by the delay in arraignment and, without defining
"induced," these courts admitted some confessions obtained after
considerable periods of illegal detention.9 Finally, Mallory v. United
States,10 decided fourteen years after McNabb, established that any
confession obtained during an unnecessary delay in arraignment is
inadmissible.11 The major unresolved question under McNabb is the
extent to which 5 (a) permits arraignment to be delayed for the purpose
of interrogation.
2. The Policies Underlying the McNabb Doctrine. -A number of
important purposes may explain the Court's formulation of the McNabb
exclusionary doctrine, but the congressional policy argument that is
5Act of August i8, I894, ch. 30I, 28 Stat. 416 (general federal arraignment
statute; no requirement of promptness); Act of June i8, 1934, ch. 595, 48 Stat.
ioo8 (arrest by FBI officers); Act of March i, I879, ch. 125, ? 9, 20 Stat. 341
(arrest of persons in act of operating illegal distillery).
6 See Nardone v. United States, 308 U.S. 338, 34I-42 (I939). See generally
Note, The Supervisory Power of the Federal Courts, 76 HARV. L. REV. i656 (I963).
'E.g., Paddy v. United States, I43 F.2d 847 (gth Cir. 1944), cert. denied, 324
U.S. 855 (I945). Some courts held that any confession obtained after an illegal
delay in arraignment must be automatically excluded. E.g., United States v.
Hoffman, I37 F.2d 4i6 (2d Cir. I943).
8 Upshaw v. United States, 335 U.S. 4Io (I948) (5-to-4 decision). Mr. Justice
Reed's dissenting opinion powerfully presents the arguments against the McNabb
doctrine.
' See, e.g., Allen v. United States, 202 F.2d 329 (D.C. Cir.), cert. denied, 344
U.S. 869 (I952). This approach was also taken before Upshaw. See, e.g., Alderman
v. United States, i65 F.2d 622 (D.C. Cir. I947). Certain language in Upshaw and
in Mitchell v. United States, 322 U.S. 65, 70 (I944), to the effect that the con-
fession must be "induced by" an illegal detention, lent some support to the position.
10 354 U.S. 449 (1957).
" But see Dailey v. United States, 26i F.2d 870 (5th Cir.), cert. denied, 359
U.S. 969 (1959) (confession admissible because not "induced" by illegal detention).

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emphasized in the opinion itself is the least persuasive. Though two

of the statutes cited in McNabb required prompt arraignment, they
did not apply to the arrests in the case. The general federal arraign-
ment statute, which did apply and was also cited, did not command
diligence and was enacted to prevent false expense claims by arresting
officers.'2 But the Court read a requirement of promptness into the
general statute.
When, following McNabb, the statutory arraignment provisions were
replaced by rule 5(a), the draftsmen of the provision refused to frame
an exclusionary sanction for its violation,'3 and Congress did not take
affirmative action to provide for such a sanction.'4 But Congress should
not be deemed to have legislated by failing to legislate. In the absence
of any clear congressional directive, the Court has obviously been guided
by its own belief that an exclusionary sanction for violation of 5 (a) is
important to civilized standards of criminal justice.
As Mallory points out, compliance with 5(a) ensures implementa-
tion of the safeguards provided in the remainder of rule 5. Once
the arrested person has been taken before a committing magistrate and
a complaint filed in accordance with 5(a), rule 5(b) requires the com-
missioner to inform the suspect of the charge against him, to warn him
that what he says may be used against him, and to tell him of his right
to counsel and his right to remain silent.'5 Rule s (b) also provides
that the accused shall be admitted to bail. Rule 5(c) requires that,
within a "reasonable time," the commissioner shall determine whether
there is probable cause to believe that the accused has committed an
offense,'6 a process designed both to ensure that persons will not be
12 Act of August i8, I894, ch. 30I, 28 Stat. 4i6. The statute only requires
arraignment before the "nearest" magistrate. The measure was designed to
defeat false mileage claims by arresting officers who would allege that they had
carried the arrested person to distant magistrates for arraignment. See Inbau, The
Confession Dilemma in the United States Supreme Court, 43 ILL. L. REV. 442, 457
(1948).
13 The rejection of an exclusionary sanction provision by the draftsmen cannot
legitimately be interpreted as intended to prohibit the Court from imposing such
a sanction. See Comment, Prearraignment Interrogation and the McNabb-Mal-
lory Miasma: A Proposed Amendment to the Federal Rules of Criminal Procedure,
68 YALE L.J. I003, I027-28 (I959).
14 The act authorizing the Court's promulgation of the federal rules require
that they lie on the tables of both houses of Congress for one session. Act of June
29, 1940, 54 Stat. 688.
15 FED R. CRIM. P. 5(b):
The commissioner shall inform the defendant of the complaint against him,
of his right to retain counsel and of his right to have a preliminary examination.
He shall also inform the defendant that he is not required to make a statement
and that any statement made by him may be used against him. The commis-
sioner shall allow the defendant reasonable time and opportunity to consult
counsel and shall admit the defendant to bail as provided in these rules.
The Criminal Justice Act of I964 accords arrested persons a right to appointed
counsel at the preliminary hearing and requires that the magistrate inform ar-
raigned persons of this opportunity. See p. 997 nf4 infra.
16 FED. R. CRIM. P- 5(c):
If the defendant does not waive examination, the commissioner shall hear
the evidence within a reasonable time. The defendant may cross-examine
witnesses against him and may introduce evidence in his own behalf....
The commissioner shall admit the defendant to bail as provided in these rules.
Though the 5(c) preliminary hearing often takes place immediately after arraign-
ment, the "reasonable time" provision has sometimes been interpreted to allow

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detained without legal authority and to deter illegal arrests. The

close relationship between rule 5 procedures and the effectuation of
constitutional rights has led some courts and commentators to declare
that the McNabb doctrine has constitutional roots, and also to intimate
that a legislative attempt to repeal the requirement of prompt arraign-
ment would be unconstitutional.17 But this position seems inconsistent
with the Court's express reliance upon a "supervisory power" in pro-
mulgating the doctrine, and its persistent refusal to apply McNabb to
state prosecutions."8
The McNabb doctrine also reflects the Court's concern with involun-
tary confessions. McNabb and Mallory both emphasize that incom-
municado interrogation breeds police abuse of power and the imposition
of improper pressures upon accused persons. Substantial delays in ar-
raignment provide the police with their most effective and often their
only opportunity for such interrogation.19 Moreover, a lengthy delay
in arraignment in order to permit questioning is itself an intimidating
factor,20 and failure to provide access to 5(b) magistrate's warnings
may prolong an accused's ignorance of his constitutional rights, another
factor tending to render a confession involuntary.2' The "difficulty of
fathoming the truth as to duress claimed to have been exerted by the
police upon one in their power and without counsel" 22 has often been
noted; the stories of police and defendant usually conflict, and trial
judges and juries may be strongly disposed to believe the police when,
as is generally the case, no independent source of evidence exists.
Moreover, lower courts hostile to the exclusion of confessions may apply
the vague range of factors in the voluntariness standard in a narrow
fashion,23 reflecting a bias that the Supreme Court cannot readily cor-
rect except by granting certiorari in every case. Thus the Court may
have believed that a substantial percentage of "voluntary" confessions
obtained during delays in arraignment were in fact involuntary, and
that a per se exclusionary rule was therefore desirable.
Certain language in McNabb and Mallory condemns secret interro-
gation of persons accused of crime without reference to the danger that
confessions so obtained may be involuntary. And Mr. Justice Frank-
furter, the author of both opinions, elsewhere expressed the view that
the prosecution lengthy continuances. See, e.g., James v. Lawrence, I76 F.2d i8
(D.C. Cir. I949) (twenty-five days). Flagrantly illegal arrests may, however, be
caught at the 5 (b) hearing.
17 See, e.g., Spriggs v. United States, 335 F.2d 283 (D.C. Cir. i964); Hogan &
Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 GEO. L.J.
I, 4I-42 (I958).
18 See p. 993 infra.
20Cj. Haynes v. Washington, 373 U.S. 503 (i963), and discussion at p. 972
supra.
21 See pp. 98I-82 supra.
22 United States v. Bellamy, 326 F.2d 389, 39I, (4th Cir. i964); see Muschette
v. United States, 322 F.2d 989 (D.C. Cir. i963); Kamisar, What is an "Involun-
tary" Confession?, I7 RUTGERS L. REV. 728, 739 (I963). But cf. Killough v.
United States, 3I5 F.2d 24I, 260 (D.C. Cir. i962) (dissenting opinion): "The
Mallory holding does not rest in any degree on involuntariness or coercion but
narrowly as a judicial mechanism to enforce compliance with a procedural com-
mand of Congress."

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ours is an "accusatorial" and not an "inquisitorial" system.24 The

exclusionary doctrine may thus reflect a belief that reliance on state-ex-
tracted confessions in the administration of the criminal law should be
discouraged by a "progressive and self-confident society," 25 even though
a particular confession happens to be "voluntary."
Thus, every argument against police interrogation might be viewed
as one of the policies behind McNabb. But the broad policies behind
the doctrine have not been the measure of its application. The various
decisions of the Supreme Court and most lower federal courts can be
reconciled only by a much narrower rationale, that of deterring viola-
tions of rule 5 (a) by federal officers. To demonstrate this it is necessary
only to examine the contours of the doctrine as it has evolved since
McNabb.
3. Application of the Doctrine. - (a) Definition of Arrest. - By
its terms, the 5 (a) requirement of prompt arraignment only comes into
play once an "arrest" has been made, and it has not been suggested
that McNabb requires exclusion of confessions obtained before arrest.
The Court has never decided what constitutes an "arrest" for purposes
of the rule, and one might assume that, in the absence of any definition
in 5(a) itself, the term carries its normal common law meaning of any
detention or restraint of liberty.26 But some judges, sympathetic to
police interrogation, have suggested a different definition. Judge Lum-
bard, for example, has expressed the view that four or five hours of
police detention for the purpose of secret questioning does not consti-
tute an arrest.27
Obviously, the basic issue involved here is whether a delay for
interrogation is permissible. If it is, then the straightforward way to
express that conclusion is to declare that such delays are not "unneces-
sary," rather than to devise a special definition of "arrest" for McNabb
purposes. But it has been established that 5(a) forbids delays solely
for the purpose of interrogation, at least if they are substantial; 28 and
Judge Lumbard's approach must therefore be viewed as an attempt
to evade the strictures of the rule. Moreover, insofar as his view would
24 See, e.g., Culombe v. Connecticut, 367 U.S. 568, 582 (i961); Watts v. In-
diana, 338 U.S. 49, 54 (I949). However, Mr. Justice Frankfurter's Culombe opin-
ion indicated his belief that the Constitution should not be read to abolish all
state use of confessions obtained through police interrogation.
25McNabb v. United States, 3i8 U.S. 332, 344 (I943). Cf. pp. IOI4-20 infra.
26 See, e.g., Jackson v. United States, 336 F.2d 579, 580 (D.C. Cir. i964). But
cf. LaFave, The Fourth Amendment and the Law of Arrest, 54 J. CRIM. L., C. &
P.S. 393, 408-II (i963). Most courts appear to be applying the common law test
in McNabb cases, with emphasis on whether the person being questioned believes
that he is being detained. See, e.g., United States v. Middleton, 344 F.2d 78 (2d
Cir. i965). This approach seems desirable because such a belief may be an in-
timidating factor causing a person to confess. However, the common law test
becomes difficult to apply in cases when a person "voluntarily" agrees to cooperate
with the police and confesses without a formal arrest ever having been made.
Compare United States v. Pravato, 282 F.2d 587, 590 (2d Cir. ig60), cert. denied,
365 U.S. 849 (i96i), with Seals v. United States, 325 F.2d ioo6, I007-08 (D.C.
Cir. i963), cert. denied, 376 U.S. 964 (i964). See also p. I099 infra.
27 United States v. Vita, 294 F.2d 524, 529-34 (2d Cir. i96i) (alternative hold-
ing), cert. denied, 369 U.S. 823 (i962). Although Judge Lumbard attempts to
temper this approach by allowing interrogation only for "investigatory" purposes,
he does not define this term or explain how it is to operate as a "safeguard."
28 See pp. 989-9i infra.

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1966] DEVELOPMENTS - CONFESSIONS 989
permit several hours of detention without probable cause, it would

seem vulnerable to constitutional attack. Although brief "stop-and-
frisk" procedures may not constitute an arrest for fourth amendment
purposes,29 detention at the station house for questioning seems a far
more serious deprivation of a person's liberty, which should be justified
by probable cause. If probable cause does not exist at the time of
the arrest, Wong Sun v. United States30 may require exclusion of a
confession subsequently obtained.
(b) Inapplicability of 5(a) Because Detention on Another Charge
Was Lawful. -In United States v. Carignan,3' the defendant was
arrested and arraigned on an assault charge. He was then ques-
tioned by police over a three-day period about a murder before
he confessed to the murder and was arraigned for that crime. Review-
ing the murder conviction, the Court held that 5(a) and McNabb had
no application,32 because at the time that the murder confession was
obtained Carignan was being lawfully detained on the assault charge.
The case was therefore deemed to be outside the purpose of the McNabb
doctrine - "to abolish unlawful detention" - especially since the ac-
cused had already been arraigned on the assault charge and had thus
received 5(b) warnings of his rights to counsel and silence. There was
no evidence in Carignan that the police had arrested the defendant on
one charge in order to question him at length on a more serious charge;
but three concurring Justices stated that McNabb exclusion was neces-
sary in order to deter this practice.33 The Court, however, emphasized
that the literal command of 5 (a) had not been violated.
(c) "Unnecessary Delay." - (i) Delay for Interrogation. - The
Supreme Court's most detailed discussion of what constitutes "unneces-
sary delay" under 5 (a) is found in Mallory: 34
The police may not arrest upon mere suspicion but only on "probable
cause." The next step in the proceeding is to arraign the arrested person
before a judicial officer as quickly as possible so that he may be advised
of his rights and so that the issue of probable cause may be promptly
determined. The arrested person may, of course, be "booked" by the
police. But he is not to be taken to police headquarters in order to carry
29 See 78 HARV. L. REv. 473 (I964). The constitutional aspects of the definition
of arrest have not been settled by the Supreme Court.
30 See pp. I025-26 infra. Mallory explicitly stated that "it is not the func-
tion of the police to arrest, as it were, at large and to use an interrogating process at
police headquarters in order to determine whom they should charge before a com-
mitting magistrate on 'probable cause.'" 354 U.S. at 456.
31 342 U.S. 350 (i95i).
32 However, the Court affirmed the court of appeals' reversal of the conviction
on other grounds.
33 In such a case one might view the arrest as being on the more serious charge,
and the delay in arraignment on that charge as "unnecessary." But when this
motivation by police is absent and there is no probable cause to believe that the
person committed the more serious offense when he is arrested on the less serious
offense, the concurring Justices' approach would presumably require police to
rearrest on the more serious charge whenever such probable cause became estab-
lished, and arraignment would have to follow "without unnecessary delay" not-
withstanding the fact that the accused was already legally under arrest. It does
not seem that the advantages of providing a 5(b) warning to the accused for a
second time should outweigh the difficulties that such a rule would entail. Cf.
pp. I092-93 infra.
34 354 U.S. 449, 454-56 (I957).

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out a process of inquiry that lends itself, even if not so designed, to

eliciting damaging statements to support the arrest and ultimately his
guilt.
The duty enjoined upon arresting officers to arraign "without un-
necessary delay" indicates that the command does not call for mechan-
ical or automatic obedience. Circumstances may justify a brief delay
between arrest and arraignment, as for instance, where the story volun-
teered by the accused is susceptible of quick verification through third
parties. But the delay must not be of a nature to give opportunity for
the extraction of a confession....
In every case where the police resort to interrogation of an arrested
person and secure a confession, they may well claim, and quite sincerely,
that they were merely trying to check on the information given by him.
This language clearly prohibits all but the most cursory station-
house questioning before arraignment. But such an interpretation of
Mallory has not generally been accepted by the lower federal courts.
Judges have flatly asserted that police interrogation of arrested persons
is a necessary and proper procedure for the solution of crimes, and have
allowed delays in arraignment of up to eight hours if the questioning is
"investigatory." 35 Lower courts have also permitted questioning of
an arrested person for the purpose of verifying his story, on the theory
that the innocent may thus be quickly cleared.36 These approaches
both conflict with the Mallory opinion's careful limitation of a per-
missible delay to instances of "verification through third parties."
On the other hand, all courts agree that confessions made spon-
taneously or in response to a police statement or question very soon
after arrest are admissible; the delay in arraignment is insignificant
or nonexistent, and there is little danger of police overbearing in such
"threshold" situations. This conclusion was established by the Supreme
Court in United States v. Mitchell,37 and has been consistently followed
by lower courts.38 In intermediate cases of brief informal questioning
at the scene of arrest, in the squad car, or in the station house, the
interpretation of 5(a) and of Mallory's language depends on which of
the policies underlying McNabb are deemed controlling. If it is as-
sumed that hostility towards the admission of confessions obtained
before 5(b) safeguards are provided is the key to McNabb, then
any delay for the purpose of interrogation should be regarded as im-
permissible.39 But if the danger of involuntary confessions is the basic
explanation for McNabb, then one might read "unnecessary delay" and
" See, e.g., United States v. Curry, No. 29,000, 2d Cir., Dec. 22, 1965 (alterna-
tive holding) ; United States v. Vita, 294 F.2d 524, 53I-34 (2d Cir. i96i) (alterna-
tive holding), cert. denied, 369 U.S. 823 (i962).
36E.g., Metoyer v. United States, 250 F.2d 30 (D.C. Cir. 1957).
37322 U.S. 65 (I944). The Court stated that defendant confessed "within a
few minutes" of his arrival at the station, and that the confession was "prompt
and spontaneous."
38 See, e.g., Walton v. United States, 334 F.2d 343 (ioth Cir. i964), cert. denied,
379 U.S. 991 (i965). It has been suggested that the "threshold" doctrine might
permit several hours of interrogation. Jones v. United States, 342 F.2d 863, 877
(D.C. Cir. i964) (dissenting opinion).
3 At least three judges of the District of Columbia Court of Appeals have taken
the position that any delay for questioning - even a few minutes - is forbidden
by rule 5(a). Greenwell v. United States, 336 F.2d 962 (D.C. Cir. i964) (opinion
of Wright, J., joined by Bazelon and McGowan, JJ.).

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Mallory's prohibition of a procedure that "lends itself" to securing

confessions as permitting some degree of questioning, on the theory
that only extensive "grilling" is likely to result in involuntary confes-
sions. But the five or more hours of station-house interrogation still
permitted by some courts of appeals 40 iS clearly inconsistent with either
approach to 5 (a) and Mallory.
(ii) Other Justifications for Delay. - In most jurisdictions, mag-
istrates are accessible only during certain weekday office hours. It has
been held that a suspect arrested outside normal hours may be detained
and interrogated until a magistrate becomes available; the delay in
arraignment is plainly not "unnecessary," and confessions obtained in
the interim are therefore deemed admissible.41 But if the arrest was
deliberately delayed so as to coincide with the unavailability of the
magistrate, then the ensuing delay in arraignment should be regarded as
"unnecessary," although it would be difficult for a defendant to estab-
lish that the police resorted to this tactic.
Other delays in arraignment held not to violate 5(a) include those
occasioned by the completion of routine booking procedures at the
police station,42 an attempt to apprehend fleeing confederates,43 a
check with independent sources to establish an arrested person's own-
ership of a vehicle,44 the search of a house incident to an arrest,45 the
defendant's "voluntary" desire to cooperate with the police,46 and the
reduction of an oral confession to written form.47 Nearly all courts
have also reasoned that McNabb applies only when rule 5 (a) has
been violated, and have admitted confessions obtained by interroga-
tion during periods of delay that were justified on grounds other than
the desire of the police to interrogate.48 This result may seem somewhat
40 E.g., United States v. Curry, No. 29,000, 2d Cir., Dec. 22, i965 (alternative
holding).
41 E.g., Williams v. United States, 273 F.2d 781, 796-98 (gth Cir. i959), cert.
denied, 362 U.S. 95I (ig60). But see Jones v. United States, 307 F.2d 397, 399
(D.C. Cir. i962). Although state and local judges and magistrates may act as
5(a) committing magistrates, see I8 U.S.C. ? 304I (i964), the question of their
availability has rarely been discussed in the cases.
42 E.g., Proctor v. United States, 338 F.2d 533 (D.C. Cir. i964), cert. denied
380 U.S. 9I7 (i965).
4 Rogers v. United States, 330 F.2d 535, 539 (5th Cir.), cert. denied, 379 U.S
9I6 (I964).
44Feguer v. United States, 302 F.2d 2I4, 25I (8th Cir.), cert. denied
872 (I962).
45Williams v. United States, 273 F.2d 78I, 798 (gth Cir. i959), cer
362 U.S. 95I (ig60). The search took two-and-one-half hours and elimin
possibility of defendant's arraignment until the next day because the com
magistrate had become unavailable.
46 United States v. Leviton, I93 F.2d 848, 855 (2d Cir. i95i), cert. denied, 343
U.S. 946 (I952).
4 E.g., Walton v. United States, 334 F.2d 343 (ioth Cir. i964), cert. denied,
U.S. 99I (i965); Lockley v. United States, 270 F.2d 9I5, 9I7-I8 (D.C. Cir. i9
This delay has been justified on the ground of the defendant's interest in a
curate record of his oral statements. Jones v. United States, 342 F.2d 863,
(D.C. Cir. i964) (dissenting opinion). But such a procedure presents the dan
that additional "clarifying" questions will be used to obtain new admissions
the defendant's interest in an accurate record could be easily assured by trans
tion at or after arraignment.
48 However, a few decisions have condemned interim questioning. E.g., Unit
States v. Middleton, 344 F.2d 78 (2d Cir. i965); Spriggs v. United States,
F.2d 283 (D.C. Cir. i964).

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anomalous in light of the fact that, after Mallory, delay for the express
purpose of interrogation would not be permitted. The broad policy
reasons underlying McNabb appear to apply with equal force to
questioning in both types of case.
(iii) Waiver of Right to Prompt Arraignment; Effect of Presence of
Counsel. -Prosecutors have rarely claimed that a defendant waived
his right to prompt arraignment, and courts have heard such claims
with understandable skepticism, usually concluding that the standard of
"knowing and intelligent" waiver was not satisfied.49 Presumably, the
right to prompt arraignment can be "knowingly and intelligently"
waived only by a person who understands the nature of arraignment;
he should at least be informed of the magistrate's warnings he would
receive at arraignment, and of the opportunity for bail. Since an al-
leged waiver would be made under the conditions of secret police de-
tention that it is the very purpose of McNabb to prevent, a very clear
showing that the defendant knew his rights and purposefully waived
them should be required.
As the right to counsel before arraignment expands,50 there may
arise cases in which a defendant supposedly waives his right to prompt
arraignment on the advice of counsel. Such a waiver should be within
the range of tactical choices that defense counsel may make, as it may
provide the opportunity for a mutually advantageous bargain between
the defendant and the prosecution. Or counsel may hope to clear his
client without the formality of arraignment. The possibility of a
"knowing and intelligent" waiver in this situation will benefit both the
state and the suspect.
(d) Confessions Obtained Before Detention Became Illegal. -In
United States v. Mitchell,5' the accused confessed a few minutes after
being taken to the police station; it was only thereafter that his de-
tention became illegal under 5 (a) because of failure to arraign prompt-
ly. Reasoning that the confession was not a product of police wrong-
doing, the Court held that it was admissible. This result may rest on
the view that McNabb is designed to eliminate coerced confessions;
since the confession in Mitchell was not obtained during an illegal de-
tention such as would facilitate the imposition of improper pressures, it
was probably voluntary and should be admitted. But Mitchell is also
consistent with deterrence reasoning. If the police know that any con-
fession obtained during an illegal detention will be excluded, they
have little incentive to detain illegally; the added deterrent effect of
holding that an impermissible delay retroactively invalidates prior con-
fessions may therefore be unnecessary.52
(e) Federal-State Problems. -Many states have prompt arraign-
ment provisions comparable to 5(a),5 but only three have adopted an
49 See, e.g., Greenwell v. United States, 336 F.2d 962, 968 (D.C. Cir. I964).
For the Supreme Court's most comprehensive discussion of waiver, see Johnson v.
Zerbst, 304 U.S. 458 (i938). It may be that the standard for waiver of a con-
stitutional right is higher than for a statutory right such as that of 5(a), although
the Court has never discussed the possibility.
50 See pp. 996-IO23 infra.
51 322 U.S. 65 (I944).
52 For further elaboration of this reasoning, see p. 995 infra.
" E.g., CAL. PEN. CODE ? 859 (Supp. I965); MICH. STAT. ANN. ? 28.872(I)

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exclusionary sanction comparable to that of McNabb.54 The Supreme

Court has repeatedly held that McNabb represents a federal rule of
evidence rather than a doctrine of due process, and that state courts
are free to admit confessions obtained in violation of state prompt ar-
raignment statutes.55 But this difference in the rules applicable to state
and federal prosecutions has created problems in cases involving some
element of state-federal cooperation. A recurring question is the admis-
sibility in a federal prosecution of a confession obtained by a federal
agent from a suspect in the custody of state officials during a delay in
arraignment that would violate 5(a) had the delay occurred during
federal custody. In Anderson v. United States, the Supreme Court
held that in this situation admissibility turns on whether there was a
"working arrangement" between state and federal officials.56 When such
an arrangement exists, one might regard the state police as agents of
the federal officials, and on this ground find a violation of 5(a).57
The "working arrangement" test is, however, open to question on the
ground that collaboration is difficult to prove. Indeed, lower federal
courts have rarely found a "working arrangement." 58 A more appro-
priate test might be whether the federal officers had the power to take
the accused from state into federal custody and arraign him promptly.
But this test might also present difficult factual issues. More funda-
mentally, both of these tests might be attacked on the ground that
McNabb is a rule of evidence for federal courts, reflecting a federal
policy against the admission of confessions obtained during delays in
arraignment. Therefore, the applicability of McNabb should depend
on whether the confession is offered in a state or federal court, rather
than on whether the delay in arraignment or the confession is somehow
attributable to the efforts of state or federal officials. Anderson and its
progeny, however, indicate that courts have followed the rationale of
deterring violations of 5(a) by federal officers.
In Cleary v. Bolger,59 the defendant had been arrested by federal
officers, who then obtained a confession after an "unnecessary delay" in
arraignment. The Court held that it was improper for a federal court
to enjoin a state official who had witnessed the confession from reporting
it at a state trial. Since the majority opinion stressed the traditional
reluctance of federal courts to interfere with state criminal proceedings,
the result might have been different had the case come before the
Court in a more normal procedural context. But the decision might also
be explained by deterrence reasoning. Allowing state officials to testify
(Supp. 1963). See the compilation of such statutes in McNabb v. United States,
3i8 U.S. 332, 342-43 n.7 (I943).
54 Vorhauer v. State, 2I2 A.2d 886 (Del. I965); People v. Hamilton, 359 M
4IO, I02 N.W.2d 738 (I960); CONN. GEN. STAT. REV. ? 54-Ic (Supp. I963).
55E.g., Gallegos v. Nebraska, 342 U.S. 55, 63-64 (I951).
563i8 U.S. 350, 356 (I943).
57 See, e.g., Carpenter v. United States, 264 F.2d 565, 57I (4th Cir.), cert.
denied, 360 U.S. 936 ('i959).
58 See, e.g., Westover v. United States, 342 F.2d 684 (gth Cir.), cert. granted,
86 Sup. Ct. 3I8 (i965) (No. 8o Misc., i964 Term; renumbered No. 76i, i965
Term); United States v. Coppola, 28i F.2d 340 (2d Cir. ig60), aff'd per curiam
365 U.S. 762 (i96i).
59 37, U.S. 392 (i963).

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at state trials about confessions obtained under the circumstances of

Cleary seems at first blush to give federal officials an incentive to violate
5 (a). However, since McNabb does not apply to confessions obtained
by state officials and introduced in state prosecutions, federal officials
could have circumvented an exclusionary rule in the Cleary context
by simply turning the arrested person over to state officials for pro-
tracted questioning. Although this would probably constitute a "work-
ing arrangement," Anderson would presumably not apply if the con-
fession were introduced by state officials in a state court.60 Thus, a
different result in Cleary might not have secured greater compliance
with 5(a) by federal officials.
4. Evaluation. -McNabb is a striking example of a rule of law
the underlying policies of which are far broader than the rationale that
explains its applications. One might reason from the policies that con-
fessions should be excluded whenever they are obtained during a period
of secret interrogation or before a person has obtained 5(b) warnings.
But the courts allow extensive interrogation without warnings when
delay in arraignment is justified by reasons other than questioning,
when a person is otherwise lawfully detained, when the accused is
detained in state custody and there is no "working arrangement," and
when a confession is introduced in a state trial. Moreover, McNabb
does not apply to postarraignment interrogation.61 The present ap-
plication of McNabb seems to be explicable only on the narrow ration-
ale of deterring violations of 5(a) by federal officers: "In criminal
cases, the accused may get relief, not so much out of concern for him
or for the 'truth,' but because he is strategically located, and moti-
vated, to call the attention of the courts to excesses in the administration
of criminal justice." 62
Sophisticated deterrence reasoning would suggest that confessions
should be excluded only up to the point at which the additional deterrent
effect is outweighed by the marginal undesirability of excluding other-
wise competent evidence and thus impairing the accuracy of the guilt-
determining process.63 The equation determining that optimum point
depends on empirical evidence and evaluation that is so complex that
it is incapable of precise calculation, but pragmatic solutions can be
60 In Rea v. United States, 350 U.S. 214 (1956), a federal officer was enjoined
from testifying in a state proceeding about evidence seized by federal officers in
violation of the fourth amendment. It has been stated that Rea would require a
similar injunction if a federal officer sought to testify at a state trial about a con-
fession obtained by federal officers in violation of 5(a). United States v. Klapholz,
230 F.2d 494, 497 (2d Cir.) (dictum), cert. denied, 35I U.S. 924 (1956). But even if
Rea is applicable in a McNabb context, in order to rely on the Federal Rules to
prevent a state official from testifying at a state trial the Court would have to
hold that its supervisory power extends to state officials whenever there is a
"working arrangement" between state and federal officials, and this is unlikely.
61 E.g., McNabb v. United States, I42 F.2d 904 (6th Cir.), cert. denied, 323
U.S. 77I ('944) (second case). But cf. cases cited in note 69 infra. Police may in
any event have few opportunities for effective questioning after arraignment. See
P. 947 supra.
62 Goldstein, The State and The Accused: Balance of Advantage in Criminal
Procedure, 69 YALE L.J. II49 (I960).
63 See p. 1O05 infra.

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reached. It is theoretically possible that the equation would justify

acquittal whenever arraignment was illegally delayed, even though
no confession was obtained and introduced at trial. Or one might
argue that deterrence justifies exclusion of a confession even though
the delay in arraignment became illegal only after the confession
had been obtained. But such extreme results have never been reached
in the analogous context of fourth amendment violations; and in
McNabb cases, the lower federal courts have unanimously rejected
the former argument,64 while Mitchell disposed of the latter. These
results may be supported by reasoning that the incentive to violate 5 (a)
is effectively removed by denying to police all gains obtained during
an illegal detention, without imposing additional sanctions.65 But the
refusal to do more than exclude evidence obtained during a period of
illegal detention may also rest on grounds other than the logic of deter-
rence. The Court has declared that it would be improper to use its
exclusionary power when the evidence is not itself tainted by being
secured during an illegal detention, suggesting that to go further might
contravene the principle of separation of powers.66
By grafting a requirement of promptness onto the arraignment statute
in McNabb and developing an exclusionary sanction for its violation,
the Court evinced a concern to limit secret police interrogation and its
attendant dangers of coercive pressure and exploitation of an accused's
ignorance of his rights. This concern was carried to a logical conclusion
in the Mallory opinion, which established a procedural model allowing
the police little or no time for interrogation between arrest and arraign-
ment. But the shortest delay for questioning that the Court has actually
held to be illegal was the six-hour period in McNabb. And though the
reported cases from lower federal courts indicate that delays of ten or
twelve hours are no longer common, the Court has failed to review
lower court decisions that reject the Mallory model and hold that one
to three-hour delays for interrogation are permitted by 5(a). More-
over, the insistence that 5(a) must be violated before McNabb exclu-
sion may be invoked results in uneven protection of arrested persons
and allows the police extensive opportunities for interrogation, even if
delays in arraignment for the purpose of questioning are limited. There
has been some reaction to these results: a number of lower federal
court judges have recently attempted to turn McNabb into a more
comprehensive and effective doctrine by refusing to countenance any
delay for purposes of interrogation,67 by excluding confessions obtained
during a delay that is justified under 5 (a) because it occurred for reasons
64 See, e.g., United States v. Angelet, 265 F.2d 155 (2d Cir. 1959) (alternative
holding).
65 However, the police may believe that sympathetic judges or incompetent
defense counsel will allow a significant number of confessions obtained after an
illegal delay in arraignment, or the fruits of such confessions, to be introduced.
And of course police may also detain a person for a lengthy period in violation of
5(a) for motives unrelated to his possible trial: for example, to "punish" a suspect.
66 United States v. Mitchell, 332 U.S. 65, 70-7I (I944); McNabb v. United
States, 3i8 U.S. 332, 347 (I943).
67 See note 39 supra.

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other than questioning,68 and by extending exclusion to the post-

arraignment stage.69
The Court's refusal to embark on such a course may have been in-
fluenced by the hostile congressional reaction to the Mallory decision.70
But it may also be justified on the more acceptable ground that 5(a)
and McNabb are not suitable doctrinal tools for striking a balance
between the claims of fairness for arrested persons and the interest of
society in effective law enforcement.71 Expanding the exclusionary
sanction beyond the confines of 5(a) might deprive the McNabb doc-
trine of any feasible limiting principle short of abolishing police inter-
rogation entirely. And even within 5(a), a workable compromise be-
tween competing interests might require the Court to act in a legisla-
tive fashion by drawing an arbitrary line: for example, announcing
that a delay for questioning of an hour is permissible but a longer
delay is not. Moreover, even if the McNabb approach had proved a
success in the federal context, it would have been awkward for the
Court to apply it to the states as an efficient supplement to the volun-
tariness doctrine. It would require considerable stretching of the due
process clause to transform 5(a), a statutory rule of procedure for
federal courts, into a constitutional command.72 These difficulties may
have led the Court to the sixth amendment as the doctrinal solution to
the confessions dilemma.
C. Confessions Obtained in the Absence of Counsel
i. The Development of a Pretrial Right to Counsel. -The sixth

amendment provides that "in all criminal prosecutions, the accused shall
enjoy the right . . . to have the assistance of counsel for his defence."
Prior to I960 it had been established that the constitutional guarantee
requires that in federal prosecutions an accused who retains his own
counsel must be allowed access to him at trial, during pretrial prepara-
tion, and at the time when he is called upon to plead to the indictment 1
- but not at arraignment or at the probable cause hearing required by

69 Ricks v. United States, 334 F.2d 964 (D.C. Cir. i964) (postarraignment
interrogation in absence of counsel during postponement of 5(c) hearing) ; Mitchell
v. United States, 3i6 F.2d 354 (D.C. Cir. i963) (defective 5(b) warnings).
70For accounts of legislative efforts to undercut Mallory, see Hogan & Snee,
supra note I7, at 33-46; Comment, supra note I3, at I028-30.
71 See pp. I020-2 2 infra. It has also been argued that a "screening process"
between arrest and arraignment is necessary under modern conditions of law en-
forcement, and that a requirement of immediate arraignment is administratively
unworkable. See pp. Ioog-Io infra.
72 It has been maintained that the broad implications of the due process
clause, the right to bail, and other constitutional provisions entail a requirement
of prompt arraignment applicable to the states. Broeder, Wong Sun v. United
States: A Study in Faith and Hope, 42 NEB. L. REV. 483, 569-72 (i963). But if
the Court accepted this proposition, it would in effect have to promulgate a code
of arraignment procedure, establishing how prompt arraignment must be, the
nature of any warnings to be given, whether a probable cause hearing has
to be held immediately, and other such administrative details.
'See FED. R. CRIM. P. 44, and the accompanying note of the Advisory Com-
mittee.

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rule 5(C).2 The fourteenth amendment had been interpreted to guar-

antee similar rights to retained counsel in state proceedings.3
The constitutional right of indigents to appointed counsel in federal
proceedings has been coextensive with the right to retained counsel.4
In state proceedings, it was held in a I932 capital case that the defend-
ants had a right under the United States Constitution to appointed
counsel for purposes of trial and of pretrial preparation,5 and the same
right was later extended to noncapital cases in which "special circum-
stances" indicated that the absence of counsel would make the pro-
ceedings "fundamentally unfair." 6 Then, in Hamilton v. Alabama,7 a
capital case decided in I96I, the Court found that under Alabama law
arraignment was a "critical stage in a criminal proceeding," because a
defendant must then assert certain defenses, such as insanity, or
lose the right to assert them at trial; the Court concluded that the
defendant was therefore constitutionally entitled to appointed counsel,
even though no showing of prejudice was made.
In White v. Maryland,8 a I963 decision reversing a murder convic-
tion, the Court applied the "critical stage" test to a preindictment
proceeding. Defendant pleaded guilty at a preliminary hearing, at a
time when he was not represented by counsel. His plea was thereafter
changed to not guilty, but the former plea was introduced at trial as
evidence against him. Although under Maryland law a defendant was
not required to plead at the hearing, and no defenses could there be
lost or waived,9 the Court in a per curiam opinion found that the hearing
was a "critical stage" and that the fourteenth amendment there-
fore required that counsel be appointed. Shortly after White, the
Court established in Gideon v. Wainwright 10 that appointment of
counsel at trial did not depend on the fact that a capital offense was
involved or on a showing of "special circumstances." This holding
presumably applies to pretrial hearings like those in Hamilton and
White."
ibid; accord, In re Bates, 2 Fed. Cas. 105 (No. Iogga) (D.C.D.S.C. I858)
(plea to the indictment). But cf. Wood v. United States, I28 F.2d 265 (D.C. Cir.
I942). FED. R. CRIM. P. 5(b), (c) provide arrested persons with a nonconstitu-
tional right to consult retained counsel at arraignment and the 5(c) hearing.
3 Chandler v. Fretag, 348 U.S. 3 (i954) (trial); House v. Mayo, 324 U.S. 42, 46
(i945) (plea to indictment).
4 See FED. R. CRIM. P. 44, and the accompanying note of the Advisory Com-
mittee. The Criminal Justice Act of i964 provides a statutory right to appointed
counsel prior to the plea to the indictment, declaring that a person is entitled to
be represented by counsel at every stage in the proceedings beginning with his
initial appearance before a commissioner. i8 U.S.C. ? 3006A (i964).
5Powell v. Alabama, 287 U.S. 45 (1932).
6'The "special circumstances" limitation was established in Betts v. Brady, 3i6
U.S. 455 (1942). The Court refused to upset the denial of a noncapital state peti-
tioner's request for appointed counsel at trial.
7368 U.S. 52 (I96I).
8373 U.S. 59 (i963). Compare Wood v. United States, I28 F.2d 265 (D.C. Cir.
I942).
' See the report of the case below, White v. State, 227 Md. 6I5, 622-25,
A.2d 877, 88I-82 (I962).
10 372 U.S. 335 (i963).
" The Court's emphasis in Gideon on equality between defendants, and on th
inevitable prejudice a layman must suffer when attempting to cope with th
complexities of the law by himself apply with the same force to pretrial proceed
ings as to trial itself.

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None of these developments pertained to right to counsel during

police interrogation before trial or indictment, a subject considered by
the Court in two I958 decisions, Crooker v. California 12 and Cicenia v.
Lagay.13 In both cases, the police had obtained confessions after having
denied the accused's request for an opportunity to consult with counsel.
Crooker was thirty-one years old, had graduated from college and
attended law school for a year; Cicenia was twenty and had received
only a grade school education. In Crooker, a five-to-four majority re-
jected an automatic exclusionary rule; the Court held that the test
was whether "upon all the circumstances of the case" defendant was
so prejudiced by the denial of access to counsel that his subsequent
trial was tainted by a lack of "fundamental fairness," and concluded
that, because of Crooker's age, intelligence, and education, reversal
was not required. The dissenting Justices argued that presence of
counsel at police interrogation is necessary in order to prevent coerced
confessions and to assure fairness to the accused. In Cicenia the convic-
tion was also upheld by a majority of five, but the Court did not discuss
the defendant's youth and inexperience or examine whether funda-
mental unfairness had been shown. Gideon's rejection of "special cir-
cumstances" as a test for limiting right to counsel at trial, coupled with
an expansion of the "critical stage" concept, left the question of right
to counsel during police interrogation in considerable obscurity.
2. Massiah and Escobedo. -In I964 the Court explained its de-
cision in Massiah v. United States 14 as a logical extension of the
developing pretrial right to counsel announced in Hamilton and White.
Defendant had been indicted on a federal charge and released on bail,
whereupon he had retained counsel. An accomplice, cooperating with
federal officers, then elicited incriminating statements from defendant
in the course of a private conversation in the accomplice's car. These
statements were overheard by a federal officer via a radio transmitter
installed in the car for that purpose, and were reported by the officer
at trial. In an opinion by Mr. Justice Stewart for a majority of six,
the Court did not reach defendant's fourth amendment objections to
the admission of this testimony, but held that the sixth amendment
prohibits federal officers' deliberate extraction of incriminating state-
ments from an indicted person without presence of counsel.15 Although
the statements had not been made in the course of a judicial proceeding,
the Court held that they were uttered at a "critical stage." The
opinion emphasized the multitude of safeguards, including counsel, that
are afforded a defendant at trial, and asserted that the need for counsel
during interrogation is equally great. The Court then cited with ap-
proval a series of New York cases requiring the exclusion of postindict-
The Court has not yet decided the applicability of Gideon to minor offenses;
the parallelism between right to counsel at trial and at pretrial hearing might also
obtain in this aspect.
12 357 U.S. 433.
13357 U.S. 504.
14 377 U.S. 201 (I964).
15 This holding was presaged by the dissent in Crooker, and by the opinions of
four concurring Justices in Spano v. New York, 360 U.S. 315, 326, 327 (I959),
cited with approval in Massiah, 377 U.S. at 204.

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ment and postarraignment statements made in

regardless of whether defendant had retained o
Although the fact that Massiah's statements ha
been indicted was noted throughout the opinion
of the significance of this fact.17
The possibility that Massiah might be limited
or to cases in which defendant had already reta
inated by McLeod v. Ohio,18 a per curiam decision handed down on
the last day of the I964 Term. After indictment, defendant had made
incriminating statements to state officials "while he was voluntarily
endeavoring to aid police in securing evidence of the crime." 19 He
had not retained, requested, or waived counsel. The Court reversed on
the authority of Massiak.
In Escobedo v. Illinois,20 the Court considered a defendant's state-
ments made, like those in Crooker and Cicenia, after arrest but before
formal hearings or indictment had occurred. The twenty-two year old
defendant, of Mexican extraction, had no prior police record. Follow-
ing his arrest for murder and his release after questioning, Escobedo
consulted a lawyer whom he had retained, and was advised not to make
any statements to the police. Defendant was then taken to the police
station for further questioning; throughout the interrogation he re-
peatedly requested and was denied access to his lawyer, who was also
present at the station and who was prevented by police from consulting
with his client. During the course of the interrogation, however, the
lawyer briefly spied Escobedo through a doorway and made a gesture
that the defendant understood as an instruction not to answer questions.
Handcuffed, kept standing, and nervous from lack of sleep, defendant
was not informed by his interrogators that he might remain silent or
that anything he said might be used against him. Confronted with an
alleged accomplice's claim that Escobedo had shot the murder victim,
the defendant accused the accomplice of actually pulling the trigger,
thus admitting complicity in the crime.21 Following further admissions
by defendant, a state's attorney then obtained a complex written con-
fession that was introduced at trial. Escobedo was convicted of murder.
In a five-to-four decision the Court reversed. Mr. Justice Goldberg's
opinion for the majority did not discuss defendant's contention that the
conditions of the interrogation and the aggravating factor of denial of
access to counsel had rendered his confession involuntary, a claim that
had been rejected by the Illinois Supreme Court.22 Rather, the Court
"6E.g., People v. Rodriguez, ii N.Y.2d 279, 183 N.E.2d 651, 229 N.Y.S.2d 353
(i962); People v. Waterman, 9 N.Y.2d 56i, 175 N.E.2d 445, 216 N.Y.S.2d 70
(i96i).
17 However, Mr. Justice Stewart, who wrote the opinion for the Co
Massiah, dissented in Escobedo v. Illinois, 378 U.S. 478 (i964), on the grou
the confession in that case was made before indictment.
18 381 U.S. 356 (i965).
"9State v. McLeod, i Ohio St. 2d 6o, 62, 203 N.E.2d 349, 35I (i964).
20 378 U.S. 478 (i964).
21 If Escobedo had kept silent in the face of this accusation, his silence would
probably have been introduced at trial as evidence of guilt under the Illinois law
of adoptive admissions. See, e.g., People v. Lane, 29 Ill. 2d 326, 194 N.E.2d 272
(i963). See also pp. 1036-40 infra.
22People v. Escobedo, 28 Ill. 2d 41, 9go N.E.2d 825 (1963).

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relied on right to counsel reasoning, stating that Massiah could not be

distinguished on the ground that Escobedo had not yet been indicted
when he had confessed. Because police suspicion had already focused on
Escobedo and the police were trying to obtain a confession, an adversary
situation had arisen, and defendant's need for the assistance of counsel
in such a situation was the crucial factor. The Court stressed Escobedo's
ignorance of the fact that under Illinois law an accomplice is as guilty
of murder as the man who pulls the trigger. Citing White v. Maryland
and Hamilton v. Alabama, the Court declared that police interrogation
is a "critical" stage because if defendant confesses then, "conviction is
already assured." Defendant should be entitled to the assistance of
counsel at this stage lest the trial become "no more than an appeal from
the interrogation" and the right to a lawyer at trial be reduced to "a
very hollow thing."
Though admitting that recognition of a preindictment right to coun-
sel during interrogation might reduce the number of confessions ob-
tained, the Court observed that "a system of criminal law enforcement
which comes to depend on the 'confession' will, in the long run, be less
reliable and more subject to abuses than a system which depends on
extrinsic evidence independently secured through skillful investiga-
tion." 23 The opinion also condemned police exploitation of a defendant's
ignorance of his constitutional rights and the fear that presence of counsel
might lead to the exercise of those rights, and it declared that an ac-
cused person is constitutionally entitled to be advised by his lawyer
during police interrogation of his privilege against self-incrimination.
The Court declared that the preindictment right to counsel arises only
at the point "when the process shifts from investigatory to ac-
cusatory - when its focus is on the accused and its purpose is to elicit
a confession." 24 The Court fashioned a carefully limited "holding": 25
[W]here, as here, the investigation is no longer a general inquiry into

an unsolved crime but has begun to focus on a particular suspect, the sus-
pect has been taken into police custody, the police carry out a process
of interrogations that lends itself to eliciting incriminating statements,
the suspect has requested and been denied an opportunity to consult
with his lawyer, and the police have not effectively warned him of his
absolute constitutional right to remain silent, the accused has been
denied "the Assistance of Counsel" in violation of the Sixth Amendment
to the Constitution, as made obligatory upon the states by the Four-
teenth Amendment ....
The Court concluded that the confession was therefore inadmissible.

After attempting to distinguish Crooker on grounds of Crooker's educa-
tion and the fact that police had warned him of his right to silence, the
Court overruled Crooker and Cicenia to the extent that they were incon-
sistent with Escobedo.
3. The Implications of Escobedo. -The opinion's combination of
sweeping language with an abstemiously narrow "holding" has en-
23378 U.S. at 488-89.

24 Id. at 492.
25 Id. at 490-9I.

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i966] DEVELOPMENTS - CONFESSIONS iooI
gendered diverse and conflicting views about the implications of the

case.26 Most courts and commentators seem to have been strongly
influenced by their personal conclusions about the fairness of police
interrogation and the necessity for confessions, thus confusing the prob-
lem of interpretation with that of evaluation. The first task in inter-
preting Escobedo is to explore the various possible rationales for the
decision that could determine how it will be applied.
A number of recent decisions by the Second Circuit27 and other
courts 28 suggest that Escobedo merely represents a reworking of the
voluntariness test, with emphasis on access to counsel as an important
but not necessarily decisive factor. Thus, one opinion concludes that
the significance of the absence of counsel depends upon all the circum-
stances of the case, including the suspect's "legal sophistication" and
his "subjective state of mind and health." 29 This approach, reminis-
cent of the initial interpretations of McNabb by some of the lower
federal courts,30 seems inconsistent with the Court's refusal to reach
the voluntariness issue in Escobedo and the explicit sixth amendment
foundation of the "holding." Prior to Escobedo, the Court had indicated
in Haynes v. Washington 31 that refusal to permit a suspect under inter-
rogation to telephone his wife and, apparently, his lawyer was an im-
portant factor in rendering a subsequent confession involuntary. Thus
there was strong authority for disposing of Escobedo on familiar volun-
tariness grounds.
Most courts have recognized that Escobedo announced a new consti-
tutional doctrine; and most controversy has been about the dimensions
of that doctrine. Debate among the lower courts has revolved around
which of the factors listed in the "holding" are controlling. Although
the sweeping language in Escobedo would support very broad interpreta-
26 Many uncertainties may be resolved by the Court this Term. It has granted
certiorari in three cases presenting the questions of whether defendant must have
requested counsel, Vignera v. New York, 86 Sup. Ct. 320 (i965), the significance of
warnings of "rights" and no request, Miranda v. Arizona, 86 Sup. Ct. 320
(I965), and retroactivity, Johnson v. New Jersey, 86 Sup. Ct. 318 (I965). A case
on which certiorari was granted at the same time, Westover v. United States, 86
Sup. Ct. 38 (i965), was argued on McNabb grounds below.
The Court has also granted certiorari in Davis v. North Carolina, 86 Sup. Ct.
439 (i965). Davis, whose conviction became final on direct appeal before Esco-
bedo, was interrogated over a sixteen-day period, did not request counsel and was
warned of his right to silence. And California v. Stewart, 86 Sup. Ct. 395 (i965),
presents problems of waiver in the absence of warnings.
27 E.g., United States v. Cone, No. 29,345, 2d Cir., Nov. 22, i965. United States
v. Drummond, No. 28, 710, 2d Cir., Dec. 2, x965.
28E.g., Thompson v. Cox, 352 F.2d 488 (ioth Cir. i965); Montgomery v.
State, 176 So. 2d 33I (Fla. I965).
29United States v. Drummond, No. 28,7Io, 2d Cir., Dec. 2, i965. If Drum-
mond and Cone are read as holding that right to counsel depends on a vague
variety of factors, they attempt to resurrect the "special circumstances" approach
of Cicenia. But "the facts in Cicenia are so similar to those in Escobedo that it
would be unreasonable to conclude that Escobedo did not overrule Cicenia." State
v. Johnson, 43 N.J. 572, 580, 206 A.2d 737, 74I, cert. granted, 86 Sup. Ct. 3X8
(i965). The Court in Escobedo attempted to distinguish Cicenia on the ground
that Cicenia had been given a warning of right to silence by the police, but this
distinction is unconvincing because Escobedo was told to keep silent by his lawyer.
See p. I004 infra.
30See p. 985 supra.
31373 U.S. 503 (i963).

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1002 HARVARD LAW REVIEW [VoL. 79:938
tions of the decision, the Court's careful specification of these factors

indicates that they may be vital in determining the implications of the
case. It is therefore appropriate to examine each of these factors, with
a view to determining whether it affords a rational basis for limiting
Escobedo.
(a) Request for Counsel. - The great majority of state and federal
courts have held that Escobedo does not apply unless either the suspect
has explicitly requested an opportunity to consult with counsel or a
lawyer retained by the accused or his family has sought such a con-
sultation.32 Most courts justify this narrow reading by simply citing
the Court's "holding" and urging that confessions are necessary to
effective law enforcement. They apparently believe that, since the
presence of a lawyer will preclude the possibility of a confession except
in the rare instances when confessing would be in the accused's self-
interest, the right to counsel at interrogation should be given the most
limited possible scope. But this argument, which is surely relevant to
an evaluation of Escobedo, seems irrelevant to an interpretation, since
the government's interest in obtaining a confession does not turn upon
whether the suspect asks for a lawyer. Another justification for limit-
ing Escobedo in this way is that when the police bar consultation be-
tween a suspect and his lawyer they are taking positive action designed
solely to increase the likelihood of a confession, in contravention of
their constitutional duty to adopt a "neutral" stance; the principle of
neutrality does not require affirmative action to reduce the likelihood of
obtaining a confession, and thus the police are not obliged to furnish
the accused with a lawyer or even to warn him that he has a right to
contact one.33 But this reasoning, if consistently applied, would not
limit Escobedo but would instead lead to the abolition of interrogation.
Taking advantage of custody for the purpose of questioning an arrested
person is an exercise of authority that may be regarded as contravening
the principle of neutrality, since the very process of skillful interrogation
is designed to, and does, increase the likelihood that a confession will
be obtained.34
Another possible approach to limiting Escobedo to cases in which the
suspect has asked for an attorney would emphasize that such a request
may be regarded as a symptom of psychological distress. When the
police deny the request, this distress is heightened and the intimidating
aspect of incommunicado detention is brought home to the accused. It
might be argued that the intimidation involved is sufficient to render a
subsequent confession involuntary per se.35 But the factual premise
32 See, e.g., United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (7th Cir.
i964), cert. denied, 379 U.S. 984 (i965); State v. Hodgson, 44 N.J. I5I, 207 A.2d
542 (i965). Contra, e.g., United States ex rel. Russo v. New Jersey, 35i F.2d 429
(3d Cir. I965), petition for cert. filed, 34 U.S.L. WEEK 3225 (U.S. Dec. 28, I965)
(No. 834); People v. Dorado, 62 Cal. 2d 350, 398 P.2d 36i, 42 Cal. Rptr. I69, cert.
denied, 38I U.S. 937 (I965).
33 For one exposition of a "neutrality" thesis, see Friendly, The Bill of Rights
as a Code of Criminal Procedure, 53 CALIF. L. REV. 929, 942 n.70, 943 (i965).
34 See pp. 948-49 supra. Of course, arrest itself increases the likelihood
that a man will confess, but arrest can be justified on obvious independent grounds.
35 Cf. Haynes v. Washington, 373 U.S. 503 (i963). In other common law
countries denial of the right to counsel is only one of the factors considered in

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behind this analysis is questionable: a request for a lawyer probably

indicates intelligence and presence of mind; the failure to ask for one
may be due to ignorance, confusion, or intimidation. Besides, to inter-
pret the significance of a request and its denial in terms of intimidation
appears to be a reworking of the voluntariness test along the lines of
Haynes, an approach that the Court conspicuously avoided in Escobedo.
Thus there seems to be no rational justification for a different result
in cases in which the accused requests a lawyer and in those in which
he does not. Moreover, the right to counsel at trial does not depend
upon a request; 36 the role of a lawyer at trial differs from his role
during an interrogation,37 but the differences do not seem relevant to
the question of whether a request should be a prerequisite to the right
to counsel. And whatever policies justify providing counsel for the
accused who requests one would seem to apply with even greater force
to the accused who may be too ignorant or too intimidated to make such
a request.
(b) Fifth Amendment Warning. - Courts rejecting the proposition
that Escobedo applies only when an accused requests counsel have
gone on to consider the significance of a police warning to the effect
that the suspect need not speak, and, that if he does speak, anything he
says may be used against him. In Escobedo, as well as in a prior
decision,38 the Court has taken the position that the privilege against
self-incrimination "applies" to police interrogation. Some courts have
held that a warning is required by Escobedo,39 while others have indi-
cated that a warning is sufficient to save a subsequent confession from
exclusion,40 thus suggesting that the privilege against self-incrimination
is the key to the decision.
A fifth amendment interpretation is, however, difficult to reconcile
with the Court's specific reliance on the sixth amendment in its "hold-
ing" and the discussion of right to counsel that pervades Escobedo. The
right to counsel at the interrogation stage might be regarded as auxil-
iary to the right to silence, since presence of counsel during interrogation
will ensure that the accused does not speak from a belief that he must.41
And to the extent that the decision to speak in the police station is
equated with the decision to take the stand at trial, it might be argued
that counsel's guidance in both instances is necessary in order to enable
the defendant to determine whether he should take the risk of possible
self-incrimination by answering questions.42 Indeed, this approach
might explain Escobedo's reference to "the right of the accused to be
advised by his lawyer of his privilege against self-incrimination." 43
determining the voluntariness of a confession. See pp. io98, II02, II09-IO infra.
36 Carnley v. Cochran, 369 U.S. 506 (I962).
37 See pp. IOI4-I8 infra.
38 Malloy v. Hogan, 378 U.S. i (I964).
39E.g., State v. Neely, 239 Ore. 487, 395 P.2d 557 (I964), modified on rehear-
ing, 398 P.2d 482 (I965).
40 E.g., Ward v. Commonwealth, 205 Va. 564, I38 S.E.2d 293 (I964). Contra,
Queen v. United States, 335 F.2d 297 (D.C. Cir. I964).
42 See pp. IOI6-I7 infra.
43 378 U.S. at 488.

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I004 HARVARD LAW REVIEW [Vol. 79:938
But it hardly serves to explain why Escobedo does not require counsel
if an accused is warned by the police of his right to silence. A lawyer
would usually prevent the accused from speaking at all, while the police
would have every motive to gear the warning for minimum psychological
impact and to undermine its effectiveness by subsequent interrogation:
it would thus be unrealistic to regard a police warning as an adequate
substitute for a lawyer.
Moreover, "Assistance of Counsel" has never been given so restricted
a definition, and Massiah seems to exclude the possibility that some-
thing other than presence of counsel might satisfy the sixth amend-
ment.44 Those who believe that a warning of the right to silence consti-
tutes sufficient compliance with Escobedo must therefore take the
radical step of discarding the right to counsel language in the opinion 45
and bottoming the decision entirely on the privilege against self-incrim-
ination and its relation to the developing "free and rational choice"
aspect of the voluntariness test.46 Even if such a task could be satis-
factorily accomplished, there remains the problem of reconciling a
fifth amendment approach with the facts of Escobedo. Defendant had
been once interrogated by the police, had then been instructed to
remain silent by counsel, and had been reminded of this instruction
during the course of a second interrogation. It seems formalistic to
argue that Escobedo's confession would have been admissible had the
police given a warning of right to silence at the beginning of the second
interrogation. True, a warning may serve not only to give the
accused abstract information about his rights but also to indicate to
him that the police recognize that right;47 such acknowledgment may
ease the intimidating atmosphere of incommunicado interrogation. But
when a suspect has been advised by counsel of his right to silence it
would seem that the failure of the police to acknowledge that right
should be one factor in applying the voluntariness test rather than the
basis of a per se exclusionary rule.
A fifth amendment interpretation of Escobedo might be attractive
because it could enable the Court to limit Escobedo while avoiding the
difficulty of drawing the sixth amendment line at a request. However,
unless Haynes v. Washington is "limited to its facts" or otherwise
explained, the grant of a request for counsel may be required by the
voluntariness test. And in any event, it may be argued that the warning
of a right to silence is insufficient to establish a valid "waiver" of the
privilege.48 The fact that some law enforcement agencies that regularly
do give such a warning before interrogation seem not to have been
seriously hampered in obtaining confessions49 may indicate that the
warning is ineffective. On the other hand, continuing success in obtain-
ing confessions may be explained by the possibility that ignorance of the
"The New York cases cited with approval in Massiah, see note I6 supra, also
contemplate nothing less than presence of counsel.
45 Perhaps some of the language might be reconciled with the thesis that counsel
is a permissible alternative to a warning of right to silence.
49 See p. 95I supra, p. IO90 infra.

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I966] DEVELOPMENTS - CONFESSIONS I005
right to silence is not an important factor in the dec

that case, limiting Escobedo safeguards to measures designed to correct
that ignorance would make the case quite unimportant.
(c) The Dimensions of the Right to Counsel. - If one concludes that
Escobedo establishes a right to counsel regardless of whether the ac-
cused requests a lawyer or receives a fifth amendment warning, it then
becomes necessary to define the dimensions of that right. The first
question that may be asked is whether Gideon applies, or whether the
right is limited to retained counsel. Although the analogy between right
to counsel at trial and right to counsel during interrogation receives
considerable emphasis in Escobedo's broad language, the soundness of
any mechanical equation is questionable.50 But even without reference
to Gideon, it seems clear that the right to counsel must include a right
to appointed counsel. For if the values that presence of counsel will
secure are deemed so to outweigh the need for confessions that different
treatment of those who request counsel and those who do not is insup-
portable, then under the same reasoning any distinction in availability
of counsel between the rich and the poor seems equally arbitrary and
unacceptable.5'
It might be urged that the right to counsel should in any event
extend only to those cases in which particularly difficult or technical
questions of law are involved in the decision to confess. The Court in
Escobedo did mention the defendant's ignorance of the law of complicity
and the possibility of police deception in eliciting the statement that he
did not actually pull the trigger. But if trickery by the police is the
explanation for Escobedo, it might be more appropriately dealt with
under the voluntariness test.52 A "special circumstances" approach to
the sixth amendment, rejected by Gideon in the context of trial, would
be exceedingly difficult for the courts and the police to administer
especially since in nearly every case the police will during interrogation
confront the suspect with some sort of evidence, the competence and
weight of which he must evaluate. Furthermore, when a lawyer is
provided, he will probably tell the accused to keep quiet rather than
instruct him in the niceties of the law. It seems strange that access
to instructions that will cause defendant's complete silence should turn
on the complexity of the underlying legal issues.
Another possibility in determining the dimensions of the right to
counsel during interrogation is that continuous presence of counsel is
not required and that a limited period of consultation between a lawyer
and the accused before interrogation is sufficient "Assistance of Coun-
sel." This approach may appear attractive if it is believed necessary
to allow the police a real opportunity to secure confessions. But there
would obviously be problems in judicial development of a workable
standard of what constitutes a "reasonable" or "limited" consultation.
50See pp. IOI4-I7 infra.
51 The administrative difficulties ahd costs involved in providing counsel f
indigents during police interrogation would, however, be much greater than i
trial context. Although this difficulty would to some extent apply to provision
counsel at preliminary hearings, it did not prevent the passage of the Crimin
Justice Act of I964. See note 4 supra.
52 See pp. 980-8I supra.

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And, while the consultation would ensure that the defendant was ad-
vised of his rights, the police would have considerable opportunity to
undermine that advice in the secret interrogation that ensued. The
procedure would tend to turn interrogation into a game of wits between
the lawyer and the police, with the accused as the pawn; the victory
would go to the side that could psychologically dominate the accused
sufficiently to immunize him from the other's tactics. This hardly
seems a rational way of reconciling the interests of the accused with
those of society.53
Support for a broad reading of the right to counsel in Escobedo
can be found in Massiah and McLeod, which were decided on the
rationale that the police had deliberately extracted a confession from
the defendant at a time when there was no counsel present.54 Although
these were postindictment cases, the Court in Escobedo properly re-
jected the argument that the right to counsel should depend on the
formality of indictment. Once it is established that the person being
questioned is in substance the "accused," only arbitrary distinctions
can justify a difference in result between postarraignment and post-
indictment cases.
(d) Waiver and Warning of Right to Counsel. -Whatever dimen-
sions are finally established for the right to counsel under Escobedo,
there will inevitably be disputes about whether the accused waived that
right before confessing. Clearly, a police warning must at least make the
nature of the right clear to the accused. If Escobedo is interpreted to
include a right to appointed counsel, then a warning that merely men-
tioned the possibility of counsel in general terms without specifying
the opportunity for indigents to have counsel appointed would pre-
sumably be insufficient to establish a "knowing" waiver by an indigent.
The more difficult problem, however, is whether the fact that an ac-
cused confessed after a police warning of right to counsel is sufficient to
establish a valid waiver. A number of courts have held that it is.55
Although the Court in Escobedo specifically acknowledged that the
right involved in the decision might be waived, its formerly expressed
hostility to claims of "acquiescence in the loss of fundamental rights" 56
might make it questionable to find a waiver in these circumstances.
By hypothesis, suspicion has focused on the accused and the police are
attempting to obtain a confession from him; it would be unrealistic to
assume that they will have afforded him the full and sympathetic ex-
planation of the right that should proceed its "intelligent and competent"
waiver. The police will have every incentive to deliver an oral warning
"This objection would apply a fortiori to any scheme that allowed a suspect
to consult counsel whenever he wished but would not allow counsel to be present
throughout the interrogation.
5 The reasoning of the New York decisions cited with approval in Massiah,
see note i6 supra, is similarly broad.
5 E.g., Latham v. Crouse, 338 F.2d 658 (ioth Cir. i964). Compare the
stringent standards of waiver enunciated in White v. Hancock, No. 6,557, ist Cir.,
Jan. I7, i966.
In Carnley v. Cochran, 369 U.S. 506 (i962), a finding of waiver of right
to counsel at trial in the absence of an offer was overturned.
56 Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In United States v. Glasser, 315
U.S. 6o (1942), the Court refused to find a waiver of right to counsel at trial
even though the defendant was himself an attorney.

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with minimum psychological effectiveness. And if the warning appears

at the top of a written confession, it does not prove that the accused was
warned before confessing.57
Experience suggests that a warning of right to counsel by law en-
forcement officers will often not be heeded and confessions may often
be subsequently obtained in the absence of counsel.58 A right so easily
waived is hollow protection against the unfairness that Escobedo asso-
ciated with official interrogation, especially since ignorant or easily in-
timidated individuals, who most need the safeguard of counsel's pres-
ence, are the very persons most likely to "waive" their right. On the
other hand, the Court's dictum in Escobedo and orthodox notions of
waiver would seem to preclude the possibility of requiring that in all
cases the accused must consult with a lawyer before a waiver becomes
acceptable.59 An alternative would be to require the police to make a
clear showing that an uncounseled accused knowingly and purposefully
waived his right, a showing that would require more than mere proof
that a warning was given. This approach, however, would involve a
detailed inquiry into the facts of each particular case, and would thus
be difficult to apply in cases of secret interrogation. A better compro-
mise might be to require that an explanation of the nature and impor-
tance of the right to counsel be given by a magistrate, and that waivers
be made under judicial supervision.60
4. "Focus" and "Purpose." - A continuing problem in applying the
Escobedo decision -whether narrowly or broadly defined in other re-
spects - derives from the limitation of the right to counsel to interro-
gation occurring in situations "when the process shifts from the investi-
gatory to the accusatory -when its focus is on the accused and its
purpose is to elicit a confession." 61 This last condition was otherwise
formulated as requiring that the interrogation be of the sort that "lends
itself to eliciting incriminating statements." 62 The Massiak opinion de-
clares that the policies underlying the safeguards enjoyed by a defend-
ant at trial also require provision of counsel to a person who is interro-
gated after indictment, because questioning at this stage is an integral
part of the state's proceedings against him. In a preindictment case,
the "focus" and "purpose" test may be seen as a substitute for the
formality of indictment, fixing the point at which an individual should
be regarded as in effect the "accused"; the questioning then becomes a
"criminal prosecution" falling within the sixth amendment, and "our
adversary system begins to operate." 63
In giving content to "focus" and "purpose," heed must be paid to the
Court's evident concern not unduly to hamper police research into the
C Cf. Haley v. Ohio, 332 U.S. 596 (I948).

58 See, e.g., People v. Dorado, 62 Cal. 2d 338, 398 P.2d 36i, 42 Cal. Rptr. I69,
cert. denied, 38i U.S. 937 (i965).
59 Since it seems reasonable to assume that counsel can in most cases persu
an accused that he needs an attorney during interrogation, making a lawyer'
advice necessary for waiver would in practical effect give the accused a non
waivable right to counsel.
6 Such a procedure might, however, burden magistrates with so much work
that the quality of the explanation and supervision would be low.
61 378 U.S. at 492.
62 Id. at 491.
631 d. at 492.

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facts and background of crimes. A great deal of police investigation

must necessarily involve questioning of witnesses and those who may
know about a crime, and it would be both impractical and undesirable
to conclude that Escobedo applies whenever the police put questions to
an individual. The Court in Escobedo was concerned with interroga-
tion in circumstances in which the police may unfairly try to secure a
confession by exploiting ignorance, relying on psychological pressure or
deception, or indulging in grosser forms of coercion that may nonethe-
less go undetected by the courts.
The "focus" and "purpose" test must be interpreted in light of these
considerations, and its two elements viewed as complementary. If the
police strongly suspect a given individual, then the purpose to extract a
confession will never be far below the surface of any questioning. On
the other hand, intensive interrogation of the type designed to secure
a confession indicates that "suspicion has focused." The term "pur-
pose" indicates that if it can be shown that the policeman involved
intended to obtain a confession, Escobedo may apply even though
the questioning involved was relatively mild. But in its alternative
formulation the Court stressed "a process of interrogation that lends it-
self to eliciting incriminating statements." 64 This wording suggests
that if the police resort to incommunicado interrogation, in which the
dangers that an accused may be unfairly induced to confess are great,
Escobedo may apply even though the subjective intent of the interro-
gating officers to obtain a confession cannot be proved.
When the police question a person who has not been arrested, a strong
showing of "focus" and "purpose" will probably be required. Warnings
may chill the cooperativeness of witnesses and it would seem senseless to
require the police to go through a ritual incantation at the scene of a
crime before speaking to anyone. Thus Escobedo should not apply to
situations in which the police are attempting to discover whether a
crime has been committed.65 On the other hand, the absence of a form-
al arrest should not preclude the applicability of Escobedo when the
police strongly suspect that an individual has committed a crime and
question him at the station house for several hours.66 Obviously, cases
between these extremes will present hard problems in applying the
"focus" and "purpose" criteria. And these problems will arise with in-
creasing frequency if Escobedo is given broad or automatic effect once
an arrest occurs,67 because the police will then naturally resort to greater
use of questioning in advance of a formal arrest.68
64 Id. at 49I; see People v. Stewart, 62 Adv. Cal. 2d 57I, 579, 400 P.2d 97,
102, 43 Cal. Rptr. 20I, 206, cert. granted, 86 Sup. Ct. 395 (i965).
65 See Irwin v. United States, 338 F.2d 770, 777-78 (gth Cir. i964), cert. de-
nied, 38i U.S. gII (i965); People v. Fork, 233 Cal. App. 2d 725, 43 Cal. Rptr. 804
66 See People v. Furnish, 63 Adv. Cal. 2d 536, 407 P.2d 299, 47 Cal. Rptr. 387
(i965). England, Scotland, and India all limit the right of the police to question
a person once he has become a primary suspect. See pp. I092-93, IO99, II07 infra.
67 If the moment of arrest is critical in determining when constitutional rights
accrue, deciding the point at which police interrogation practices become an arrest
will pose difficulties. Such problems arise under the McNabb doctrine. See pp.
988-89 & n.26 supra.
68 The issue of undercover agents, whose purpose may be to gather general
evidence rather than specifically to obtain a confession, is also shot through with

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Escobedo would not seem to apply to confessions proffered over the

telephone 69 or volunteered even after arrest when no questioning of
any kind has occurred.70 The Court emphasized a broad range of values
that a lawyer would secure in the context of police interrogation, but it
did not suggest that exclusion was proper simply because a person con-
fessed when he was ignorant of his constitutional rights or had not
consulted a lawyer. Without questioning, there is no attempt by the
state to secure conviction through obtaining a confession, a condition
that seems a prerequisite for the application of the sixth amendment out-
side judicial proceedings.
When the police question an individual after a valid arrest, the situ-
ation is quite different.71 Since probable cause has been established,72
it seems clear that suspicion has "focused." Because there is a signifi-
cant possibility that an arrested person will be prosecuted, questioning
is likely to have the extraction of a confession as at least one of its
purposes. Moreover, detention is itself an intimidating factor, al-
lowing the police greater opportunity to use tactics that may be co-
ercive or unfair. These considerations would support a per se rule that
Escobedo applies to any postarrest questioning by the police.
If waiver principles are interpreted so that a police warning of right
to counsel or of right to silence, or both, will save a subsequent confes-
sion from Escobedo attack, then the police can provide such warnings
immediately after arrest.73 Such a procedure is administratively work-
able, and might not significantly impair police success in obtain-
ing confessions. On the other hand, if a magistrate's warning or
some more rigorous standard of waiver is required, then a per se post-
arrest rule may be undesirable. It has been persuasively argued that
modern conditions of law enforcement require a screening procedure, in
which persons validly arrested are informally questioned, their stories
are checked with independent evidence, and a much smaller number are
then formally charged before a magistrate.74 If immediate arraignment
were the vehicle for informing arrested persons of their right to coun-
sel, it could result in many innocent people being formally charged
with crime. Even if preliminary appearance before a magistrate did
not include the filing of a charge, the quality of the scrutiny over-
burdened magistrates could give to individual cases would not be very
high. Furthermore, providing counsel immediately after arrest might im-
uncertainty. Although the intimidating possibilities of interrogation are absent in

this situation, the combination of Massiah and Escobedo might curtail even pre-
arrest undercover work.
69 See People v. Beverly, 233 Cal. App. 2d 702, 43 Cal. Rptr. 743 (Dist. Ct. App.
I965).
70 See United States v. Accardi, 342 F.2d 697, 700-0O (2d Cir.), cert. denie
Sup. Ct. 426 (i965); Long v. United States, 338 F.2d 549 (D.C. Cir. i964).
71 Most common law and civil law countries allow defendants to have free
access to counsel after arrest. See pp. Io98, II02, II09-IO, III4 infra.
72 If probable cause did not exist, a subsequent confession might be excluded
under Wong Sun v. United States. See pp. I025-26 supra.
73 Such warnings might still be required at the beginning of each fresh period
of questioning, but compliance would be simple and mechanical.
7' Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to
Counsel: Basic Problems and Possible Legislative Solutions, 66 COLUM. L. REV. 62,
67-72 (i966).

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pair the efficiency of the screening process.

two alternatives under a per se postarrest application of Escobedo.
They can provide counsel, and, although confessions are then unlikely to
be obtained, counsel will in most cases probably not prevent inno-
cent persons from being quickly cleared. Or the police can interrogate
without counsel, but will not be able to use any resulting confessions at
trial.75
Apart from the question of screening, one may argue that a sound
compromise between the interests of the accused and those of effective
law enforcement requires some scope for productive postarrest police
questioning. It would then seem appropriate to distinguish casual ques-
tioning soon after arrest from systematic interrogation, since in the
former situation unfair pressures or coercive abuses are much less likely
to be present. One workable way of distinguishing between the two types
of cases is to adopt the presumption that Escobedo applies to questioning
once the suspect reaches the station house but not before.76 But when
the accused claims that he was subjected to intensive interrogation be-
fore reaching the station house or the police claim that their question-
ing in the station house was only casual, factfinding difficulties will
arise. To the extent that the applicability of Escobedo turns upon a
resolution in each case of the conflicting factual claims of police and
accused, the police will have great difficulty in determining at what point
during questioning the sixth amendment safeguards must be provided.77
Moreover, factfinding difficulties of this type plague the application of
the voluntariness test, and may have led the Court to Escobedo as a
method of providing institutional safeguards that do not depend on
scrutiny by courts as to the particular conditions in each case.
Even if "focus" and "purpose" are interpreted to permit some casual
questioning, it seems less than candid to justify several hours of post-
arrest interrogation on the ground that the police were merely "investi-
gating" ' or checking out an arrested person's story.79 Since almost
any postarrest questioning will have the securing of a confession as one
of its purposes, this labeling merely disguises the fact that all policy
factors have been resolved in favor of the police.80 A more forthright
J5 judge Friendly has argued that this practice would be illegal because the
constitutional violation consists in the actions of the police, not in introducing the
resulting confession at trial. Friendly, The Bill of Rights as a Code of Criminal
Procedure, 53 CALIF. L. REV. 929, 949 (I965). But insofar as Escobedo rests on
the policies underlying the privilege against self-incrimination, it may be that the
constitutional violation consists solely in use of a confession obtained in the
absence of counsel against the accused at trial.
76 See United States v. Robinson, No. 28,883, 2d Cir., Nov. 22, i965, at 3,386
(dissenting opinion).
77 See United States v. Cone, No. 29,345, 2d Cir., Nov. 22, i965.
78 See People v. Beverly, 233 Cal. App. 2d 702, 43 Cal. Rptr. 743 (Dist. Ct. App.
i965).
7 See Biddle v. Commonwealth, 206 Va. I4, 141 S.E.2d 7Io (i965).
80 In People v. Modesto, 62 Cal. 2d 436, 398 P.2d 753, 42 Cal. Rptr. 417
(i965), the primary purpose of the initial questioning was to determine the l
tion of a child that the accused had kidnapped. A dilemma was thus presented:
On the one hand, the existence of this purpose did not reduce the accused's need
counsel because an informative reply would have inevitably been incriminating
Indeed, concern for the child's safety might have prompted the police to use more
drastic measures than they would employ in a normal case. On the other hand, it

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emasculation of Escobedo appears in the language of a recent Second

Circuit opinion, United States v. Cone.81 Casting doubt upon the foun-
dations of Escobedo by suggesting that the sixth amendment applies
only in judicial proceedings, Judge Lumbard further noted the difficulties
in sorting out the "investigatory" and "accusatory" elements of police
questioning. Because of these difficulties and the need for confessions,
he concluded that it "would serve no useful purpose" to apply the Su-
preme Court's "focus" and "purpose" test. The opinion went on to in-
dicate that the police should be allowed to question a person for the ex-
press purpose of obtaining a confession, even though "by any test, they
had enough evidence to prosecute," as long as the possibility existed that
questioning might produce information useful to the solution of the
crime.
Judge Friendly, concurring, stated that the mere fact that police
"hope or even expect" that a confession will result from their question-
ing does not mean that Escobedo applies. But if the police have so
much other information that the crime is "solved," sixth amendment
protection against "hammering for the sole purpose of eliciting a con-
fession" must be provided.82 It is unclear whether Judge Friendly was
using the term "solved" in the sense that the police had reached firm
conclusions about the identity of the perpetrator of the crime or in the
sense that the police had already amassed enough admissible evidence
to convict. The latter interpretation would trivialize Escobedo by
bringing its safeguards into play only after conviction had been assured.
The former interpretation presents other difficulties. The accused's need
for Escobedo safeguards is the same regardless of whether the police
have "solved" the case. The only possible distinction between the situ-
ations before and after "solution" is that society's need for a confes-
sion may sometimes be greater in the former; but this need is not es-
tablished unless an independent investigation has already proved fruit-
less. Attempting an ad hoc balancing test in each case seems an un-
desirable way of implementing the institutional safeguard of counsel.83
Moreover, this approach would penalize independent investigation and
force the police to interrogate suspects at an early stage.
When the police detain a person and interrogate him at the police
station, Escobedo should apply even though there was no probable
cause to arrest.84 When the police have gone to these lengths, it is un-
realistic to suppose that they are not seeking a confession. Even though
a number of persons are being questioned, the "focus" metaphor should
seems awkward to confront the police with the choice of abandoning the child
or obtaining a confession that, because both it and its fruits would be inadmissible,
might immunize the kidnapper from prosecution. The court held that Escobedo
did not apply to the admissions elicited by this questioning.
81 No. 29,345, 2d Cir., Nov. 22, i965.
82 The defendant confessed a few minutes after his arrest, in response to casual
questioning. Thus the restrictions on Escobedo advanced by Judge Lumbard and
judge Friendly were not required by the facts of the case.
See the analysis of a similar theme in Haynes v. Washington, 373 U.S. 503
(i963), pp. 972-73 supra.
83 It also seems difficult to reconcile Judge Friendly's approach with the par-
ticular facts of Escobedo, in which the Court made no inquiry into the question
whether the case had been "solved" prior to the confession.

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not lead to the conclusion that no one is entitled to Escobedo protection.85

Analogous reasoning applies in the case when suspicion has focused on
a person in relation to crime A, and interrogation produces a confession
to crime B. Since the policies that justify the application of Escobedo
are the same irrespective of whether the confession produced is the one
that the police anticipated, the confession should be excludable.
5. Questioning by Authorities Other Than the Police. - An Escobedo
issue of great breadth and complexity is the application of the doctrine
of that case to confessions obtained through questioning by authorities
other than the police. Grand jury investigations are one source of prob-
lems.86 The theoretical impartiality of grand jurors may reduce the
danger that questioning will exploit a person's ignorance of his privilege
against self-incrimination; but since at these proceedings a person may
be compelled by legal sanctions to answer, the need for counseling in the
substantive law and in the exercise of the privilege is great. This factor
may make the grand jury hearing a "critical stage" within the reasoning
of Hamilton and Wkite; and since the hearing is formally part of the
criminal process there is an even stronger case for the applicability of
the sixth amendment than in Escobedo. However, at a grand jury
hearing the persons questioned include not only individuals whom the
prosecutor may be seeking to indict, but also witnesses not suspected of
any crime and persons whose status lies somewhere between these ex-
tremes. Application of the "focus" and "purpose" tests to discover those
who are entitled to Escobedo safeguards may be extremely difficult. And
if the provision of counsel is required in many or all situations, the
effectiveness of the grand jury's secret and informal investigatory
powers, which have been proclaimed as one of its greatest virtues,87 may
be substantially undermined.
A second important type of nonpolice questioning that invites
Escobedo analysis is the investigation that is not itself a part of the
criminal process, but that often results in a criminal prosecution or
the imposition of serious sanctions. Escobedo may, for example, cast
doubt on cases holding that there is no constitutional right to appointed
counsel at hearings before administrative agencies that investigate but
also have a clear interest in criminal prosecution,88 during questioning
by immigration authorities when the possibility of deportation is in-
volved,89 or in proceedings before draft boards.90 In these situations
there may be the safeguard of a public proceeding, but also present are
the pitfalls of compulsory testimony and the inquisitorial aspect of
8" It has been held that suspicion may "focus" on a person even though the
police also suspect another of the crime. People v. Furnish, 63 Adv. Cal. 2d 536, 407
P.2d 299, 47 Cal. Rptr. 387 (i965).
86 It is traditional that a witness before a grand jury is not entitled to counsel.
See United States v. Scully, 225 F.2d II3 (2d Cir.), cert. denied, 350 U.S. 897
(i955).
87 See p. Ioss infra.
88 See, e.g., In re Groban, 352 U.S. 330 (I957) (5-to-4 decision) (state fire
marshal).
89 See, e.g., Low Wah Suey v. Backus, 225 U.S. 460 (I9I2).
90 See, e.g., Niznik v. United States, 173 F.2d 328 (6th Cir.), cert. denied, 337
U.S. 925 (i949).

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i966] DEVELOPMENTS - CONFESSIONS IOI3
questioning by a state agency interested in the ultimate imposition of

sanctions. On the other hand, when much of an agency's work is un-
connected with sanctions, the danger of hampering legitimate adminis-
trative functions and the difficulties of applying the "focus" and "pur-
pose" tests are formidable.91
6. Retroactivity. - The Court has not yet decided whether the hold-
ing in Escobedo must be given general retroactive effect and is there-
fore applicable to convictions that became final before Escobedo was
decided. State and lower federal courts have split on the question.92
Given the large percentage of guilty pleas and trial convictions that in-
volve confessions,93 almost any reading of Escobedo (except, perhaps,
one limiting the applicability of that decision to cases in which the ac-
cused requested counsel) would result in a flood of successful habeas
petitions if the decision were held to be retroactive. The Court has given
retroactive effect to the right of appointed counsel at trial,94 but has
refused such a ruling for the right to exclude evidence obtained by un-
constitutional search and seizure from state trials.95 Gideon retroactiv-
ity was justified on the ground that trial without counsel presents a
serious danger of convicting the innocent, a danger that was thought
not to exist in the Mapp context. The Court declared that the exclusion-
ary sanction in Mapp was designed as a convenient means of deterring
violations of the fourth amendment, and that retroactive effect was there-
fore unnecessary. Escobedo presents analogies to both Mapp and
Gideon.
Two judges, in dissent, have stated that the Escobedo decision was
primarily intended to exclude confessions obtained under conditions
likely to render them involuntary and unreliable; they thought that be-
cause of the unreliability factor retroactive application was justified.96
The California Supreme Court, on the other hand, has accepted the view
that Escobedo was chiefly a prophylactic measure designed to prevent
the extraction of involuntary confessions, and has concluded that the un-
reliability factor in past confessions made without counsel but held
voluntary at trial was in-sufficient to justify retroactivity.97 Since habeas
petitioners will have already enjoyed the opportunity of litigating vol-
untariness, often under a standard that has been extended far beyond
considerations of reliability, the Supreme Court may well agree with this
result.
If Escobedo is viewed as resting on broad principles of fairness under-
lying the privilege against self-incrimination, then the Court's recent
9' These difficulties probably explain the refusal to apply Escobedo in a prose-
cution arising out of a routine civil tax liability investigation, in which questioning
occurred after the IRS agent had discovered facts suggesting fraud. See Kohatsu
v. United States, 35i F.2d 898 (gth Cir. i965).
92 Compare United States ex rel. Walden v. Pate, 350 F.2d 240 (7th Cir. i965),
and State v. Johnson, 43 N.J. 572, 206 A.2d 737, cert. granted, 86 Sup. Ct. 3i8
(i965), with Miller v. Warden, 338 F.2d 20I (4th Cir. i964).
94 Doughty v. Maxwell, 376 U.S. 202 (i964).
9 Linkletter v. Walker, 38i U.S. 6i8 (i965).
96 Commonwealth v. Negri, 2I3 A.2d 670, 677-80 (Pa. i965) (Roberts and
Musmanno, JJ.).
97 In re Lopez, 62 Cal. 2d 368, 398 P.2d 380, 42 Cal. Rptr. i88 (i965).

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1OI4 HARVARD LAW REVIEW [Vol. 79:938
decision in Tekan v. United States ex rel. Shott,98 involving retroactivity

of the fifth amendment prohibition of comment on a defendant's failure
to testify at trial, becomes a significant precedent. Analogizing the
fifth amendment to the fourth, the Court in Tehan stated that the basic
policy of the privilege was to forbid the state from using its power to
invade the privacy and dignity of the individual. Since past invasions
could not be undone, the Court concluded that Griffin v. California99
should not be given general retroactive effect. The Court also declared
that past use of the comment prohibited in Griffin posed only slight
danger that innocent persons had been convicted, and it emphasized the
reliance of the states on pre-Griffin decisions allowing such comment.
Because reliance is even stronger and more justified in the Escobedo
context, the Court may use its invasion of privacy thesis to explain
Escobedo and deny it retroactive effect. Or it may adopt the more per-
suasive theoretical ground for denying retroactive application to Esco-
bedo, which does not require such a strained and limited view of the
privilege against self-incrimination - that the case represents a newly
developed standard of procedural fairness, but that collateral relief need
not be granted in situations presenting no serious reliability problem
for convictions based on confessions obtained by means that were not
thought unfair at the time conviction became final on direct review.'00
7. Evaluation: Policies Supporting a Rigkt to Counsel During Police
Interrogation. - After interpreting Escobedo and examining some of
its possible implications, it is appropriate to consider the reasoning that
may justify extending right to counsel to the interrogation stage, and
to evaluate the soundness of this approach as a solution to the confes-
sions problem.
(a) The Trial-Pretrial Equation. - Application of the sixth amend-
ment to police interrogation is justified by the Court in both Massiak
and Escobedo by reference to a functional equation of trial and police
questioning. It is maintained that when police obtain a confession
through secret interrogation, the accused's conviction is assured and the
safeguards of a public trial supervised by an impartial judicial officer,
at which defendant is represented by counsel, are rendered nugatory.
It is concluded that once suspicion has focused on the individual, interro-
gation becomes a part of the criminal proceeding against him and the
prosecution's forces should not be able to secure a conviction indirectly
through means that could not be used directly at the trial itself. Four
members of the Massiak and Escobedo majorities joined in prior opinions
stating that defendant should be entitled to counsel at the "kangaroo
court procedure" 101 of pretrial police interrogation, in order to "give
meaning and protection to the right to be heard at the trial itself." 102
It has also been suggested that ensuring that an accused does not plead
98 86 SUP. Ct. 459 (I966).

99 380 U.S. 609 (I965).
100 See Mishkin, Foreword: The High Court, The Great Writ, and the Due
Process of Time and Law, 79 HARV. L. REV. 56 (I965).
101 Spano v. New York, 360 U.s. 3I5, 325 (1959) (Douglas, J., concurring).
102 Crooker v. California, 357 U.S. 433, 443 (1958) (Douglas, J., dissenting); cf.
In re Groban, 352 U.S. 330, 337 ( I957) (Black, J., dissenting).

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I966] DEVELOPMENTS - CONFESSIONS IOI5
guilty without counsel and denying him counsel whe

self by confessing are logically inconsistent.103
This reasoning has rhetorical appeal, but it ignores the difference be-
tween the role of counsel at trial and pleading and the role he would
play at interrogation. The orthodox, if not the only, justification for a
system of criminal justice that relies on advocacy lies in the assumption
that the clash of opposing counsel will lead a court to a more accurate
determination of the facts of the case and the correct application of law
to those facts. If an accused is obliged to combat the well-equipped
prosecution without the assistance of counsel, ignorance of the substan-
tive and procedural law and inexperience with the techniques of present-
ing and challenging evidence create grave danger that innocent men will
be convicted. Similarly, a defendant lacking advice of counsel may plead
guilty even though his conduct does not constitute the crime charged, or
the evidence against him is inadmissible. White v. Maryland,'04 in
which it was held error to admit an uncounseled guilty plea at trial as
evidence against the defendant, may be explained by analogous con-
siderations. Unlike a confession, which is a factual recitation, a guilty
plea represents a legal conclusion. The serious prejudicial effect of its
admission would justify exclusion of an uncounseled plea that may have
proceeded from an incorrect view of the applicable law.
From this perspective, the use of "critical stage" reasoning in Mas-
siak and then Escobedo to extend the sixth amendment to the police
station was a radical step. Courts have recognized that a voluntary
confession is not only reliable and competent evidence, but indeed the
best evidence of defendant's conduct, since it comes from the person who
usually knows most about the facts in dispute.105 It has been generally
assumed that "any lawyer worth his salt will tell the suspect in no un-
certain terms to make no statement to police under any circum-
stances," 106 and that the presence of a lawyer during interrogation will
ensure that the accused follows this advice. Thus application of the
sixth amendment to police interrogation will result in precluding
evidence that would otherwise be produced. Unless it is argued that the
present operation of the voluntariness test results in the admission of a
significant number of unreliable confessions 107 - a thesis not relied on
by Escobedo or Massiah - the right to counsel at trial and pleading can-
not, insofar as it is designed to secure an accurate determination of
guilt, be used to justify a right to counsel at police interrogation. How-
ever, our system of criminal justice embodies other values besides the
accurate determination of guilt, and insofar as counsel serves other
functions at trial or pleading there may be justification for providing
counsel to discharge similar functions during police interrogation. One
recognized role of counsel before and during trial is that of tactician:
deciding whether to acquiesce in conviction on a lesser charge or to
103 See the remarks of Solicitor General Marshall, N.Y. Times, Aug. 22, i965,
? 6 (Magazine), p. II, col. 3.
104373 U.S. 59 (i963). See p. 997 supra.
105 People v. Garner, 57 Cal. 2d I35, i62, 367 P.2d 68o, 696, i8 Cal. Rptr
56 (i96i) (Traynor, J., concurring), cert. denied, 370 U.S. 929 (i962).
16 Watts v. Indiana, 338 U.S. 49, 59 (i949) (Jackson, J., concurring).
107 See pp. IOI8-20 infra.

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ioi6 HARVARD LAW REVIEW [Vol. 79:938
seek acquittal on a greater, choosing betwe

one on the merits, and making other such decisions. It may be that the
prosecution will agree not to seek conviction for a more serious offense
or on a habitual offender charge in exchange for a confession to be
used to prove a lesser offense; the accused, without advice of counsel,
may be unaware of these possibilities, and may fritter away his bargain-
ing position by confessing without securing anything in return.
Since the accused will enjoy the tactical advice of counsel when the
prosecution bargains for a guilty plea,108 it might be argued that he i
entitled to counsel in deciding whether to confess. But it seems some-
what anomalous to build a constitutional right on the defendant's in-
terest in the possibility of a favorable exercise of prosecutorial discre-
tion. Moreover, the argument not only assumes that bargaining should
be encouraged, but relies on the further, very doubtful, assumption that
if tactical advice in the matter of bargained-for guilty pleas were the
only function of counsel, it would by itself support a constitutional right
to counsel at pretrial pleadings.
The connection between the privilege against self-incrimination and
the presence of counsel may provide a sounder basis for the equation be-
tween trial and pretrial interrogation. The argument that the admission
of a confession obtained by interrogation turns the trial into a "sham"
and renders its safeguards nugatory proves too much, because the same
condemnation would apply to confessions volunteered over the phone
or even to cases in which the police secure massive evidence of guilt
from sources other than the defendant. But the rhetoric of nullifying
trial safeguards might be understood as reflecting the narrower proposi-
tion that the policies underlying the privilege against self-incrimination
at trial also apply to police interrogation, and should preclude question-
ing of uncounseled suspects.
The privilege at trial seems to rest on the notion that it is funda-
mentally unfair for the state to compel a defendant to testify and thereby
convict himself. This appears to be the proposition to which the
Court is referring in its declarations that ours is "the accusatorial as op-
posed to the inquisitorial system," and that conviction should proceed
from "evidence independently secured." 109 The privilege does not,
however, render a defendant incompetent to testify at trial, since it is
thought that he should be allowed the opportunity to take the stand in
order to clear himself. But in making the grave choice whether to speak,
the defendant should have full knowledge of his legal situation and the
probable consequences of his decision, lest his ignorance give the state
the opportunity to secure his conviction through incriminating testi-
mony. This is one explanation for sixth amendment right to counsel at
trial.
But, the argument would continue, the policy against conviction by
testimonial compulsion at trial should also forbid police interrogation
of uncounseled defendants. Regardless of whether any recognizable
108 See Note, Guilty Plea Bargaining: Compromises by Prosecutors To Secure

Guilty Pleas, II2 U. PA. L. REV. 865 (I964).
109 Watts v. Indiana, 338 U.S. 49, 54 (I949).

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"compulsion" is used,"0 the disorienting circumstances of secret in-

terrogation plus the ignorance and inexperience of the accused will of-
ten lead to a confession. All police questioning should not be banned,
since by replying a suspect may be able quickly to clear himself of the
charge against him. But in deciding whether to respond, the defendant
should have the advice of counsel; without this protection, a system
relying on the confession will flourish. Therefore, the analysis would
conclude, the application of the sixth amendment to the police station
is necessary in order to implement the policies underlying the privilege
against self-incrimination. The argument relies on an absolute view of
the privilege. If it is believed that effective law enforcement requires
confessions, then one might maintain that the policies underlying the
privilege should be deemed satisfied if the suspect's decision to speak is
not unfairly impaired by ignorance of his constitutional rights, police
deception, or improper pressures."'
The trial-interrogation equation may also stem from a more general
belief that many of the procedures of trial are not designed solely to
ensure accurate guilt determination, but also represent an ethical judg-
ment that the power of the state should be limited when the state
seeks to convict the comparatively weak defendant."2 If one adopts this
position, consistency may require provision of counsel to redress the im-
balance of strength between state and accused at interrogation. This ap-
proach may explain the repeated allusions in Escobedo to the accused's
need for counsel. Of course, it would be ludicrous to maintain as a gen-
eral proposition that a person's need is the measure of his constitutional
rights. But in the context of official interrogation designed to secure an
individual's conviction out of his own mouth, the Court has recognized
that state power should be curtailed in the interest of protecting indi-
vidual dignity and integrity of personality.113 This recognition may
rest on the judgment that practices that allow the state too great an ad-
vantage in the criminal process inevitably degenerate into abuses 114 and
have an undesirable effect on society as a whole, engendering a cynical
attitude towards the worth of the individual. Thus, this approach may
lead to the proposition that even after the elimination of pressures that
would render a confession involuntary, there is too great a disparity be-
tween the resources of the isolated accused and those of the police who
are attempting to secure his conviction by obtaining a confession.
Though this disparity could be corrected by forbidding police interro-
gation altogether, it could also be rectified by providing the accused with
counsel. However, since under either solution the state will probably
be prevented from obtaining a confession, the question arises whether
"0 See pp. 982-83 supra.

'1 See p. 98T supra.
112 See Comment, An Historical Argument for the Right to Counsel During
Police Interrogation, 73 YALE L.J. Iooo, IOI8-34 (I964) (cited with approval in
Escobedo, 378 U.S. at 488). See also Goldstein, The State and the Accused: Bal-
ance of Advantage in Criminal Procedure, 69 YALE L.J. II49 (I960).
113 See, e.g., Tehan v. United States ex rel. Shott, 86 Sup. Ct. 459, 465 (2966);
cases cited id. at 464 n.I2.
114 See Escobedo's approving citation of Wigmore's statement to this effect,
378 U.S. at 489.

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ioi8 HARVARD LAW REVIEW [VOl. 79:938
society's interest in solving crime has received too little weight and the
scales tipped too far in favor of the accused.
(b) Equality Among Accused Persons. - A theme that was not
sounded in Escobedo but that has been used to support the decision and
its broad application stresses the invidiousness of a system that bears
most heavily on the poor and ignorant."5 Because intelligent and ex-
perienced persons are unlikely to confess to the police, it is argued, equal
protection requires that a lawyer be given to the poor and ignorant who
would otherwise confess. Emphasis is placed on the social and economic
inequalities that allegedly account for this difference in proclivity to con-
fess. Reference is made to Gideon and Douglas v. California.1"6
One difficulty with this argument is that it proves too much, for it
would tend to require that law enforcement be suspended altogether be-
cause less intelligent or resourceful criminals are more likely to be
caught. But considerations more fundamental than a reductio ad absur-
dum compel its rejection. If some defendants enjoy advantages that are
merely tactical in the sense that they make conviction less likely yet do
not rise to constitutional dimensions of fairness, it is unsound to argue
that all defendants have a constitutional right to the same advantages
and the same lower probability of conviction. This contention would
convert justice into a game in which every defendant would be entitled
to the same sporting chance to obtain an aquittal. Moreover, the func-
tion of law enforcement is not to redress social and economic inequalities,
and the need for law enforcement is not suspended simply because social
and economic measures properly designed to secure equality have not
yet fully succeeded. On the other hand, if certain advantages are so
essential to fairness in guilt determination that they merit recognition
as constitutional rights, then they should be guaranteed to all persons
on that ground alone, and resort to the language of inequality is un-
necessary. Thus the soundest reading of Gideon and Douglas would be
that the indigent's lack of counsel is intolerable, not because the rich
man will have a lawyer, but because without a lawyer, no man will re-
ceive a fair trial. On the other hand, an indigent is not entitled to a
lawyer as skillful as the lawyer that the richest man could retain since
an outstanding degree of skill has not been accepted as essential to a
fair trial. Extending the sixth amendment to police questioning must
therefore be justified on the ground that it is required by a universally
applicable constitutional standard of fairness, not by an inequality
argument."17
(c) Implementing the Voluntariness Standard. - (i) Prophylaxis
Against Coercion. - In his Escobedo dissent, Mr. Justice White ad-
115 See, e.g., Kamisar, Equal Justice in the Gatehouses and Mansions of Amer
ican Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIME I (Howard ed. I965).
116 372 U.S. 353 (i963).
117 These considerations also apply to the arguments that Escobedo should not
be limited to instances of request, and that a weak standard of waiver should be
rejected. The proper justification for these positions is not that unequal treatment
of accused persons would otherwise result, but rather that the same constitutional
policies that explain recognition of an Escobedo right to counsel entail rejection
of these limitations. See pp. i002-o3, Ioo6-o7 supra.

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vanced another explanation for recognition of a right to counsel during

police questioning: 118
[It] is perhaps thought to be a necessary safeguard against the pos-

sibiliity of extorted confessions. To this extent it reflects a deep-seated
distrust of law enforcement officers everywhere, unsupported by relevant
data or current material based upon our own experience. . . . I have
somewhat more faith than the Court has in the ability and desire of
prosecutors and of the power of the appellate courts to discern and cor-
rect such violations of the law.
Though the Court did not specifically rely upon the danger of coerced
confessions to support its result, four members of the Escobedo ma-
jority had previously urged that "the third degree flourishes only in
secrecy," and stated that a right to counsel during questioning would
prevent coerced confessions.1"9 Thus there may be at least justifiable
suspicion that the Court's frustrations with the voluntariness test may
lie behind Escobedo. The application of the test depends to a great ex-
tent on the facts of each particular case, but the factfinding process at
trial may be heavily weighted in favor of the prosecution,120 and it is
difficult to correct this bias at the appellate level. Moreover, even if
there is no bias, great possibilities for error inhere in the attempt to re-
construct what happened in the police station from the conflicting testi-
mony of interested parties. And in any event lower courts may take
advantage of the flexible nature of the standard to admit confessions with
undue liberality,'21 a practice that is difficult to correct by any means
other than granting certiorari in every case. Dissatisfied with the results
of the McNabb doctrine,122 the Court may have seized on right to coun-
sel as a tool for ensuring that involuntary confessions are not obtained
while eliminating the administrative difficulties of adjudicating volun-
tariness in each case.
However, a lawyer will not only prevent the police from indulging in
coercion during questioning, but in most cases will also preclude the
possibility of any effective interrogation, "fair as well as unfair." 123 T
voluntariness test, on the other hand, recognizes a social value in ob-
taining confessions and accepts the proposition that a confession is de-
118378 U.S. at 498-99.

119 Crooker v. California, 357 U.S. 433, 443 (1958) (Douglas, J., dissenting
joined by Warren, C.J., and Black and Brennan, JJ.). Mr. Justice Goldberg,
who wrote the opinion of the Court in Escobedo, stated for the Court in
Haynes v. Washington, 373 U.S. 503, 5I4 (I963), that "secret and incom-
municado detention and interrogation . . . are devices adapted and used to extort
confessions from suspects."
120 Crooker v. California, 357 U.S. 433, 443-44 (1958) (Douglas, J., dissenting,
joined by Warren, C.J., and Black and Brennan, JJ.):
The trial of the issue of coercion is seldom helpful. Law officers usually testify
one way, the accused another. The citizen who has been the victim of these
secret inquisitions has little chance to prove coercion. The mischief and abuse
of the third degree will continue as long as an accused can be denied the right
to counsel at this the most critical period of his ordeal.
See also p. 987 supra.
121 See p. 971 supra. The lower courts' lack of sympathy with the Supreme
Court's concern for the rights of criminal defendants is not without parallel in
other countries. See p. IIo8 & n.I78 infra.
123 Crooker v. California, 357 U.S. 433, 44I (I958).

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sirable as long as it is not obtained by unfair or overbearing means.124

Thus it seems impossible to reconcile the Escobedo right to counsel with
the presuppositions of the voluntariness doctrine, unless the Court be-
lieves that the danger of undetected coercion has become so great that it
outweighs society's previously recognized interest in obtaining confes-
sions.
(ii) Furtherance of "Free and Rational Choice." - Apart from pre-
venting coercive practices by the police, recognition of the right to coun-
sel during interrogation may be viewed as an attempt to give content to
the developing "free and rational choice" aspect of the voluntariness
test.125 This standard seems to require that the individual's decision to
confess must proceed from an assessment of his situation that is not sub-
stantially impaired by ignorance of the law or undermined by decep-
tive police tactics. Presence of counsel would eliminate the danger that
such factors will be controlling in the decision whether to speak. But it
would be naive to suppose that the lawyer will do anything other than
simply command silence from the accused, who in most cases will there-
after abdicate responsibility and be governed by counsel's decisions.
Thus it might be argued that providing a lawyer will ensure that the
accused's "free and rational choice" will be destroyed, by counsel rather
than by the police. In any event, a "free and rational choice" to confess
would in practical effect become simply the choice that a man rationally
calculating his own advantage would make: the social interest in ob-
taining confessions that was previously recognized by the voluntariness
test would be overridden.
8. Evaluation: The Balancing Problem. - It seems conceded on all
sides that a broad reading of Escobedo would greatly reduce the number
of confessions obtained by the police; debate rages over the extent to
which this would impair effective law enforcement.126 The Supreme
Court's present attitude towards the need for confessions is unclear.
Although as recently as I963, in Haynes v. Washington, the 'Court ac-
knowledged that "questioning is undoubtedly an essential tool in effec-
tive law enforcement," 127 such acknowledgment is lacking in Escobedo,
in which there is instead a broad condemnation of any system of criminal
justice that depends on confessions. If a majority of the Court has come
to regard confessions as unnecessary, then it will be a relatively simple
matter to carry Escobedo to its logical conclusions, at least in the post-
arrest context. But if the need for confessions is still recognized, effectu-
ating a workable compromise between competing policies will involve
numerous difficulties.
The analysis of the previous subsection has indicated that the sound-
est justifications for Escobedo are to be found in the policies underlying
the privilege against self-incrimination and in broad notions of redressing
inequalities in resources between the state and the individual. The
absolute view of the privilege 128 considers any social interest in con-

127 373 U.S. 503, 515 (I963).
128 See pp. ioi6-I7 supra.

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i966] DEVELOPMENTS - CONFESSIONS I02 I
fessions as unimportant. Although a less absolut

and the concept of equalizing resources can acco
in underlying policies, the right to counsel is an unsuitable doctrine
through which to fashion a satisfactory compromise. The logical implica-
tions of Escobedo seem to require that counsel be present throughout
police interrogation. And even the arbitrary limitations of Escobedo
that have been suggested do not strike an acceptable balance between
the underlying policies. Restricting Escobedo to provision of counsel
only on request,129 or to a police warning of right to silence 130 would
in many cases provide such minimal protection that it would virtually
amount to a complete repudiation of the policies that justify extending
the sixth amendment to police questioning. The same may be said of
weak standards of waiver.13' The idea of limited consultation is also
unworkable.'32 Though the "focus" and "purpose" test might properly
be interpreted to allow some "threshold" questioning by police in the
absence of counsel,133 stretching the test to permit any substantial
amount of station-house interrogation would simply mean that safe-
guards for the accused have been abandoned in favor of obtaining con-
fessions. Moreover, the "focus" and "purpose" test will probably prove
difficult to apply, however it is defined.
These difficulties may lead the Court to abandon the sixth amendment
and revert to voluntariness or some analogous doctrine. Requiring a
police warning of the right to silence or further developing the notion
of "free and rational" choice are possible alternatives 134 to the right to
counsel as doctrinal means for implementing some of the policies that
justify Escobedo. But, as suggested above, the Court's past frustrations
in arriving at a workable definition of the conditions of "voluntariness"
under which an accused would be permitted to confess to the police may
have been the very reason why the Court resorted to the right to counsel
in Escobedo. And the difficulty of attempting to discover what transpired
during secret interrogation would also remain. A determined Supreme
Court might attempt to surmount the latter problem by declaring that,
since the state's use of secret interrogation has created the uncertainty
in evaluating a defendant's claim of involuntariness, that claim must be
accepted by a court as true on its face unless the police can produce
some reliable evidence, such as a tape-recording of the interrogation, to
refute it. The grave impact of confessions on the jury has justified other
exceptional doctrines; 135 however, a rule that in effect required a tape-
recording as a precondition of a confession's admissibility might be
thought too naked an exercise of control by the Court over state police
practices.
129 See pp. I002-03 supra.

133 See p. IOIO supra.
135 For example, the exclusion of confessions under the common law and con-
stitutional tests of voluntariness, see p. 955 supra, the rule of automatic reversal,
see p. I036 infra, and the requirements of Jackson v. Denno, see p. io6o infra.

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9. Evaluation: The Legislative Alternative.-The conflict between

the need for confessions in law enforcement and developing standards
of fairness for accused persons has proved difficult to resolve through
the voluntariness standard or a prompt arraignment mechanism, and
the right to counsel approach does not appear to provide a better solu-
tion. Perhaps the reason for the present predicament is simply that the
courts' sanction of exclusion is an unsatisfactory tool for shaping a com-
promise. The confessions problem stretches from prearrest investigation
to trial, passing through the intermediate stages of arrest, arraignment,
and indictment; conflicts in policy, as well as considerations of ad-
ministrative practicability, assume different configurations at different
points in the process. But a court, relying on constitutional doctrine
to resolve conflicts, can only focus on one factor at a time -such as
presence of counsel or the type of questioning employed - or one
stage - for example, the validity of an arrest - and cannot with the
sanction of exclusion easily create a system of administrative procedures
capable of dealing with a problem that may be "too complex for sound
solution by a constitutional absolute." 136
Proposals for legislation have been advanced.137 The most recent and
ambitious is the Model Code of Pre-Arraignment Procedure, which is be-
ing prepared under the auspices of the American Law Institute.138 A
preliminary draft of the Code, which has not been considered by the
membership of the Institute, would require that after arrest a person be
promptly brought to the police station and warned of his right not to
speak. The Code further requires that the accused be told that he
may contact a lawyer or friends, and that they may have access to him,
but it does not provide that counsel must be offered or furnished to
persons before or during interrogation. Questioning may then take place,
but only for a period of four hours, and there are elaborate rules guaran-
teeing that all questioning is recorded. The Code seeks to ensure that
police will not undermine the warning of right to silence or use unfair
or misleading tactics in interrogation, and an exclusionary sanction is
provided for violations.
In outline, the Code thus appears to embody a sensible legislative
approach to eliminating involuntary confessions and ensuring that the
decision of the accused to confess is not unduly impaired by police
tactics. The warning, the limited interrogation period, and the prohibi-
tion of incommunicado questioning would lessen some of the more ob-
vious dangers of coercion or unfairness, and the recording scheme would
substantially reduce factual disputes. However, considerable difficulties
136 Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CALIF.

L. REV. 929, 942 (I965).
137 E.g., Note, Prearraignment Interrogation and the McNabb-Mallory Mias-
ma: A Proposed Amendment to the Federal Rules of Criminal Procedure, 68 YALE
L.J. I003 (I959)-
138 Although the full text of the draft Code was not released at the time of
writing, some general descriptions of its more important provisions have
been reported. E.g., Letter From Paul Bator and James Vorenberg to the Wash-
ington Post, Dec. I7, I965, ? A, P. 24, cols. 3-5. See also Bator & Vorenberg,
Arrest, Detention, Interrogation and the Right to Counsel: Basic Problems and
Possible Legislative Solutions, 66 COLUM. L. REV. 62 (I966).

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i966] DEVELOPMENTS - CONFESSIONS I023
for the courts in elaborating and applying and

ing a standard of "fair questioning" would remain.
If confessions are accepted as necessary, the Code promises to be a
more workable approach to the balancing problem than judicial
elaboration of the right to counsel, and it should be accepted as consti-
tutional. But it would have to be reconciled with Escobedo. Partly be-
cause it is unlikely that the decision will be overruled, the Code accepts
the proposition that the police must grant an accused's request to con-
tact his lawyer;139 but in other respects, the Code adopts a narrow
reading of Escobedo, by not requiring appointment of counsel to the in-
digent as a precondition of interrogation, and by allowing interroga-
tion in the period between a request to consult a lawyer and the lawyer's
arrival. Those who have the intelligence and resources to take advantage
of the opportunity to consult their own counsel, and those whose lawyer
arrives at the station quickly would be advantaged under the proposed
rules. But as long as the Code meets minimum standards of fairness
even for those who do not request a lawyer, this tactical advantage might
be accepted as a tolerable, if arbitrary, consequence of the Escobedo de-
cision.'40
If the Code had been in effect throughout the nation, the Court might
never have applied the sixth amendment to police interrogation. But
the lack of legislative action in the past gives cause to doubt that the
Code will be enacted in any significant number of jurisdictions in the
near future, unless the threat of extensions of Escobedo provokes a timely
response in state legislatures. Grants of certiorari in Escobedo cases to
be decided this Term 141 suggest that in any event the Court may not
wait to see whether there is any legislative response before pressing on.
Moreover, even if the Code were enacted in a substantial number of
jurisdictions, the Court would still be faced with confessions cases from
others, and it can hardly develop constitutional doctrines that are ap-
plicable only in states where legislative substitutes have not been en-
acted.142 Thus the Code's only chance of being a viable alternative to
development of constitutional doctrine may depend upon its prompt
adoption for all jurisdictions by Congress through the legislative powers
of that body under the fourteenth amendment.143 Finally, if Escobedo
is carried to the conclusion that the logic of that decision and some of
its policy justifications seem to require, then provision of counsel may
be required during all police questioning of accused persons. In this
event, some features of the Code would be unconstitutional, while the
need for many of its elaborate safeguards would disappear.
139The Code takes no position on the question whether Gideon requires that
an indigent who makes a request for counsel during interrogation be furnished one.
'40 Cf. p. ioi8 supra.
142 For example, it seems wildly improbable that the Court would hold Mapp
not to apply to the fruit of an illegal search in a jurisdiction that could show it
had enacted measures that were generally successful in deterring such searches.
143 Although the extent of congressional power over state criminal procedure
under the due process clause of the fourteenth amendment is unclear, the Court's
difficulty in giving effective content to due process in the confessions area presents
a strong case for allowing Congress an opportunity to give content to broad
standards through legislation.

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D. The "Fruit of the Poisonous Tree"
i. The Reason for Exclusion.-Typically, when evidence is ex-

cluded because of police violation of the Constitution, the sole and ob-
vious purpose of the violation was to obtain the excluded evidence.
Coerced confessions are a good example. But sometimes the relation-
ship between the violation and the evidence sought to be introduced is
less direct, as, for instance, when a suspect blurts out a self-incrimina-
tory statement while the police are conducting an illegal search of his
house. In excluding evidence that was obtained as an indirect conse-
quence of official misconduct, courts frequently describe it as "the
fruit of the poisonous tree." 1 "Fruits" problems arise most often in a
fourth amendment setting: for example, an unconstitutional search or
seizure yields real evidence, which in turn furnishes clues that lead to
more real evidence acquired at some other time or place. In this con-
text, the Supreme Court has indicated that there are two closely related
exceptions to the general fourth amendment exclusionary rule: (i)
when the prosecution shows that the evidence was or would have been
obtained from an "independent source" 2 and (2) when the causal con-
nection between the search and the evidence in question was "so at-
tenuated as to dissipate the taint." 3
The Court has not enunciated a clear rationale for these exceptions,
but they seem to be explicable by reference to the purpose of the ex-
clusionary rule. Evidence obtained during an unconstitutional search
is excluded in order to remove the incentive for such searches and thus
to reduce their frequency.4 Theoretically, by excluding all evidence
that the police might expect to obtain as a result of their misconduct, the
courts would remove the incentive for such misconduct and thus achieve
a substantial deterrent effect. But the additional deterrent value of ex-
cluding independently secured or fortuitously acquired evidence may
be regarded as outweighed by the interest in an accurate resolution of
the factual issues at trial.
The above reasoning, although it seems to explain the Supreme
Court's approach to "fruits" problems, is open to question. It is often
difficult to determine whether exclusion will tend significantly to deter
police misconduct. Exclusion at a particular trial plainly has little effect
even in those situations in which the law undoubtedly requires exclusion;
therefore, one must ask whether a given case falls within a class of situ-
I The phrase seems to have been first used in this context by Mr. Justice
Frankfurter in Nardone v. United States, 308 U.S. 338, 34I (I939).
2 Silverthorne Lumber Co. v. United States, 25I U.S. 385, 392 (I920) (dictum).
See also Coplon v. United States, i9i F.2d 749, 757 (D.C. Cir. I95i), cert. denied,
342 U.S. 926 (I952) (police obtained leads from phone taps, but defendant gave
same information to her superior in the Justice Department who would have
passed it on to the FBI); People v. Ditson, 57 Cal. 2d 4I5, 369 P.2d 7I4, 20 Cal.
Rptr. i65, cert. denied, 37I U.S. 852 (i962) (alternative holding).
I Nardone v. United States, 308 U.S. 338, 34I 0939) (dictum). Though Nardone
involved ? 605 of the Communications Act of I934, 48 Stat. II03, 47 U.S.C.
? 605 (i964), rather than the fourth amendment, the Court has indicated that the
limitations on the exclusionary rule apply similarly to violations of statute and
amendment. See Wong Sun v. United States, 37I U.S. 47I, 49I (i963) (Nardone
dictum followed in fourth amendment case).
4 See Linkletter v. Walker, 38i U.S. 6i8 (i965).

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ations in which exclusion can serve to deter misconduct. This in turn

leads to nice questions about how the relevant "class" should be defined.
For instance, the number of illegal searches might not be appreciably
decreased by excluding confessions volunteered by victims of illegal
searches. Therefore, such confessions might be deemed admissible, con-
sidered alone. But if they are viewed as part of a larger class, consisting
of "relatively unforeseeable benefits obtained by unconstitutional
searches," then the case for exclusion is stronger since the evidence
secured in this class may constitute a significant incentive to conduct
such searches. Moreover, the effect of carving out various narrow ex-
ceptions to the general rule against admissibility may be simply to
create a vague awareness among police that in certain circumstances
evidence is admissible while in others it is not, thus furnishing a greater
incentive to improper practices than a rational analysis of judicial de-
cisions would warrant.
For these reasons, it may be preferable in applying a deterrence analy-
sis to employ a simple "but for" causation test, rather than to weigh the
deterrent effects of exclusion in each case. Under this test exclusion
would be required whenever, but for their violation of the Constitution,
the police would not have obtained the evidence in question.5 Much
existing law can be explained as well by causation reasoning as by "re-
moving the incentive for misconduct" reasoning. And although a causa-
tion test would sometimes require rather speculative judgments, it
would probably be less subject to this criticism than case-by-case or
class-by-class estimates of the effect of exclusion on future police be-
havior.
2. Confessions Obtained Througk Unconstitutional Arrests and
Searches. - In Wong Sun v. United States,6 federal agents entered Toy's
house without probable cause, arresting him in his bedroom. During a
brief exchange with the agents - who were unconstitutionally search-
ing the room - Toy made self-incriminatory statements. The Supreme
Court, stressing that Toy's fourth amendment rights had been violated,7
held that his statements could not be used as evidence against him. But
the Court also held that an unconstitutional arrest does not ipso facto
invalidate a subsequent confession. One of the defendants in Wong
Sun had been unlawfully arrested, properly arraigned, and released on
his own recognizance. He later returned voluntarily to confess, and the
Court deemed this confession admissible, on the ground that its rela-
tionship to the unconstitutional arrest was extremely "attenuated."
The Court in Wong Sun did not explain its criteria for determining
when the relationship between the unconstitutional arrest or search
Cfj. United States v. Coplon, i85 F.2d 629, 640 (2d Cir. I950), cert. denied,
342 U.S. 920 (I952).
637I U.S. 471 (i963).
7 Since the fourth amendment was held to apply in toto to the states
California, 374 U.S. 23 (i963), the holding in Wong Sun would seem to
state as well as federal prosecutions. Accord, People v. Haven, 59 C
38i P.2d 927, 3I Cal. Rptr. 47 (i963). Contra, Dailey v. State, 239 Md
A.2d 257 (i965). In its opinion in Wong Sun the Court emphasized
pressive circumstances" surrounding the arrest. However, both deterrent
and the Court's decisions in the McNabb area, see p. 985 supra, suggest
result would be the same in the absence of such circumstances.

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and the subsequent confession is too attenuated to warrant exclusion.

But there are at least two possible distinctions between the confession
that was held admissible in that case and the one that was excluded. The
first distinction would stress causation: Toy probably would not have
confessed if there had been no entry into his house; in this sense the
entry "caused" the confession. On the other hand, one who is released
and then returns voluntarily to make a statement might just as well
have come forward in response to a phoned inquiry from the police. Al-
ternatively, Wong Sun might be explained by the deterrence test. At
least one commentator has concluded that the procuring of confessions
is a major purpose of unconstitutional arrests.8 If so, it makes sense to
view such an arrest and subsequent interrogation as an indivisible illegal
scheme, and to exclude confessions obtained pursuant to it. But when
the accused has been released and later returns to volunteer informa-
tion, it is less reasonable to infer that the purpose of the arrest was to
obtain a confession; and even if such was the purpose, the confession
was not obtained pursuant thereto.
3. Confessions Induced by Confrontation With Unconstitutionally
Obtained Evidence. - (a) Real Evidence. - Confessions are some-
times induced by the suspect's knowledge that the police possess real
evidence that implicates him. While such a confession may be subject to
attack on voluntariness grounds,9 fourth amendment policies may also
dictate exclusion if the real evidence was obtained through an unconsti-
tutional search. In Faky v. Connecticut,'0 the police obtained incrimi-
nating real evidence during an unconstitutional search of the defendant's
premises. Subsequently he was arrested, and he then made damaging
admissions. Reversing his conviction on various grounds, the Supreme
Court declared that Fahy "should have had a chance to show that his
admissions were induced by being confronted with" the illegally seized
evidence.
By framing the issue in terms of whether the evidence "induced" the
suspect to confess, the Court in Fahy implied that the question is
whether he would have confessed anyway. Such a psychological inquiry
would be reminiscent of the "voluntariness" test, and would involve
some of the same problems of application. There seem to be at least
three relevant considerations: (i) the degree to which the evidence im-
plicated the suspect; (2) his personal background and experience; 11
and (3) how soon after being told of the evidence and questioned about
it he indicated a willingness to confess. Each of these factors raises a
host of questions that can only be answered by highly speculative judg-
ments. The accused's personal characteristics seem to be a two-edged
sword: the weak and ignorant are more likely to be influenced by the
interrogator's references to evidence of guilt, but they are also more
likely to confess absent such a "confrontation." Therefore, if a "but
for" causation test is adopted, personal characteristics seem of no help.
8 Kamisar, Illegal Searches or Seizures and Contemporaneous Incriminating

Statements, I96I U. ILL. L.F. 78, I22 n.20I.
9 See p. 978 supra.
10 375 U.S. 85 (I963).

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The other possible factors raise difficult questions of "contributing" and

"intervening" causes. For instance, if the accused claims to have been
in Chicago on the day of a murder in Boston, evidence that he was in
Boston or merely that he was not in Chicago would tend to break down
his resistance and make a confession more likely. But in most cases
such a contradiction would not produce an immediate confession, except
in conjunction with other pressures. These difficulties may eventually
lead the Court to hold that actual inducement is irrelevant, and that a
per se rule -such as is employed under McNabb 12 -governs in the
Faky context once a confrontation with significantly incriminating
unconstitutionally seized evidence is shown.
It is also unclear whether Faky applies to situations in which the sus-
pect was not confronted with - but merely knew of - unconstitution-
ally obtained evidence. If so, then the decision has broad implications,
extending, for example, to cases in which a suspect is told by his wife
that heroin in their house has been seized and for this reason decides that
it is useless to resist interrogation. Deterrence reasoning could afford a
basis for avoiding such a result. If the police do not tell the suspect
about the fruits of their previous misconduct, then it would seem im-
probable that the misconduct was for the purpose of triggering a con-
fession. Exclusion of the confession in such cases might therefore not
be considered an appropriate means of removing the incentive for police
wrongdoing. On the other hand, a "but for" causation test would result
in exclusion in many such cases.
Perhaps if the accused is warned that the unconstitutionally obtained
evidence cannot be used against him at trial, then exclusion of the con-
fession should not be required in a case such as Faky. The warning
would satisfy the requirements of deterrence logic, since the fact that a
warning must be given tends to rebut any inference that the original
conduct was motivated by a desire to obtain a confession. Likewise, in
such a case a subsequent confession would probably not be "caused" by
a feeling that it is useless to resist interrogation, although the psycho-
logical effect of knowing that the interrogator knows the truth would
remain.
(b) Prior Confessions. - Frequently, the authorities obtain a confes-
sion and later decide to seek another, usually because the first was in-
sufficiently detailed, or because of doubts about its admissibility.'3 If
the first confession is indeed inadmissible but the second is not inadmis-
sible for the same reason, the question arises whether it should be ex-
cluded as a "fruit" of the first. The psychological reality of a reaffirming
confession was trenchantly described by Mr. Justice Jackson: 14
[A]fter an accused has once let the cat out of the bag by confessing, no
matter what the inducement, he is never thereafter free of the psy-
chological and practical disadvantages of having confessed. He can
never get the cat back in the bag. The secret is out for good. In such
a sense, a later confession always may be looked upon as fruit of the first.

13 Cf . pp. 972-73 supra.
"4United States v. Bayer, 33I U.S. 532, 540 (I947).

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Nevertheless, the Supreme Court has never held that an inadmissible

confession alone invalidates subsequent confessions; rather, it has held
that if the first confession is involuntary, the admissibility of the sec-
ond "depends upon the same test - is it voluntary?" 15 In answering
this question, the Court has focused upon whether the coercive forces
that produced the earlier confession had abated before the subsequent
confession was obtained.16
This mode of analysis seems to have been undermined by the decision
in Faky. The argument for presuming a causal relationship between the
unconstitutional evidence and the ensuing confession is stronger with
prior confessions than it is with real evidence, since confessions are
generally much harder to "explain away" than most real evidence. More-
over, the failure of the police to "confront" the suspect with his prior
confession seems irrelevant, for - as the police well know - the sus-
pect is bound to be aware of it. Finally, it is difficult to distinguish real
evidence from confessions on deterrence grounds, except perhaps on the
dubious theory that real evidence is sometimes acquired partly for the
purpose of enabling the interrogator to break the accused's resistance,
while "first" confessions are not in practice obtained in order to soften
the accused's resistance to subsequent questioning.
4. Real Evidence Obtained Through Inadmissible Confessions. - At
common law, the primary rationale for the exclusion of coerced confes-
sions was their untrustworthiness.17 Accordingly, real evidence was not
excluded on the ground that it had been obtained by virtue of a coerced
confession; indeed, if real evidence tended to show that the confession
was true, then both the confession and the real evidence were admis-
sible.18 However, reliability will no longer save a confession.'9 Insofar
as involuntary confessions are excluded under the fifth amendment's
privilege against compelled self-incrimination or for similar reasons
stated in terms of due process,20 the well-established law that the prod-
ucts of judicially compelled testimony are inadmissible should be ap-
plicable.2' Though the fourth amendment allows police to "compel" an
accused to give them real evidence under a valid search warrant, that
15 Lyons v. Oklahoma, 322 U.S. 596, 603 (I944).

16 Compare Lyons v. Oklahoma, supra note I5, with Leyra v. Denno, 347 U.S.
556 (I954).
8 3 WIGMORE, EVIDENCE ?? 856-59 (3d ed. I940). To some extent this may
still be the rule in England, Scotland, and Canada. See pp. I094-95, II00,
II04 infra. India permits an otherwise inadmissible confession to be introduced
if it is confirmed by subsequent discoveries but seems to apply this rule only when
the confession was inadmissible for reasons other than coercion. See pp. IIo8-09
infra.
19 Rogers v. Richmond, 365 U.S. 534 (i96i).
20 See Malloy v. Hogan, 378 U.S. I, 7-8 (i964) (dictum); pp. 982-83
supra.
21 Counselman v. Hitchcock, I42 U.S. 547 (i892). Considering the rather far-
fetched hypothetical resorted to by the Court in Malloy v. Hogan, 378 U.S. i, I3-I4
(i964), to show how the testimony sought to be compelled by the state could
possibly incriminate the petitioner, it would seem that the attenuation doctrine
developed for deterrence exclusion does not apply to fifth amendment exclusion.
The absence of an attenuation limitation may stem from the fact that under the
fifth amendment the right not to "be compelled . . . to be a witness" by itself
requires exclusion, whereas exclusion based on the fourth amendment is merely
an ancillary right designed to deter violations of the basic right of privacy.

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type of compulsion does not invade the mental freedom

the privilege against self-incrimination. Nor does it invol
cooperation of the accused that is required when informa
location of real evidence is compelled, since under a searc
police must know "particularly" where the desired evidence is to be
found, and the accused is not required to cooperate and may in fact not
even be present during the search. Thus fourth amendment analogies
do not warrant making a differentiation between real evidence discovered
through testimonial compulsion and that discovered through an involun-
tary confession. Insofar as confessions are excluded in order to deter
police violation of other rights of a suspect,22 the indications that police
seek to elicit confessions to obtain leads to other evidence as well as to
obtain the confessions themselves 23 argue in favor of excluding the
products as well.
5. Use of Inadmissible Confessions To Impeach. - A few jurisdic-
tions hold that an otherwise inadmissible confession may be admitted for
purposes of impeachment.24 Although the Supreme Court has not ruled
on this question, in Walder v. United States 25 the Court dealt with an
analogous problem under the fourth amendment. Defendant's indict-
ment for possession of narcotics was dismissed because the evidence had
been obtained by an unlawful search and seizure. In a subsequent trial
for other illegal transactions in narcotics, defendant testified on direct
examination that he had never possessed any narcotics; evidence ob-
tained by the original unconstitutional search was introduced solely
for the purpose of impeaching his credibility. Affirming the conviction,
the Supreme Court reasoned that "it is one thing to say that the Gov-
ernment cannot make an affirmative use of evidence unlawfully ob-
tained. It is quite another to say that the defendant can turn the il-
legal method by which evidence . . . was obtained to his own advan-
tage, and provide himself with a shield against contradiction of his
untruths."2 26
The danger of perjury does not wholly explain Walder, for the Court
also declared that a defendant "must be free to deny all the elements of
the case against him without thereby giving leave to the Government to
22 Escobedo v. IliHnois, 378 U.S. 478 (i964) (confession excluded because ob-
tained in violation of right to counsel); Wong Sun v. United States, 37I U.S.
47I (i963) (confession excluded as product of illegal arrest); McNabb v. United
States, 3i8 U.S. 332 (i943) (confession excluded because of delay in arraign-
ment).
23 INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS I37 (I962)
MAGUIRE, EVIDENCE OF GUILT I64 (1959).
24 E.g., Commonwealth v. Tolliver, ii9 Mass. 3I2 (i876) (statement made while
defendant was "unduly and improperly influenced by promises or threats"). In most
cases the confession was not found to be involuntary, but neither did the prosecu-
tion show it was voluntary. E.g., Kahafer v. Commonwealth, 284 S.W.2d 678
(Ky. I955). Some states seem to distinguish admitting *the confession, which is
forbidden, from cross-examining the defendant in relation to it, such as by reading a
section and asking if he had said that. See, e.g., Brown v. State, 243 Ala. 529, IO So.
2d 855 (1942). It is unclear what these courts do if defendant denies having made
the statement: could the prosecution then introduce the signed confession in
rebuttal ?
The English courts, on the other hand, have explicitly disapproved the use of
inadmissible confessions for impeachment purposes. See p. IO96 infra.
25347 U.S. 62 (I95.).
261 d. at 6 5.

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introduce by way of rebuttal evidence illegally secured by it, and there-

fore not available for its case in chief." 27 The Court apparently meant
that, although illegally seized evidence may be used to impeach the de-
fendant's testimony relating to his "good character," it may not be used
to impeach testimony that directly relates to the offense charged.28
Insofar as the same considerations explain the exclusion of unconsti-
tutionally seized evidence and illegally obtained confessions,29 it could
be argued that the latter type of evidence should also be admissible at
trial whenever the circumstances are so unusual that admission does not
defeat the purpose of the exclusionary rule by creating a significant in-
centive for unconstitutional police conduct. For instance, to allow in-
troduction of an otherwise inadmissible confession for the purpose of
rebutting the defendant's alibi would create a considerable incentive
for the acquisition of such confessions and consequently frustrate the
purpose of excluding them from the prosecution's case in chief.30 But
if the police know that the evidence will be admissible only in such an
unusual congeries of circumstances as was involved in Walder, then the
incentive to use improper methods may be so weak as to be outweighed
by the policies against perjury and in favor of accurate verdicts.
However, the Walder rule may be inapplicable to involuntary con-
fessions, since the fifth amendment - unlike the fourth - is by its
terms directed at exclusion of evidence and therefore a deterrent ra-
tionale may be inappropriate. Thus, one might argue that to use an in-
voluntary confession for the purpose of impeaching the defendant is as
much a violation of the privilege against self-incrimination as to use it
during the prosecution's case in chief, since in both situations the de-
fendant is compelled to be a "witness" against himself. Of course,
this reasoning might be answered by regarding the accused's testimony
as a waiver of the privilege. But the doctrine of waiver seems to apply
to all the defendant's testimony, including denials of the essential ele-
ments of the crime. Moreover, it might be considered that the applica-
tion of a waiver doctrine in such a manner would have the effect of pre-
venting a defendant from taking the stand and hence would be objec-
tionable as a "penalty." 31 Thus it seems probable that confessions ob-
tained in violation of the fifth amendment will be inadmissible for pur-
poses of impeachment under all circumstances.
IV. THE SCOPE OF THE EXCLUSIONARY RULES
At common law a confession produced by coercion was thought

likely to be untrustworthy and was, therefore, excluded at trial.'
27 Ibid.
28 It is unclear whether the result in Walder would have been different if the
illegal search had been for the purpose of obtaining evidence for that very case,
or if the evidence had been introduced in a prosecution for perjury.
29 Confessions obtained in violation of the McNabb rule are clearly treated as
deterrence problems. See pp. 994-95 supra.
30 For a contrary holding, see United States v. Curry, No. 29,000, 2d Cir. Dec.
22, i965 (alternative holding).
31 Cf. Griffin v. California, 380 U.S. 609 (i965).

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Greenleaf indicates that in the United States in the midd

teenth century the rules of voluntariness applied not only to confessions
but to admissions as well.2 However, during the latter half of the
century, the courts began to limit the application of these rules to
confessions only. The reasons for this change are hazy, but the new
rule seems to be traceable 3 to the decisions in two California cases. In
People v. Strong,4 the trial judge had instructed the jury that it might
properly consider the "confessions" of defendant in reaching its verdict.
Defendant appealed his conviction, claiming that he had made no con-
fession, but only an admission, and that the use of the term confession
had unduly prejudiced his case before the jury. The opinion of the
Supreme Court of California, granting a new trial for the defendant,
defined and distinguished confessions and admissions. Nine years later,
in People v. Parton,5 the court quoted the Strong definitions and,
without a word of comment upon the different circumstances, held that
since the defendant's statement did not amount to a confession, it was
not subject to the voluntariness requirements.
The distinction between admissions and confessions was not im-
portant enough to merit Wharton's attention in the i88o edition of his
work on criminal evidence.6 But when the sixteenth edition of Greenleaf,
edited by Wigmore, appeared in I899, the voluntariness rules were
stated to be applicable only to confessions, and the former note taking
the opposite position was removed without comment.7 In I935 it was
conceded in Wharton that there was a split on the question of the
applicability of the rules to admissions; it was also stated that the rules
were not applicable at all to exculpatory statements.8 As in the other
treatises, there was no discussion of the reason for the difference, and
the author did not take a position in the controversy. Wigmore has
consistently maintained that the rules of voluntariness are and should
be applicable only to confessions.9
The arbitrariness of the distinction is clear from some of the cases
in which it has been held, with no discussion of the policies involved in
the question, that a statement amounted to an admission and hence
was not subject to the rules on voluntariness. In State v. Lindsey,10
for example, the accused was charged with bigamy and had admitted
to the district attorney that he had been formerly married and that he
was not certain whether he was still married to his first wife. The court
held the statement to be "only" an admission because it failed to ac-
2 "*lThe rule excludes not only direct confessions, but any other declaration tend-
ing to implicate the prisoner in the crime charged ...." i GREENLEAF, EVIDENCE
? 2I9 n.2 (6th ed. I852).
Neither England nor Scotland distinguishes between admissions and confessio
See pp. IOgI, IO98 infra. In Canada, voluntariness requirements are apparent
inapplicable to exculpatory statements. See p. II03 infra. But in India admissibil
is less restricted for full confessions than for "mere admissions." See p. II07 in
I See, e.g., Taylor v. State, 37 Neb. 788, 56 N.W. 623 (i893).
430 Cal. I5I (i866).
549 Cal. 632 (I875).
6 WIIARTON, CRIMINAL EVIDENCE ? 646 (8th ed. i88o).
7I GREENLEAF, EVIDENCE ? 2I9, at 353 (I6th ed. I899).
8 2 WIHARTON, CRIMINAL EVIDENCE ? 646 (IIth ed. I935).
I See 3 WIGMORE, EVIDENCE ? 82I (3d ed. I940) i[hereinafter cited as WIGMORE
10 26 N.M. 526, 194 Pac. 877 (I92I).

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knowledge the fact of a second marriage, essential to a conviction for

bigamy. Even more restrictive was the view of the term confession
adopted in Commonwealth v. Haywood." The defendant claimed that
his plea of guilty to a charge of adultery in a prior case was involuntary
and hence inadmissible in his trial for incest, which involved the same
factual issues as the earlier proceedings. But the court held that such
a plea is not a confession because it "omits the essential element of con-
sanguinity . . . and it contains the further fact that, the man is married,
- which is immaterial on a trial for incest although it was essential on
the charge of adultery."
Some states have defined the term confession more broadly. In Ala-
bama the definition evidently includes all incriminating statements, but
does not extend to "statements of collateral facts, not criminating within
themselves, but depending on other and outside evidence, disclosing a
chain of circumstances incriminating in character . . . ." 12 And the
Texas statute covering the admissibility of confessions,'3 which was
once read rather narrowly, is now interpreted to encompass admissions,'4
though not exculpatory statements.15 Other jurisdictions are careful to
maintain the verbal distinction, but hold that voluntariness rules are
applicable to confessions and most admissions.'6 In I926 the Louisiana
Supreme Court held that, although a series of questions and answers
did not amount to a confession, they were inadmissible without a show-
ing of voluntariness.'7 Two years later the legislature enacted a provi-
sion making the exclusionary rules for confessions inapplicable to "ad-
missions not involving the existence of a criminal intent." 18 But the
Louisiana courts have read the statute narrowly, and have demanded
voluntariness for most statements containing incriminating facts, even
when the element of criminal intent was difficult to discern.'9
Since Bram v. United States,20 the federal courts have generally
applied the rules for confessions to admissions and exculpatory state-
ments,2' although there have been occasional dicta to the contrary.22
In Bram, the defendant had been told that another suspect had seen
him commit the crime, to which he replied "he could not see me
from there." Although the statement was intended as a denial of the
accusation, the prosecution offered it on the theory that the accused had
tacitly admitted that the suspect might have seen the crime from some
11 247 Mass. i6, 20, I4I N.E. 57I, 573 (I923).

12 Herring v. State, 242 Ala. 85, 86, 5 So. 2d I04, I05 (I94I).
13 TEX. CODE CRIM. PROC. art. 727 (I948), discussed note I, PP. 95I-52 supra.
14Compare Willoughby v. State, 87 Tex. Crim. 40, 2I9 S.W. 468 (I920), with
Ferguson v. State, 3i Tex. Crim. 93, I9 S.W. 90I (i892).
15 See, e.g., Baker v. State, 79 Tex. Crim. 5IO, i87 S.W. 949 (I9I6).
'See, e.g., Louette v. State, I52 Fla. 495, I2 SO. 2d i68 (I943).
17 State v. Hayes, I62 La. 3IO, IIO SO. 486 (I926).
"8LA. CODE CRIM. PROC. ? 454 (I928) (now LA. REV. STAT. ? I5:454 (1950)).
'9 See, e.g., State v. Clark, 228 La. 899, 84 So. 2d 452 (I955).
20 i68 U.S. 532 (i897).
21 See, e.g., Williams v. United States, 328 F.2d 669 (5th Cir. i964); McHenry
v. United States, 308 F.2d 700 (ioth Cir. i962), cert. denied, 374 U.S. 833 (i963).
In both these cases the fact that the statement was an admission was not even
discussed by the court.
22 "The rules governing the reception in evidence of . . . admissions are much
less onerous than those concerning confessions." Ercoli v. United States, I3i F.2d
354, 356 (D.C. Cir. I942).

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other place. The Supreme Court, in requiring the application of volun-

tariness rules,23 seemed unconcerned by the exculpatory nature of the
statement.24
There is a certain trend in recent years to adopt this liberal view-
point. In People v. Atchley, the Supreme Court of California ruled
that "any statement by an accused relative to the offense charged is
inadmissible against him if made involuntarily." 25 In doing so, the
court that had once been so quick to distinguish between confessions
and admissions in the application of the voluntariness rules pointed
out that the rationale for exclusion was equally persuasive for both
kinds of statements. In Oregon, a I957 amendment to the Criminal
Code extended the rules for confessions to cover admissions.26 And
Rule 63(6) of the Uniform Rules of Evidence, which is in effect in
Kansas,27 requires a showing of voluntariness for any statement "rela-
tive to the offense charged." But in spite of this trend, probably most
states still accept Wigmore's view that admissions are not subject to
the rules of voluntariness.
Wigmore defines a confession as "an acknowledgment in express
words, by the accused in a criminal case, of the truth of the guilty
fact charged or of some essential part of it." 28 Although the last part of
the definition might appear to give the term a wide scope, Wigmore's
classification of an admission as "an acknowledgment of a subordinate
fact, not directly involving guilt" 29 is the criterion that he follows in
judging cases.30 He attempts to justify the distinction on the ground
that admissions are much less likely to be untrustworthy, so that there
is less need to exclude them. It is his theory that an accused typically
believes he can purchase his freedom from police pressures only by
an assertion of guilt. Thus any statement in which the element of guilt
is lacking could not have been a deliberate lie, and the only reason for
exclusion does not apply.3' Wigmore also observes that an admission is
much easier to explain away than a confession and that less damage
will be caused if the unreliable statement that reaches the jury is not
strongly indicative of guilt.32 McCormick, who defines a confession as
"a complete acknowledgment of guilt," agrees with Wigmore that ad-
missions are less damaging and less likely to be false than confessions;
23 See also Ziang Sung Wan v. United States, 266 U.S. i (I924).
24 Wigmore refers to this decision as "the height of absurdity in misapplicatio
of the law." 3 WIGMORE ? 82I, at 240 n.2.
25 53 Cal. 2d i6o, I70, 346 P.2d 764, 769 (I959), cert. dismissed, 366 U.S. 207
(i96i). The court held the admission to be voluntary, but subsequent decisions
have fully accepted the reasoning of the case. See, e.g., People v. Underwood, 6i
Cal. 2d II3, 389 P.2d 937, 37 Cal. Rptr. 3I3 (I964).
26 ORE. REV. STAT. ? I36.540(I) (I963). The provision has been given a broad
interpretation.
27 KAN. GEN. STAT. ANN. ? 60-460(f) (1964). The New Jersey Supreme Court
specifically omitted this provision when it accepted the remainder of the Uniform
Rules. See Rule 63 following N.J. STAT. ANN. ? 2A: 84A-32 (Supp. I965).
28 3 WIGMORE ? 82I, at 238.
29 3 WIGMORE ? 82I(3), at 243.
30 See Wigmore's approval of Commonwealth v. Haywood, 247 Mass. i6, 141
N.E. 571 (I923), at 3 WIGMORE ? 82I (2), at 242 n.2. See also p. I032 supra.
31 3 WIGMORE ? 82I (3).
32 3 WIGMORE ? 8i5.

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however, he urges that this fact should only shift the burden of produc-
ing some evidence of involuntariness to the defendant.33
Even if Wigmore's view that the voluntariness rules are applicable
only to confessions is accepted, the difficulties inherent in making a
good faith determination of whether a given statement is a confession
may be great. For example, a defendant's statement that "I killed my
husband to protect my oldest daughter" 34 might be regarded as a
confession of murder with an explanation of motive, or as an admission
of the killing but without the element of intent, or as an admission of
the killing accompanied by an exculpatory justification. For courts to
determine the applicability of the exclusionary rules by mere labeling,
without any examination of the policies dictating the choice of one
label or the other, would seem to be unwise.
Furthermore, Wigmore's view that only a full confession is intended
to purchase freedom from pressure simply will not explain all the cases.
It would strain credulity to assert that an accused could never be-
lieve that he might purchase his freedom from police interrogation
with, for example, an admission of presence at the scene of the crime.
Although in some cases admissions may be made without an intent to
"purchase freedom," the determination of intent can only be made
on a case-by-case basis. The result will depend on the answer to the
nearly unanswerable question of what the accused believed he had to
say in order to satisfy the police. Moreover, even if it is determined
that the accused believed he must admit a certain quantum of guilt
in order to be left alone, it is by no means clear that in any given case
he might not have attempted to purchase his freedom more cheaply.
Indeed, an accused may prefer the small lie, believing that a bigger
one will be too difficult to explain away at a later time. In addition, since
the status of a particular statement may not be finally established
until the charge and defenses are made known at trial, Wigmore's
formulation may in some cases permit words that were intended as
a confession at the moment of interrogation to reach the jury as an
admission.35 It is thus illogical to presume that, because a statement
does not seem to acknowledge full guilt, it was not intended to purchase
freedom when it was made.
Moreover, Wigmore's approach is probably unrealistic in ascribing
such rationality to the accused's reactions during police interrogation.
Many admissions, especially oral admissions, are the product of con-
fusion, nervousness, or exhaustion from intensive grilling, or result
from an attempt to explain suspicious but innocent conduct. In such
circumstances it is unlikely that a suspect would confess to a crime
without realizing the import of his statement, but he might very well
make a false statement of less significance, believing that it would not
seriously incriminate him.
When an admission alleged to be involuntary is introduced, the jury
will be instructed to give the statement only the weight that it deserves
33 MCCORMICK, EVIDENCE ? II3 (I954); see p. IO69 infra.

34State v. Gibson, 69 N.D. 70, 82, 284 N.W. 209, 2I4 (I938).
35 See, e.g., Commonwealth v. Haywood, 247 Mass. i6, I4I N.E. 57I (I923),
discussed p. I032 supra.

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in light of the defendant's contentions. Nevertheless, a jury that agrees

with Wigmore's premise that no one will attempt to purchase his im-
munity from police pressure with anything short of a confession may
be less likely to consider the possibility of a false admission than that
of a false confession. Although an admission is potentially less damaging
than a confession, any given admission may fill a crucial gap in the
prosecution's case. It thus seems that Wigmore is incorrect both in his
argument that admissions are more trustworthy than confessions and
in his contention that the former type of statement is necessarily less
damaging.
In any case, no refutation of the trustworthiness rationale is necessary
today, because the constitutional voluntariness standard is no longer
trustworthiness but "free and rational choice." 36 Moreover, the values
that the Court is now seeking to protect are the same regardless of the
degree of guilt that the accused admits. Indeed, the need for the
application of the constitutional voluntariness criterion may be espe-
cially great in the case of an admission, since the accused may know
that he need not make a confession, but may not appreciate the fact
that he also need not discuss anything with the investigating officers.
Additionally, insofar as the constitutional requirement may be based
upon a desire to control police practices, the nature of the statement
obtained would seem irrelevant. Deterrence would dictate the ex-
clusion of all statements so that the police are not permitted to profit
at all by their improper conduct.37 And, under Escobedo v. Illinois,38
the need for advice of counsel would seem to be no less when the
accused is about to make a damaging admission than when he is pre-
pared to make a complete confession.
With the exception of a footnote in Stein v. New York,39 the Court
has not even hinted that admissions (and exculpatory statements) are
not subject to the same constitutional rules as confessions.40 In Ask-
craft v. Tennessee,41 the Court had to reverse a conviction twice in order
to convince the Supreme Court of Tennessee that the defendant's state-
ment that he knew who killed his wife, produced after thirty-six hours
of questioning, was as inadmissible as the written full confession pre-
viously excluded. And in Owen v. Arizona,42 the Court reversed without
opinion a conviction based upon an involuntary exculpatory statement.
In Escobedo itself the first statement made by the defendant that in

37 Compare the Court's application of the exclusionary rule of McNabb, which
is designed to ensure compliance by the police with the federal prompt arraign-
ment statute, pp. 994-95 supra, and which has been applied to admissions as well
as confessions. See, e.g., Coleman v. United States, 3i7 F.2d 89I (D.C. Cir. i963).
38 378 U.S. 478 (I964), discussed pp. 999-I000 supra.
39346 U.S. I56, i62 n.5 (0953). The Court cites Wigmore's assertion that ad-
missions are not subject to the same rules as confessions and, finding most state
court authority in accord, suggests that the fourteenth amendment does not require
an opposite result.
40 See Wong Sun v. United States, 37I U.S. 47I, 487 (i963): "[W]hen circum-
stances are shown such as those which induced these declarations, it is immaterial
whether the declarations be termed 'exculpatory.'
41 327 U.S. 274 (I946) (second appeal).
42 378 U.S. 574 (i964), reversing 94 Ariz. 404, 385 P.2d 700 (i963).

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any way implicated him in the crime was a denial of the accusation
that he shot the victim, coupled with a counteraccusation against his
accuser -yet the Court never mentioned that this was not a full
confession.43 Thus, it seems that no distinctions among categories of
defendants' out-of-court statements can constitutionally be made, and
the test for admissibility must be the same for confessions, admissions,
and exculpatory statements.
When a confession is admitted and is subsequently held to have been
unconstitutionally obtained, the conviction is automatically reversed
regardless of how much other evidence, including other confessions,
has been properly admitted with it. The theory behind the rule is that
it can never be nonprejudicial to allow the jury to hear such evidence.
To date the Court has not decided whether a conviction based in part
upon a constitutionally invalid admission may be sustained. But since
reversals have occurred in some confession cases in which the erroneous
admission of the confession was obviously not prejudicial,44 it may
well be that a rule of automatic reversal will be applied to admissions.
V. TACIT ADMISSIONS: REACTIONS OF THE ACCUSED

TO STATEMENTS MADE IN HIS PRESENCE
A. Silence
The police often attempt to elicit a confession from a suspect by
confronting him with a statement directly implicating him in the crime
under investigation.' In some cases it is the victim who makes the
accusations,2 but in others it is an alleged accomplice 3 or the police
themselves.4 If the accused does not confess and merely remains
silent, both the accusation and his failure to reply may be introduced
in evidence against him.5 Neither the accusation nor the denial is
admissible, however, if he denies the truth of the statement.6
Two rationales have been advanced to permit the introduction of
the out-of-court accusation, which would normally be excluded as
hearsay, and the silence. Under one approach, admissibility is ap-
parently based upon the Latin maxim "qui tacet, consentir videtur"
silence indicates consent; thus, the silence is thought to be a tacit ad-
mission.7 The alternative justification is that, since "it is the nature of
innocence to be impatient of a charge of guilt whenever seriously made
and distinctly understood, and an innocent person will usually sponta-
"The lower federal courts also seem untroubled by the distinction between
admissions and confessions. See, e.g., Queen v. United States, 335 F.2d 297 (D.C.
Cir. i964).
44 See, e.g., Haynes v. Washington, 373 U.S. 503, 5i8-ig (i963).
I See Escobedo v. Illinois, 378 U.S. 478 (i964). See also p. 978 supra.
2E.g., People v. Smith, 25 Ill. 2d 2I9, i84 N.E.2d 84I (i962).
3E.g., Moore v. State, 26i Ala. 578, 75 So. 2d I35 (I954).
4E.g., Dickerson v. United States, 65 F.2d 824 (D.C. Cir.), cert. denied, 290
U.S. 665 (I933)
5 See, e.g., Sparf v. United States, I56 U.S. 5I, 56 (I895) (dictum); State v.
Wilson, 205 N.C. 376, i7i S.E. 338 (I933); cf. UNIFORM RULES OF EVIDENCE 63(8).
6 E.g., People v. Willson, 40I Ill. 68, 8i N.E.2d 485 (I948).
74 WIGMORE, EVIDENCE ? I07I (3d ed. I940) [hereinafter cited as WIGMORE].

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neously deny the accusation," 8 the failure to make a denial is unnatural

in an innocent man, and therefore evidence of a guilty conscience. The
accusation is necessary in order to comprehend the cause of this guilty
conscience.9 The two theories are not clearly distinguishable. The
Supreme Court of California is one of many courts that have used
the two notions interchangeably in the same opinion,10 and many juris-
dictions also fail to choose between the theories in instructing juries
about how to weigh evidence of silence. Typically, the judge will say
that "the accusatory statement, being hearsay, is not admissible as evi-
dence in itself of the facts which it asserts, but merely to show what
the charges were to which the defendant offered no denial . . . . 11
Under both alternatives the statement is permitted to reach the jury,
and under each the distinction made between permissible and impermis-
sible uses of the hearsay statement will probably be of little effect.12
Even in the abstract, the difference between the theories is difficult to
grasp, since the accused will have a guilty conscience about the accusa-
tion only if he concedes the truth of it.
The question whether it was unnatural under the circumstances for
the accused to remain silent and whether his failure to deny therefore
renders the accusation and his silence admissible is a question of law
for the court.13 In most of the reported decisions there were police
present when the accusation was made, but this is not invariably the
case.14 There is ordinarily no requirement that the person making the
accusation have personal knowledge of the crime charged.15 When the
silence of the accused is readily explained by special circumstances
negating the inference of guilt, it cannot constitute an admission. Thus,
the silence of a person under the influence of narcotics 16 or at a formal
hearing before a magistrate 17 iS inadmissible. If there is conflicting
evidence on the question whether the accused heard or understood the
accusation, the evidence is admitted and the jury is instructed to dis-
regard the accusation and silence if it finds that defendant did not
in fact hear or understand.18
The accusatory statement must be one that "injuriously affects the
rights of the person" 19 at the time at which it was made. It need not
8People v. Nitti, 3I2 Ill. 73, 94, I43 N.E. 448, 455 (I924).
9See, e.g., State v. Erwin, ioi Utah 365, 408-I5, I20 P.2d 285, 306-og (i94i).
"People v. Simmons, 28 Cal. 2d 699, 172 P.2d i8 (I946).
" Commonwealth v. Vallone, 347 Pa. 4I9, 42I, 32 A.2d 889, 890 (i943). Com-
pare People v. Bracamonte, 197 Cal. App. 2d 385, 39I, I7 Cal. Rptr. 62, 65 (i96i):
5[I]t was not being admitted to prove the truth of the medical opinion but only
an admission by appellant that it was true."
12 The distinction has been termed "a nice . . . [one] which we have difficulty
rationalizing and think may have left the jury similarly perplexed." People v.
Bracamonte, supra note ii, at 39I, I7 Cal. Rptr. at 65.
13E.g., Ewell v. State, 228 Md. 6I5, i8o A.2d 857 (I962).
14 See, e.g., Stanley v. State, I74 Ark. 743, 297 S.W. 826 (I927).
15 See, e.g., Commonwealth v. Hoff, 3I5 Mass. 55I, 53 N.E.2d 68o (i944). But
see People v. Page, i62 N.Y. 272, 276, 56 N.E. 750, 752 (I900) (no one is "bound
to deny neighborhood gossip").
16 People v. Bracamonte, I97 Cal. App. 2d 385, I7 Cal. Rptr. 62 (ig6i).
17 Jones v. State, I84 Tenn. I28, i96 S.W.2d 49I (1946).
18 E.g., Thurmond v. State, 2I2 Miss. 36, 53 So. 2d 44 (i95i).
"9State v. Bulach, Io N.J. Super. 107, II4, 76 A.2d 692, 696 (App. Div. I950)
(Brennan, J.).

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amount to a direct accusation of guilt, but m

dict an alibi previously given to the police.20 In almost all "silence"
cases, the statement is made after the commission of a crime. When the
question of motive or intent is important, however, silence in the face
of certain accusations may be admissible, even though the crime for
which the accused is on trial had not been committed at the time.
The defendant in Commonwealth v. Barnack 21 denied that he hated
his wife. But ten days before her death she had successfully contended
in a custody proceeding that he had beaten her. In the trial for her
murder the court held that his failure to deny the serious allegations
when he had the advice of counsel tended to prove that his professed
love for his wife was feigned. Similarly, in Agnes v. People,22 the un-
denied remark of the deceased that the defendant "is going to take me
over to Five Points to beat me up" was held admissible, presumably on
the issue of intent.
The various rules controlling the admission of "silence" are intended
to limit the introduction of "silence" to situations in which, objectively,
a denial would have been natural. The majority of jurisdictions,
while recognizing arrest as a circumstance militating against admissibili-
ty, do not automatically exclude "silence" in such cases.23 Several
others, including most federal courts 24 and New York,25 follow the rule
originated in Massachusetts 26 that a defendant's silence in response
to accusations made while he is under arrest is never admissible. And
a few courts have accepted the rule that silence under arrest is always
inadmissible, while distinguishing "mere police presence" from actual
arrest.27 However, realistically analyzed, silence when under arrest or
even when merely in the "presence" of the police is almost never un-
natural: any inhibitions, fears, or uncertainties that an individual may
have when faced with an accusation that he has committed a crime are
surely increased in the atmosphere of a confrontation with the police.
Many people believe that silence in the face of police questioning is the
safest course to follow, and that it is the wise man who refuses to enter
into a debate with his accusers -regardless of whether he is guilty or
innocent. Others believe that they have an unqualified right to remain
silent whenever they are questioned by the police. Since it is virtually
impossible to ascertain afterwards which instances of silence were
induced by a consciousness of guilt and which were the product of a
reasoned choice while under police custody, it would seem that all
20 State v. Picciotti, i2 N.J. 205, 96 A.2d 4o6 (I953).

21357 Pa. 39I, 54 A.2d 865 (i947). See also State v. Kidd, 24 N.M. 572, I75
Pac. 772 (I9I7) (silence used to support evidence of motive).
22 I04 Colo. 527, 93 P.2d 89i (I939).
23 See 4 WIGMORE ? I072(4); People v. Simmons, 28 Cal. 2d 699, 7I3-I6
P.2d i8, 26-27 (1946).
24 See, e.g., United States v. Lo Biondo, I35 F.2d I30 (2d Cir. I943). But see
Dickerson v. United States, 65 F.2d 824 (D.C. Cir.), cert. denied, 290 U.S. 665
(I933).
25People v. Rutigliano, 26i N.Y. I03, i84 N.E. 689 (0933), overruling Kelley v.
People, 55 N.Y. 565 (i874).
26 Commonwealth v. Kenney, 53 Mass. (I2 Met.) 235 (i847) (Shaw, C.J.).
27 See, e.g., Commonwealth v. Gangi, 243 Mass. 34I, I37 N.E. 643 (1923). In
these jurisdictions the question of arrest is left to the jury. Most jurisdictions make
no such distinction.

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evidence of silence when police are present should be excluded. If the

law were otherwise, a suspect would have to be warned, as one federal
court of appeals put it: "If you say anything, it will be used against
you; if you do not say anything, that will be used against you." 28
When there are no police present the "naturalness" inquiry is less
unreasonable. For example, in Egan v. United States,29 the defendant,
his lawyer, other company officers, and their lawyers were the only
persons at a meeting. The attorney for one of the other officers read a
statement made by his client to the SEC about a matter then under
investigation, admitting the client's guilt and implicating the defendant.
In those circumstances it might well have been natural for an innocent
man to reply.30
The courts have taken the next step - accepting the notion that
"Cunnaturalness" is evidence of guilt - almost without discussion. But
silence indicating guilt is the evidence that is sought, not silence indi-
cating "unnaturalness"; and the courts ought to ensure that only
silence that logically appears to indicate guilt is admitted into evidence.
In order to determine the reason for the silence in any given case, it
would seem necessary to inquire into the personality of the defendant.
But the only hint that any court has considered such matters to be
even relevant on the question of admissibility appears to be a reference
to the defendant as a person of " 'low average' intelligence quotient" in
an opinion holding that his silence following an accusation in the police
station was inadmissible.31 Presumably, a defendant is always allowed to
explain silence after it is introduced, but once the accusation and
the silence reach the jury, the right is probably of limited value. To
prevent this result, a defendant should be permitted, prior to the ruling
on admissibility, to introduce evidence that would explain his silence for
reasons other than guilt. In determining admissibility, the judge would
then decide whether the silence could properly be taken as evidence of
a feeling of guilt, considering not only the external circumstances sur-
rounding the silence but also the various personal traits of the accused.
Such a system, although not perfect, would greatly decrease the likeli-
hood that silence attributable to a personality quirk of the defendant
may be interpreted to indicate guilt.32
It is possible to challenge this proposal on the ground that evidence
such as flight is admissible as inconsistent with innocence, and the in-
dividual characteristics of the defendant are not examined in that
28 McCarthy v. United States, 25 F.2d 298, 299 (6th Cir. I928).

29 I37 F.2d 369 (8th Cir.), cert. denied, 320 U.S. 788 (i943).
30Compare Matthew 27:II-I4 (King James):
And Jesus stood before the governor: and the governor asked him, saying,
Art thou the King of the Jews? And Jesus said unto him, Thou sayest. And
when he was accused of the chief priests and elders, he answered nothing.
Then said Pilate unto him, Hearest thou not how many things they witness
against thee? And he answered him to never a word; insomuch that the
governor marveled greatly.
31 Naples v. United States, 344 F.2d 5o8, 5II-I2 (D.C. Cir. i964).
32 Because this procedure has never been utilized, it remains to be decided
whether the jury should be excluded, who has the burden of proof, and the extent
to which the defendant waives his privilege against $elf-incrimin4ion by testifying
for this limited purpose.

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case.33 Moreover, no inquiry is made into the naturalness of a particular

flight; even evidence that flight was occasioned by a mob chasing the
accused is admissible only by way of explanation after the fact of flight
has been introduced.34 Since some courts have indeed noted the
similarity between the two types of evidence,35 it may be contended that
evidence of silence should be treated identically. However, there would
seem to be at least two important distinctions between flight and silence.
Not only is the act of flight generally more deliberate and more positive
than silence, thus giving rise to more compelling inferences; but also,
in most cases when flight is introduced there will be no statement similar
to the hearsay accusation that will be admitted with evidence of
"silence." These statements are often long and cannot be kept from the
jury simply by having the prosecution characterize them as "accusa-
tory." 36
It is possible that an inquiry such as the one proposed may be too
awkward or too speculative for the courts, or of a kind otherwise un-
suited for judicial determination. But if this is true, all evidence of
silence in response to accusations should be excluded from criminal
trials. Kentucky seems to have abolished the use of "silence," 37 and
other courts have indicated a strong dissatisfaction with this kind of
evidence.38 In view of the limited probative value silence can have
without an inquiry into the personality of the defendant, the total
elimination of admission by silence would seem to be a small loss in the
determination of the guilt or innocence of the accused.
B. Evasive or Equivocal Replies

If, in response to an accusation, the accused makes a reply that is
found at trial to be evasive or equivocal, then both the accusation and
the reaction are admissible, as in the case of silence.39 No court has
likened the equivocal reply to a tacit admission of the accusation by
silence. The common rationale for admitting such evidence is based
upon the other alternative in the silence cases: the failure to make a
clear denial is thought unnatural and indicative of a guilty conscience.40
"But see Hutchins & Slesinger, Some Observations on the Law of Evidence
Consciousness of Guilt, 77 U. PA. L. REV. 725 (I929).
34Cf. Caveney v. State, 2Io Ind. 455, 4 N.E.2d I37 (I936).
35 E.g., Commonwealth v. Vallone, 347 Pa. 4I9, 32 A.2d 889 (I943).
36 In People v. Simmons, 28 Cal. 2d 699, I72 P.2d i8 (I946), one of the state-
ments read to the accused was nine pages long. The court reasoned that the jury
should be entitled to hear the whole accusation so that it might understand what
the defendant failed to deny in order to give the failure its appropriate weight.
37 See Hart v. Commonwealth, 389 S.W.2d 939 (Ky. i965). But see Veteto v.
Commonwealth, 244 Ky. 39, 50 S.W.2d 7 (1932).
38 "The time has not yet come when an accused must cock his ear to hear
every damaging allegation against him and, if not denied by him, have the state-
ment and his silence accepted as evidence of guilt." People v. Bigge, 288 Mich. 4I7,
420, 285 N.W. 5, 6 0939). But see People v. Kregger, 335 Mich. 457, 466, 56
N.W.2d 349, 354 0953), cert. denied, 355 U.S. 929 (1958) (admitting evidence of
silence and not citing Bigge).
39 See, e.g., State v. Hill, I34 Mo. 663, 36 S.W. 223 (I896). The circumstances
under which equivocation is admissible are identical to those in which silence is
admissible.
40 See Brody, Admission Implied From Silence, Evasion, and Equivocation in
Massachusetts Criminal Cases, 42 B.U.L. REv. 46 (i962).

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I966] DEVELOPMENTS - CONFESSIONS I04I
Some commentators argue that the ambiguous reply is an even more

satisfactory index of guilt than silence because in the former case there
can be no doubt that the accused heard the remark and that at least he
thought that he should make some reply.41 The problem with this con-
tention is that equivocation does not guarantee that the defendant
understood the accusation, and in some cases it may be an indication that
he did not.
Even if a statement appears to be equivocal, the accused may have
intended it to be a denial, and in such a case the guilty conscience
rationale for admitting such evidence is wanting. In Commonwealth
v. Hamel, the accused was taken to a hospital where a girl charged
defendant with performing an illegal abortion upon her. The accused
replied that "the girl . . . [is] out of her head, she . . . [does not]
know what she [is] talking about." 42 Both the accusation and the reply
were admitted on the ground that the defendant had made an evasive
response. Apparently the court would have accepted nothing less than
a flat denial as proof that the evidence should be excluded. Since no
one form of denial would seem to be any more "natural" than any
other, the approach of the Massachusetts court appears to be an aban-
donment of the principle of naturalness.
Crucial to the determination of the defendant's intent in making any
statement are such factors as tone of voice, gestures, and manner of
speaking. Yet these subtleties are especially difficult to observe and
recall. This problem, which applies in the case of all oral out-of-court
statements, is particularly telling here because the admissibility, and
not merely the weight, of the "equivocal" reply and the accusation that
accompanies it is determined by the nature of the reply.
Some states that forbid the introduction of evidence of silence under
arrest permit the prosecution to show equivocation in the same situa-
tion.43 Arguably, any reply to a damaging statement indicates that the
accused is not acting under the belief that it is better to remain silent
in the hands of the police, nor with a conviction that he has the right
to say nothing. But an evasive reply may be only an inarticulate as-
sertion of the right to remain silent. Uncertainty may have caused the
accused to make some reply in explanation of his position. Moreover,
the evasive reply is likely to come from the very person who is the most
intimidated by the police and the least capable of formulating an
articulate denial. Thus, the policy reasons that dictate that silence
when the accused is under arrest should be excluded as evidence of
guilt are applicable when an evasive reply is made in the same
circumstances.
C. Constitutional Limitations
There seems little doubt that the admission of at least some of this
evidence of a suspect's reactions to accusations violates the United
States Constitution. The clearest cases are those in which the accused's
41 See, e.g., id. at 49.
42 264 Mass. 564, 569, I63 N.E. i68, 170 (I928).
43 See, e.g., Commonwealth v. Madeiros, 255 Mass. 304, I5I N.E. 297 (1926).

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"Cevasive reply" is an assertion of his right to

he is entitled under Escobedo45 to have a lawyer upon request. In
Griffin v. California,46 the Court held that a state court could not co
ment upon a defendant's failure to testify because to do so would impose
a penalty upon the defendant for having asserted his constitutional priv-
ilege against self-incrimination. Similar reasoning would appear to ap-
ply to a case in which a rightful request for counsel is later used to es-
tablish the accused's guilt. In fact, a pre-Griffin case in the First Cir-
cuit 47 held that the defendant's right to counsel would be violated if the
prosecution were permitted to introduce his refusal to answer an arrest-
ing officer's question on the ground that he first wanted to see a lawyer.48
And even in those situations in which a court eventually decides that
there was no right to counsel, the assertion of such a right should be
constitutionally protected from introduction at trial. To rule other-
wise would require the defendant to ask for counsel only at his peril,
thus inhibiting the exercise of the constitutional right.49
The assertion of the right to remain silent at the police station should
have no less constitutional protection.50 Under the familiar constitu-
tional analysis permitting the introduction of only those statements of
the defendant that are the product of his "free and rational choice" to
cooperate with the police,51 the accused's assertion that he does not want
to make a statement merits protection: the election to remain silent is
wholly inconsistent with a decision to cooperate.52 To admit such an
assertion and the accusation accompanying it would violate the "free
and rational choice" requirement just as much as the introduction of an
involuntary confession.
When the accused remains silent but fails to assert a right to do so,
it is still possible that he is silent because of a conscious decision not to
discuss the accusatory statement with the police. If the concept of "free
and rational choice" is to be adhered to, the fact that the accused has
not announced his decision should not be the dispositive factor. More-
over, even the silence or equivocal replies of persons who have not made
44 Commonwealth v. Aronson, 330 Mass. 453, II5 N.E.2d 362 (I953). The case,
though not specifically overruled, is probably no longer the law in Massachusetts.
See Commonwealth v. Burke, 339 Mass. 52I, 53I-33, 159 N.E.2d 856, 862-63
(i959). See also State v. Clarke, 48 Nev. I34, 228 Pac. 582 (I924). It is generally
held that such a statement is inadmissible because it is equally consistent with guilt
or innocence. See Kelley v. United States, 236 F.2d 746 (D.C. Cir. I956).
45 See pp. 996-iO23 supra.
46 380 U.S. 609 (i965).
47 Fagundes v. United States, 340 F.2d 673 (i965).
48 Compare Jones v. United States, 296 F.2d 398 (D.C. Cir. i96i), cert. denied,
370 U.S. 9I3 (i962) (evidence of defendant's request to see a lawyer is admissible,
not on the issue of guilty conscience, but as evidence tending to negate the defense
of insanity since the request was made moments after the crime was committed).
49 Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 27I-72 (i964) (free
speech); Smith v. California, 36i U.S. I47, I53-54 (i959).
50 See, e.g., People v. Rothe, 358 Ill. 52, I92 N.E. 777 (i934).
52 Although silence during interrogation may be an asset at trial, failure to
cooperate may lessen the likelihood of early release from custody: "[N]ow Willie,
tell us where you were on the night of July I9. . . . [If your answer] checks out
and we have people that will tell us you were with them, or wherever you were,
then you are free to go." State v. Butler, 32 N.J. I66, i8o-8i, i6o A.2d 8, I5,
cert. denied, 362 U.S. 984 (I960).

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I966] DEVELOPMENTS - CONFESSIONS I 043
an "affirmative choice" are in all likelihood constitutionally protected:

the decisions of the Court seem to indicate that, unless the accused
actively chooses to aid the police, testimonial evidence obtained from
him is not admissible.53 And it is unlikely that a defendant would
manifest his decision to cooperate with the police by remaining silent
or by answering ambiguously.
If, under Escobedo, the Court holds that any statement made without
counsel while under arrest is inadmissible, it seems that evidence of
silence or equivocation in the absence of counsel would be similarly
inadmissible. And if the Court specifically decides that an accused has
a constitutionally protected right to remain silent in the police station,
then the Griffin penalty theory would seem to prevent the prosecution
from relying on the exercise of the right in order to establish the de-
fendant's guilt. Both the lower federal courts and the Supreme Court
have indicated that such a right may exist. The Fifth Circuit has ex-
cluded evidence of silence obtained while the accused was under
arrest, noting that "this testimony constituted an attempt on the part
of the Government to convict the appellant by his silence, by having
the jury draw an inference of guilt from his refusal to explain, in
violation of the spirit, if not the letter, of the Fifth Amendment." 54
Both the majority and Mr. Justice White's dissent in Escobedo ac-
knowledged that the accused has a right to remain silent at the police
station.55 Although neither opinion identified the source of the right, Mr.
Justice Brennan in Malloy v. Hogan 56 stated that the confession cases
are based on the fifth amendment, and it may well be that the right to
remain silent noted in them 57 is derived from the same source. However,
it might be contended that the fifth amendment prohibits only testi-
monial compulsion and that silence is demeanor evidence. But regard-
less of whether silence is called "testimonial," it is sufficiently akin to
traditional testimonial evidence, both in the means by which it is
obtained and in its effects on the jury, to warrant treating it as though
it were testimonial. Such evidence is produced by a process of police
interrogation and accusation in connection with which the "free and
rational choice" criterion normally would apply. And the jury is likely
to regard the accusation and defendant's reaction as an admission by
him regardless of the theory under which it is admitted.
The admission of evidence of silence when there are no police present
seems less subject to attack on constitutional grounds. Nevertheless,
it is possible that the Court might hold that this type of evidence is so
devoid of probative value that any conviction based upon it violates the

54Helton v. United States, 22i F.2d 338, 34I (5th Cir. I955); see Ellis v. State,
8 Okla. Crim. 522, 524, I28 Pac. I095, IO96 (19I3):
If it be admitted that, while a person is under arrest, his failure to reply to
statements made in his presence can be construed as an admission of the
truthfulness of such statements, then the state would be able to do indirectly
what the [Oklahoma] Constitution expressly provides it shall not do directly.
55 Escobedo v. Illinois, 378 U.S. 478, 485, 499 (i964).
56 378 U.S. i, 6-8 (i964).
57See, e.g., Haynes v. Washington, 373 U.S. 503, 5Io-II (i963). See also
982-83 supra.

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1044 HARVARD LAW REVIEW [VoI. 79:938
due process clause. In order to arrive at such a decision the Court would,
however, have to repudiate an old case approving the use of such
evidence.58 Although there is no analytical method for determining
how little probative value is too little, it does not seem that the probative
value of this evidence is so negligible as to require the reversal of a
conviction based upon it. Of course, to the extent that either the "free
and rational choice" test or the Escobedo analysis is applicable to
situations in which the police are not present, the admission of such evi-
dence would be unconstitutional.
VI. ADMISSIBILITY OF WITHDRAWN GUILTY PLEAS
Following arrest, interrogation, and, in most jurisdictions, a probable

cause hearing,' the accused is called upon to plead to the charges
against him. If he pleads guilty and subsequently requests and re-
ceives permission to change the plea to not guilty, the prosecution may
in a minority of jurisdictions introduce the former plea against him
at his trial -just as if it were a pretrial confession or admission.2
In some cases the accused can withdraw his guilty plea as of right
and no conviction based upon the original plea could constitutionally
stand - for example, when the defendant was not represented by
counsel at the time he entered the plea and had not made an intelligent
waiver of his right to counsel,3 or when the plea of guilty was subject
to other infirmities that would invalidate a confession. In Machibroda
v. United States,4 the Supreme Court held that if it was true, as de-
fendant alleged, that an assistant United States attorney had promised
him a lighter sentence if he pleaded guilty and threatened him with
additional charges if he mentioned the promise to his lawyer, defendant's
plea was involuntary and could be withdrawn.5 Although Machibroda
had counsel and the decision was not specifically placed on constitu-
tional grounds, a similar fact situation arising in a state court would
seem to require the same result.6
58 Sparf v. United States, I56 U.S. 5I (I895) (dictum).
1 See, e.g., FED. R. CRIM. P. 5; Mo. REV. STAT. ? 544.250 (I959).

2 There are a surprisingly large number of jurisdictions that do not appear to
have ruled on the question. This may indicate that they do not permit a with-
drawn guilty plea to be used, since such use would seem to be a natural ground for
appeal.
3 See, e.g., Hamilton v. Alabama, 368 U.S. 52 (i96i). The decision is remark-
able because the accused actually entered a plea of not guilty. However, under
Alabama law a plea of not guilty waives any pleas in abatement or of insanity. In
reversing the conviction, the Court held that it would not require a showing of
actual prejudice because defendant's constitutional right had been violated.
4368 U.S. 487 (i962). See also Ward v. State, I56 Fla. i85, 22 So. 2d 887
('945).
' In United States v. Tateo, 2I4 F. Supp. 560 (S.D.N.Y. i963), the judge
had advised the defendant's lawyer during the trial that if the jury found the
accused guilty he would impose life imprisonment as a start and then add other sen-
tences to prevent any possibility of parole. Defendant changed his plea to guilty,
and, after conviction, sought to have his not guilty plea reinstated on the ground
that his guilty plea had been made involuntarily. In granting the motion, Judge
Weinfeld said: "The pressures brought about by such a situation are irreconcilable
with the exercise of that free will essential to a voluntary plea of guilty."
6 In all the state cases reaching the Supreme Court in which the involuntariness
of a plea has been alleged, the accused has been without counsel.

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Even when there is no question of involuntariness and the plea is

made upon the advice of counsel, the accused may often be able to
withdraw it.7 In most jurisdictions such withdrawal is permitted-
by statute or by the case law -in the sound discretion of the trial
judge.8 If withdrawal is permitted the prosecution ordinarily has no
right of appeal, because the decision is not a final one.9
The states permitting the use of the original plea in the defendant's
subsequent trial do so on the ground that it constitutes an admission
of the facts charged or at least is a claim inconsistent with the defend-
ant's assertion of innocence, and hence is admissible like any other
admission of the defendant.10 It is suggested that no one would admit
his guilt in open court, in a situation lacking the pressures generally
associated with the police station and after a full opportunity to con-
sider the charges and the consequences of pleading guilty, unless he was
in fact guilty as charged.1" The proponents of the use of this evidence
concede that it is possible that the defendant may have been mistaken
about the legal conclusion of guilt, but assert that the guilty plea must
be at least equivalent to an acknowledgment that he committed the acts
alleged in the indictment. Finally, it is urged that since a withdrawn
plea is not conclusive evidence of guilt and is always subject to ex-
planation by the defendant,12 it is no different from a repudiated
confession.
In recent years there has been a trend towards denying the use of
the withdrawn plea, and a majority of jurisdictions now deny such use.
The movement dates from the I927 decision of the Supreme Court in
Kercheval v. United States,13 which held withdrawn guilty pleas inad-
missible in federal criminal trials. Without relying on constitutional
grounds, the Court observed the inconsistency between allowing with-
drawal and later permitting the use of the withdrawn plea, and con-
cluded that such an inconsistency made the privilege to withdraw rather
hollow. Other courts have subsequently pointed out that a decision to
allow withdrawal usually indicates a finding of unfairness in requiring
the accused to stand by his initial plea, and have maintained that
similar concepts of fairness dictate that the plea also be withheld from
the jury.14 The Minnesota Supreme Court has held that the admission
of a withdrawn guilty plea violates the accused's rights to be tried
I In Georgia, the accused may withdraw his plea as of right any time prior to
the imposition of sentence. GA. CODE ANN. ? 27-I404 (I953). See also LA. REV.
STAT. ? I5:266.i (I950) (for felonies, thirty-day authorization to withdraw guilty
plea made within forty-eight hours of arrest).
8 See, e.g., State v. Bastedo, 253 Iowa I03, iiI N.W.2d 255 (i96i) ; State v.
Nicholas, 46 Mont. 470, I28 Pac. 543 (I9I2).
'See United States v. Lias, I73 F.2d 685 (4th Cir. I949); cf. People v. Moon,
257 App. Div. IOI9, I2 N.Y.S.2d 86i (939).
l0E.g., Commonwealth ex rel. Ashmon v. Banmiller, 39I Pa. I4I, I37 A.2d 236,
cert. denied, 356 U.S. 945 (1958).
" But see State v. Weekly, 4I Wash. 2d 727, 73I, 252 P.2d 246, 249 (1952)
(dissenting opinion) (suggesting that a defendant might plead guilty in order to
spare his family bad publicity, to avoid parading his past in open court, or to
avert the possibility of having additional charges brought against him or agains
a friend or family member as an accessory).
" See State v. Carta, go Conn. 79, 96 Atl. 4II (I9I6).
13 274 U.S. 220 (I927).
14 E.g., United States v. Adelman, 107 F.2d 497 (2d Cir. :939).

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according to the law and evidence in the case, as guaranteed by the

United States and Minnesota Constitutions.15 And in I957, the Cal-
ifornia legislature overruled by statute the state's prior court decisions
permitting withdrawn pleas to be admitted.16 In New York the over-
ruling was judicial, by the Court of Appeals in People v. Spitaleri.17
In fact, since Kercheval no state that has considered the question for
the first time has permitted the use of a withdrawn plea at trial.
It is impossible to deny that a withdrawn guilty plea has probative
weight as an admission by the accused directly contradicting his asser-
tion of innocence at trial. The difficulty with admitting the plea is
that it may be given too much weight, that it "may induce the jury to
become reckless in its consideration of the other evidence." 18 Since a
guilty plea admits every element of the offense charged in the indictment,
its impact will be at least as great as that of a confession, and introduc-
tion of such a plea may in many cases be tantamount to a conviction. If
permission to withdraw a guilty plea is to be more than an empty gesture,
the plea should be made inadmissible.
In those situations in which the plea of guilty could not stand because
of constitutional objections, the plea when withdrawn and admitted as
evidence at trial is undoubtedly subject to the same constitutional in-
firmities. In White v. Maryland,19 the Court reversed a conviction be-
cause a guilty plea made at a preliminary hearing, at which the accused
was not represented by counsel, had been admitted at trial. Even if the
accused had had counsel, or if he had intelligently waived his right to
one, any plea of guilty that was involuntarily made would seem to be
equally objectionable if introduced at trial. Indeed, Mr. Justice Rut-
ledge, while a member of the Court of Appeals for the District of
Columbia, suggested that the admission of any withdrawn guilty plea
would violate the accused's privilege against self-incrimination.20
Noting that the accused was "compelled" to plead in order to give notice
of his intention to require the prosecution to prove its case, he concluded
that no use could be made of the plea. This position, however, over-
looks the fact that if the accused does not plead, a plea of not guilty
will be entered for him.21 Moreover, as Mr. Justice Rutledge acknowl-
edged, the privilege against self-incrimination may be waived; when
the accused is represented by a lawyer, a plea of guilty should generally
constitute an intelligent waiver of the privilege.
No court, in determining the admissibility of a withdrawn guilty
plea, has ever distinguished between pleas withdrawn as a matter of
15 State v. Reardon, 245 Minn. 509, 73 N.W.2d 192 (I955).

1 CAL. PEN. CODE ? 1192.4. Although the statute makes reference only to pleas
not "approved by the court," the California Supreme Court has interpreted that
provision to prohibit the use of any withdrawn plea. People v. Quinn, 6i Cal. 2d
55I, 393 P.2d 705, 39 Cal. Rptr. 393 (i964).
17 9 N.Y.2d i68, I73 N.E.2d 35, 212 N.Y.S.2d 53 (I96I), overruling People v.
Steinmetz, 240 N.Y. 411, I48 N.E. 597 (1925).
18 State v. Thomson, 203 Ore. I, 17, 278 P.2d 142, I50 (I954) (concurring
opinion) .
19 373 U.S. 59 (i963).
20Wood v. United States, 128 F.2d 265 (D.C. Cir. I942).
21 FED. R. CRIM. P. II. Of course, if the accused is unaware of this procedure,
he may feel under some compulsion to speak.

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constitutional right and those withdrawn for other reasons. In the

latter case, there does not appear to be any constitutional provision
that forbids the use of the withdrawn guilty plea at trial. Certainly a
uniform rule denying admissibility would relieve courts of the burden
of determining what was the proper basis for withdrawal in each case,
but ease of administration does not create a constitutional mandate.
It might be thought that the Supreme Court will hold that the
admission of any withdrawn plea violates the constitutional guarantees
of due process and the right to a fair trial. To do so the Court would
have to take the position that, although the accused had no constitu-
tional right to withdraw his original plea, the state could not consti-
tutionally burden the withdrawal by conditioning its grant upon the
admissibility of the plea at trial. Support for such a decision might
come from cases such as Frost & Frost Trucking Co. v. Railroad
Comm'n,22 in which it was first held that, even when a state need not
grant a certain right, it cannot make its grant of the right dependent
on a condition that would be unconstitutional if directly imposed. But
admission of a guilty plea withdrawn on nonconstitutional grounds is
not an attempt to do indirectly what the Constitution prohibits the state
from doing directly, and the analogy is therefore tenuous. Thus, it
would seem that even though the admission in evidence of withdrawn
guilty pleas may be unwise, it is generally not unconstitutional.
VII. PROCEDURAL TREATMENT OF CONFESSIONS
A. Before Trial
i. Discovery of Confessions. - The English common law recognized
no right of discovery in criminal cases,' and the early American cases
were virtually unanimous in rejecting defendants' claims for such dis-
covery,2 even if the material sought was the defendant's confession.3
Today, both federal and state jurisdictions still do not all provide for
full pretrial disclosure of confessions. Counsel for the accused is for
this reason often severely restricted in his ability to prepare an effective
defense and to advise the defendant in regard to his plea.
A few states have provided by statute that the defendant must be
given a copy of his confession if the state intends to offer it in evidence.4
But some courts, in the absence of such statutes, have summarily
denied the defendant any right of inspection.5 In recent decades, the
majority of jurisdictions have determined that, apart from statute or
rule, the trial court may grant discovery of a confession as a matter of
22 271 U.S. 583 (1926).
1 Rex v. Holland, [I792] 4 T.R. 69I, IOO Eng. Rep. I248 (K.B.). This doctrine
was repudiated in England in the nineteenth century. See Note, Pre-Trial Dis-
closure in Criminal Cases, 6o YALE L.J. 626, 627 (I95I).
2 See generally United States v. Peltz, i8 F.R.D. 394 (S.D.N.Y. 1955); State v.
Haas, i88 Md. 63, 5i A.2d 647 (I947).
3 See, e.g., State v. Yeoman, II2 Ohio St. 2I4, 147 N.E. 3 (1925); Goode v.
State, 57 Tex. Crim. 220, 123 S.W. 597 (1909).
' See, e.g., ILL. REV. STAT., ch. 38, ? 114-IO (I965); TENN. CODE ANN. ? 40-244I
(Supp. I965).
5E.g., Walker v. People, 126 Colo. I35, i62-63, 248 P.2d 287, 302 (1952).

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discretion in the exercise of its inherent power to control the ad-

mission of evidence so as to promote the interests of justice.6 Al-
though in some jurisdictions discretion is seldom exercised to the de-
fendant's advantage,7 recent cases upholding the trial court's discretion
in granting discovery or finding an abuse of discretion when discovery
was denied may indicate an increasing sympathy for the defendant's
plight.8
The question of discovery of confessions in the federal courts is
usually held to be controlled by rules i6 and I7(c) of the Federal
Rules of Criminal Procedure.9 Rule i6 provides that after indictment
the defendant may inspect documents and other objects "obtained
from or belonging to" the defendant and which are in the possession of
the Government. Despite the apparent liberality of this standard, the
majority of cases have rejected defendants' motions under rule i6 to
inspect confessions.10 It has been conceded that in a general sense a
confession may be regarded as a paper or document "obtained from"
the defendant, but the legislative history has generally been thought to
preclude discovery of confessions.'1 Rule i6 is generally taken to apply
only to books, papers, documents, or tangible objects in which a de-
fendant has had some prior proprietary interest.12 Probably as a
result of such cases, proposals have recently been made to broaden the
language of rule i6 to include by specific mention a defendant's dis-
covery of his confession.13
Rule I7(c) provides for the traditional subpoena duces tecum. It
enhances the effectiveness of the subpoena, however, by allowing a
court to require that items be produced before trial. In Bowman Dairy
Co. v. United States,14 a case not involving a confession, the Supreme
6 See, e.g., State v. Haas, i88 Md. 63, 5i A.2d 647 (I947).
7 See, e.g., Application of Killion, 338 P.2d i68 (Okla. Crim. I959).
8 See, e.g., State v. Johnson, 28 N.J. I33, I45 A.2d 3I3 (I958), cert. denied, 368
U.S. 933 (I96I); Fletcher, Pre-Trial Discovery in State Crimincal Cases, I2 STAN. L.
REV. 293 (i960).
9 FED. R. CRIM. P. I5 provides for taking the deposition of a witness w
unable to attend trial, but depositions cannot be used for general discovery pur-
poses. See United States v. Grado, I54 F. Supp. 878 (W.D. Mo. I957).
10 See, e.g., United States v. Peltz, i8 F.R.D. 394 (S.D.N.Y. I954). See also
United States v. Fancher, I95 F. Supp. 448 (D. Conn. i96i).
" See, e.g., Shores v. United States, I74 F.2d 838, 843-44 (8th Cir. 1949). The
Notes of the Advisory Committee point out that it was doubtful whether dis-
covery was permissible under existing law at the time of the formulation of the
rules, but that there had been precedent for granting defendant the opportunity to
inspect impounded documents belonging to him. See, e.g., United States v. B. Goedde
& Co., 40 F. Supp. 523, 534 (E.D. Ill. I941). The rule was to be a "restatement"
of the Goedde procedure. The Notes did, however, add that "the entire matter
is left within the discretion of the court."
12 See United States v. Murray, 297 F.2d 812 (2d Cir. i962). Some courts have
attempted to distinguish between the oral answers of defendant and a written state-
ment on the ground that the latter may be said to "belong" to the defendant.
E.g., United States v. Singer, I9 F.R.D. go (S.D.N.Y. 1956). But see, e.g., United
States v. Peltz, i8 F.R.D. 394 (S.D.N.Y. I955). The courts seem often to over-
look the fact that rule i6 may be read in the alternative -that is, "obtained
from" or "belonging to" the defendant, rather than "obtained from" and "be-
longing to" the defendant.
13 Discovery in Federal Criminal Cases, 33 F.R.D. 47, II2 (I963).
14 34I U.S. 2I4 (I95I)-

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Court discussed the scope of rule I 7(c) and the relation of the rule to
rule I6. Mr. Justice Minton, writing for the Court, said: 15
It was not intended by Rule I6 to give a limited right of discovery, and
then by Rule I 7 to give a right of discovery in the broadest terms ....
Rule I7(c) was not intended to provide an additional means of dis-
covery. Its chief innovation was to expedite the trial by providing a
time and place before trial for the inspection of the subpoenaed materials.
But he also said: 16
There may be documents and other materials in the possession of the

Government not subject to Rule i6. No good reason appears to us why
they may not be reached by subpoena under Rule I 7(c) as long as they
are evidentiary. . .. [T]he plain words of the Rule are not to be
ignored. They must be given their ordinary meaning to carry out the
purpose of establishing a more liberal policy for the production, inspec-
tion, and use of materials at trial.
Some federal courts have argued that Bowman should be interpreted

to allow a defendant to inspect his confession under rule I 7 (C) .17 Others,
however, have asserted that to interpret rule I 7(c) in such a manner
would destroy any separate meaning for rule i6, and that the subpoena
should be granted before trial only when it would be ineffective if
granted at trial.18
Occasionally it has been said that, even without regard to the provi-
sions in rules i 6 and I7(c), the defendant's opportunity to have discov-
ery of his confession should be in the discretion of the trial court,
exercising its inherent power of administering the criminal law; 19 but
this theory has been put into practice in only a few jurisdictions and has
even in them been given limited application.20 The reluctance of the
federal courts to invoke such discretionary power seems due mainly to
an unfortunately narrow opinion that the federal rules embody an
affirmative "legislative policy" against granting discovery except as
provided in rules I6 and I7(C).21
15Id. at 220.
16 Id. at 2I9-20.
17 E.g., Fryer v. United States, 207 F.2d I34 (D.C. Cir.), cert. denied, 346 U.S.
885 (I953)-
18E.g., United States v. Murray, 297 F.2d 8I2 (2d Cir. i962).
"9E.g., Shores v. United States, i74 F.2d 838 (8th Cir. 1949). See also
United States v. Fancher, i95 F. Supp. 448 (D. Conn. i96i).
20 See, e.g., United States v. Murray, 297 F.2d 812 (2d Cir. i962) ; United States
v. Pete, iII F. Supp. 292 (D.D.C. I953).
21 See, e.g., United States v. Louie Gim Hall, i8 F.R.D. 384 (S.D.N.Y. I956),
rev'd on other grounds, 245 F.2d 338 (2d Cir. I957). But see Note, The Scope of
Criminal Discovery Against the Government, 67 HARV. L. REV. 492, 500 (I954).
Even in those federal and state jurisdictions that grant no formal right of dis-
covery, defense counsel may be able to obtain discovery of a confession by other
means. Thus it has been asserted that the preliminary hearing before the magistrate
is a valuable tool for discovery by the defendant. Discovery in Federal Criminal
Cases, supra note I3, at 70. But see Goldstein, The State and the Accused: Balance
of Advantage in Criminal Procedure, 69 YALE L.J. II49, II83 (I960). Also, prosecu-
tors often informally disclose confessions to defense lawyers before trial, especially
when the prosecutor is acquainted with defense counsel, the defendant is willing to
disclose his defenses, and the disclosure of the confession is likely to persuade
defense counsel to advise a plea of guilty. See Discovery in Federal Criminal
Cases, supra note 13, at ii6.

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Although the general arguments against criminal discovery 22

for example, that it gives the defendant an opportunity to intimidate
witnesses -may have great weight in some areas, it would seem that
only two contentions can appropriately be raised against discovery of
confessions. First, it has been asserted that such disclosure would
encourage perjury and manufactured evidence.23 Supporters of this
contention reason that without discovery the defendant will be deterred
from fabricating a defense by the fear that he will be contradicted by
details of his confession that he cannot remember. However, the ex-
perience in civil cases in which liberal discovery has been allowed despite
similar objections indicates that perjury has not been noticeably fos-
tered.24 The likelihood of perjury is minimized by the prosecution's use
of cross-examination and by its submission at trial of its own evidence
on disputed issues. Moreover, defense counsel has an obligation to pre-
vent perjury by the accused. Some increase in perjury may occur, but
since the defendant would see the contents of the confession at trial
in any event the opportunity for perjury would be increased only to
the extent that seeing the confession earlier enables the defendant to
prepare his story more thoroughly. Second, it has been argued that
since the self-incrimination privilege seriously impairs any attempts to
discover from the defendant, disclosure of his confession would enable
him to obtain knowledge of the state's line of attack, and thus make the
trial an unequal contest.25 However much force this argument has in
regard to criminal discovery in general, with respect to confessions it is
nonsense, for it ignores completely the "discovery" that the prosecution
has already in effect obtained from the defendant in eliciting the con-
fession.
Even if the dangers that perjury will be fostered and that the de-
fendant will be given an undue advantage over the prosecution are
considered substantial, they must be balanced against the defendant's
need for discovery of his confession. The adversary system of trial
assumes that a correct verdict is most likely to result when the adver-
saries have an equal opportunity to present their informed interpreta-
tions of all the facts. And in this light, the necessity of allowing liberal
discovery of confessions is apparent. Despite the fact that the con-
fession is defendant's statement, he will usually be very unlikely to
remember it in detail by the time he prepares for trial. Details are
particularly important in confessions; the forcefulness of the statement
may depend upon making clear exactly what facts the defendant ad-
mitted and the precise manner in which the facts were set out. Even
22 See generally Fletcher, supra note 8; Developments in the Law - Discovery

74 HARV. L. REV. 940, I053-59 (I96I).
23 See, e.g., State v. Tune, I3 N.J. 203, 98 A.2d 88i (i953).
24 Discovery in Federal Criminal Cases, supra note I3, at 62-63; Fletcher,
supra note 8, at 308-II. Arguably, defendants in criminal cases have more at stake
and therefore more reason to manufacture a false story.
25 State v. Tune, I3 N.J. 203, 98 A.2d 88I (I953). But see 63 COLUM.
L. REV. 36i (i963) (discussing cases indicating an increasing tendency to allow
formal discovery against the accused). For the possibility of conditioning dis-
covery by the defendant on his waiver of the self-incrimination privilege, see
Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 CALIF. L. REV. 56
(I96I).

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i966] DEVELOPMENTS - CONFESSIONS I05I
though most defendants would remember some particulars, the lack

of a legal education might lead them to give their counsel a dis-
torted impression of the nature and weight of their confession. Further-
more, defense counsel will often need a copy of the confession for many
purposes besides preparing an explanation of its contents. It may prove
valuable for obtaining leads and theories to develop in the defense.
It may reveal circumstances that indicate the possibility of a successful
claim of involuntariness.26 If so, it may also reveal what other evidence
is subject to exclusion at trial as a "fruit" of the confession.27 In many
cases defense counsel's principal duty is to advise his client whether to
plead guilty. Yet it may be impossible for counsel to make any intelli-
gent evaluation of the desirability of such a plea if he knows only what
his client has told him concerning a confession that is in the possession
of the police.
In some cases defense counsel might be able to secure a continuance
during the trial if a confession presented by the prosecution revealed
new leads to develop for the defense or an unexpected claim of in-
voluntariness. This possibility is not, however, a satisfactory substitute
for pretrial discovery. Since the jury would already be impaneled, the
trial judge would be reluctant to postpone the trial for the several days
or possibly weeks necessary to investigate adequately the new facts.
And it would be unrealistic to expect an appellate court to reverse upon
the failure to grant such a discretionary continuance, except in the most
extreme circumstances. Moreover, by the time the contents of a
confession, as brought out at trial, reveal the possibility of a claim of
involuntariness, the opportunity for a pretrial motion to suppress 28 or
to quash the indictment 29 would be lost; if the confession is never in-
troduced at trial by the prosecution, defense counsel would be unable to
ascertain what the "fruits" of the confession were. Finally, the availa-
bility of continuances is hardly a help when the decision to be made is
whether the existence of the confession makes a guilty plea advisable.
The defendant should therefore have a right to discovery of his
confession in all cases. Indeed, it may well be argued that this right is
constitutionally required. The Supreme Court has implied that to deny
a defendant pretrial discovery of his confession may in some circum-
stances be a deprivation of due process.30 In no case, however, has the
Court yet found prejudice from such a denial,31 and it has refused to
lay down a constitutional rule requiring pretrial discovery in all cases.32
The need for a per se rule nevertheless seems clear. Although it is
26See Stein v. New York, 346 U.S. 156, 167-68 (i153), in which the Cou
cited the detail of the confession and its general nature in justifying its conclusi
of voluntariness.
28 See pp. I052-55 infra.
30 See Cicenia v. Lagay, 357 U.S.. 504 (1958); Leland v. Oregon, 343 U.S. 790
(1952).
31 In Leland, the defendant had several days between the time when the
fession was put in evidence and the time when the defense began its case, and
confession revealed no unexpected developments. In Cicenia, the defendant
not attempt to show prejudice but argued for a per se rule.
32 See Application of Tune, 230 F.2d 883, 890-92 (3d Cir. 1956). But see
State v. Dorsey, 207 La. 928, 22 So. 2d 273 (040).

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extremely difficult to prove in any specific case that the defendant was
substantially prejudiced in not seeing his confession before trial, the
harm to him may still be very real. Moreover, even if the prejudice in
some cases is not large, in almost every case there will be some preju-
dice.33 Finally, granting the defendant the right to pretrial discovery
of his confession in all cases may be necessarily required by his right to
"effective" 34 assistance of counsel. A lawyer's advice to his client "may
well be stripped of its effectiveness" at many points in the criminal
proceeding both before and during trial if the contents of the confession
are known only to the prosecution.35
2. Motions To Suppress Illegally Obtained Confessions. - Ordinarily,
objections to the admissibility of evidence must be considered when
the evidence is tendered at trial, not before.36 Confessions have gen-
erally not been specially treated, and pretrial motions to suppress illegally
obtained confessions or admissions are not entertained in the great
majority of jurisdictions. In the federal courts, the Supreme Court
determined as early as I9I4 that the pretrial motion was a proper
procedure for objecting to the admission of illegally seized evidence,37
and petitions to suppress such evidence were soon granted as freely
before indictment as after.38 Rule 4I (e) of the Federal Rules of
Criminal Procedure, providing for pretrial suppression of evidence
obtained by illegal search and seizure, was intended to codify this prior
case law.39 In cases of confessions, however, pretrial motions to sup-
press were not entertained, on the ground that the appropriate place to
resolve factual disputes about voluntariness was at trial.40
In I947, in the landmark case of In re Fried,4' petitioners moved in
the federal district court before indictment proceedings to suppress con-
fessions elicited during lengthy prearraignment interrogations. On ap-
peal, the Second Circuit, in an opinion by Judge Frank, held that
"confessions shown to have resulted from constitutional violations" may
be suppressed by such a pretrial motion. All the judges agreed that the
inherent equity powers of the court were broad enough to give it au-
thority to entertain the motion; but they disagreed in regard to the
"Cf. Gideon v. Wainwright, 372 U.S. 335 (i963). Recognizing that in some
cases the absence of counsel for defendant might not be severely prejudicial, the
Court nevertheless established a per se rule.
3 See Powell v. Alabama, 287 U.S. 45 (1932).
35United States v. Fancher, 195 F. Supp. 448, 456 n.17 (D. Conn. i96i). See
also Everett, Discovery in Criminal Cases-In Search of a Standard, i964 Duke
L.J. 477, 507.
36 4 BARRON & HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE ? 2406 (195I) .
37 Weeks v. United States, 232 U.S. 383 (1914).
38 See, e.g., Go-Bart Importing Co. v. United States, 282 U.S. 344, 356 (93i).
See generally Note, Pre-Trial Suppression of Unlawfully Obtained Evidence: Toward
a Uniform Federal Criminal Procedure, 6o HARV. L. REv. 1145 (I947).
39 FEDERAL RULES OF CRIMINAL PROCEDURE: NOTES AND INSTITUTE PROCEEDINGS
70 (Holtzoff ed. I946).
40 United States v. Lydecker, 275 Fed. 976 (W.D.N.Y. I92I). But see, e.g.,
Ah Fook Chang v. United States, 9i F.2d 805 (gth Cir. 1937). It may be that at
common law, since the truth of the confession was relevant to its voluntariness,
the determination could be appropriately postponed until other evidence on guilt
was considered. Under the constitutional standard, however, the factual issues
would be wholly collateral to issues considered at trial.
41 i6i F.2d 453 (2d Cir.), cert. dismissed, 332 U.S. 807 (T947).

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types of cases in which pretrial suppression should be allowed as a

matter of policy. Judge Frank rejected the Government's contention
that sanctioning preindictment suppression of inadmissible confessions
would be an inappropriate extension of a rule designed to safeguard
the accused's "property rights" in unlawfully seized chattels, pointing
out that rule 4I (e) also expressly provided for suppression of contraband
in which the accused had no property rights and which would not be
returned to him. He further argued that preindictment motions should
be available as of right for all illegally obtained confessions - not only
for those obtained in violation of constitutional rights but also those got-
ten in contravention of the McNabb rule - in order to protect the de-
fendant from the potentially irreparable "stigma" caused by an indict-
ment. Judge Learned Hand, concurring, argued that in light of rule
4I (e) suppression should be allowed but confined to violations of consti-
tutional rights. For the third member of the court, Judge Augustus
Hand, the practical objections of delays and inconvenience to the prose-
cutor and court resulting from possible successive pretrial motions out-
weighed the value of the motion for the defendant. Furthermore, the
purpose behind rule 4I (e), he asserted, was merely to substitute a
summary remedy for the slow legal action of replevin, which traditionally
involved "property rights" to tangible objects.
The federal courts have split on whether to follow the Fried holding.42
Similarly, Judge Frank's view that the pretrial motion to suppress
should be available for confessions obtained through any type of ille-
gality has been followed in some federal courts 43 and rejected in
others.44 In those jurisdictions that have followed Fried, postindictment
as well as preindictment motions have been entertained.45
Before Fried, all state courts that had passed on the question were
unanimous in holding that a pretrial motion to suppress should not be
entertained.46 It was sometimes argued that until the confession was
offered as evidence at trial there was nothing for the court to consider.47
And the theory of Fried has been rejected by most state courts, usually
on the ground that in the absence of a statute or rule the court has no
power to entertain a pretrial motion to suppress.48 A few states have,
42 Compare Austin v. United States, 297 F.2d 356 (4th Cir. 196i) (following
Fried), with United States v. Marshall, 24 F.R.D. 505 (D.D.C. I960) (rejecting
Fried).
43E.g., United States v. Klapholz, 230 F.2d 494 (2d Cir. I955) (dictum), cert.
denied, 35I U.S. 924 (1956); United States v. Skeeters, I22 F. Supp. 52 (S.D. Cal.
I954).
" E.g., United States v. Tuzzo, 9 F.R.D. 466 (D.N.J. I949).
45E.g., United States v. Carabasi, 2i8 F. Supp. I47 (E.D. Pa. i963); United
States v. Lawn, II5 F. Supp. 674 (S.D.N.Y. 1953). Although the proceeding on a
motion to suppress before indictment has been characterized as independent and
civil in nature, see, e.g., Austin v. United States, 297 F.2d 356 (4th Cir. i96i), it
is in effect preliminary to the expected criminal prosecution. A ruling on the
motion is not separately appealable, and the Federal Rules of Civil Procedure do
not apply wholesale. DiBella v. United States, 369 U.S. I2I (i962).
46 See, e.g., Kokenes v. State, 2I3 Ind. 476, I3 N.E.2d 524 (1938).
47People v. Reed, 333 Ill. 397, i64 N.E. 847 (I928).
48See, e.g., State v. Cicenia, 6 N.J. 296, 78 A.2d 568 (i95I), aff'd, 357 U.S.
504 (1958). But see In the Matter of Miller, 22 Misc. 2d 486, I93 N.Y.S.2d 377
(Sup. Ct. I959).

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however, provided by statute that such motions should be entertained.49

The policy reasons for entertaining motions to suppress illegally
obtained confessions would seem very strong when the motion is made
before indictment. Since indictments are usually not subject to being
quashed merely because inadmissible evidence is submitted to the grand
jury,50 the preindictment motion to suppress may be the only means of
preventing a wrongful indictment. The stigma resulting from such a
public accusation of wrongdoing would seldom be erased by a subse-
quent acquittal, and even less by a failure to prosecute. By preventing
the wrongful indictment, the defendant could avoid needless damage to
his reputation, possible financial loss in his business, and the expense
and time involved in preparing a defense "on the merits." He would
also avoid being wrongfully placed in "jeopardy" of conviction. Of
course, allowing such motions would create some burdens for the
criminal process. Witnesses who are to testify at trial would have to be
summoned for the hearing on the motion.51 And it has been asserted
that permitting such piecemeal litigation would allow defense counsel to
interrupt the prosecutor's work on other cases at will.52 Finally, some
persons against whom an indictment would never be sought or whose
confessions would not be used if they were indicted might make such
motions, but at such an early stage that the state might not be sure
whether it would intend to prosecute or to rely on the confession and
might, therefore, unnecessarily contest the motion. Nonetheless, at the
preindictment stage, these arguments would not seem sufficiently telling
to outweigh the clear policies in favor of permitting a motion to suppress.
Once an indictment has been handed down, it would seem that
whether to entertain a pretrial motion to suppress should be in the
discretion of the trial court. Although the benefits to the accused of
preventing the stigma of indictment are no longer compelling, most of
the administrative inconveniences to the state would also tend to dis-
appear as the motion is made closer to the time of trial. Use of the pre-
trial motion to dispose of the issue of the confession's admissibility
would prevent interruption of the trial and the attendant expense
and distraction of keeping the jury waiting.53 Furthermore, it would
determine for both prosecution and defense that certain evidence would
be forbidden at trial, enabling them better to plan their cases.
If a pretrial motion to suppress is entertained, the defendant should
49E.g., ILL. REV. STAT. ch. 38, ? iI4-II (i965); N.Y. CODE CRIM. PROC. ?
8I3-f. Even if the statutes provide for pretrial suppression only of evidence ob-
tained by an illegal search and seizure, the defendant may be able to argue that a
confession obtained during an illegal search or seizure should be suppressed. See,
e.g., United States v. Conway, 2I7 F. Supp. 853 (D. Mass. i962); People v.
Rodriguez, ii N.Y.2d 279, i83 N.E.2d 65I, 229 N.Y.S.2d 353 (i962).
50 See pp. I055-57 infr-a.
5' However, since these witnesses would usually be the policemen who took
part in the interrogation in the area where the case is to be brought to trial, this
burden would often be slight.
52 In re Fried, i6i F.2d 453, 466 (2d !Cir.) (A. Hand, J., dissenting), cert.
dismissed, 332 U.S. 807 (i947).
53 There seems to be an increasing tendency in other areas of the law to dispose
of matters collateral to the principal trial issue by pretrial motions. See, e.g.,
Sacramento & San Joaquin Drainage Dist. v. Reed, 2I5 Cal. App. 2d 60, 29 Cal.
Rptr. 847, modified, 2I7 Cal. App. 2d 6II, 31 Cal. Rptr. 754 (Dist. Ct. App. I963).

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be allowed to raise all objections to the confession. Voluntariness and

Escobedo issues are both of constitutional magnitude and would often
involve the same or similar factual questions. Judge Learned Hand's
attempt to distinguish McNabb issues in the federal courts would lead
to much repetitive litigation, since evidence on McNabb issues is often
intermingled with evidence on voluntariness issues.54 And since sup-
pression of a confession on any ground may leave the state unable to
prosecute further its case against the accused, the policy reasons favor-
ing pretrial suppression of involuntary confessions apply in large part
to confessions that are inadmissible for any other reason.
3. Illegally Obtained Confessions as Grounds for Quashing the Grand
Jury Indictment.-The reluctance by the courts to look at the evi-
dence behind an indictment is grounded in the history of the grand
jury as an institution of criminal procedure. The basic purpose of the
English grand jury was to provide a fair method of instituting criminal
proceedings against persons believed to have committed crimes. From
the beginning, the presentments that the grand jury made amounted
only to an assertion that the person accused was suspected, not that
he was guilty. After the distinctions between the grand and petit
juries evolved, the grand jury procedure was retained to protect
the defendant from being subjected to the burdens of trial at the arbi-
trary whim of the prosecutor. The grand jurors acted in secret and
were pledged to indict no one because of special prejudice. They were
laymen and were not to be hampered in their work by rigid procedural
or evidentiary rules. In fact, they could act on their own knowledge
and were free to make their presentments on such information as they
deemed satisfactory.55
In the United States, as in England, the procedural safeguards
guaranteed to the defendant at trial have generally not been applicable
to the grand jury hearing. In this country, too, the essential task of the
grand jury is to determine whether the evidence before it establishes
"probable guilt." 56 If the accused wishes to challenge the grand jury's
conclusion on the evidence, the appropriate procedure is either to bring
a motion to quash the indictment before trial, or to raise the issue at
trial or, if he is convicted, on appeal.
The federal courts have traditionally refused to entertain objections
to an indictment on the ground that evidence inadmissible at trial was
considered by the grand jury.57 In United States v. Holt,58 a coerced
statement, inadmissible under the federal exclusionary rule,59 had been
virtually the only evidence submitted to the grand jury that had
indicted the defendant. Mr. Justice Holmes, for the Court, refused to
quash the indictment, stating that the "abuses of criminal practice
54 See McNabb v. United States, 3I8 U.S. 332 (I943).

55 See generally Morse, A Survey of the Grand Jury System, IO ORE. L. REV. IO
('93').
56 See ALI CODE OF CRIMINAL PROCEDURE 5I0-II (I93I).
57 The federal grand jury was customarily charged that it was to consider
only "legal" evidence. See, e.g., Mr. Justice Field's Charge to the Grand Jury, 30
Fed. Cas. 992, 993 (No. I8,255) (C.C.D. Cal. I872).
58 2I8 U.S. 245 (19IO).
59See Bram v. United States, i68 U.S. 532 (i897); pP. 959-6i supra.

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would be much enhanced" if indictments could be challenged on the

ground that the grand jury had considered evidence that would be
inadmissible at trial. In I956, the Supreme Court cited Holt with
approval in United States v. Costello.60 The defendant had argued that
his fifth amendment right not to be tried unless indicted by a grand
jury had been violated because his indictment was based solely on
inadmissible hearsay testimony. The Court answered: 61
If indictments were to be held open to challenge on the ground that

there was inadequate or incompetent evidence before the grand jury,
the resulting delay would be great indeed. The result of such a rule
would be that before trial on the merits a defendant could always insist
on a kind of preliminary trial to determine the competency and adequacy
of the evidence before the grand jury.
The Court concluded that, since the indictment was returned by a

legally constituted and unbiased grand jury and was valid on its face,
the fifth amendment right to indictment had been satisfied. The de-
fendant had offered a further argument that the Court should lay down
a rule for the guidance of the federal courts requiring that an indictment
such as his be quashed, to which the Court responded that neither jus-
tice nor the concepts of a fair trial required a rule that "would run
counter to the whole history of the grand jury institution, in which lay-
men conduct their inquiries unfettered by technical rules." 62
The states have had diverse reactions to the question whether a
motion to quash on the ground that inadmissible evidence was con-
sidered by the grand jury should be entertained.63 Although almost all
states require that the evidence presented to the grand jury be "none
but legal evidence," 64 the defendant often does not have a remedy if
the prosecution submits a confession that would be inadmissible at trial.
Many states will not review either the admissibility or the sufficiency
of evidence submitted to the grand jury.65 The provision requiring
"legal evidence" is considered merely hortatory in these states, and not
a ground for quashing an indictment; 66 the arguments in Costello
extolling the virtues of an unfettered grand jury and a speedy trial are
adopted.67 In many other states an indictment will be quashed if the
only - or virtually the only - evidence presented to the grand jury
would be inadmissible at trial.68 But even in these jurisdictions it is
unusual for an indictment to be upset on this ground. Since the accused
is not permitted to introduce his own evidence at the grand jury pro-
60350 U.S. 359 (1956).

61 Id. at 363.
621Id. at 364; cf. Lawn v. United States, 355 U.S. 339 (1958).
63 Although a grand jury hearing is not required by the due process clause of
the fourteenth amendment, Hurtado v. California, IIO U.S. 5i6 (i884), Hudgens
v. Clark, 2i8 F. Supp. 95 (D. Ore. i963), all states use the grand jury in at least
some types of cases. See Moley, The Initiation of Criminal Prosecutions by Indict-
ment or Information, 29 MICH. L. REV. 403 (1931).
64 See ALI CODE OF CRIMINAL PROCEDURE 503-05 (93I).
65 E.g., State v. Foell, 37 Idaho 72 2, 2I7 Pac. 6o8 (I923).
66 E.g., Murphy v. State, I7i Ark. 620, 286 S.W. 87I (I926).
67 E.g., People v. Jones, I9 Ill. 2d 37, i66 N.E.2d I (i960).
68E.g., People v. Colletti, 42 Misc. 2d I58, 247 N.Y.S.2d 704 (Sup. Ct. i964)
ALI CODE OF CRIMINAL PROCEDURE 505-09 (1931).

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ceedings, and is not allowed to cross-examine witnesses, the record

rarely shows that a confession was unconstitutionally or illegally ob-
tained. On the motion to quash, the defendant may submit evidence
regarding circumstances not in the record, but if there are factual
disputes, the motion to quash will be denied and the defendant must
wait to raise his objections to the confession's admissibility until the trial
on the merits.69 Moreover, the evidence presented to the grand jury
will be "presumed" to be competent, and the burden of proving inad-
missibility is on the defendant.70 Finally, if the indictment can be
supported on independent grounds, it will not be overturned.71
It might be argued that an indictment based solely on an unconstitu-
tionally obtained confession should be overturned, on the ground that
the due process requirement of "fundamental fairness" in criminal pro-
ceedings requires the application of exclusionary rules to the grand
jury hearing. To impose on an accused the stigma and expense of an
indictment may itself be sufficiently unfair if done without such safe-
guards.72 Since the defendant could be reindicted if the original indict-
ment were quashed, there would be little danger of criminals escaping
justice.
Nevertheless, as the Supreme Court pointed out in Costello, the entire
history of the grand jury argues against such a constitutional holding.
Secrecy and freedom from technical rules are thought to operate as
much to the advantage of innocent defendants as to that of prosecutors.
Furthermore, promptness in the dispatch of criminal business should
weigh heavily when delay would add little to the assurance of a fair
trial. Indeed, when the defendant seeks to attack the validity of an
indictment on appeal, after he has been found guilty beyond a reason-
able doubt on the basis of competent evidence, to reverse the conviction
merely because of defects in the indictment would seem clearly in-
appropriate.73
If it were determined that the defendant should have a right,
whether or not constitutional, not to be indicted on the basis of an
illegally obtained confession, it would seem that the preindictment
motion to suppress would be a more appropriate remedy than the post-
indictment motion to quash. The motion to suppress would avoid the
problem of trying to apply the technical rules of evidence to the grand
jury hearing. Furthermore, the defendant would be protected from
stigma before the wrongfully obtained indictment was handed down,
not after, when the remedy would scarcely be effective.
69E.g., State v. Klinehoffer, 53 Del. 550, 173 A.2d 478 (I96I).

"0E.g., People v. Prewitt, 52 Cal. 2d 330, 34I P.2d I(i959).
" E.g., Aaron v. State, 27i Ala. 70, I22 So. 2d 360 (ig60). The states that
allow the possibility of quashing because the grand jury considered inadmissible
evidence seem to vary on how much other evidence is necessary in order to
sustain the indictment. Compare People v. Prewitt, 52 Cal. 2d 330, 34I P.2d I
(i959), with People v. Edwards, 42 Misc. 2d 930, 249 N.Y.S.2d 325 (Orleans
County Ct. i964). This question may be considered in connection with the rule of
automatic reversal when involuntary confessions are admitted at trial. See p. 1036
supra.
72 In the Matter of Miller, 22 Misc. 2d 486, I93 N.Y.S.2d 377 (Sup. Ct. i959).
73 But cf. Pierre v. Louisiana, 306 U.S. 354 (i939) (conviction reversed be-
cause Negroes excluded from grand jury).

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B. Procedure in the Trial Court

i. Preliminary Hearing on Voluntariness. - (a) Traditional Proce-
dures. - Changes in standards of voluntariness have not left unaffected
the procedures by which the determination of voluntariness is made in
the trial court. When a confession is offered as evidence and the de-
fendant objects on the ground that it was not voluntarily given, there
have traditionally been three procedures used in different jurisdictions
to resolve the issue. Under the "orthodox" or Wigmore rule, the trial
judge heard all the evidence on voluntariness in a separate and pre-
liminary hearing before ruling on the admissibility of the confession.'
If, after resolving to his satisfaction all factual disputes in the evidence,
he found the confession involuntary, he excluded it, and the trial pro-
ceeded. If he found it voluntary, it was admitted in evidence, and the
jury was not invited to deliberate on its admissibility. Admissibility
was a question solely for the judge, "on elementary principles defining
the functions of judge and jury." 2 However, as with any evidence,
the jury was entitled to consider the weight and credibility of the con-
fession and could therefore hear evidence on the circumstances sur-
rounding its making.
Under the "New York" rule, too, the trial judge held a preliminary
hearing. However, the judge was to exclude the confession as involun-
tary only if he found it was not possible that "reasonable men could
differ over the [factual] inferences to be drawn" from the evidence.3
If he found otherwise, he would admit the confession conditionally and
instruct the jury to determine whether the confession was voluntary.4
In theory the jury would either (a) find the confession involuntary -
hence inadmissible - and disregard it, or (b) find the confession volun-
tary and admissible, and proceed to consider its weight and credibility
in its deliberations regarding the defendant's guilt. Thus the rule
focused on the function of the jury, placing much faith in the ability
of that body to resolve questions of fact accurately and to disregard a
confession if it found the statement involuntary.
The Massachusetts or "humane" rule was a combination of both the
orthodox and New York rules. The judge would hear the voluntariness
evidence in a preliminary hearing and, as under the orthodox rule,
would himself resolve factual disputes and make an affirmative deter-
mination on the issue. Confessions he found involuntary he rejected;
those he found voluntary he admitted. Upon admitting a confession,
however, the judge instructed the jury to make its own independent
determination of admissibility. Jurors were to disregard the confession
as would a New York jury if they found it involuntary, or they were
'See cases collected in the appendix to the opinion of Mr. justice Black in
Jackson v. Denno, 378 U.S. 368, 4Io (i964) [hereinafter cited as Black appendix].
23 WIGMORE, EViDENCE ? 86i, at 345 (3d ed. I940).
3 See Black appendix. It is not entirely clear from the New York rule cases
whether the judge was to submit a close question of voluntariness to the jury even
when the facts in a given case were undisputed. Compare People v. Doran, 246
N.Y. 409, I59 N.E. 379 (I927), with State v. Brown, 2I2 S.C. 237, 47 S.E.2d 52I
(I948). But it would seem that the task of applying law to facts should have been
that of the judge.
4 See Stein v. New York, 346 U.S. I56 (I953).

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to consider it according to its weight and credibility if they found it

voluntary.5
The state and federal courts were fairly evenly divided in their
choice among these rules.6 But in practice the formal distinctions
among the positions were often blurred. For example, several courts
ostensibly applying the orthodox rule seemed to ask the jury to pass on
a confession's admissibility as well as its credibility, as they would under
the Massachusetts rule.7 Other courts asserted the necessity of a
judicial determination of a confession's admissibility before the jury's
determination of that issue, without distinguishing between the New
York and Massachusetts standards for that determination.8 A certain
amount of blurring seems to have been an inevitable result of the fact
that the common law test of voluntariness tended to equate admissibility
with credibility.9 Only as the constitutional standard evolved and re-
liability became irrelevant 10 would the jury be resolving wholly dif-
ferent kinds of issues in determining admissibility from those relevant
to credibility.
In Stein v. New York,1 the Supreme Court dealt for the first time
with the constitutional validity of one of these procedures. It was
claimed that the New York rule violated the due process clause of the
fourteenth amendment, because the jury might commingle the issues
of voluntariness and guilt, making an impartial determination of each
impossible. The Court affirmed the conviction, holding that if the jury
had found the confession voluntary and considered it in regard to guilt,
the evidence was sufficient to sustain such a finding; and alternatively
that if the jury had found the confession involuntary and therefore
rejected it, the other evidence on guilt was sufficient to convict. Auto-
matic reversal, the Court said, would not be necessary because the in-
admissible confession was admitted only tentatively and was to be re-
jected if found involuntary. The possibility of disregard of instructions
and the uncertainty of exactly what the jury had found were said to be
inherent in jury trial of any two or more issues.
(b) The Rule of Jackson v. Denno. - In Jackson v. Denno,12 the
Stein decision was overruled and the New York procedure struck down
as a violation of due process. Jackson, convicted in New York for first
degree murder, had petitioned for and been denied habeas corpus in a
federal district court. On certiorari, the Court reversed, holding that
See Black appendix.

6Ibid. Some jurisdictions observed no consistent rule, but permitted the trial
court to choose in each case which procedure it preferred. See Meltzer, Involuntary
Confessions: The Allocation of Responsibility Between Judge and Jury, 2I U. CHI.
L. REV. 3I7, 323-24 (I954).
The orthodox rule is followed in Scotland and Canada, see pp. iioi, II05
infra, while England has adopted the equivalent of the Massachusetts rule. See
pp. I095-96 infra. The law in India is unclear because juries are seldom used,
but a rule similar to that of New York has been explicitly rejected. See pp. IIIo-
ii infra.
7 See, e.g., Wood v. State, 72 Okla. Crim. 364, ii6 P.2d 728 (I94i).
8 E.g., State v. Schabert, 2i8 Minn. I, I5 N.W.2d 585 (I944).
0 See Rogers v. Richmond, 365 U.S. 534 (i96i), discussed pp. 968-69 supra.
346 U.S. I56 (I953).
12378 U.S. 368 (i964) .

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io6o HARVARD LAW REVIEW [Vol. 79:938
the New York procedure did not ensure a "reliable determination on

the issue of voluntariness" and therefore did not sufficiently guarantee
that convictions would not be grounded on involuntary confessions.
For the voluntariness determination to be adequate, the majority indi-
cated, it was necessary that it be full, independent, and "clear-cut."
Under the New York rule, it was impossible to tell from the general
verdict of guilty what inferences and conclusions the jury had reached
about the evidence on voluntariness. The Court's ability to make its
own "independent examination" of the issue on appeal was thus severely
hindered.'3 Furthermore, there was the possibility under the New
York rule that the jury never even focused on the voluntariness issue
at all, but merely surveyed the evidence on guilt in a general fashion.
The Court rejected as "unsound" the assumption of Stein that the
jury would reliably arrive at its finding on voluntariness in accordan
with proper constitutional standards. Since the jury would not be
making its decision on voluntariness until all the evidence on defend-
ant's guilt had been presented, jurors would "inevitably" inject con-
siderations of a confession's truthfulness into the assessment of volun-
tariness, despite the ban on such considerations as irrelevant and im-
permissible.'4 Furthermore, because jury members would be likely to
have difficulty in understanding the sophisticated policy reasons pro-
hibiting reliance on a coerced but true confession, there would be a
"natural and potent pressure" on them to find the confession voluntary
in order not to free a guilty man. Of course, implicit in the Court's
reasoning is the assumption that a trial judge, aware of the "complex
of values" behind the exclusionary rule and trained to disregard im-
permissible considerations, would be better able than a jury to free him-
self from prejudices, pressures, and irrelevancies, and to arrive at a
reliable determination on the issue of voluntariness. The Court in
Jackson also found unsound the alternative assumption of Stein, that
if the jurors found the confession involuntary, they disregarded it and
convicted the defendant only on the basis of the other evidence in the
case. Because under the New York rule the jurors would hear and
study the confession in order to determine its voluntariness, and
because a confession is almost always a very dramatic item of evidence,
the Court concluded that it would be too "solidly implanted" for the
jurors to erase it from their minds.
The Court indicated in a dictum that the Massachusetts rule was not
subject to the same infirmities as the New York procedure. The jury
would hear only those confessions that the judge had already inde-
pendently determined to be voluntary "without regard to the fact
the issue may again be raised before the jury if decided against the
defendant." 15 That determination, said the majority, adequately pro-
tected the defendant's rights. The Court apparently believed that send-
13 See note 99, p. 965 supra.

14 Jackson indicates that the Stein Court may not have had established in
its mind the impermissibility of allowing considerations of truthfulness to affect
the voluntariness issues, which was emphasized subsequent to Stein in Rogers v.
Richmond, 365 U.S. 534 (I96I).
15 378 U.S. at 378 n.8.

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1966] DEVELOPMENTS - CONFESSIONS Io6I
ing the voluntariness issue to the jury was only an extra measure of
protection for the defendant.
The dissenters 16 objected that the majority opinion, by showing
distrust of the jury in this one area, undermined the traditional faith
in jurors' competence that underlies the whole system of trial by jury.
There were many other cases, they argued, in which juries were given
similarly "sensitive" and complex tasks. The majority's approval of the
Massachusetts rule indicated to the dissenters that the Court's decision
was impractical and unrealistic, for they thought the differences between
the Massachusetts and New York rules theoretical, formal, and often
slight in practice. The Massachusetts rule, it was asserted, might con-
tain the same serious defects because the judge, knowing that the jury
would pass on the issue again, would be encouraged to resolve doubts
in favor of admissibility.17 The dissenters concluded that even though
there might have been a certain "unfairness" in the New York rule,
the degree of unfairness was not of such magnitude as to require strik-
ing down the rule under the due process clause.
The majority opinion seems more persuasive than the dissent. Jackson
was not a sudden "downgrading" of the system of trial by jury merely
because the Court thought the New York rule "unfair." Even at
common law confessions obtained under allegedly "coercive" conditions
were treated specially because it was considered probable that they
would prove untrustworthy: voluntariness under the common law
standard was thus a question of admissibility to be ruled on by the trial
judge.18 The constitutional rule that a conviction must be reversed
when an involuntary confession is erroneously admitted, regardless of
the strength of the other evidence of guilt,19 demonstrates the peculiar
significance of the confession in a criminal trial. Although Jackson
effects large changes in state trial procedure, it is essentially consistent
with such strict enforcement of the exclusionary rule.20 The Court's
holding merely precludes the possibility of that rule being undermined
16 Black, Clark, Harlan, and Stewart, JJ.

17 Among those states previously following the New York rule that have passed
on the issue since Jackson, several have chosen the orthodox rule because it seemed
freer of such problems than the rule of Massachusetts. See, e.g., People v. Walker,
374 Mich. 33I, I32 N.W.2d 87 (i965); State v. Burke, 27 Wis. 2d 244, I33
N.W.2d 753 (i965). On the other hand, Mr. Justice Black, although recognizing
the defects of the Massachusetts rule, preferred it because it seemed to comport
better with the concept of trial by jury. Since Jackson, several states abandoning
the New York rule have chosen the Massachusetts procedure on this ground. See,
e.g., People v. Huntley, I5 N.Y.2d 72, 204 N.E.2d I79, 255 N.Y.S.2d 838 (i965).
19 See p. I036 supra.
20 Compare MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN
SYSTEM OF LITIGATION I04-05 (1956):
The rule excluding a coerced confession is more than a rule excluding hearsay.
Whatever may be said about the orthodox reasoning that its exclusion is on the
ground of its probable falsity, the fact is that the considerations which call
for the exclusion of a coerced confession are those which call for the protec-
tion of every citizen, whether he be in fact guilty or not guilty. And the rule
of exclusion ought not to be emasculated by admitting the evidence and giving
to the jury an instruction which, as every judge and lawyer knows, cannot
be obeyed.
Quoted in Jackson, 378 U.S. at 382 n.io.

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by trial court procedures developed in the era of a now obsolete common

law standard.
Jackson will undoubtedly bring about other long-needed reforms.
For example, although the Supreme Court has long been wont to make
an "independent examination" of the voluntariness issue,21 state
courts have frequently accepted the jury's resolution on voluntari-
ness as a "question of fact" and subjected it to little scrutiny.22
But if after Jackson the trial judge must make an independent pre-
liminary ruling on the issue and lay bare the factual findings and legal
premises behind his conclusion, state appellate courts will be en-
couraged to review independently the voluntariness issue themselves.
Furthermore, it is plain that the instructions under which many state
juries have in the past decided the issue of voluntariness were inadequate
to convey the complex of considerations that the Court has incorporated
in the present constitutional standard.23 Such instructions had been
criticized before Jackson as depriving the defendant of even the theoret-
ical possibility of an informed adjudication of the constitutional issue
at the trial level.24 Rather than inaugurating a long new course of
decisions defining proper jury instructions under the New York rule,
the Court in Jackson simply minimized the importance of such instruc-
tions. Finally, since the standards for the voluntariness test have
evolved from rules that laymen could apply in more or less mechanical
fashion to rules requiring sophisticated and educated judgment, clearly
placing on the judge the responsibility for the delicate application of
law to facts should result in a more accurate evaluation of voluntariness
questions.25
Jackson probably precludes use of the New York procedure not only
for confessions but also for statements admitting less than full guilt.26
The Supreme Court has applied the constitutional voluntariness require-
ment to admissions,27 and that requirement should not be subject to
undermining through the deficiencies of the New York rule. Under that
rule the dangers that a jury would have difficulty in reaching an
undistorted finding of facts on the issue of voluntariness and that in
any case it would be unable to disregard a statement it found to be
21 See note 99, p. 965 supra.

22 See, e.g., Bryant v. State, i9i Ga. 686, I3 S.E.2d 820 (I94I).
23 For example, the trial court in Jackson gave instructions that the confession
could be admitted if the jury determined as a "question of fact" that the con-
fession was "voluntary" rather than "gotten by influence, of fear produced by
threats." 378 U.S. at 375 n.5.
24 See, e.g., Meltzer, supra note 6, at 328-29.
25 The procedures for adjudicating other constitutional objections to the admis-
sibility of a confession - that it was obtained in violation of the right to counsel,
or that it is a "fruit" of other illegality, such as an unreasonable search and
seizure - are probably governed by Jackson, since many of the dangers that are
present in a voluntariness context are also important in these cases.
Prior to Jackson, the Court had already ruled that in the federal courts alleged
McNabb violations were to be decided by the trial judge in a preliminary hearing
in accordance with the procedures of the orthodox rule. McNabb v. United States,
3I8 U.S. 332 0943). The Court also ruled that the hearing was to be held without
the presence of the jury. United States v. Carignan, 342 U.S. 36 (I95I).
26 See Owen v. Arizona, 378 U.S. 574 (i964) (by implication), reversing mem.
State v. Owen, 96 Ariz. 274, 394 P.2d 206 (i964).

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i966] DEVELOPMENTS - CONFESSIONS I o63
involuntary would seem to be no less great in the case of an admission

or exculpatory statement than in that of a confession.
(c) The Effect of Jackson v. Denno. - (i) Cases Decided Before
Jackson. - Generally decisions of the United States Supreme Court
elaborating standards of due process for state criminal procedure have
been applied retroactively,28 and it would be natural to expect Jackson
to have the same effect. In Linkletter v. Walker 29 and Tehan v. United
States ex rel. Shott,30 however, the Court asserted power to apply its
decisions prospectively only, holding that the principles enunciated in
Mapp v. Ohio 31 and Griffin v. California32 do not require reversal of
any cases finally decided before the decisions in those cases. It would be
difficult for the Court to come to a similar conclusion in regard to
Jackson: that case, unlike Mapp and Griffin, was decided upon collateral
attack of a conviction that had become final, yet the Court did not
draw any distinction between Jackson and its disposition in several
other cases on the same issue decided the same day, but which arose on
direct review.33 Moreover, the Court has subsequently given some indi-
cation that it considers Jackson fully retroactive.34
Nevertheless, certain points that the rule of Jackson shares with the
doctrines of Mapp and Griffin may suggest that Jackson might logically
be applied prospectively only. First, the disruption that a retroactive
application of Jackson would bring to the administration of state
criminal law is clear. At the very least, every state that had followed
the New York rule would have to afford a new hearing on voluntariness
to every defendant convicted on evidence that included an allegedly in-
voluntary confession. And it could scarcely be argued that the states
following the rule were unjustified in doing so, since Stein had been
decided barely seven years before the Jackson trial.35 Second, in Tehan
the Court apparently assumed that the possibility that innocent men had
been convicted because of comment on their failure to testify was not
constitutionally significant. It argued that "the basic purposes that lie
behind the privilege against self-incrimination do not relate to protect-
ing the innocent from conviction, but rather to preserving the integrity
of a judicial system in which even the guilty are not be convicted unless
28 See HART & SACKS, THE LEGAL PROCESS 630 (tent. ed. I958).
29 38I U.S. 6i8 (I965). See generally Mishkin, Foreword: The High Court,
The Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56
(I965).
3086 Sup. Ct. 459 (I966).
31367 U.S. 643 (I96I).
32 380 U.S. 609 (I965).
33 E.g., Senk v. Pennsylvania, 378 U.S. 562 (I965).
34 See Tehan v. United States ex rel. Shott, 86 Sup. Ct. 459, 465 (I966) (dictum)
Linkletter v. Walker, 38I U.S. 6i8, 629 n.I3 (I965) (dictum).
In order for the Court to find that Jackson should be applied prospectively only,
it would have to declare that the grant of a new trial to Jackson and the other
defendants whose convictions were reversed on collateral attack at the same time
was not fully considered and did not violate the equal protection of other persons
whose convictions had become final by the date of the Jackson decision.
35 Spano v. New York, 360 U.S. 3I5 (I959), was decided less than two years
before Jackson's trial. The New York procedure had been used at Spano's trial,
but its constitutionality was not challenged before the Court. See 378 U.S. at
428 n.2 (Harlan, J., dissenting).

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io64 HARVARD LAW REVIEW [Vol. 79:938
the prosecution 'shoulders the entire load.' '36 It may similarly be

argued that the Court's standards for determining whether a confession
must be excluded as involuntary are no longer based on the inherent
untrustworthiness of a coerced confession, but rather on forcing the
police to respect the defendant's "collateral" fifth amendment rights.
The exclusionary rule, like the Mapp rule, has now been extended to
apply to trustworthy evidence, and does not only ensure the reliability
of the guilt-determining process. Once the specter of innocent defendants
convicted by unfair trial procedures is ruled out, there would seem to
be no more reason for retroactive application in Jackson than in Mapp
or Griffin.
On the other hand, it is not entirely clear that Jackson will be seen as
analogous to Mapp and Griffin. Although the present constitutional
standard denies that a confession's truthfulness is relevant to its volun-
tariness, it does not reject the common law understanding that many
confessions given "involuntarily" may be inherently untrustworthy. It
is true that some involuntary confessions erroneously considered by the
jury under the New York rule might have been reliable, and the error in
these cases might therefore be thought harmless in the Mapp sense. But
it is likely that in other cases the confession considered was actually un-
trustworthy. The jury may not have considered the issue of voluntari-
ness or credibility directly, but rather accepted the confession at face
value. Or it may have made an erroneous finding that the confession
was voluntary and therefore considered it, even though it was in fact
obtained by means so coercive as to indicate it might have been un-
trustworthy. Since in such cases the fundamental fairness and reliability
of the trial verdict would be seriously impaired, retroactive application
would be a necessity. Theoretically, it might be possible in cases arising
before Jackson to distinguish between the constitutionally involuntary
confessions that were trustworthy and those that were not, and to refuse
the benefit of a retroactive application of Jackson to those defendants
whose confessions were probably trustworthy; but it seems quite un-
likely that the Court would be interested in engaging in such a novel
and complicated task. For reasons of administrative convenience there-
fore, if for nothing else, Jackson will probably be held to apply retro-
actively to all defendants convicted under the New York rule.37
If Jackson is held retroactive, the extent and type of hearing afforded
defendants convicted under the New York procedure should accord
with the Court's instructions on remand in Jackson.38 There were con-
36 86 Sup. Ct. at 464-65.
37 See People v. Huntley, I5 N.Y.2d 72, 204 N.E.2d I79, 255 N.Y.S.2d 838
(i965) (holding Jackson retroactive). For a decision arguing that Jackson should
be prospective only, see People v. Hovnanian, 22 App. Div. 2d 686, 253 N.Y.S.2d
24I (i964).
38 Of course, it is not necessary for the state to give the defendant a new hear-
ing on voluntariness if the original trial provided an independent resolution of that
issue by the trial court before submission of the confession to the jury. Even in
jurisdictions that generally followed the New York rule, it may have been in the
trial judge's discretion to follow the orthodox or Massachusetts rules; see, e.g.,
Smith v. Texas, 236 F. Supp. 857 (S.D. Tex. i965). Or special circumstances may
indicate that in a particular case the trial judge made an independent resolution
of the voluntariness issue -for example, his remark that since there was no

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i966] DEVELOPMENTS - CONFESSIONS Io65
flicts in the evidence on voluntariness in the case, and since it was im-
possible to determine from the record whether the conflicts had been
reliably resolved, Jackson was held entitled to a full evidentiary hear-
ing before a judge in order to determine the circumstances in which the
confession was given. It did not follow, however, that he was auto-
matically entitled to a complete new trial. He had already been tried
by a jury that had considered the confession and found him guilty. A
hearing on voluntariness would determine whether the jury could
properly have relied on the confession, and, if it could have, the Jackson
majority believed there would be no constitutional prejudice in not
granting a full new trial.39 Of course, if it turned out that the con-
fession was inadmissible, a full new trial without the confession would
be necessary.40
The Court did not specify what procedures should be followed at a
voluntariness hearing for Jackson and other defendants convicted prior
to the decision, but certain procedures would seem implicit in the de-
cision. First, since under the New York rule the trial judge admitted
the confession when there was a conflict in the evidence, usually based
on questions of credibility, the principal task for a judge at a new hear-
ing on voluntariness would be to resolve such conflicts. Surely it
would be a sterile process to attempt to do so merely by reading the old
trial record. Fresh evidence and testimony should therefore be allowed
at the new hearing. The trial record should be available for the sake of
convenience - for example, to refer to issues of undisputed fact or the
testimony of a witness who is no longer available -but it should be
used only as a supplement. Second, it may be argued that even though
fresh evidence reflecting demeanor and credibility would be appropriate,
no new evidence should be permitted, on the theory that the parties have
had their day in court and that the ideal would be to recreate the situ-
ation at the original trial. But this argument would seem formalistic.
Not only would it be administratively impossible to determine precisely
the overlap between old and new evidence when the original witnesses
testify again; but since the defendant would be allowed to present
certain kinds of new evidence on federal habeas corpus,4' it would be
pointless to exclude the same kind of evidence from the state hearing.
Moreover, even though the defendant has already had an opportunity
evidence in regard to involuntariness, the defendant's statement could be properly

introduced. See, e.g., Mitchell v. Stephens, 232 F. Supp. 497 (E.D. Ark. I964).
3 Mr. Justice Black, dissenting, argued that the Court's procedure would lead
to "piecemeal prosecution" in violation of the spirit, if not the letter, of the double
jeopardy clause. But a more tenable objection would seem to be that the judge at
the hearing on voluntariness, knowing that his ruling that the confession was in-
voluntary would require a new trial, might be under some subtle pressure to rule
in favor of admissibility and end the matter.
40 The Court indicated that the further proceedings to which Jackson was en-
titled should be held in the state rather than the federal court, in order not to
preempt functions that belong in the state's administration of its own criminal
law. Therefore, it took the unusual step of remanding the case to the district
court to allow the state a reasonable time to afford Jackson a hearing or new
trial; if the state failed to act, Jackson was to be entitled to federal relief. Both the
federal and the state courts have generally acted in accordance with this approach.
See, e.g., United States ex rel. Ortiz v. Wallack, 237 F. Supp. 854 (S.D.N.Y. i965)
People v. Huntley, I5 N.Y.2d 72, 204 N.E.2d I79, 255 N.Y.S.2d 838 (i965).
" See Townsend v. Sain, 372 U.S. 293 (i963).

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io66 HARVARD LAW REVIEW [VoI. 79:938
to challenge the confession, he must be given a second chance after

Jackson, and accordingly he should be given every opportunity to
establish the truth.
Third, if the standards of voluntariness have changed 42 between the
time of the original trial and the voluntariness hearing, the voluntari-
ness determination should be made according to the new standards. Not
only are changes in the voluntariness standard retroactive, but it would
be administratively inconvenient to attempt to recreate the standard as
of the date of the original trial. Fourth, administrative ease would also
dictate that evidence on collateral issues raised by decisions since the
original trial, for example in regard to the Escobedo right to counsel, be
allowed at the hearing, if such decisions are retroactive; 43 for in that
case the evidence could be raised on habeas corpus petitions in any
event. Finally, it would be advantageous to have the same judge at the
voluntariness hearing who presided at the original trial. He could better
recall credibility from the record when fresh evidence was not available
and could more accurately assess credibility when new evidence is pre-
sented by a witness who had previously testified. He would have
knowledge of all the facts concerning defendant's guilt, including the
truth of the confession in question; and arguably he may therefore be
more vulnerable to "impermissible considerations" than a judge who
hears only the evidence on voluntariness. But as long as the original
judge is aware of this possibility, it would seem best to have him conduct
the hearing.
(ii) Trial Court Procedure After Jackson. - One important question
in the wake of Jackson is whether the jury must be excluded during the
preliminary hearing on voluntariness. Prior to Jackson, most courts
held that exclusion of the jury was required or at least was the better
practice, regardless of who made the ultimate determination about
voluntariness.44 The practice is not without cost, since if the confession
is deemed admissible, the evidence must be repeated for the jury-
under the Massachusetts rule, for determinations of both admissibility
and weight; under the orthodox rule, for a determination of weight.
Nevertheless, the importance of protecting a defendant against the
hazards resulting from the jury's knowledge of an inadmissible con-
fession should override considerations of trial economy.45 Indeed, Jack-
son reflects the skepticism of many 4? regarding the effectiveness of an
instruction to the jury to disregard a confession the contents of which it
has learned during the course of trial, and probably should be read to
reouire that the jury be excluded during the preliminary hearing. Most

43 See pp. IOI3-I4 supra.
44 See Meltzer, supra note 6, at 333.
45 It may be noted that those New York rule jurisdictions that required ab-
sence of the jury were somewhat inconsistent. If the jury is considered able to
disregard a confession that it finds involuntary, it should be able as well to dis-
regard a confession referred to in the preliminary hearing but excluded by the
judge as involuntary. New York itself seems to have required that the jury be
present during the preliminary hearing. See People v. Randazzio, I94 N.Y. I47, 87
N.E. II2 (I909).
46 Se;e, e.g., Meltzer, supra note 6, at 33I.

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courts passing on this issue since Jackson have determined as a mat-

ter of state procedure that the jury must be excluded.47
Another procedural issue affected by Jackson is the scope of cross-
examination of the defendant if he elects to testify in regard to volun-
tariness. Generally, when the defendant testifies about any issue "on
the merits," he is held to have waived his privilege against self-in-
crimination, and he may be cross-examined on every issue. The stated
reason is to prevent the "distortion" in the evidence that would result
if the defendant were allowed to select the issues on which he would
testify.48 It is arguable that if the jury were present during the pre-
liminary hearing there would arise a danger of distorted fact-finding
from the defendant's having testified to only the issue of voluntari-
ness. This would have been especially true under the common law
standard when the issue of voluntariness was closely related to the case
on the merits. Although under modern criteria of admissibility the
issue litigated at a preliminary hearing would seem to be irrelevant to
the merits of the case, some courts have held that a defendant who testi-
fies on the issue of voluntariness, even when the jury is absent from the
hearing, does indeed waive his privilege completely.49
Since the truth of the defendant's statement is no longer relevant to
its voluntariness,50 cross-examination pertaining to the defendant's guilt
should be forbidden at the preliminary hearing on voluntariness before
the judge under both the orthodox and Massachusetts rules. To re-
quire the defendant to waive the privilege at the trial on the merits
merely because under Jackson procedures he testified on the collateral
issue of voluntariness at the preliminary hearing outside the presence
of the jury not only would be unsound policy,51 but might even be a
violation of due process.52 This rule would tend to deter the defendant
from testifying about voluntariness 53 - an undesirable result because
the confession typically will have been obtained in the secrecy of the
police station, and to discourage the accused from taking the stand will
usually leave the issue to be determined solely on the basis of the
prosecution's evidence.
After a determination of admissibility has been made at the pre-
liminary hearing, the defendant may wish to testify again, before the
jury, on the issues of the confession's admissibility and credibility under
the Massachusetts rule, or on the issue of credibility in orthodox rule
jurisdictions. In such a case the problem of the defendant's ability to
select issues is present. Moreover, the defendant has already been af-
forded the opportunity to litigate the issue of admissibility before the
judge, and it may be thought that the Massachusetts rule gives him the
chance to challenge the confession's admissibility before the jury only
4' See, e.g., State v. Brewton, 238 Ore. 590, 395 P.2d 874 (I964); State ex rel.
Goodchild v. Burke, 27 Wis. 2d 244, I33 N.W.2d 753 (I965).
48 8 WIGMORE, EVIDENCE ? 2276 (McNaughton rev. Ig6I).
49 See MAGUIRE, EVIDENCE OF GUILT ? 2.082 (I959); 8 WIGMORE, EVIDENCE ?
2276 (McNaughton rev. Ig6I).
5' See People v. Huntley, 46 Misc. 2d 209, 259 N.Y.S. 2d 369 (Sup. Ct. I965).
52 See Stein v. New York, 346 U.S. I56, I74 (Ig53) (dictum); cf. United States
ex rel. Gomino v. Maroney, 23i F. Supp. I54, I57 (W.D. Pa. I964).
53 See generally Meltzer, supra note 6, at 332-33, and cases there cited.

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as an extra benefit. Yet, the possibility of opening himself to un-

limited cross-examination would act as a significant deterrent to his
taking the stand on this crucial issue. If the policy reasons militating
against use of involuntary confessions are strong enough to permit the
defendant to challenge admissibility twice, arguably it would be incon-
sistent to deter him from securing the second benefit by requiring his
testimony on voluntariness to be a full waiver of his privilege against
self-incrimination. The defendant's desire to testify before the jury on
the weight and credibility of the confession is, however, no different from
his desire to testify on the weight and credibility of any other evidence,
and a privilege against broad cross-examination does not seem war-
ranted.
Another question to be resolved by those states that previously fol-
lowed the New York rule is the proper allocation of responsibility be-
tween judge and jury in future cases. The courts have been divided on
whether to choose the orthodox or the Massachusetts rule.54 In Sims v.
State,55 the Supreme Court of Georgia concluded that, even though
Georgia had previously followed the New York rule, its procedures
complied with the reasoning of Jackson. Under Georgia law,56 the trial
judge has power to set aside a jury verdict if he is not "satisfied" that
it was in accordance with the weight of the evidence. Thus, the New
York rule is followed at trial and when the motion for new trial is
made after the jury verdict, the trial judge makes his own "independ-
ent examination" of the voluntariness issue. Although this procedure
would seem on its face to comply with the requirements of Jackson, it
is unlikely that a general motion after the trial could focus the volun-
tariness issue as precisely as the motion to exclude before or during the
course of the trial. Moreover, since the independent determination would
come after the jury verdict, the judge would probably be reluctant to
find the confession involuntary and to call for an entire new trial.57
When confessions are found involuntary by the judge on the motion for
new trial the burden on the criminal process is much greater than if a
proper procedure for excluding the evidence at the trial were employed.
If the defendant waives jury trial, there arises the question whether
the same judge who ruled on the voluntariness determination may con-
sider guilt. It might be argued that the judge would be unable to escape
the same difficulties as the jury in separating the issues of guilt and volun-
tariness.58 Nevertheless, if the trial judge must write out his findings
or at least note his ruling on the voluntariness issue,59 his weighing of
the evidence will be more easily subject to appellate review. Further-
5 See cases cited note I 7 supra.

55 22I Ga. I90, I44 S.E.2d I03 (I965).
56 GA. CODE ANN. ?? 70-202, 70-208 (I963).
57 Since the Court in Jackson specifically approved a similar practice to b
on remand, it would seem that this deficiency alone does not vitiate the pro
See p. io65 & n.39 supra.
58 See generally Note, Improper Evidence in Nonjury Trials: Basis for Re-
versal?, 79 HARV. L. REV. 407 (I965).
" Since Jackson, several courts have required trial judges to set out their
findings and conclusions on voluntariness. E.g., State ex rel. Goodchild v. Burke,
27 Wis. 2d 244, I33 N.W.2d 753 (i965).

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I966] DEVELOPMENTS - CONFESSIONS I 069
more, judges are trained to prevent irrelevant considerations from in-

fluencing their rulings, and presumably they understand the strong policy
reasons behind the rule excluding involuntary confessions. Indeed, even
under the orthodox or Massachusetts rules the trial judge rules on
voluntariness only after scrutinizing the contents of the confession. It
seems unlikely that the possibilities of prejudice in a case tried without
a jury would be of constitutional dimensions.60
2. Burdens of Proof. -At the preliminary hearing to determine a
confession's admissibility, the trial judge will normally hear evidence
consisting almost entirely of conflicting testimony presented by the
police and the defendant. As at the trial on the merits, the rules gov-
erning burdens of production and persuasion guide the fact-finder in
hearing and evaluating this evidence. The allocation of the burden of
production to one party requires that party to proceed first in presenting
its evidence. Since the burden is satisfied merely by evidence that is
believable,61 it will bring the inquiry to an end only if the party with
the burden can present no credible evidence. This result is unlikely to
occur in the confessions context, since each of the contending parties
will usually come forward with a believable account of the circumstances
under which the confession was given. A meager "discovery" device is
afforded the party without the burden by allowing him to hear a portion
of the opposing side's testimony first,62 but the primary significance of
the burden of production is merely to determine the order of proof.
The significance of the burden of persuasion consists in its influence
on the trial judge's weighing of conflicting testimony. Since there may
often be little to choose between two self-interested versions of what
occurred at interrogation, the allocation and degree 63 of the burden of
persuasion may often be of real importance.64
Most jurisdictions provide that the burden of production on volun-
tariness 65 and Escobedo 66 issues is on the prosecution. However, the
burden of production on McNabb issues in the federal courts is usually
placed on the defendant.67 As for the burden of persuasion, most juris-
dictions have traditionally required that the prosecution bear it in
voluntariness cases, and there is a split among these jurisdictions in
regard to whether the persuasion must be by a "preponderance of the
evidence" 68 or "beyond a reasonable doubt." 69 Those jurisdictions
60 Jackson in dictum indicates that it is permissible for the same judge to

determine both voluntariness and guilt. 378 u.s. at 39I n.ig.
61 See Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, I2
STAN. L. REV. 5, I7-I8 (I959).
62 See James, Burdens of Proof, 47 VA. L. REV. 5I, 6o (Ig6I).
63 MAGUIRE, WEINSTEIN, CHADBOURN & MANSFIELD, CASES ON EVIDENCE 688-89
(5th ed. I965).
64Appellate courts are unlikely to look to burdens of proof when, as in this
context, credibility issues are crucial. See, e.g., Grammer v. State, 203 Md. 200,
ioo A.2d 257 (I953), cert. denied, 347 U.S. 938 (I954).
65E.g., Douglass v. State, 257 Ala. 269, 58 So. 2d 6o8 (I952). But see, e.g.,
McGee v. State, 230 Ind. 423, I04 N.E.2d 726 (I952).
66 E.g., People v. Stewart, 62 Cal. 2d 57I, 400 P.2d 97, 43 Cal. Rptr. 20I
(I965).
67E.g., Tillotson v. United States, 23i F.2d 736 (D.C. Cir.), cert. denied, 35I
U.S. 989 (I956).
68 E.g., People v. Sammons, I7 Ill. 2d 3i6, i6i N.E.2d 322 (I959); State v.
Crank, I05 Utah 332, I42 P.2d i78 (I943).

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that have allocated the burden of persuasion to

manded a "preponderance of the evidence." 70 The burden of per-
suasion on Escobedo issues has not yet been conclusively determined.
In the McNabb context, it has generally been held that the defendant
must prove his case by a "preponderance of the evidence." 71
Much of the difficulty in deciding whether a confession is admissible
stems from the fact that the police usually obtain confessions by ques-
tioning a suspect in private,72 and the judge is presented with little
evidence other than conflicting testimony from self-interested parties
as to what occurred. Since the representatives of the state have created
these factfinding difficulties by establishing the circumstances under
which the interrogation took place, it seems appropriate that the prose-
cution should bear the burden of proof. Allocating the burden in this
way might encourage the police to employ recording devices or use
other means of providing an objective version of the questioning.
The substantive policies underlying the various exclusionary rules
may also be relevant to the allocation of burdens of proof.73 The Su-
preme Court has been concerned with the danger that a confession was
obtained from a defendant in violation of his common law, statutory, or
constitutional rights, and particularly so when the claim was constitu-
tional. The rule of automatic reversal for involuntary confessions and
the doctrine of Jackson v. Denno may, for example, be viewed as pro-
cedural devices designed to eliminate the possibility that a defendant
will be convicted on the basis of confessions obtained through illegal
means. Placing the burden of proof on the prosecution would provide
a further safeguard against this danger, and the higher the burden
the more efficacious it would be. Of course, the desirability of ensuring
that confessions obtained in violation of defendants' rights are excluded
must be balanced against the fact that a heavy burden on the prosecu-
tion will also mean that some confessions that were not obtained by
improper means will be excluded.
The policies behind the requirement that the prosecution prove its
case on the merits beyond a reasonable doubt must be considered in
resolving this balancing problem. That rule lessens the danger that
innocent persons will be convicted and may reflect the notion that the
inequality of resources between the state and the individual should be
69 E.g., State v. Crittenden, 2I4 La. 8i, 36 So. 2d 645 (I948). Mr. Justice
Black, for unspecified reasons, indicated in his dissent in Jackson that he believed
the case may allow judges in New York, which had previously required voluntari-
ness to be proved by the prosecution beyond a reasonable doubt, e.g., People v.
Valletutti, 297 N.Y. 226, 78 N.E.2d 485 (I948), to decide the issue on the basis of
a mere preponderance of the evidence. His fears would appear unwarranted.
Many jurisdictions following the orthodox rule have long required the judge to
find the confession voluntary beyond a reasonable doubt. E.g., Commonwealth v.
Mayhew, 297 Ky. I72, i78 S.W.2d 928 (I943). Cases arising since Jackson
have continued to place the burden on the prosecution beyond a reasonable doubt
in those jurisdictions that previously followed that standard. E.g., People v.
Huntley, I5 N.Y.2d 72, 204 N.E.2d I79, 255 N.Y.S.2d 838 (i965).
70E.g., Wallace v. State, 235 Ind. 538, I35 N.E.2d 5I2 (1956).
7' See, e.g., Tillotson v. United States, 23i F.2d 736 (D.C. Cir.), cert. denied, 35I
U.S. 989 (1956).
73 See CLARK, CODE PLEADING ? 96, at 609-Io (2d ed. I947); James, supra note
62, at 6i.

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I966] DEVELOPMENTS - CONFESSIONS I07I
partly rectified by the imposition of a heavy burden on the state when

it seeks to impose criminal sanctions on an individual.74 When a con-
fession is admitted at trial, its effect on the jury will usually be so
overwhelming that a "reasonable doubt" standard will be an ineffectual
safeguard and a guilty verdict will be practically assured.75 Judicial
error at the preliminary hearing stage will seriously impair the fairness
of the whole trial and may undermine its accuracy, since some illegally
obtained confessions are unreliable. Thus it could be argued that con-
sistent application of the policies that require the prosecution to prove
its case "on the merits" beyond a reasonable doubt dictate that the
state bear a heavy burden of persuasion on a confession's admissibility.76
A final factor in determining the allocation of burdens of proof is the
extent to which a party's allegations as to what happened in a partic-
ular case differ from what would normally be expected in ordinary
human experience. It is sensible to make the person whose story devi-
ates from normal probabilities prove that his version is accurate.
Courts often presume that public officials have discharged their duties
in a lawful manner, a presumption that seems to be derived from a
"judicial, i.e., wholly nonstatistical, estimate of the probabilities of the
situation." 77 It seems reasonable for a court to presume that the police
do not usually indulge in physical brutality. But when the defendant
alleges more subtle pressures, closer to the borderline between permis-
sible and impermissible interrogation techniques, the inherent vague-
ness of the voluntariness standard and the fact that the police may
make a practice of going as close to the line as possible in the desire
to obtain confessions renders a presumption of official regularity far
more questionable.78 Thus the guideline of "probabilities" is in many
cases unclear, and reference to the other policy factors would seem to
justify placing a heavy burden of persuasion on the prosecution.
Allocation of the burden of production has little ultimate importance.
And since both parties are likely to have available at the preliminary
hearing all those persons who will testify about how the confession was
obtained, administrative convenience does not point to any fixed rule.
When both parties are able to come forward with the evidence, it may
be desirable to leave the order of proof in the discretion of the judge
so that it may be tailored to the practicalities of the particular case.
But in the rare case when neither party comes forward, the allocation
of the production burden is decisive, and the underlying policy factors
74 See p. IOI7 supra.

'I See pp. 96I-62 supra.
76 This argument may be less persuasive when only a mildly incriminating ad-
mission is involved. But considerations of administrative convenience suggest that
courts should not attempt to allocate the burden of persuasion by speculating on
what the impact of a given piece of evidence will be in a particular case.
77 Cleary, supra note 6i, at I2.
78 Analogous uncertainties in Escobedo's "focus" and "purpose" test, see pp.
1007-I2 supra and the definition of "unnecessary delay" under McNabb, see pp. 989-
92 supra, may also encourage the police to employ tactics that are on the border-
line of legality. But when the McNabb issue turns on the availability of a com-
mitting magistrate, presumptions of official regularity may have greater validity,
since the defendant will have access to independent evidence on the question.

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previously discussed in connection with the burden of persuasion indi-

cate that it should be on the prosecution.
VIII. CORROBORATION
Successful criminal prosecutions generally require proof of three

distinct elements. First, there must have been an injury or loss.
Second, the loss must have occurred as a result of someone's criminal
agency. And third, the accused must be shown to have been the respon-
sible criminal agent. Originally, the testimony of one person was suf-
ficient to establish all three elements, but rules requiring more evidence
gradually arose as exceptions to the common law.' One of the earlier
and more important of such exceptions was the principle that the con-
fession of an accused cannot serve as the sole basis for a guilty verdict.
And most jurisdictions now require that the "corpus delicti" be estab-
lished at least in part by evidence other than a confession.2
The term at first referred only to the fact of loss or injury.3 Al-
though this view was accepted by some jurisdictions in the United
States, today there is virtual unanimity that the corpus delicti to be
established by independent evidence includes the criminal agency as
well as the loss.4 It is still the accepted rule that the third element -
the responsibility of the accused - may be established by a confession
alone.5
The requirement that the corpus delicti be established by evidence
independent of a confession is different from the requirement that there
be independent evidence establishing the truthfulness of the confession.
The former tends to prove the occurrence of the crime directly, while
the latter does so only indirectly -by tending to show that the accused
did not lie when he confessed. The majority of courts hold that the
independent evidence will not satisfy the corpus delicti rule if it only
supports the truthfulness of the confession.6 The courts that require
support for the truthfulness of a confession are generally satisfied with
the establishment of the corpus delicti.7 In any event, since establishing
the corpus delicti is required by most jurisdictions as a prerequisite to
relying on a confession, this analysis will focus mainly upon that re-
quirement rather than upon the less frequently found rule demanding
only that the truth of a confession be verified.
1 7 WIGMORE, EVIDENCE ? 2034 (3d ed. I940).
2 Massachusetts is the sole exception. See Commonwealth v. Kimball, 32I
Mass. 290, 73 N.E.2d 468 (I947). Corroboration of a confession in some form is
also required in Scotland and India, but not in England and Canada. See pp. IO96,
IIOI, II05, IIII infra.
3 Captain Green's Trial, I4 How. St. Tr. II99, I246-47 (Scot. Ct. Adm. I705).
4 See, e.g., Manning v. United States, 2I5 F.2d 945 (ioth Cir. I954) ; People v.
Manske, 399 Ill. i76, 77 N.E.2d i64 (I948). But cf. State v. Tillman, I52 Conn. I5,
202 A.2d 494 (i964) (overruling an established line of cases).
5 See, e.g., Cutchlow v. United States, 30I F.2d 295 (gth Cir. i962).
6 See, e.g., State v. Curry, 92 Ohio App. i, IO9 N.E.2d 298 (I952). For the
minority view, see, e.g., Davis v. State, 202 Md. 463, 97 A.2d 303 (I950). The
law is not settled in some jurisdictions. Compare People v. Maruda, 3I4 Ill. 536,
145 N.E. 696 (I924), with People v. Lueder, 3 Ill. 2d 487, I2i N.E.2d 743 (I954).
'See Holt v. State, 17 Wis. 2d 468, ii7 N.W.2d 626 (i962), cert. denied, 374
U.S. 844 (i963); Note, Proof of the Corpus Delicti Aliunde the Defendant's Con-
fession, 103 U. PA. L. REV. 638, 665-67 (I955).

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A. Rationale for a Special Rule Requiring

Independent Evidence of the Corpus Delicti
Although at one time confessions were regarded as singularly strong
evidence,8 judicial attitudes changed as a result of certain notorious
capital cases in which false confessions led to unjust convictions.9
Requiring independent evidence of the corpus delicti minimized the
danger of convicting the innocent unless society's interest -in the
punishment of a violation of the law -was shown to exist. Today,
judicial retention of the corpus delicti rule reflects continued fear that
confessions may be the result of either improper police activity or the
mental instability of the accused 10 and a realization that juries are
likely to accept confessions uncritically."1 It has also been suggested
that requiring independent evidence of the corpus delicti leads to more
effective law enforcement: the police cannot depend solely upon the
statement of an accused, and must investigate the crime more fully.'2
Since the corpus delicti rules are presently being applied by many courts
on the assumption that the rationale for their use still exists, and since
that assumption does not seem to be in immediate danger of repudi-
ation,'3 an evaluation of the rules that accepts the assumption as valid
seems warranted.
B. Application of the Corpus Delicti Requirement

i. Facts That Must Be Shown. - Although there are no specific
rules describing which details of a given offense must be established by
independent evidence, any element essential to the criminality of the
act alleged seems to be normally included in the corpus delicti. For
example, in a prosecution for leaving the scene of an accident, if one
element of the crime is knowledge that someone was injured, the inde-
pendent evidence required must tend to prove not only that there had
occurred an accident after which someone did not stop, but also that
the person involved was aware of an injury resulting from the acci-
dent.'4 The independent evidence requirement may even force the
prosecution to establish a negative fact. Thus, in a prosecution for
the giving of false statements to a draft board, the corpus delicti was
held to include the fact that the statements were not true.'5 The courts
have required evidence of a negative fact even when procuring such
evidence was extremely difficult; for instance, in a prosecution for
falsely reporting a crime, the state was required to introduce independent
evidence that the reputed crime had not occurred.'6
See Hulet's Trial, 5 How. St. Tr. I I85, I I95 (i66o).

9 See, e.g., Boorn's Trial, 6 Am. St. Tr. 73 (Vt. i8i9); Perry's Case, I4 How. St.
Tr. I3I2 (i66o).
1See pp. 939-4I supra; cf. pp. 976-77 supra.
See Smith v. United States, 348 U.S. I47, 153 (i954).
"Ibid.; People v. Francisco, 228 Cal. App. 2d 355, 360, 39 Cal. Rptr.
13 See, e.g., Wong Sun v. United States, 37I U.S. 47I, 488-93 (i963).
14 People v. Holford, 4I Cal. Rptr. 770 (Dist. Ct. App.), rev'd on other
grounds, 403 P.2d 423, 45 Cal. Rptr. i67 (i965).
Tabor v. United States, 152 F.2d 254 (4th Cir. 1945).
16 City of St. Louis v. Watters, 289 S.W.2d 444 (St. Louis Ct App. 1956).

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The cases do not make clear whether mental state is included in the
corpus delicti whenever it is an element of the offense charged. If,
however, the accused's act is criminal only because of his intent, the
corpus delicti does include his mental state; for example, in a prosecution
for the possession of whiskey with the unlawful intent to sell, the
corpus delicti was held to include the intent of the accused.17 Without
a corpus delicti rule applicable to intent in such a case, there would
have been no independent evidence of a crime at all. But some courts
have held that independent evidence of the accused's state of mind-
such as premeditation - is not necessary to sustain a conviction for
first degree murder.'8 The danger of faulty recollection in threatening
or confusing circumstances would seem to be greater when the question
of state of mind is concerned than when the accused is merely setting
out historical facts. Moreover, a jury is not likely to appreciate the
distinction and is liable rather to adopt the view that the defendant's
description of his state of mind is the best possible evidence on the
point. In light of the fact that the prosecution frequently must prove
a nonconfessing defendant's state of mind by circumstantial evidence,
requiring independent evidence of state of mind in all cases would not
seem excessively burdensome.
A special problem was presented in Smith v. United States,'9 in
which the Government attempted to establish the defendant's tax eva-
sion by comparing his "net worth" before and after the taxable period
in question. His net worth before the period was established by his
admission. The Supreme Court, recognizing that it is impossible to
make such a comparison without identifying the accused, held that
independent evidence of the corpus delicti was required, even though
this ruling meant that the prosecution would have to introduce evi-
dence to connect the accused with the crime, an element not generally
part of the corpus delicti. The decision represents not an enlargement
of the corpus delicti requirement but merely an acceptance of the fact
that under some circumstances, when the corpus delicti is not "tangible,"
proving that a loss has occurred through someone's criminal agency
involves identifying the criminal. Some lower federal courts may have
construed Smith to hold that the mere existence of a mental element
in an offense necessarily makes the corpus delicti "intangible," thus
requiring independent proof linking the defendant with the offense.20
But this extension of the doctrine of the case is unnecessary. It is fre-
quently possible to ascertain that an act was done with a particular state
of mind without identifying the actor. One can, for example, prove that
an unidentified person knowingly left the scene of an accident by
showing that the car involved was severely damaged and that it did
not stop in response to police commands.
The majority of courts do not demand independent evidence of every
fact that must be established in order to bring about a conviction.
' Robinson v. State, 7i Okla. Crim. 75, I08 P.2d I96 (1940).
18 E.g., State v. Galvanno, 34 Del. 409, I54 Atl. 46i (Ct. Oyer & Ter. 1930).
19 348 U.S. 147 (1954).
20 Compare Smoot v. United States, 312 F.2d 88I (D.C. Cir. x962), with
Smyly v. United States, 287 F.2d 760 (5th Cir.), cert. denied, 366 US. 930 (I96I).

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Thus, in a case in which federal court jurisdiction depended upon the

race of the deceased, a confession was held to be sufficient evidence of
that fact.2' It is also usually held that the corpus delicti does not
include those aspects of a crime that determine the defendant's punish-
ment but not his guilt: the degree of the offense or its technical de-
scription (for example, whether it is burglary or larceny) 22 or the
number of counts involved.23 It is apparently thought unlikely that
only such minor details of an otherwise acceptable confession would be
untruthful. Occasionally, courts have required independent evidence
of the technical details of an offense, but they have usually undermined
their demands by accepting evidence of minimal probative value.24
2. Type of Evidence That Can Be Used. -The normal standards
of admissibility are not relaxed for evidence adduced in order to estab-
lish the corpus delicti.25 Admission of questionable proof cannot be
effectively limited to this purpose, since special instructions to the jury
to that effect are likely to prove confusing and ineffective. Moreover,
rules barring certain types of evidence are often based on distrust of
such evidence, and the very purpose of the corpus delicti requirement
is to ensure reliability; it would weaken the supposed protection of the
rule if evidence normally regarded as untrustworthy could be used to
establish the corpus delicti. Thus it has been held that hearsay evi-
dence is not adequate corroboration, even if already admitted for the
special purpose of impeaching a witness.26
It is not clear whether evidence such as accomplice testimony, which
in many jurisdictions must be corroborated by evidence tending to
support its truth,27 can serve to establish the corpus delicti. In Marr v.
State,28 the accused confessed to contributing to the delinquency of a
consenting minor. The court ruled that the testimony of the minor,
who was both the "victim" of and an accomplice to the crime of sod-
omy, was sufficient to establish the corpus delicti. In such circum-
stances it is unlikely that the accused and the minor would conspire to
incriminate themselves; thus the accomplice testimony and the con-
fession were probably more reliable together than either by itself.
However, the states that require evidence substantiating an accomplice's
testimony fear that the accomplice may have curried favor or been
coerced; and those dangers may not be wholly nullified by the existence
of a confession that is itself suspect on the same ground.29
One type of evidence often used to satisfy corpus delicti requirements
21 Isaacs v. United States, I59 U.S. 487 (I895) (alternative holding).

22 See, e.g., State v. Hale, 45 Hawaii 269, 367 P.2d 8i (I96I). Contra, Bonicelli
v. State, 339 P.2d io63 (Okla. Crim. App. I959).
23 See United States v. Calderon, 348 U.S. i6o (I954).
24 See, e.g., Holding v. State, 244 Ind. 75, I90 N.E.2d 66o (I963).
25 See, e.g., Hogan v. State, 235 Ind. 27I, I32 N.E.2d 908 (I956).
26 Ibid.
27 See, e.g., People v. Gilbert, 23I Cal. App. 2d 364, 4I Cal. Rptr. 679 (Dist. Ct.
App. i964).
28 383 S.W.2d 928 (Tex. Crim. App. i964). See also Scott v. State, i67
Crim. 77, 3I8 S.W.2d 650 (I958).
29 For a discussion of a similar problem concerning the spontaneous decla
tions exception to the hearsay rule, see United States v. Mounts, i U.S.C.M.A.
2 C.M.R. 20 (I952). See also Ackroyd, Corroboration of Confessions in Fed
and Military Trials, 8 V:LL. L. REV. 64, 72-74 (1962).

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is the accused's reenactment of the crime.30 Reenactment may be of

value in tending to prove the guilt of the accused if the details of the
crime have not been widely publicized and if the police suggest inac-
curate versions. In reenacting a supposed crime, the accused demon-
strates a familiarity with the events related in his confession and hence
decreases the likelihood that his statement was a complete fabrication.
It thus seems that reenactment is a means of corroborating the truthful-
ness of a confession, not an independent source of evidence tending to
show that a crime has taken place. Consequently, such a "confession
by demonstration" 31 technically does not establish the corpus delicti.
Moreover, reenactment is not very different from a confession and is
subject to the same dangers, although it is true that the accused is more
likely to be aware of the significance of what he is doing when he reenacts
a crime than when he confesses to it.
Frequently the accused will have repeated his confession several
times. Although consistency may be of probative value, such repetition
is not necessarily reliable, because it is always possible that the ac-
cused has merely repeated facts that he previously learned or imagined.
Further, as in the case of reenactment, repetition seems at best only to
bolster the truth of a confession. Therefore, the preferred rule would
seem to be that a series of confessions cannot corroborate each other.32
However, some of the courts that accept uncorroborated accomplice
testimony have also accepted a second confession as independent evi-
dence establishing the corpus delicti.33 This reasoning overlooks a vital
distinction between these two types of evidence: the accomplice and
the accused, whose interests frequently clash, represent two independent
sources of evidence, while in the two confessions case all the evidence
comes from the same possibly unreliable source.
3. Amount of Independent Evidence Required. - It is generally held
that independent evidence need not by itself establish the corpus delicti
beyond a reasonable doubt or even by a preponderance of the evi-
dence.34 There are almost as many verbal formulas as there are courts
for the amount of evidence required,35 and the formulas expressed often
bear little relationship to what the courts actually require in practice.36
Occasionally, a court has refused to adopt any formula on the theory
that any specification beyond "some" is likely to prove more confusing
than informative.37
Frequently, there is little direct evidence of the corpus delicti, and
30 See, e.g., People v. O'Neil, i8 Ill. 2d 46i, i65 N.E.2d 3I9 (ig60).
31 State v. Doucette, I47 Conn. 95, I57 A.2d 487 (i959), overruled on oth
grounds, State v. Tillman, I52 Conn. I5, 202 A.2d 494 (i964).
32 See United States v. Calderon, 348 U.S. i6o (I954).
33 See, e.g., State v. McClain, 208 Minn. 9I, 292 N.W. 753 (1940).
34 See, e.g., Smith v. United States, 348 U.S. I47, I56 0954). But cf. Hays v.
State, 2I4 Miss. 83, 58 So. 2d 6i (0952) (must show the probability that a crime
has been committed).
35 See, e.g., Gallegos v. State, I52 Neb. 83I, 43 N.W.2d I (I950), aff'd on other
grounds, 342 U.S. 55 (0950) (slight); Burrows v. State, 38 Ariz. 99, 297 Pac. I029
(i93i) (clear and convincing); Hill v. State, 207 Ala. 444, 93 So. 460 (I922)
(prima facie showing).
36 See Note, Extra-Judicial Confessions -Sufficiency of Corroboration, 33 NEB.
L. REV. 495 (I954).
37E.g., Nelson v. State, 5o Del. 46, I23 A.2d 859 (0956).

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the prosecution must rely upon such circumstantial ev

opportunity, or actions that demonstrate a feeling of
establish that a crime has occurred. In one case, for example, there
was no direct evidence of an alleged death, but the court accepted as
sufficient to establish the corpus delicti evidence showing that the al-
leged deceased was not the type of person who would disappear and
was last seen quarreling with the defendant.38 In another case a court
accepted the defendant's threat to commit suicide as evidence of his
consciousness of guilt and as corroboration of the fact that a crime had
occurred.39 Far from strengthening the confession, however, the threat-
ened suicide would seem to raise substantial doubts about the accused's
mental stability and therefore about the reliability of his statement.
Some crimes - such as rape - may by their nature make it difficult
to establish a corpus delicti, and in such cases some courts apparently
require less independent evidence.40 Similarly, criminal agency is often
more difficult to establish than the fact of loss; for example, loss is
clear when a dead body is discovered in a decomposed state, but the
nature of the remains may make a showing of murder difficult. And
some courts therefore require less independent evidence of the criminal
agency.41 The effect of such differentiations is to lessen the corpus
delicti rule's protection against unreliable confessions in those very
cases in which the absence of substantial independent evidence will
probably lead a jury to give the confession the greatest weight.
Once the decision to retain the corpus delicti rule has been made,
then the amount of independent evidence required should be truly
significant, perhaps even amounting to a preponderance. Although such
a rule would increase the burden upon the prosecution, its effect would
be to ensure that, before the state can convict an accused, there is
persuasive independent evidence that a crime has indeed been com-
mitted. Only after this fact has been established should the state be
permitted to connect an accused with a crime on the basis of his
confession.
4. Relationship of tke Confession to the Independent Evidence.
-Some of the courts that require independent evidence of the corpus
delicti allow a confession to be used to interpret that evidence and to
give significance to otherwise neutral facts. For example, in one case 42
a court held that a bloodstain found where the defendant admitted
beating the deceased was of significant probative value. Since such
evidence alone does not necessarily tend to establish that a crime
occurred -the traditional corpus delicti requirement -this result
should be acceptable only in those jurisdictions that permit that inde-
pendent evidence merely to bolster a confession's veracity. In general,
courts have taken care to prevent the use of facts that are of probative
38 Commonwealth v. Burns, 409 Pa. 6ig, I87 A.2d 552 (i963).

39People v. O'Neil, i8 Ill. 2d 46i, i65 N.E.2d 3I9 (ig60).
40 See, e.g., State v. Romo, 66 Ariz. I74, i85 P.2d 757 (I947).
41 E.g., McVeigh v. State, 205 Ga. 326, 53 S.E.2d 462 (I949).
42 Gallegos v. State, I52 Neb. 83I, 43 N.W.2d i (i950), aff'd on other grounds,
342 US. 55 (I950).

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value only if interpreted in light of the confession when such use tends
to undermine the corpus delicti requirement.43
C. When the Rule Applies
i. Type of Statement. - The statements of an accused can be cate-

gorized in terms of the completeness with which he admits the offense
or in terms of the intent with which the statement is made. The former
classification distinguishes confessions - a complete acknowledgment of
guilt - from admissions - a lesser acknowledgment of incriminating
facts. The latter grouping distinguishes inculpatory statements - those
intended to acknowledge guilt - from exculpatory statements - those
intended to explain conduct while maintaining innocence.44
Some courts require corroboration only of confessions,45 while others
require corroboration of admissions as well.46 Since an admission can
be as important as a confession in convicting the accused, it seems
artificial to distinguish between the two types of statements merely
because an admission leaves elements of the crime unmentioned. More-
over, an admission is no less likely than a confession to be the result of
coercion or illness, and is more likely than a confession to be the result
of carelessness, because a suspect may be less aware of the significance
of words admitting only one or two incriminating facts. One court has
suggested that only admissions that "directly" touch the fact of guilt
have to be corroborated.47 But such a formula is far too difficult to
apply; after enunciating it, the court ruled that an admission that the
accused and the decedent were alone in a room at the time of the killing
only indirectly touched the fact of guilt and thus required no inde-
pendent proof of the corpus delicti before it could be considered. The
Supreme Court has suggested another possible test, holding that an
admission must be corroborated "at least where . . . [it] is made
* . . to an official charged with investigating the possibility of wro
doing, and the statement embraces an element vital to the Government's
case." 48 It is unclear, however, whether the Court intended to lay
stress upon the objectively determined importance of a given admission
or upon the mere fact that an admission was obtained, introduced in
court, and relied upon by the Government.
The majority of courts that require corroboration of admissions and
confessions also require the corroboration of exculpatory statements.49
In Opper v. United States,50 the Government argued that exculpatory
statements are not the result of coercion, and that there is therefore
43 See, e.g., Yarbrough v. United States, 3o9 F.2d 936 (ioth Cir. i962).
45 E.g., People v. Creeden, 28i N.Y. 4I3, 24 N.E.2d IO5 (I939).
46 E.g., People v. Cullen, 37 Cal. 2d 6I4, 234 P.2d I (I95I).
47 State v. George, 93 N.H. 408, 43 A.2d 256 (I945). See also 3 WIGMORE,
EVIDENCE ? 82I (3d ed. I940).
48 Smith v. United States, 348 U.S. I47, I55 (I954). The Court did conclude,
however, that under special circumstances there may be a strong presumption that
an admission is reliable.
49 See, e.g., Opper v. United States, 348 U.S. 84 (I954). But see Ercoli v.
United States, I3I F.2d 354 (D.C. Cir. I942); 3 WIGMORE, EVIDENCE ? 82I (3d ed.
I940).
50 348 U.S. 84 (I954).

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no need to require independent evidence of corpus delicti before their

introduction in evidence. But the Supreme Court rejected this argu-
ment, concluding that the dangers of coercion and error are as great
in cases of exculpatory statements as in cases involving inculpatory
ones.51 As the Court pointed out, any statement by an individual to
the police, especially when under suspicion, can be the result of pressure
placed upon him. Indeed, the dangers of false exculpatory statements
are substantial; an unsophisticated suspect might make an attempt
to establish his innocence and unwittingly and falsely incriminate him-
self. The crucial fact should be that the statement "turned out to be
incriminating." 52
Of course, the corpus delicti rules do not apply to a suspect's state-
ments when the truth of what he asserts is irrelevant to his guilt. In
one case, the accused's statement was admitted as evidence of an overt
act tending to prove an attempt at extortion.53 The court held that
since the statement would effectively demonstrate the existence of the
extortion regardless of its truth, corroboration was unnecessary.
2. To Whom the Statement Was Made. - Most courts require that
the corpus delicti be established regardless of whether the incriminating
statement was made to the police or to a private citizen.54 It has been
suggested, however, that independent evidence should be required only
if the statement was made to an investigating official.55 Since fear that
a statement might be the product of coercion or mental illness underlies
the traditional distrust of confessions, this view must depend on the
assumption that such possibilities are less likely when the statement is
made to a private citizen. But the danger of a psychologically induced
false confession would still exist in the private citizen situation, as
would the possibility that an untrained listener would not accurately
report what he heard. Moreover, certain types of crimes can give rise
to such strong public feeling that coercion by nonofficials cannot be
ruled out.56
3. Where the Statement Was Made. - It is well established that
when the accused makes a confession in court, independent evidence
need not be introduced to establish the corpus delicti; 57 moreover, the
accused's testimony on the witness stand can be sufficient evidence to
establish the corpus delicti for an extrajudicial confession.58 The courts
51Id. at 92.
52Wong Sun v. United States, 371 UI.S. 47I, 487 (i963).
53 People v. Fratianno, I32 Cal. App. 2d 6Io, 282 P.2d I002 (Dist. Ct. App.
I955).
54 See, e.g., Commonwealth v. Burns, 409 Pa. 6ig, i87 A.2d 552 (i963).
55 See Smith v. United States, 348 U.S. I47, I55 (I954).
56 Where corroboration is required only of statements made to the police, an
exception should at least be made for statements to private individuals whose
interests are identified with the police. In one case the person who recounted the
accused's statement in court had shared a prison cell with her. People v. Coke,
230 Cal. App. 2d 22, 40 Cal. Rptr. 649 (Dist. Ct. App. i964). The witness's in-
terest in pleasing authorities should be sufficient to make her account suspect. Of
course, if the witness had been in the employ of the police, the statement would
have been excluded under Massiah v. United States, 377 U.S. 20I (i964).
57 See, e.g., Manning v. United States, 2I5 F.2d 945 (ioth Cir. I954) ; Alvarez
v. State, 374 S.W.2d 890 (Tex. Crim. App. i964).
58 See, e.g., People v. Manske, 399 Ill. I76, 77 N.E.2d i64 (I948).

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io8o HARVARD LAW REVIEW [Vol. 79:938
apparently do not distrust a confession made in circumstances in

which the judge and counsel can protect the accused against coercion
and examine his demeanor for signs of emotional stress. Further, the
formality of a courtroom is likely to make the defendant aware of the
consequences of his statement. However, the effects of coercion may
reach into the courtroom,59 and the psychological disequilibrium of
the defendant may not reveal itself at trial. Although it is unlikely that
a statement made in court will be misreported, guaranteed accuracy
does not eliminate possible doubts about reliability.60
Whatever the validity of the special treatment afforded so-called
infrajudicial statements, the rationale becomes less convincing as "infra-
judicial" is more broadly defined. For example, it has been suggested
that the rule be applied to statements made to a committing magis-
trate 61 and in municipal court.62 Such a proposition fails to take
account of the fact that the quality of judging in these tribunals is
often lower than in criminal courts, and that the danger of coercion is
greater because the defendant may be returned to the custody of the
police. Moreover, these proceedings are of necessity so brief that little
care can be devoted to determining the truth of the accused's state-
ment.63
In any case, to require corroboration of all in-court statements would
be undesirable, for such a rule might in effect deny the defendant the
right to stipulate incriminating facts or to make admissions or confes-
sions upon the advice of counsel.64 This right can be of great tactical
importance; for example, the defendant might want to stipulate the
manner of death in order to prevent the prosecution from introducing
proof that would inflame the jury.65 On the other hand, such tactics
can generally be distinguished from in-court confessions made without
the advice of counsel.
4. Type of Crime Involved.-Historically, the corpus delicti rules
developed as a result of injustices committed in cases involving serious
felonies.66 And some courts continue today to restrict the requirement
to felony cases, while others apply it in all criminal cases.67 The felony-
lesser crime distinction is itself unrelated to the reasons for requiring
corroboration; but perhaps the distinction represents an attempt to
limit the corpus delicti rules to offenses that carry serious penalties.
See the discussion in BORCHARD, John A. Johnson, in CONVICTING THE INNO-

CENT II2 (I932).
60See United States v. Sapperstein, 3I2 F.2d 694 (4th Cir. i963).
61 State v. Mullinix, 30I Mo. 385, 257 S.W. I2I (I923) (dictum).
62 State v. McClain, 208 Minn. 9I, 292 N.W. 753 (I940).
63 See N.Y. Times, Nov. 4, i965, p. 49, col. I.
64 See Note, Judicial Admissions, 64 COLUM. L. REV. II2I (I964).
65 In State v. Upton, 6o N.M. 205, 290 P.2d 440 (I955), the defendant stipu-
lated the manner of death, but pictures of the deceased were nonetheless intro-
duced to establish the corpus delicti.
In England, stipulations that dispense with the need for proof are not allowed
in serious cases unless they constitute pleas of guilty. PHIPSON, EVIDENCE ? 45
(ioth ed. I963).
66 2 HALE, PLEAS OF THEF CROWN 290 (I800); see p. I073 supra.
67 Compare Egbert v. State, II3 Neb. 790, 205 N.W. 252 (I925) (felony), with
State v. Hoffses, I47 Me. 22i, 85 A.2d gIg (I952) (misdemeanor), and State v.
Wilson, 3 Conn. Cir. io6, 208 A.2d 366 (App. Div. i964) (traffic violation).

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i966] DEVELOPMENTS - CONFESSIONS io8i
This standard is based upon the idea that a defendant should have
greater protection when the consequences of an unjust conviction are
severe. But confessions made for less serious offenses may well be the
result of coercion, confusion, or mental illness. Even in traffic cases
police overzealousness may play a part and thus the same conditions
that cause courts to suspect confessions in more serious cases may be
operative. The benefit of the rule may be especially important when,
as in lesser offenses, an accused does not have counsel and cannot have
one appointed.68
Occasionally, legislation has exempted certain offenses from the
corpus delicti requirement. Some statutes render a confession by itself
sufficient for conviction of some offenses.69 Another type of statute
provides that an admission can be sufficient proof of one element of an
offense; for instance, in a prosecution for violation of an ordinance
prohibiting loitering by pickpockets, the accused's admission that he is
a pickpocket is sufficient to establish that element of the offense.70
Some statutes are designed to relieve the difficulty of obtaining convic-
tions for crimes for which it is extremely difficult to establish the
corpus delicti. Infanticide prosecutions, for example, present such dif-
ficulties because the death is often not discovered immediately and
the little evidence on hand is often fully compatible with an explanation
of accident. Some jurisdictions have thus made it a separate crime to
conceal the corpse of a child.7' Such statutes have the effect of penal-
izing attempts to conceal corroborating evidence so that even if cor-
roboration is impossible an accused may not go free.
D. Functions of Judge and Jury
There is no established rule to govern the distribution of functions

between judge and jury in the determination of whether the prosecution
has adequately shown the corpus delicti. Some jurisdictions require
that the judge be satisfied that adequate independent evidence has
been shown and suggest that the jury not be instructed that the con-
fession alone is an insufficient basis for conviction.72 Other courts hold
that although it would be proper to give such an instruction, the failure
to do so is not reversible error,73 while still others consider this failure
to be reversible error.74
In any event it seems doubtful that instructions to the jury are an
effective means of implementing the corpus delicti requirement. In-
structions about "independent evidence" may not receive careful atten-
tion from a jury that has already been influenced by a confession intro-
duced into evidence; indeed, one of the reasons for a special corpus
68"Possibly for these reasons, it has been held that there must be establishment
of a corpus delicti in drunken driving cases. State v. Hoffses, I47 Me. 22I, 85
A.2d gig (1952).
69 E.g., MINN. STAT. ANN. ? 634.03I (Supp. I965) (violations of gambling laws).
7"D.C. CODE ANN. ? 22-3302(I) (I96I); see Clark v. District of Columbia, 34
A.2d 7II (D.C. Mun. Ct. App. I943).
71 E.g., WIS. STAT. ? 946.63 (I96I).
72E.g., State v. Webb, 239 Iowa 693, 3i N.W.2d 337 (1948).
"E.g., State v. Howard, I02 Ore. 43I, 203 Pac. 3II (I92I).
74E.g., People v. Cender, I3 N.Y.2d i6, i9i N.E.2d 464 (i963).

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delicti rule is that juries are not sufficiently sophisticated to distrust

confessions.75 It would thus seem preferable to require the judge to
ensure that adequate independent evidence has been adduced before
admitting a confession. It might be suggested that the jury should also
receive instructions concerning the need for independent evidence, thus
giving the defendant the benefit of two independent factfindings. But
since independent evidence need not by itself establish the corpus
delicti beyond a reasonable doubt,76 special instructions requiring the
jury to apply two different standards of proof on the same issue might
be very confusing. Moreover, allowing the jury to rule on the suf-
ficiency of the independent evidence may, in close cases, prompt a judge
to rule in favor of the prosecution and leave to the jury the ultimate
decision.77
Some courts leave the order of proof entirely to the discretion of the
trial judge,78 while others hold that independent evidence should be
introduced before a confession.79 However, no case seems to have held
that an erroneous order of proof requires a new trial.80 Since judges
are presumed to be able to ignore the confession in ruling on whether
the independent evidence establishes the corpus delicti, the order of
proof would not seem crucial. However, it would place little burden on
the prosecution to establish the corpus delicti first and, since the pos-
sibility of prejudice does exist, this would seem to be the better practice.
This reasoning applies with greater force when the jury passes on the
corpus delicti requirement, since juries are likely to be swayed by a
confession. Since the corpus delicti requirement does not relate to the
actual admissibility of the statement, but rather to the sufficiency of
the evidence, it is appropriate to challenge the sufficiency of independent
evidence at the close of the prosecution's case,8' in a motion for a
directed acquittal.
If sufficient independent evidence has been introduced, the weight
given the confession is, of course, determined by the finder of fact.
The jury can rely upon the confession and yet make findings that are
inconsistent with it.82 Since a person who confesses will often attempt
to put his acts in the best possible light - for example, admitting that
he killed the deceased but falsely denying that he intended the death
the need for such flexibility is obvious.
E. Evaluation of the Corpus Delicti Requirement

When the corpus delicti rule is held to require significant independent
evidence of the fact that a crime has occurred, it reduces the risk that
75 See text accompanying note ii, p. I073 supra.
76 See p. I076 supra.
77 See p. io6i supra.
78 See, e.g., Wiggins v. United States, 64 F.2d 950, 952 (gth Cir.), cert.
denied, 290 U.S. 657 (i933). South Carolina follows this rule for admissions but
requires that in the case of a confession the corroborating evidence be introduced
first. State v. Edwards, I73 S.C. i6i, I75 S.E. 277 (i934).
79E.g., State v. Polan, 78 Ariz. 253, 278 P.2d 432 (I954).
8 Cf. p. io6o supra.
8 State v. Hernandez, 83 Ariz. 279, 320 P.2d 467 (1958).
82People v. Melquist, 26 Ill. 2d 22, i85 N.E.2d 825 (i962), cert. denied, 372
U.S. 967 (i963).

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an innocent person will be convicted for a crime that did not even
occur. However, the corpus delicti rule does not require any inde-
pendent evidence of the accused's connection with the crime. Thus,
while the rule does give some protection against the danger of unre-
liable confessions, as one judge has remarked, "if that is all, it is not
much." 83 An independent determination that a crime has occurred
is not by itself a sufficient reason for finding a confession reliable. It is
often when crimes have been given wide publicity that there is a rash
of false confessions.84 Moreover, notorious crimes often give rise to
strong community pressure for their solution, and such pressure can
result in the use of coercive measures.
For similar reasons, it seems incorrect to argue that requiring inde-
pendent evidence of the existence of a crime leads to significantly more
effective police investigation. Under the rule, the police do not have
to go beyond discovery of independent evidence that the crime oc-
curred - a fairly easy task in most cases - and can rely on a confes-
sion to tie the accused to the crime. Thus, the utility of the corpus
delicti rule seems rather limited. And requiring independent evidence
of the corpus delicti is not without its costs, since it "infringe[s] on
the province of the primary finder of facts" 85 and, by heightening
standards of proof, leads to the acquittal of some guilty persons, often
on very technical grounds. Moreover, the rule has proven difficult to
administer.86
The safeguards against unreliable confessions would be enhanced if
the corpus delicti requirements were extended to require independent
evidence connecting the defendant with the crime charged. And occa-
sionally a judge has suggested such a change.87 But it is generally
contended that making the corpus delicti synonymous with all the
elements of the offense would destroy the usefulness of confessions and
thus seriously impair the effectiveness of law enforcement.88 Such an
extension would, however, continue to allow the jury in some cases to
convict upon the strength of the confession in combination with other
evidence; since the corpus delicti does not have to be established be-
yond a reasonable doubt, the confession would have importance when-
ever the independent evidence could not alone sustain a conviction.
Moreover, there are other situations that present problems analogous
to those involved in the use of confessions - for example, prosecutions
for rape, in which the complaint and testimony of the complaining
witness must be independently verified by connecting the defendant
with the crime.89 However, it may well be that a strict rule requiring
corpus delicti corroboration to tie the accused to the crime would in
fact result in making convictions significantly more difficult to obtain.
83 People v. Rooks, 40 Misc. 2d 359, 368, 243 N.Y.S.2d 30I, 3II (Sup. Ct. i963).
84 Ibid.; WENSLEY, FORTY YEARS OF SCOTLAND YARD 57, 273 (I931).
" Smith v. United States, 348 U.S. I47, I53 (I954).
86 See State v. Tillman, I52 Conn. I5, 202 A.2d 494 (I964); 7 WIGMORE, Evi-
DENCE ? 207I (3d ed. I940).
87 See, e.g., State v. Bennett, 6 S.W.2d 88i (Mo. I928).
8 See Smith v. United States, 348 U.S. I47, I53 (I954); 7 WIGMORE, EVI
? 2072 (3d ed. I940); see pp. 94I-45 supra.
89 See, e.g., People v. Croes, 285 N.Y. 279, 34 N.E.2d 320 (I94I) (interpret
statute).

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F. Conclusion
Because of doubts about the effectiveness of the present rule -and

fears of the effects of its extension-it would seem appropriate to re-
examine the corpus delicti requirement in light of the development of
other safeguards that protect against false confessions. In recent years
the courts have severely restricted police practices that are likely to
produce untrustworthy confessions.90 Also, the situations in which the
accused can be questioned without counsel have been limited,91 thus
making confessions resulting from coercion or confusion less likely.
The new doctrines in these areas have definite advantages over the
corpus delicti rule, for even a strengthened rule requiring that the
accused be connected with the crime would tend to assure only the
truthfulness of the confession, not that it was voluntarily given.
Further, no form of corpus delicti requirement would control abusive
practices that result in true confessions. Finally, the one form of unre-
liable confession that the constitutional standards do not wholly guard
against -confessions made by the mentally ill -can probably be
controlled just as effectively through psychiatric examination of crim-
inal defendants as by means of the corpus delicti rule. On balance, it
would therefore seem that serious consideration should be given to
elimination of the corpus delicti requirement.
IX. MILITARY LAW
The Uniform Code of Military Justice' provides for a system of

criminal law basically similar to that of civilian courts.2 However,
many of the differences between military and civilian life are reflected
in significant differences between the two systems. Moreover, the Con-
stitution gives Congress the power "to make Rules for the Government
and Regulation of the land and naval Forces," 3 and the extent to which
this authority is subject to the Bill of Rights has not yet been fully
determined.4 It is therefore necessary to be cautious in applying to
civilian law conclusions drawn from an examination of military law.
Nevertheless, a study of the military law of confessions is an interesting
and profitable exercise, since doctrines that law has contained for years
are only now beginning to be recognized in civilian law - for example,
that a suspect must be warned of his right to remain silent, and that he

9' See, e.g., Escobedo v. Illinois, 378 U.S. 478 (1964).
I IO U.S.C. ?? 80I-940 (I964) [hereinafter cited as Military Code and by article

number]. Article 36 gives the President the authority to prescribe rules to govern
courts-martial. Pursuant to this authority, the Manual For Courts-Martial [herein-
after referred to as Manual] was prescribed by Exec. Order No. I0,214, i6 Fed. Reg.
I303 (I95I)
2 See generally Latimer, A Comparative Analysis of Federal and Mili
inal Procedure, 29 TEMP. L.Q. I(I955).
3 U.S. CONST. art. I, ? 8.
4 See generally Bishop, Civilian Judges and Military Justice: Collateral Review
of Court-Martial Convictions, 6i COLUM. L. REV. 40 (ig6i). The Court of Military
Appeals tends in any case to interpret the Military Code in conformity with the
Supreme Court's interpretation of the Constitution. See, e.g., United States v.
Askew, I4 U.S.C.M.A. 257, 34 C.M.R. 37 (i963).

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x9661 DEVELOPMENTS - CONFESSIONS I085
cannot be prevented from seeing retained counsel before or during

interrogation.
Under the military system,5 a person is charged with an offense when
an accusation under oath is made against him. The accusation is
forwarded to a convening authority who decides whether to call for a
court-martial. There are two types of court-martial - "general" and
("special" - at which serious offenses are tried and which are rather
similar to the ordinary criminal trial.6 At a general court-martial the
accused is tried before a law officer, who is similar to a civilian judge,
and a panel of not less than five members, who act as finders of fact.
A special court-martial consists of at least three factfinding members,
the senior of whom, or president, performs most of the functions of a
civilian judge. The two forms differ most radically in the penalties they
may set; a general court-martial can prescribe any punishment, includ-
ing death, while a special court-martial is limited to lesser punishments
- if confinement is imposed, the maximum sentence that can be set is
six months.
A. Interrogation Procedures in Regard to Confessions

Article 3' of the Military Code provides in part:
(a) No person subject to this chapter may compel any person to incrim-
inate himself or to answer any question the answer to which may tend to
incriminate him.
(d) No statement obtained from any person in violation of this article,

or through the use of coercion, unlawful influence, or unlawful induce-
ment may be received in evidence against him in a trial by court-martial.
This section 7 has been interpreted as permitting use of only a volun-

tary statement, and a confession will be found to have been involuntar-
ily obtained if there is a "fair risk" that the method of interrogation
employed makes it unreliable.8 However, military courts seek to de-
termine more than reliability; a confession need not be spontaneous,
but it must be "the product of free choice." 9 Thus, such interrogation
practices as telling a man that if he does not speak he will be turned
over to civilian authorities,10 or that his sick wife will be questioned,1'
have been held to raise questions of voluntari ness.
5 Military Code arts. I6-I9; Manual 11 29. See generally Latimer, supra note 2.
6 There is also a "summary" court-martial at which the accused is tried before
one commissioned officer. The maximum confinement the officer can prescribe is
one month and, in general, an accused can request one of the other types of adjudi-
cation. Military Code art. 20.
7 Article I37 requires that article 3I be explained to enlisted men when they
enlist and after six months on duty. Although article 3I speaks only of "state
ments," the court applies it to both testimonial and nontestimonial actions of th
accused. United States v. Minnifield, 9 U.S.C.M.A. 373, 26 C.M.R. I53 (I958)
(handwriting); United States v. Taylor, 5 U.S.C.M.A. I78, I7 C.M.R. I78 (I95
(request to point out clothing).
8United States v. McKay, 9 U.S.C.M.A. 527, 530, 26 C.M.R. 307, 3I0 (1958)
(dictum).
'United States v. Colbert, 2 U.S.C.M.A. 3, 6 C.M.R. 3 (I952) (dictum); see
PP. 973-82.
0 United States v. Tanner, I4 U.S.C.M.A. 447, 34 C.M.R. 227 (I964).
" United States v. Askew, I4 U.S.C.M.A. 257, 34 C.M.R. 37 (i963). Compare

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Voluntariness is not the only test of a confession's admissibility.

Article 3I also provides:
(b) No person subject to this chapter may interrogate, or request any

statement from, an accused or a person suspected of an offense without
first informing him of the nature of the accusation and advising him that
he does not have to make any statement regarding the offense of which
he is accused or suspected and that any statement made by him may be
used as evidence against him in a trial by court-martial.
It was feared that, without such a warning, an accused might believe

that military discipline required him to answer his interrogator.12 Thus
the warning must be given whenever an accused is questioned, even if
he is not specifically ordered to answer,13 since a suspect is likely to
find the requirement of an answer implicit in the act of questioning.
In one case the interrogator merely directed a question at a group of
men among whom was the person he suspected; the court held that he
should have preceded the question with a warning.14 Because the
responsibility for giving an article 3I warning lies with the interrogator,
the courts have further been careful to see that it was given in such a
manner as to convey its import, and "ritualistic readings" have been dis-
approved.15 Moreover, the interrogator is not allowed to destroy the
effect of a warning: for example, he may not subsequently imply that
an answer, if given, will not be used against the accused.16
By its terms, an article 3I warning need be given only to those ac-
cused or suspected of an offense,17 and the courts give great weight to
the interrogator's characterization of an individual's status at the time
of the questioning.18 If a person is questioned for some other reason,
for example as a material witness, a warning is unnecessary even if he is
later charged with the crime.19 Such a rule assumes, somewhat ques-
tionably, that the problem of free choice is relevant only when the
interrogation is designed to establish the criminality of the person
questioned. If the purpose of questioning a suspect is not to elicit
information directly concerning his guilt, a warning has not been re-
quired. Thus, a doctor, who had questioned a suspect to determine his
sanity without giving a warning, was allowed to base his conclusion in
part on the accused's answers,20 although presumably he would not
have been allowed to testify to the factual statements made.
Article 31 applies only to interrogators subject to the Code; civilian
United States v. Ledlow, ii U.S.C.M.A. 659, 29 C.M.R. 475 (I960) (confession ad-
missible if accused confessed in hopes of being released or allowed to see his wife
when interrogator did not make threats).
12 See United States v. Kemp, I3 U.S.C.M.A. 89, 32 C.M.R. 89 (I962).
13 United States v. Price, 7 U.S.C.M.A. 590, 23 C.M.R. 54 (I957).
14United States v. Wilson, 2 U.S.C.M.A. 248, 8 C.M.R. 48 (953).
15 United States v. Hernandez, 4 U.S.C.M.A. 465, 468, i6 C.M.R. 39, 42 (954
16United States v. Dalrymple, I4 U.S.C.M.A. 307, 34 C.M.R. 87 (I963).
17 Cf. pp. I007-I2 supra.
18 See United States v. Schafer, I3 U.S.C.M.A. 83, 32 C.M.R. 83 (I962).
19 Ibid.
20United States v. Malumphy, 3I C.M.R. 53I, 535 (Bd. of Rev. I96I),
aff'd, I2 U.S.C.M.A. 639, 3I C.M.R. 225 (I962). Similarly, a sergeant was not
required to give a warning when, for reasons unconnected with law enforcement,
he attempted to ascertain the cause of a disturbance. United States v. Cross, I4
U.S.C.M.A. 66o, 34 C.M.R. 440 (I964).

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i966] DEVELOPMENTS - CONFESSIONS i087
authorities need not give a warning when they question military per-
sonnel.21 This rule is consistent with the avowed purpose of the article,
since it is unlikely that the suspect will believe military discipline re-
quires him to answer a civilian. However, the courts have indicated that
civilians interrogating at the request of the services are "instruments" of
the military, and must give the warning unless they have independent
statutory authority so to act.22 And such a distinction seems to indi-
cate that the courts believe the purpose of the statutory warning to be
broader than merely guarding against the presumptive coercion of mili-
tary discipline; it appears that the "instrument of the military" doc-
trine serves mainly to prevent use of civilian interrogators in order to
evade article 3I deliberately. But most of the rules in this area can be
explained in terms of the military discipline rationale. Thus, military
personnel must give a warning even when interrogating on behalf of
civilian authorities.23 And the courts have held that article 3I does not
compel military undercover agents to give a warning; 24 such a require-
ment would severely limit the effectiveness of such agents, and it is
unlikely that an accused unaware of the interrogator's military author-
ity would be misled into believing he had to answer. Given the extension
of the warning requirement to civilian interrogators for the military,
such a justification for the limitation recognized here may seem some-
what inconsistent. However, the limitation might be defended on the
ground that in the case of undercover agents, there is little danger of
compulsion of any sort.
Article 3I does not require that a suspect be told that he has a right
to counsel at the interrogation, and his statement may be admissible
even though counsel was not present.25 The Government is only forbid-
den to misinform the accused; if he is told that he has no right to
counsel, or if he is not allowed to consult retained counsel, his confession
is inadmissible.26 Thus, article 3' protection is limited to making the
accused aware of his right to silence, even though he might need counsel
in order to decide whether to exercise that right 27 and even though he
might believe that military discipline requires him to choose whether to
speak without requesting assistance.
Article 3I also provides that before a suspect is interrogated he must
be informed of the nature of the accusation made against him.28 The
court has held that a suspect is properly "informed" if he is "clearly
oriented" when he answers; it is not necessary that he be told of the
21 United States v. Dial, 9 U.S.C.M.A. 700, 26 C.M.R. 480 (I958); cf. United
States v. Grisham, 4 U.S.C.M.A. 694, i6 C.M.R. 268 (I954) (statements elicited by
French officials).
22 United States v. Holder, io U.S.C.M.A. 448, 28 C.M.R. I4 (I959) (FBI
arresting deserter).
23United States v. King, I4 U.S.C.M.A. 227, 34 C.M.R. 7 (I963).
24United States v. Gibson, 3 U.S.C.M.A. 746, I4 C.M.R. I64 (I935). Compare
Massiah v. United States, 377 U.S. 20I (I964).
25United States v. Cadman, io U.S.C.M.A. 222, 27 C.M.R. 296 (I959). If a
crime is serious enough to warrant a general court-martial, a full investigation must
be made before the trial and, prior to this investigation, the accused must be in-
formed of his right to be represented by counsel. Military Code art. 32.
26United States v. Powell, I3 U.S.C.M.A. 364, 32 C.M.R. 364 (I962).
27 Compare pp. I003-04 supra.
28 Military Code art. 3 I(b).

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specific accusations involved.29 And even when the court has ac-
knowledged that the requirement was violated, it has stated that the
resulting conviction will be reversed only in "the rare and unusual
case." 30 These decisions would seem to render somewhat dubious the
protection afforded the accused by the information provision.
B. Trial Procedures in Regard to Confessions
In order to protect the right to silence, it has been held that the
Government may neither introduce at trial the fact of a defendant's
silence at interrogation nor comment upon it even if he takes the
stand.31 If the accused confessed during interrogation, the Govern-
ment must prove beyond a reasonable doubt that the statement was
voluntary in order to make it admissible.32 However, in the case of
admissions, the Government must introduce evidence of voluntariness
only if the defendant introduces contrary evidence.33 At a general
court-martial, the initial question of whether to admit a confession is
for the law officer 34 and, upon request, the accused is entitled to an
out-of-court hearing.35 If the law officer admits the confession, and if
voluntariness is placed in issue, the members of the court-martial must
be instructed to make their own determination.36 The accused may
testify on the question of the confession's admissibility and still main-
tain his right to refuse to testify on the other issues in the case.37 The
Government must also establish beyond a reasonable doubt that an
article 3I warning was given to the accused and that a request to con-
sult with counsel was not denied.38 Both the law officer and the mem-
bers of the court-martial must rule on these questions.39 The only
difference between these rules and those applicable at a special court-
martial is that, in the latter case, the accused is not entitled to an out-
of-court hearing.40 Instead, the president rules initially on the question
of admissibility and, if he finds the Government has met its burden,
instructs the other members of the court on the issues of law involved.41
The Court of Military Appeals has ensured that the Government
does not benefit from statements obtained in violation of article 3I.
If such a statement is admitted at the court-martial, the conviction
29United States v. Davis, 8 U.S.C.M.A. I96, 24 C.M.R. 6 (I957).

30United States v. O'Brien, 3 U.S.C.M.A. I05, I09, II C.M.R. I05, I09 (I953).
31 United States v. Brooks, I2 U.S.C.M.A. 423, 3I C.M.R. 9 (I96I). However,
if the evidence of guilt is compelling, the conviction will not be reversed because
a comment is made. United States v. Hickman, io U.S.C.M.A. 568, 28 C.M.R.
I34 ('959).
32 United States v. Odenweller, I3 U.S.C.M.A. 7I, 32 C.M.R. 7I (I962).
33 United States v. Wilson, 2 U.S.C.M.A. 248, 8 C.M.R. 48 (I953).
34 United States v. Gorko, I2 U.S.C.M.A. 624, 3I *C.M.R. 2I0 (I962).
35 See generally United States v. Workman, I5 U.S.C.M.A. 228, 35 C.M.R. 200
(I965); cf. pp. I066-67 supra.
36United States v. Gorko, I2 U.S.C.M.A. 624, 3I C.M.R. 2I0 (I962).
" United States v. Miller, I4 U.S.C.M.A. 4I2, 34 C.M.R. I92 (I964).
38 United States v. King, I4 U.S.C.M.A. 2 2 7, 34 C.M.R. 7 (i 963) (warning) (by
implication); United States v. Odenweller, I3 U.S.C.M.A. 7I, 32 C.M.R. 7I (I962)
(right to counsel).
" United States v. Gorko, 12 U.S.C.M.A. 624, 31 C.M.R. 210 (I962).
40 Manual Appendix 8a, at 514.
41 Manual 1f 40.

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i966] DEVELOPMENTS - CONFESSIONS i089
will be reversed regardless of the compelling nature of other evidence.42

Moreover, the court has also held that the fruit of illegally obtained
confessions may not be admitted into evidence.43 However, the court
has been less rigorous in dealing with the problem of double confessions.
In one case in which the accused's first confession raised a question of
voluntariness, the court admitted a second confession made four days
later and after an article 3I warning had been given, on the ground that
there was no evidence that the second confession was a "direct result"
of the first confession." Further, the court apparently does not require
the interrogator to inform the accused that his earlier confession is
inadmissible.45 In such circumstances, an article 3I warning seems of
little value, since an accused who believes the Government can use his
previous confession is unlikely to see any point in remaining silent.
Under military law, as in the civilian system, a guilty verdict cannot
be based solely on an accused's confession; independent evidence of
the corpus delicti must be introduced.46 The military courts have ap-
plied this requirement in a manner similar to that of most civilian
jurisdictions.47 Thus it is not sufficient if the independent evidence
merely bolsters the truth of the confession,48 and it is not necessary
that the independent evidence connect the accused with the crime.49
The independent evidence must show that the crime "probably" oc-
curred,50 but the cases do not make clear whether the members of the
court-martial must rule on the question of sufficiency or whether the
issue is for the law officer (or president) to decide.5'
C. Conclusion
The Military Code provides safeguards at interrogation and at trial

that are in some respects broader than those found in civilian law. But
one area in which it may grant less protection than civilian law is in
its failure to provide that an accused must be warned of his right to
counsel before interrogation.52 Most of the Code's provisions have
been strictly enforced by the military courts although some, such as the
right to be informed of the nature of the accusation, have been weakened
by interpretation. Indications of dissatisfaction with some requirements
of the Code sometimes appear,53 but there has been no serious attempt at
42 United States v. Tanner, I4 U.S.C.M.A. 447, 34 C.M.R. 227 (I964) (invol-

untary confession); United States v. Williams, 8 U.S.C.M.A. 443, 24 C.M.R. 253
(1957) (absence of warning). But see text accompanying note 30, p. io88 supra.
A failure to give a warning does not, however, necessarily render a confession made
to the military inadmissible in civilian court. United States v. Simpson, I62 F.
Supp. 677 (D.D.C. 1958).
4 United States v. Haynes, 9 U.S.C.M.A. 792, 27 C.M.R. 6o (1958); compare
pp. 1028-29 supra.
44 United States v. Hogan, 9 U.S.C.M.A. 365, 26 C.M.R. 145 (I958).
45 See United States v. Monge, i U.S.C.M.A. 95, 2 C.M.R. I (1952). See pp.
I027-28 supra.
46United States v. Isenberg, 2 U.S.C.M.A. 349, 8 CM.R. 149 (953).
48 United States v. Isenberg, 2 U.S.C.M.A. 349, 8 C.M.R. 149 (I953).
49 Manual ?f I4oa.
50 Ibid.
51 See United States v. Landrum, 4 U.S.C.M.A. 707, i6 C.M.R. 28I (I954).
53 See, e.g., United States v. Davis, 8 U.S.C.M.A. I96, I98, 24 C.M.R. 6, 8
(0957) (dissenting opinion).

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IO90 HARVARD LAW REVIEW [Vol. 79:938
revision, and interrogators seem to comply with its provisions as a

matter of course. Perhaps the most striking implication of the military
experience for civilian law is that the requirement of a warning of
the right to remain silent during questioning does not seem to have
significantly impeded the authorities' ability to obtain confessions.54
X. EXPERIENCE IN OTHER COUNTRIES
In attempting to resolve problems in the law of confessions, Amer-

ican courts have on occasion turned to foreign law for guidance. Such
an exercise can, of course, never provide a conclusive answer to these
problems, since their resolution turns ultimately on the nature of our
own social environment and political institutions. Nevertheless, foreign
experience is relevant in several respects. The attitudes of other coun-
tries may help a court to determine the importance of certain rights,'
for example by indicating whether freedom from torture and freedom
from police questioning are fundamental rights of men everywhere.2
In addition, study of foreign systems may suggest whether particular
methods are important for the effective implementation of recognized
rights. In Culombe v. Connecticut, for example, Mr. Justice Frank-
furter observed that many countries have sought to prevent coercive
interrogation by requiring prompt arraignment of arrested persons
before a judicial officer.3 Similarly, the Court has cited rules prevailing
in the British Commonwealth countries concerning when and whether
a witness may be compelled to give answers that might incriminate him
under the law of another jurisdiction,4 it has referred to the test used
in England to determine when interrogation must cease,5 and it has
even mentioned, presumably for contrast, the extent to which institu-
tional safeguards are provided defendants in the Soviet Union.6 Finally,
foreign experience may indicate the practical difficulties that certain
rules can create in operation. In Escobedo v. Illinois, for example, the
Court found support for its holding in recent evidence demonstrating
that the inquisitorial system employed during the Soviet purge trials
of the I930's tended to produce false confessions; 7 in criticizing the
result, the principal dissenting opinion quoted an English writer to the
effect that strict limits on interrogation had proved unworkable in his
country.8
In order to appreciate the significance of such comparisons, it seems
necessary to examine each country's rules rather comprehensively, so
Herman, The Supreme Court and Restrictions on Police Interrogation, 25 OHIO

ST. L.J. 449, 475 (i964).
1 Cf. Rudolph v. Alabama, 375 U.S. 889 (i963) (Goldberg, J., dissenting)
(foreign law relevant to question whether punishment is cruel).
2See Culombe v. Connecticut, 367 U.S. 568, 587-90 & nn.30-32, 34, 36 & 37
(i96i) (opinion of Frankfurter, J.).
3Id. at 584-85 & n.26.
4 Murphy v. Waterfront Comm'n, 378 U.S. 52, 77 n.17 (i964).
5Escobedo v. Illinois, 378 U.S. 478, 487 n.6 (i964); Culombe v. Connecticut,
367 U.S. 568, 593-99 (i96i) (opinion of Frankfurter, J.).
6 Escobedo v. Illinois, 378 U.S. 478, 488 n.9 (i964).
7Id. at 489 nii.
8 Id. at 495-96 n.* (White, J., dissenting).

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i966] DEVELOPMENTS - CONFESSIONS I09I
that particular requirements can be evaluated in the context of the

country's overall criminal system. Unfortunately, space limitations
preclude not only careful examination of the approach taken by all
major countries but even analysis of all the subjects that may be rele-
vant to an understanding of the system of any given country. An
attempt has been made in the pages that follow to consider those
countries whose experience is most likely to shed light on American
problems and to cover, to the greatest possible extent, all those issues
that have proved important in the United States.
A. England
I. Investigation.-The basic principle governing the admissibility
of a defendant's statement in England is that the statement must be
voluntary-that is, not induced by "fear of prejudice or hope of ad-
vantage exercised or held out by a person in authority." 9 This judge-
made rule applies not only to "confessions" but also to any other
statement or response.10 In addition to this prohibition against use of
involuntary confessions, police investigation is also regulated by spe-
cific standards formulated by the English judges between I9I2 and
I9I8 at the request of the Home Office and revised for the first time
in I964: 11
I. When a police officer is trying to discover whether, or by whom, an

offence has been committed he is entitled to question any person,
whether suspected or not, from whom he thinks that useful information
may be obtained. This is so whether or not the person in question has
been taken into custody so long as he has not been charged with the
offence or informed that he may be prosecuted for it.
II. As soon as a police officer has evidence which would afford reason-
able grounds for suspecting that a person has committed an offence,
he shall caution that person [that he is not required to speak and that
any statement of his may be used in evidence] . . . before putting to
him any questions, or further questions, relating to that offence.
III.
(b). It is only in exceptional cases that questions relating to the
offence should be put to the accused person after he has been charged
or informed that he may be prosecuted. Such questions may be put
where they are necessary for the purpose of preventing or minimising
harm or loss to some other person or to the public or for clearing up
an ambiguity in a previous answer or statement.
Before any such questions are put the accused should be cau-
tioned .
The pattern established by the major requirements of the "Judges'

Rules" thus permits the police to question freely while they are at-
tempting to discover who has committed a crime, and citizens are con-
I Ibrahim v. Rex, [1914] A.C. 599, 6o0 (P.C.).

10 See Home Office Circular No. 3I/I964, in I964 CRrM. L. REV. (Eng.) i65,
I67.
11 The Judges' Rules and Administrative Directions to the Police, in Home
Office Circular No. 3 I/I964, supra note io, at i66 [hereinafter cited as I964
Judges' Rules].

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sidered under a duty to respond to help police apprehend the offender.'2

Indeed, in a number of special situations statutes have imposed a duty
to disclose information to the police, and violation is punishable as a
misdemeanor.13 Once suspicion focuses on an individual, however, the
police are required to warn him that he need not say anything and that
any statement he makes may be used in evidence. Prior to the I964
revision, the rules had provided that the warning need not be given
until the "police officer has made up his mind to charge a person with
a crime"; 14 since this standard was subjective, the police were ap-
parently free to continue questioning a suspect after the first telltale
disclosures were made in order to obtain a conclusive admission of
guilt. The new wording in rule II seeks to eliminate this danger by
applying an objective test to determine whether a caution should have
been given; 15 and the changed version, which directs attention to
whether there were grounds for suspicion rather than grounds for a
decision to charge, may also advance the stage at which a caution is
required.
Aside from the warning requirements, the major concern of the
rules is regulation of the extent to which police may question the sus-
pect at all. Rule III(b), permitting questioning after the charge only
in "exceptional cases," ostensibly represents another change from the
old rules. Formerly, rule 3 16 provided that "persons in custody should
not be questioned without the usual caution being first administered,"
and rule 7 declared that "a prisoner making a voluntary statement
must not be cross-examined and no questions should be put to him
except for the purpose of removing ambiguity in what he has actually
said." 17 It seems implicit in the old rule 3 that questioning of a
suspect in custody was permissible, but it was decided at an early date
that rule 3 applied only to "exceptional cases" such as those now speci-
fied in the new rules; in all other cases the strict prohibition of rule 7
was applicable.18 Thus, rule III(b) serves mainly to make explicit
the standard that the old rules had been construed to require.
The wording of the new rule also suggests, however, that the criterion
for determining when questioning should stop is now different from
what it was under the old rules - the emphasis is now on the time
when the accused is charged or informed that he may be prosecuted,
rather than on the moment when he is taken into custody. It would
at first seem that under most circumstances the new test would make
longer interrogation possible. However, since the police are required
12 See Home Office Circular No. 3I/I964, supra note io, at i66.
13 See, e.g., Official Secrets Act, I939, 2 & 3 Geo. 6, c. I2I, ? I, amending Offi-
cial Secrets Act, I920, I0 & II Geo. 5, c. 75, ? 6; Companies Act, I948, II & I2
Geo. 6, c. 38, ? 270(5). Despite the statutory sanction, statements made in these
situations are admissible at a later trial unless an "improper" inducement has
been used. The Queen v. Erdheim, [I896] 2 Q.B. 260.
14 Rule 2, in PaIPSON, EVIDENCE 332 (ioth ed. Argyle I963).
15 The courts may have applied an objective test even under the old rules, see
DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND 29-30 (I960), but this probably
had little effect on actual practice.
6 The old rules were designated by Arabic numerals.
17 See PHIPSON, op. cit. supra note I4, at 332, 334.
18 Home Office Circular No. 536,053/29 (2930), in Brownlie, Police Questioning,
Custody and Caution, 2960 CRi:m. L. REV. (Eng.) 298, 299.

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to inform a person of the charge whenever they take h

the change will not legalize questioning of a person who is in custody
but who has not been informed that he may be prosecuted. In fact,
the change could limit the extent of permissible questioning in some
cases, since the police often inform a suspect that he may be prosecuted
before actually taking him into custody.
The difference between the old "custody" standard and the new
"charge" standard might, however, cut sharply in the other direction
when police investigating a crime wish to question someone held on
another charge. Questioning in this situation, which would seem to
violate the old rules, is not only within the letter of rule III(b) but is
explicitly authorized in rule I, which defines the right to question
at the preliminary stages of investigation. The Court of Criminal
Appeal recently stated, however, that such questioning had always
been permissible,20 and at any rate it apparently was an established
practice before the change.21 Consequently, the new rules may, again,
simply make the standard explicit. The new formulation does, of
course, create the danger that police could significantly expand their
power to interrogate by deliberately charging suspects with a crime
other than the one actually under investigation. However, such tactics
were condemned in I929 by the Royal Commission on Police Powers,22
and the courts would no doubt take a similar view today, though a
deliberate effort to circumvent the rules would probably be difficult to
prove.
Evidence obtained in violation of the rules will not always be re-
jected. It was made clear from the beginning that "these rules hav
not the force of law; they are administrative directions the observance
of which the police authorities should enforce upon their subordinates
as tending to the fair administration of justice." 23 During the late
nineteenth century the courts had shown great distrust of the police
and apparently were inclined to reject automatically any confession
made in police custody.24 But in I909 the Court of Criminal Appeal
decisively rejected a strict exclusionary rule,25 and since that time,
despite adoption of the Judges' Rules, the courts have adhered to the
principle of excluding confessions only on a discretionary basis. In
some cases confessions have been admitted even though the circum-
stances under which they were obtained prompted strong disapproval.26
Occasionally, judges have taken the attitude that questioning in cus-
tody should not result in the rejection of a confession if a caution was
first given,27 and in some cases confessions have been excluded because
19 Christie v. Leachinsky, [ I 94 7] A.C . 5 73.

20 Regina v. Buchan, [I964] i Weekly L.R. 365, 368.
21 See Letters to the Editor, I959 CRIM. L. REV. (Eng.) 673-77.
22 Report, CMD. No. 3297, at 59.
23 The King v. Voisin, [I9I8] i K.B. 53I, 539.
24 See, e.g., Reg. v. Male, i7 Cox Crim. iCas. 689 (Oxford Cir. I893); Reg. v.
Gavin, I5 Cox Crim. Cas. 656 (Northern Cir. I885).
25 The King v. Best, [I909] i K.B. 692.
26 See, e.g., Rex v. Mills, [I947] i K.B. 297 (I946); Rex v. Gardner, ii Crim.
App. R. 265 (I9I5).
27 Rex v. Booker, I8 Crim. App. R. 47 (I924); Rex v. James, 2 Crim.
319 (I909).

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the caution was omitted.28 But courts have often admitted statements
even when the caution was lacking, either as a matter of discretion,29
or on the ground that the rules were not violated when, for example,
a suspect was "invited" to the police station and therefore not tech-
nically in custody.30 Cases such as these lend support to the proposi-
tion that "it is no longer the practice to exclude evidence obtained by
questioning in custody." 31 Nevertheless, now that the rules have
been clarified, some observers expect that the judges will become less
willing to overlook violations.32
In contrast to this flexible approach toward violations of the Judges'
Rules is the attitude toward confessions that are shown to be involun-
tary. The defendant has long been entitled to demand that such a con-
fession be excluded,33 and the introduction to the new rules stresses
the difference between the two tests: "The principle [that voluntariness
is a fundamental condition of admissibility] . . . is overriding and
applicable in all cases. Within that principle the following Rules are
put forward as a guide to police officers conducting investigations." 34
Statements have been considered involuntary not only when resulting
from an explicit threat, such as "you had better confess," but also when
induced by more subtle language, such as "you had better tell the
truth." 35 But there seems to be little case law defining the precise
scope of "involuntariness," especially that resulting from tacit intimi-
dation. The absence of litigation may reflect reluctance of the police
to use questionable tactics, though this explanation seems overly
optimistic. It at least suggests, however, that judges are known
to take a dim view of coercion in any form, and that the prose-
cution consequently does not attempt to make direct use of arguably
involuntary statements.36 If there has been no intimidation or promise
but the accused has been tricked into speaking, the statement will be
considered "voluntary," 37 but case law indicates that the judge may
exclude it as a matter of discretion if the tactics employed seem in
some sense "unfair." 38
The strict rule prohibiting the use of involuntary statements ap-
parently applies even if the truth of the statement is later confirmed,
but there is very little recent case law on the issue. Some early cases
held that facts discovered as a result of an involuntary confession were
admissible, but that such facts could not be linked in any way to the
28E.g., Rex v. Dwyer, 23 Crim. App. R. I56 (1932).

29 R. v. Smith, [i96i] 3 All E.R. 972 (Ct. Crim. App.).
30 Regina v. Wattam, 36 Crim. App. R. 72 (I952).
31 Williams, Questioning by the Police: Some Practical Considerations, ig60
GRIM. L. REV. (Eng.) 325, 33I-
32 J. C. Smith, The New Judges' Rules -A Lawyers View, I964 CRIM. L.
REV. (Eng.) I76, I82.
33 See Ibrahim v. Rex, [1I9I4] A.C. 599 (P.C.).
34 I964 Judges' Rules at I67.
35 3 WIGMORE, EVIDENCE ?? 838 n.I, 832 n.I (3d ed. I940).
36 See Culombe v. Connecticut, 367 U.S. 568, 598-99 (i96i) (opinion of Frank-
furter, J.).
37 Rex v. Firth, 8 Crim. App. R. i62 (I913) (dictum); cf. The King v. Robin-
son, [19171 2 K.B. io8.
38 See Reg. v. Histed, I9 Cox Crim. Cas. i6 (South-Eastern Cir. I898); cf.
PHIPSON, op. cit. supra note I4, at 33I.

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statement. Others held the whole confession admissible, on the theory

that confirmation of any part makes the rest of the statement trust-
worthy. Between these two extremes can be found other lines of cases
holding that only those parts of the confession that are specifically
confirmed by the facts discovered are admissible or that the prose-
cution can at least prove that the facts were discovered as a result
of something the accused said.39 In the only twentieth century
case dealing with the issue, revenue agents had promised a taxpayer
immunity from criminal prosecution if he would produce certain docu-
ments. A prosecution nevertheless followed, and the documents were
used in evidence, but the court quashed the conviction on the ground
that the documents must be treated no differently from any oral or
written confession obtained by similar inducement.40 Since the promise
had in no way affected the reliability of the documents, the decision
implies rejection of the view that voluntariness need not be shown
once reliability is established. It seems clear that an involuntary oral
or written confession would also be held inadmissible despite con-
firmation.
The English law of confessions thus relies on two systems of criteria.
One set of standards - focusing on the concept of voluntariness - is
maintained through application of a strict exclusionary rule. The other
requirements - the Judges' Rules - merely set forth an exemplary
standard, and the consequences of a violation depend upon the facts of
a particular case. Perhaps the major significance of the rules is that
they provide a basis for rejecting confessions even when no coercion
can be shown. They could have been regarded as buttressing the more
general requirement of voluntariness, since a violation of the rules
may suggest that the accused was influenced by hope or fear or, if
questioning in custody was involved, may at least suggest that volun-
tariness cannot be determined with sufficient certainty to warrant
admission of the statement. But since violations are so frequently
ignored, it seems unlikely that the rules are considered important as
a means for fully implementing the voluntariness requirement. Instead,
the preference for applying the rules on a discretionary basis is prob-
ably a reflection of the English desire to ensure that standards of
"fair play" are observed in each case.
2. Trial. - In I898, the defendant became competent to give evi-
dence at his trial under a statute providing that he cannot be compelled
to testify and that the prosecution may not refer to his silence.41 The
judge, however, may comment on such silence if a comment seems
warranted,42 and apparently this practice is becoming more common.43
If the prosecution seeks to introduce a confession over the defendant's
objection, the judge must rule on the question of admissibility in the
" See Gotlieb, Confirmation by Subsequent Facts, 72 L.Q. REV. 209, 2I8-2I
(1956).
40 Rex v. Barker, [I94I] 2 K.B. 38I.
41 Criminal Evidence Act, I898, 6i & 62 Vict., c. 36, ?? i(a), (b).
42Compare The Queen v. Rhodes, [I899] i Q.B. 77 (I898), with Waugh v.
The King, [I950] A.C. 203 (P.C.).
4 Williams, The Privilege against Self-Incrimination Under Foreign Law: B.
England, 5I J. CRIm. L., C. & P.S. i66, I67 (I960).

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absence of the jury." The Crown has the burden of proof of the issue
of voluntariness,45 and it seems to be settled, despite much criticism,46
that voluntariness must be established beyond a reasonable doubt at
the initial hearing on admissibility.47 Violations of the Judges' Rules
will also be advanced at this time as grounds for rejecting a confession,
but the cases fail to indicate what standards of proof are applied.
Even after the judge has ruled that a confession is admissible, the
defendant is entitled to question voluntariness again in the presence of
the jury,48 and the judge must instruct the jury to disregard the state-
ment unless they find it voluntary.49 When a confession has been ruled
inadmissible, the prosecution may not refer to it at any point, even to
impeach the defendant's version of the facts if he chooses to testify.50
Thus, the procedural safeguards available at trial to protect the de-
fendant against use of an involuntary confession seem reasonably
complete. Once a confession is held voluntary, however, the defendant
can apparently be convicted without corroborating evidence.51
3. Current Problems. - Many observers believe that in general there
is widespread compliance with the Judges' Rules.52 But others have
suggested that the police violate the rules frequently but deal with most
suspects tactfully enough to create an appearance of compliance,53 or
that the prohibition against questioning of suspects in custody is simply
ignored by some police forces.54 Occasionally incidents involving even
the use of physical torture in order to obtain confessions come to light.55
However, interrogation of suspects is on the whole probably less fre-
quent and less intensive than in the United States.
Some critics of the English system have regarded the violations that
occur as inevitable and have urged that the realities of law enforcement
be candidly acknowledged by extension of the right to question.56
Others have argued that the police can be encouraged to adhere to the
rules without eliminating the judge's discretion to accept evidence
when the circumstances as a whole were not fundamentally unfair.57
The recent, long-awaited revision of the Judges' Rules produced few
44Regina v. Francis, 43 Crim. App. R. i74 (i959); see Cross, The Functions
of the Judge and Jury With Regard to Confessions, I960 CRIM. L. REV. (Eng.)
385.
" The Queen v. Thompson, [I893] 2 Q.B. I2.
" See, e.g., O'Regan, Admissibility of Confessions - The Standard of Proof,
I964 CRIM. L. REV. (Eng.) 287.
4 R. v. Sartori, I96I CRIM. L. REV. (Eng.) 397 (Central Crim. Ct.).
48 Rex v. Murray, ['95I] I K.B. 39I (1950).
" Regina v. Francis, 43 Crim. App. R. I74 (1959); Regina v. Bass, [I953] I
Q.B. 68o (alternative holding).
50 Rex v. Treacy, [i94] 2 All E. R. 229 (Crim. App.).
51 Rex v. Sykes, 8 Crim. App. R. 233 (I9I3) (dictum); ARCHBOLD, PLEADI
EVIDENCE AND PRACTICE IN CRIMINAL CASES ? II27 (35th ed. Butler & Garsia
i962). One authority has interpreted the cases to require corroboration for con-
fessions in crimes involving difficult questions of law, such as title to property.
PHIPSON, op. cit. supra note I4, at 330.
52 See generally DEVLIN, op. cit. supra note I5, at 64-66.
53 See SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN A DEMO-
CRATIC SOCIETY 66-67 (I966).
54Williams, supra note 3i, at 33I; see J. C. Smith, Questioning by the Police:
Some Further Points -I, I960 CRIM. L. REV. (Eng.) 347, 349-50.
55 See, e.g., Home Office, Sheffield Police Appeal Inquiry, CMND. No. 2I76 (I963).
56 See, e.g., Williams, supra note 3I, at 340-4I.
5 See Brownlie, supra note i8, at 324.

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significant changes and may therefore reflect general satisfaction both

in the judiciary and in the Home Office with the operation of the
present system. Although there was apparently no significant sentiment
in favor of exclusion of all confessions obtained in violation of the rules,
the tendency of the changes to place somewhat greater limits on the
scope of permissible questioning at least suggests a lack of concern that
present restrictions on police interrogation seriously impede law en-
forcement in England.
B. Scotland
After union with England in I707, Scotland was greatly influenced
by the English common law. In criminal cases, however, the defendant
long had no right of appeal,58 and even when the right was finally
established by statute in I926, Scottish independence in criminal pro-
cedure was reaffirmed by a provision that decisions of the Scottish
High Court of Justiciary on criminal appeals would be final.59 The
Scottish courts have not applied the English Judges' Rules to the
Scottish police,60 and the criminal law in Scotland has remained dis-
tinctive in many respects.
i. Investigation. - When the police begin an investigation and have
no grounds for suspecting any particular person, they may, like their
English counterparts, ask questions freely and without first giving a
caution. Any statement made under these circumstances will be ad-
missible,61 providing it does not result from pressure or inducement.62
Once an arrest is made, however, interrogation of any kind will ap-
parently render a resulting statement inadmissible. In Stark v. H. M.
Advocate,63 for example, police entered the defendant's cell and asked
him to explain certain consignment notes indicating that he had been
in possession of stolen property. The defendant confessed to the theft,
and his statement was admitted at trial. There was no suggestion of
physical abuse, improper inducement, or prolonged questioning, but on
appeal the court quashed the conviction, holding that "for the police
to go into a police cell, and to tell the accused that they had docu-
mentary evidence and invite him to give explanations, was to subject
him to interrogation." 64 One of the judges characterized the procedure
as "attended with very grave irregularities." 65 In other cases even
milder practices have caused statements to be excluded - a confession
is considered inadmissible if the defendant mistakenly responds
to a question addressed by a policeman to a fellow officer,66 and even
if the defendant is not questioned in any sense but simply con-
58 See Mackintosh v. H.M. Advocate, 2 App. Cas. 41, 70-73 (Scot. I876).
[all case citations in this section are to Scottish decisions unless otherwise indi-
cated].
" Criminal Appeal (Scotland) Act, I926, i6 & I7 Geo. 5, c. I5, ?? I, I7(I).
60 Chalmers v. H.M. Advocate, [I954] Just. Cas. 66, 77-78.
61 Bell v. H.M. Advocate, [I945] Just. Cas. 6i.
62 Chalmers v. H.M. Advocate, [I954] Just. Cas. 66, 8i (dictum).
6f3 [I938] Just. Cas. I70.
64 Id. at I73.
65 Id. at I75 (Moncrieff, concurring).
66 H.M. Advocate v. Lieser, [I926] Just. Cas. 88.

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fronted with evidence against him.67 And the courts have not seemed
willing to apply a less stringent standard when defendant's statement
was less than a complete acknowledgment of guilt.68
The inadmissibility of statements made in response to questioning
after arrest is sometimes explained on the theory that such a statement
was not voluntary,69 or that "it was unfairly obtained." 7 It seldom
makes much difference which theory is controlling, however, since in
Scotland the concept of voluntariness is very broad, requiring in effect
complete "spontaneity." 71 Thus, in the only recent case found in
which a statement made in custody was held admissible, the court
declared: 72
[T]he initiative for making the statement came from the appellant and
from the appellant alone. On each occasion the officer concerned warned
him quite properly of the inadvisability of making any statement at all
.. . .They were quite definitely discouraging him from committing
himself to paper as he did on three occasions. On each occasion he was
made aware by them of his right to have legal assistance bef-ore he made
his statement, but he stubbornly refused to have it. Indeed the police
on their own went out of their way to try to get a solicitor to act for
him . . . ."
In addition to the prohibition of questioning, the safeguards pro-

vided a suspect after arrest include a right to be informed of the nature
of the charge and cautioned that any statement he makes can be used
against him.73 He must also be told of his statutory right 74 to consult
a solicitor. Failure to observe these requirements will not automatically
bar use of a confession if it was "voluntary," 75 but a conviction based
on a voluntary confession was quashed when failure to advise the
defendant of his right to counsel was accompanied by other prejudicial
circumstances,76 and the courts have consistently recognized the trial
judge's discretion to exclude confessions on general grounds of "fair-
ness to the accused," even when the statements are shown to have been
completely spontaneous.77 Apparently, confessions obtained by trick
also fall within this rule and may be excluded as a matter of discre-
tion.78 In any event, compliance by the police with all these require-
ments seems to be the norm.79
7 Wade v. Robertson, [I948] Just. Cas. II7, 120 (dictum).

68 See, e.g., H.M. Advocate v. Lieser, [I926] Just. Cas. 88.
69 See Wade v. Robertson, [I948] Just. Cas. II7.
70 See Stark v. H.M. Advocate, [1938] Just. Cas. I70, I74.
71 See the language of the court in Chalmers v. H.M. Advocate, [I954] Just.
Cas. 66, 78.
72 Manuel v. H.M. Advocate, [I958] Just. Cas. 4I, 49.
73 See T. B. SMITH, SCOTLAND; THE DEVELOPMENT OF ITS LAWS AND CONSTITU-
TION 2IO (I962).
7" See Summary Jurisdiction (Scotland) Act, I908, 8 Edw. 7, c. 65, ? I5;
Criminal Procedure (Scotland) Act, i887, 50 & 5I Vict., c. 35, ? I7.
" See Hodgson v. Macpherson, [I9I3] Just. Cas. 68 (failure to caution); H.M.
Advocate v. Fox, [I947] Just. Cas. 30 (1946) (failure to advise of right to cou
76 See H.M. Advocate v. Olsson, [II4II] Just. Cas. 63.
77 See Mills v. H.M. Advocate, [I935] Just. Cas. 77, 8i (dictum); T. B.
SMITH, op. cit. supra note 73, at 2II n.24.
78 Cf. H.M. Advocate v. Keen, [I926] Just. Cas. I (I925).
79 Hardin, Other Answers: Search and Seizure, Coerced Confession, and Crim-
inal Trial in Scotland, II3 U. PA. L. REV. I65, I73 (I964).

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One problem not clearly resolved by the courts is the extent to which
an individual who has become the primary suspect is entitled to these
safeguards before his arrest. When suspects have been "asked" to
the police station for questioning but have not been charged, the courts
have rejected confessions, pointing out that such suspects were, if any-
thing, in greater need of protection than a person who had been formally
accused.80 The subject was fully considered in Chalmers v. H. M.
Advocate; 81 the police, after concluding that a sixteen-year-old boy
was the "likely perpetrator" of a murder, had invited him to come to
the police station and there quickly succeeded in eliciting a confession.
The court recognized that questioning was proper during "exploratory
police investigation," but thought that under the circumstances the
defendant was entitled to the postarrest safeguards even though he had
not been formally charged. The court would not draw a firm line be-
tween the "exploratory" and accusatory phases of investigation. How-
ever, great significance was attached to the point in time when an
officer "ought to be in a position to appreciate that the man whom he
is in process of questioning is under serious consideration as the per-
petrator of the crime," 82 and it seems likely that in practice this will
be the test. In a recent prosecution for reckless driving the defendant
was questioned before arrest at his relatives' home and in their pres-
ence, but he was not cautioned. As the court viewed the facts, the
officer "must there and then have clearly suspected not only that
[defendant] . . . was the driver of this van but that he had been
guilty of some form of culpable driving . . " 83 It was held that a
caution should have been given and that the statement made by de-
fendant was inadmissible.
After arrest the suspect must be promptly arraigned before a magis-
trate - usually not later than the morning after the arrest.84 Until
the end of the nineteenth century, the accused was at this time ques-
tioned extensively by the magistrate but was informed that he need
not answer any particular question.85 The proceeding served mainly
to give the accused an opportunity to have his version of the facts
appear in the record, since he was not competent to testify at trial.
Thus, when the defendant was given the right to testify,86 questioning
at the pretrial hearing became unnecessary, and in I908 examination
of the accused was made optional rather than mandatory.87 Today the
magistrate's hearing is largely a formality. The accused may consult
counsel before the proceeding,88 and although it seems that counsel is
not available to indigents as a matter of right,89 there is in practice a
H.M. Advocate v. Aitken, [I926] Just. Cas. 83; see H.M. Advocate v. Rigg,
[I946] Just. Cas. I (I945).
8 [I954] Just. Cas. 66.
82 Id. at 82.
83 Stewart v. McLugash, 78 Sher. Ct. Rep. I89, I92 (Argyllshire i962).
84 RENTON & BROWN, CRIMINAL PROCEDURE ACCORDING TO THE LAW OF SCOT-
LAND 4I (3d ed. Watt I956).
85 T. B. SMITH, op. cit. supra note 73, at 220.
86 Criminal Evidence Act, I898, 6i & 62 Vict., c. 36, ? I.
87 Summary Jurisdiction (Scotland) Act, I908, 8 Edw. 7, c. 65, ? 77(I).
88 Criminal Procedure (Scotland) Act, I887, 50 & 5I Vict., c. 35, ? I7.
89 See Graham v. Cuthbert, [II9I] Just. Cas. 25 (1950).

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1100 HARVARD LAW REVIEW [VoL. 79:938
well-functioning legal aid system.90 The "law agent" appears with the
accused, and "unless the agent thinks that the accused can clear him-
self at once, he normally advises him to make no declaration at the
examination." 91 Thus, the proceeding usually involves only the formal
disclosure of the charge and lasts about five minutes.92
Of course, if the accused does wish to make a statement, the hearing
gives him an opportunity to do so in an atmosphere free from police
pressure. This consideration has prompted the courts to suggest that
although "voluntary" statements made in custody are admissible, the
statements should be taken in the presence of a magistrate, in order to
ensure spontaneity.93 The police have apparently never followed this
practice,94 but there is some indication that the courts may now force
greater use of the magistrate's hearing. In one recent trial, an ap-
parently voluntary statement was offered in evidence, and although the
defense did not object to its admissibility, the trial judge excluded it
on his own motion, solely because the suggested procedure had not
been followed.95
If a confession is found to be involuntary, the effect of facts discov-
ered as a result of the confession is not clear. In Chalmers the defendant
had confessed and had shown police where the victim's purse was
hidden, under circumstances regarded as coercive. The court held that
verification of the defendant's statement by discovery of the purse did
not make the statement admissible, and that the prosecution could not
even prove the more limited fact that the purse had been discovered
as a result of something the defendant had said.96 The court implied
that the purse itself would be admissible but did not discuss the point,
since the purse alone had no probative value. In a later case, however,
the court was apparently willing to concede that when a confession
is held inadmissible, "the facts which came to light in consequence of it
must be rejected also . . . ." And probably the courts would claim
a broad discretionary power to exclude such evidence, since this is the
approach taken with regard to evidence obtained by illegal seizure.98
2. Trial. - As in England, the accused has the right to testify but
cannot be compelled to testify, and the prosecution must not comment
on his refusal to take the stand.99 It has been held that the judge may,
in some circumstances, call the jury's attention to a defendant's failure
to testify,100 but in a subsequent case two judges questioned the wisdom
of this rule, and the court quashed the conviction with the holding that
'I See Brownlie, Legal Aid in Scottish Criminal Proceedings, I96I CRIM. L.
REV. (Eng.) I64-65.
91 T. B. SMITH, op. cit. supra note 73, at 220.
92 Id. at 220-2I. See generally Proceedings Before Examining Justices and
Scottish Pre-Trial Procedure, I965 CRIM. L. REV. (Eng.) 352.
" See Chalmers v. H.M. Advocate, [I954] Just. Cas. 66, 79-80.
14 T. B. SMITH, op. cit. supra note 73, at 2I4.
" H.M. Advocate v. Christie, Nov. 3, I96I (unreported); see I96I SCOTs L.T.
179.
96 [,954] Just. Cas. at 76.
17 Manuel v. H.M. Advocate, [I9581 Just. Cas. 4I, 47 (dictum).
98 Lawrie v. Muir, [I950] Just. Cas. i9 (I949); see H.M. Advocate v. Turnbull,
['95I] Just. Cas. 96.
11 Criminal Evidence Act, I898, 6i & 62 Vict., c. 36, ?? i(a),(b).
100 Brown v. Macpherson, [i9i81 Just. Cas. 3 (19I7).

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I966] DEVELOPMENTS - CONFESSIONS I1IOI
in any event it was error to emphasize or repeat such comments.101

As under English procedure, if the defendant objects to the introduc-
tion of a confession, the judge must rule on the question of voluntari-
ness in the absence of the jury, but if the confession is admitted, the
defense may reopen the issue before the jury. In no event will the jury
be asked to make a finding as to voluntariness, but it will be instructed
to disregard the statement if the facts disclosed cast doubt on its
reliability.102
A strict rule of corroboration applies in all criminal cases -identi-
fication of the accused with the crime must be established by the tes-
timony of two credible witnesses.103 The rule has been weakened to
some extent by a recent holding that the two witnesses need not testify
to each essential fact, that each one can provide independent incrimina-
ting information.'04 This decision, however, would not seem to cast
doubt on the doctrine 105 that a defendant cannot be convicted on his
confession unless there is some other source of information tending to
incriminate him.
3. Current Problems. - The Scottish rules have been sharply
criticized for unduly hampering police investigation by their "extreme
tenderness" to suspected criminals.106 But one observer, who admits that
"there is an almost extreme solicitude on the part of the courts to en-
sure fairness for the accused," has concluded that "these rules have
been found to operate fairly well in practice." 107 On the whole, the
Scottish system has apparently not raised problems serious enough to
generate significant pressure for relaxing the rules against confessions.
The police admit that they question suspects without giving a caution
until they are ready to make the arrest, but otherwise there seems to be
full police compliance with theoretical standards.'08 The judges them-
selves recognize that "the law of Scotland goes further than many other
legal systems in protecting a person who is detained by the police from
any risk of being driven or cajoled or trapped into admissions of guilt,
even though this may complicate the quite legitimate detection of crime
by the authorities . . . ." 109 But as the tone of this statement sug-
gests, the judges take pride in the strictness of the Scottish rules, and
there has been no noticeable tendency for courts to take a permissive
attitude toward infractions.
C. Canada
i. Investigation. -Confessions are admissible in Canada only if
"voluntary," and the English definition of voluntariness has been taken
101 Scott v. H.M. Advocate, [I946] Just. Cas. go.

102 See Chalmers v. H.M. Advocate, [I954] Just. Cas. 66, 8o-8i, 82-83.
103 Bisset v. Anderson, [I949] Just. Cas. io6.
104 Gillespie v. Macmillan, [I957] Just. Cas. 3I; see Wilson, The Logic of
Corroboration, 76 SCOT. L. REV. IOI (I960).
105 See Connolly v. H.M. Advocate, [I958] Scots L.T.R. 79 (I955) (dictum).
106 Gibb, Fair Play for the Criminal, 66 JURID. REV. I99 (I954); see T. B
SMITH, op. cit. supra note 73, at 2I6.
107 Scots Law Regarding Confessions, [I96I] CRIM. L. REV. (Eng.) 592, 59
108 Hardin, supra note 79, at I72-73.
109Manuel v. H.M. Advocate, tI958] Just. Cas. 4I, 48; see Chalmers v.
Advocate, [I9541 just. Cas. 66, 77-78.

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II02 HARVARD LAW REVIEW [VoL. 79:938
as the standard.1"0 Canadian courts also give weight to the English

Judges' Rules,"' but a violation of the rules is regarded as only one of
the factors bearing on admissibility; ultimately the voluntariness test is
controlling.112 During the course of a general investigation, Canadian
police may question all persons without giving a caution.113 After
arrest the accused is entitled to be cautioned, but at an early date it
was held that a confession made after arrest and without a caution could
be admitted as a matter of discretion.114 Then, in Gach v. The King,115
the Canadian Supreme Court held a confession inadmissible, apparently
on the theory that "when a person has been arrested, all confessions
made to a person in authority, as a result of questioning, are inadmis-
sible in evidence, unless proper caution has been given." 116 Although
there was evidence of police threats in Gach, this statement was in-
terpreted as eliminating the discretion to admit postarrest confessions
made without caution; 117 but the Supreme Court soon rejected this
interpretation, holding in Boudreau v. The King 118 that a confession
made in custody had been properly admitted despite failure to caution.
Since that time, several cases have permitted the use of confessions
obtained without prior caution, if "voluntariness" was established.119
When the accused has been arrested without a warrant, he must be
brought before a magistrate within a reasonable time - if possible
within twenty-four hours 120 -in order that probable cause may be
ascertained. Illegal detention will not alone make a confession in-
admissible, though when a woman was held by the police for nine days
the court ruled that the "suspense" rendered her statement involuntary,
even though she had been cautioned and had not been extensively
questioned.121 There is also a right on arrest "to retain and consult
counsel without delay." 122 Refusal to permit consultation with counsel
has been considered relevant on the question of voluntariness,123 but
it will not in itself cause a confession to be rejected.124
Thus the violation of a specific rule is usually not sufficient to call
110 Rex v. Spain, 36 D.L.R. 522, 28 Can. Crim. Cas. Ann. [hereinafter cited as
C.C.C.] II3 (Man. I9I7); see Sankey v. The King, [I927] Can. Sup. Ct. 436,
[I9271 4 D.L.R. 245.
11 See Rex v. Murakami, i West. Weekly R. (n.s.) 742, 99 C.C.C. 347 (Alta.),
aff'd, [I95I] Can. Sup. Ct. 80I, [I95I] 4 D.L.R. 370.
112 See The Queen v. Fitton, [I956] Can. Sup. Ct. 958, 964, 6 D.L.R.2d 529,
534 (opinion of Rand, J.). These standards apply in all the provinces since prose-
cutions for major crimes are governed by national law. The provinces occasionally
differ, however, on issues left unresolved by the Canadian Supreme Court.
113 Rex v. Johnston, [I948] Ont. 290, [I948] 3 D.L.R. 78i.
114 Prosko v. The King, 63 Can. Sup. Ct. 226, 66 D.L.R. 340 (I922).
5 [I943] Can. Sup. Ct. 250, [I943] 2 D.L.R. 4I7.
6 Id. at 254, [I943] 2 D.L.R. at 420.
117 Rex v. Scory, [I945] 2 D.L.R. 248, 83 C.C.C. 306 (Sask. I944).
118 [I9491 Can. Sup. Ct. 262, [I9491 3 D.L.R. 8i.
119 E.g., Balcerczyk v. The Queen, [I957] Can. Sup. Ct. 20; Regina v. Mitch
23 Can. Crim. R. 238 (Ont.), aff'd, 25 Can. Crim. R. I2 (I956).
120 CAN. CRIM. CODE ? 438 (Martin i965).
121 Chapdelaine v. The King, 56 Que. B.R. 52, [I935] i D.L.R. 805 (I933).
122Bill of Rights Act of ig6o, 8 & 9 Eliz. 2, c. 44, ? 2(c) (ii) (Can.). Indigent
defendants must in some cases be assigned counsel on appeal, CAN. CRIM. CODE
? 590 (Martin i965), but there is apparently no statutory provision for assigning
counsel at or prior to trial.
123 Chapdelaine v. The King, 56 Que. B.R. 52, [19351 i D.L.R. 805 (I933).
124 See Rex v. Emele, [1940] 3 D.L.R. 758, 74 C.C.C. 76 (Sask.).

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for exclusion of a confession, and in nearly all cases admissibility turns

only on the general test of whether the statement was induced by "fear
of prejudice or hope of advantage exercised or held out by a person in
authority." 125 The requirement applies not only to "confessions" but
also to statements that reveal a fact material to the charge without in
terms admitting complete guilt.'26 But apparently, statements that are
exculpatory when made, such as an alibi later proved false, are ad-
missible without proof of voluntariness.127
Intimidation by the police renders a confession involuntary if it
includes explicit threats, such as to arrest the suspect 128 or to "make
a lot of fuss in the papers." 129 Even veiled threats, such as "it would
be better to tell the truth" will render a resulting confession involun-
tary,130 although confessions following such statements have been
admitted when the accused conceded he would have spoken anyway,'13
or when the statement did not seem threatening in context.'32 It is also
recognized that coercion can result from police conduct even without
violence or threatening words. In Rex v. Cansdale,'33 for example, the
court held a young girl's statement inadmissible on the ground that the
gruff manner of her arrest, along with her isolation in the police station,
created an intimidating atmosphere. Likewise, persistent questioning
while the accused is in custody can render a confession involuntary even
without evidence of explicit threats.'34 However, the simple asking of
a question is not enough to make a statement inadmissible since the
Canadian concept of voluntariness, unlike the one prevailing in Scot-
land, does not imply spontaneity.135 In all cases much attention is paid
to the physical and mental condition of the particular accused, in order
to determine whether the conduct of the police was likely to arouse hope
or fear in this individual.136
The courts have generally not considered statements involuntary
merely because the police obtained them by lying or by playing two
suspects off against one another.'37 Nevertheless, several courts have
125Prosko v. The King, 63 Can. Sup. Ct. 226, 234, 66 D.L.R. 340, 342 (1922),
quoting Ibrahim v. Rex, [1I9I4] A.C. 599, 609 (P.C.).
126 See The King v. Benjamin, 53 Que. C.S. i6o, 4i D.L.R. 388 (I9I7).
127 See Regina v. Kestenberg, 32 Can. Crim. R. i (Ont. ig60). But see Rex v.
Scory, [I945] 2 D.L.R. 248, 83 C.C.C. 306 (Sask. I944).
128 Rex v. De Mesquito, 2i B.C. 524, 26 D.L.R. 464 (I9I5).
129 See The King v. Myles, 56 N.S. i8, [I923] 2 D.L.R. 88o (I922).
130 Regina v. Lazure, 3 2 Can. Crim. R. I94 (Ont. '959).
131 Rex v. Sykes, I3 Can. Crim. R. 153 (B.C. i95i).
132 Rex v. Bahrey, [I934] i West. Weekly R. 376 (Sask.).
133 I2 Can. Crim. R. 245 (Alta. Sup. Ct. 1950).
134 Regina v. Starr, 33 Can. Crim. R. 277 (Man. County Ct. ig60); Rex v.
Howlett, [I950] 2 D.L.R. 5I7, 9 Can. Crim. R. i96 (Ont.), application for leave
to appeal dismissed, [1950] 2 D.L.R. I43, 9 Can. Crim. R. 353.
135 The Queen v. Fitton, [1956] Can. Sup. Ct. 958, 962-63, 6 D.L.R.2d 529,
532-33.
136 See, e.g., Regina v. Yensen, [i96i] Ont. 703, 29 D.L.R.2d 3I4; Rex v
Washer, 92 C.C.C. 2i8 (Ont. I948).
137 E.g., Rex v. Fartudo, io D.L.R. 669 (Que. I9I2); Rex v. Ryan, 9 Ont. L.R.
137, 9 C.C.C. 347 (I905). If the accused was deceived into thinking he was
speaking with his lawyer or his lawyer's agent, however, the policies underlying
the attorney-client privilege were held to require exclusion of his statement. See
The King v. Choney, 13 C.C.C. 289 (Man. i908).

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II04 HARVARD LAW REVIEW [Vol. 79:938
denounced the practice of police trickery,'38 and in one case a statement

was rejected on the ground that the police had falsely told the accused
that his accomplice had confessed.139 These cases cast some doubt on
the conclusion of one writer that the admissibility of confessions ob-
tained by trick is now "settled." 140 Although none of the cases has
suggested that deception might automatically render a confession in-
voluntary, there appears to be at least some tendency to consider the
use of such tactics as one of the factors bearing on voluntariness.
In several early cases it was said that information found as a result
of a confession was admissible,14' although the authorities were, as in
England, ambiguous and conflicting. The subject was reviewed in detail
in Rex v. St. Lawrence,'42 in which a judge held admissible not only
information discovered but also those parts of the defendant's state-
ment that were confirmed by the discoveries. This trial court holding
has been cited as the Canadian law on the doctrine of confirmation by
subsequent facts,143 but the British Columbia Court of Appeal has
cautiously refused to approve it.144 The rule was accepted by the
Ontario Court of Appeal, but that court suggested that St. Lawrence
applied only to admissions of specific facts, such as knowledge of the
location of stolen goods, and that an involuntary statement acknowl-
edging guilt could not be admitted even if confirmed.145 None of
these cases has suggested that evidence of this kind should be rejected
outright in order to discipline the police, and it seems likely that both
the articles found and the portions of the statement that are confirmed
will be held admissible in most cases.
2. Trial. - Under the Canada Evidence Act, which governs prosecu-
tions for all major crimes, the defendant is a competent witness,146 but
he may not be compelled to appear, and neither the prosecution nor the
judge may comment on his failure to testify.147 However, in judicial pro-
ceedings other than his own trial, a person can always be compelled
to testify, and he must answer all questions regardless of whether they
may tend to incriminate him.148 This power has been extended to pro-
ceedings by a wartime Royal Commission investigating security viola-
tions 149 and even to the routine coroner's inquest.150 The statute pro-
vides that if the accused objects to a question on the ground that his
answer may incriminate him, the answer will not be admissible in any
subsequent criminal proceeding against him, except for a possible
138 See, e.g., Rex v. Lantin, 8o C.C.C. 375 (Que. I943)-

139 Regina v. McLean, 32 Can. Crim. R. 205 (B.C. I957).
140 KAUFMAN, THE ADMIssIBILITY OF CONFESSIONS IN CRIMINAL MATTERS io8
(I960).
141 The King v. White, i8 Ont. L.R. 640, I5 C.C.C. 30 (I908); Regina v. Doyle,
I2 Ont. 347 (Q.B. i886).
142 [I949] Ont. 2I5 (High Ct.).
143 See Savage, Admissions in Criminal Cases, 5 CRIM. L.Q. (Can.) 49, 115
(I962).
144 Regina v. Downey, 20 Can. Crim. R. 2I3 (B.C. I954).
145 Regina v. Briden, [I960] Ont. 362.
146 CAN. REV. STAT. C. 307, ? 4(I) (I952).
147 CAN. REV. STAT. C. 307, ? 4(5) (1952).
148 CAN. REV. STAT. C. 307, ? 5(I) (1952).
149 Rex v. Mazerall, [19461 Ont. 762, 86 C.C.C. 321.
150 Rex v. Barnes, 49 Ont. L.R. 374, 6i D.L.R. 623 (I92I).

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I966] DEVELOPMENTS - CONFESSIONS I I05
prosecution for perjury in giving the answer.151 However, there is no

obligation to advise a witness of his right to make this objection, and if
he incriminates himself without claiming the exemption, his statement
will be admissible.152
If the defendant objects to introduction of a confession, the prosecu-
tion has the burden of proof on the issue of voluntariness,153 and some of
the decisions have in effect required the removal of all doubts on the
issue.'54 Moreover, the courts have emphasized the need for special
care in scrutinizing confessions made in custody,155 and a confession will
be rejected, even though there are no indications of coercion, if the
prosecution fails to produce for cross-examination all persons who were
present when the confession was made.156 Apparently, it is not specifi-
cally required, as in England, that voluntariness be established beyond
a reasonable doubt,157 but the Canadian cases seem to establish a very
similar rule in practice.
Evidence on voluntariness must be heard in the absence of the jury,158
but if the judge rules the statement admissible, the defense is entitled
to cross-examine the police officers again before the jury.159 It is not
the practice, as in England, to warn the jury members to disregard the
statement if they consider it involuntary, but the jury will be instructed
to consider the possibility of coercion in determining whether the con-
fession is true.160 If the voluntariness requirements are satisfied, the
defendant can be convicted solely on the basis of his confession, and the
trial judge is not even required to warn the jury of the danger of con-
victing without corroboration.161
The prosecution in Canada may appeal from an acquittal, if the appeal
presents "a question of law alone." 162 Normally the issue of voluntari-
ness will be a question of fact or a "mixed question of fact and law,"
and consequently a finding of involuntariness cannot be appealed.163
However, if the trial judge excludes a confession on the ground that a
single factor, such as a failure to caution, automatically rendered a
confession inadmissible, the ruling raises a "question of law" and a
resulting acquittal can be reversed.164
3. Current Problems. - On the whole, the Canadian law applicable
151 CAN. REV. STAT. C. 307, ? 5(2) (I952).

152 Rex v. Tass, 54 Man. I, [I946] 3 D.L.R. 804, appeal dismissed, [I947] Can
Sup . Ct. I03.
153 The King v. Myles, 56 N.S. i8, [I923] 2 D.L.R. 88o.
154 See, e.g., Mentenko v. The King, I2 Can. Crim. R. 228 (Que. I95I).
See Regina v. Nye, I22 C.C.C. I (Ont. I958) (dictum).
156 Thiffault v. The King, [I933] Can. Sup. Ct. 509, [I9331 3 D.L.R. 59I.
Compare Regina v. De Tonnancourt, 24 Can. Crim. R. I9 (Man. I956).
57 See Regina v. Lee, [II95] Ont. 34, 50, I5 Can. Crim. R. 397, 407.
158 Rex v. Emele, [I940] 3 D.L.R. 758, 74 C.C.C. 76 (Sask. I940).
`59 Rex v. Orel, [I9441 3 D.L.R. 590 (Sask.).
160 See Regina v. Mulligan, II955] Ont. 240, 20 Can. Crim. R. 269. One recent
case explicitly rejected the English rule, Regina v. McAloon, [I959] Ont. 44I, 30
Can. Crim. R. 305, but in another province the English procedure seems to be
considered proper, see Regina v. De Tonnancourt, 24 Can. Crim. R. I9 (Man. 1956).
" Kelsey v. The Queen, [I953] I Can. Sup. Ct. 220.
162 CAN. CRIM. CODE ? 584(I) (a) (Martin I965).
16 See, e.g., The King v. Murakami, [I95I] Can. Sup. Ct. 8oi, [I95I] 4 D.L.R.
370.
164Dupuis v. The Queen, II952] 2 Can. Sup. Ct. 5I6.

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iio6 HARVARD LAW REVIEW [Vol. 79:938
to investigation and trial has followed the English approach, but the
Canadian courts seem even less willing to use exclusionary rules as a de-
vice to control police conduct. Confessions obtained by conduct that
would violate the Judges' Rules have rarely been excluded on this
ground alone. And, in defining "voluntariness," there has been little
concern with police tactics as such -even when a confession is con-
cededly "involuntary," the courts seem willing to admit those parts of
it confirmed by later discoveries. It should be noted, however, that the
tone of the opinions is by no means uniform. Some recent decisions have
excluded confessions and expressed strong disapproval of the police
tactics involved,165 while others seem more responsive to demands for
giving the police great freedom in order to facilitate law enforcement.166
On the whole, there is probably little question that the police in Canada
are less restricted than in many other common law countries.'67
D. India
i. Investigation. -Under the Indian Evidence Act, originally en-
acted in i872,168 the prosecution's ability to use confessions is severely
limited. Section 24 adopts the English rule that a confession is in-
admissible if induced by fear of prejudice or hope of advantage held out
by a person in authority. Section 26 further provides that all confes-
sions made in custody are inadmissible, unless made "in the immediate
presence of a Magistrate." Finally, section 25 states broadly that "no
confession made to a police-officer shall be proved as against a person
accused of any offence." There is, however, one major exception to
these impressive safeguards: under section 27, if facts are discovered as
a result of a statement given to the police, "so much of [the statement]
, whether it amounts to a confession or not, as relates distinctly t
the fact thereby discovered, may be proved."
The Evidence Act was adopted as a response to legislative findings
that: 169
[Despite provisions in the Bengal Code] for preventing any species of

compulsion or maltreatment with a view to extort a confession ....
[C] onfessions are frequently extorted or fabricated. A Police-officer, . .
failing to discover the perpetrators of the offence, often endeavours to
secure himself against any charge of supineness or neglect by getting
up a case against parties whose circumstances or characters are such
as are likely to obtain credit for an accusation of any kind against them.
It was thought that "any provisions to correct the exercise of this power
by the police will be futile" and that the evil could thus be avoided only
165 See, e.g., Regina v. Starr, 33 Can. Crim. R. 277 (Man. County Ct. I960);
Regina v. McLean, 32 Can. Crim. R. 205 (B.C. Sup. Ct. 1957).
166 See, e.g., The Queen v. Fitton, I[I956] Can. Sup. Ct. 958, 6 D.L.R.2d 529,
Regina v. Sim, Io8 C.C.C. 380 (Alta. Sup. Ct. i954).
167 The freedom of the Canadian police is also apparent in various other are
of the law, for example, search and seizure. See Martin, Commentary on Social
and Ethical Requirements of Criminal Investigation and Prosecution, 3 CREM. L.Q.
(Can.) 351 (ig6o).
168 4 INDIA CODE pt. II (1956).
169 Indian Law Commissioners, First Report, in FIELD, THE LAW OF EVID
rN BRiTisH INDIA 137 (8th ed. 1928).

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by severely restricting the use of confessions. The drastic solution

embodied in the i872 act has undergone no amendment in its ninety-
year history, and the courts have continued to give it a hospitable in-
terpretation.
In two areas in particular, the terms of the Evidence Act left ample
opportunity for the courts to restrict its scope. First, the safeguards
of the act apply only to "persons accused of any offence," and this
language might suggest that confessions could be admitted if made
before the defendant was arrested or at least before he came under sus-
picion. However, the Privy Council regarded section 25 as applicable to
confessions made even before suspicion had focused on the accused,170
and the Indian Supreme Court has approved this interpretation.17'
Secondly, the act applies only to "confessions," and this term is narrowly
defined in the cases: "a confession must either admit in terms the
offence, or at any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a conclu-
sively incriminating fact is not of itself a confession . "... 172 The
result is not, however, that mere "admissions" may be introduced
without restriction. The provision in section 26 of the Evidence Act for
admission of confessions made to a magistrate seems rather to be an
exception to the general prohibition that the Code of Criminal Pro-
cedure establishes against the use of hearsay statements made to the
police.173 Hence a statement is considered admissible under section 26
only if it amounts to a full confession, and convictions have been
quashed when the trial court relied on incriminating facts revealed in
statements that were not, strictly speaking, "confessions." 174
Use of incriminating statements is thus limited to the exception in
section 26 for confessions made before a magistrate and the exception
in section 27 for any statement specifically corroborated. The first of
these is rather narrow because the magistrate's hearing is itself care-
fully surrounded by procedural guarantees. Sections i64 and 364 of
the Code of Criminal Procedure provide that the magistrate must warn
an accused that he need not make a statement and that any statement
made may be used against him; if the accused is prepared to make a
statement the magistrate must question him in order to assure himself
that the statement is voluntary. Moreover, a violation of these require-
ments has been held to render a confession automatically inadmissible,175
even though section 533 (I) of the code contains a broad requirement
170 Narayana Swami v. Emperor, [I939] All India Rep. Privy Council Ser. 47
[hereinafter cited, e.g., A.I.R. I939 Privy Council 47].
171 State of Uttar Pradesh v. Deoman Upadhyaya, [I96I] I Sup. Ct. R. I4,
A.I.R. I960 Sup. Ct. II25 (I960).
172 Narayana Swami v. Emperor, A.I.R. I939 Privy Council 47, 52. This inter
pretation was approved in Palvinder Kaur v. State of Punjab, [I953] Sup. Ct. R
94, A.I.R. I952 SUP. Ct. 354 (I952).
173 Code of Criminal Procedure ? I62, 3 INDIA CODE pt. 4 (I956).
'174Om Prakash v. State of Uttar Pradesh, A.I.R. I960 Sup. Ct. 409 (I959);
Palvinder Kaur v. State of Punjab, [I953] Sup. Ct. R. 94, A.I.R. I952 Sup. Ct. 354
(1952).
175 Made Gowda v. State, [1956] Indian L. R. Mysore Ser. 244 [here
cited, e.g., I.L.R. [I956] Mysore 244], A.I.R. I957 Mysore 50 (I956) (failure to
caution); In re Karunthambi, A.I.R. I950 Madras 579 (949) (failure to probe
reasons for confessing).

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iio8 HARVARD LAW REVIEW [Vol. 79:938
that a prejudicial effect must be shown in order to warrant exclusion.

After the accused is brought before the magistrate, he must be isolated
from police influence and allowed "adequate time to consider whether
he should make a confession at all." 176 When a magistrate allowed the
accused only one-half hour, the supreme court held a confession in-
admissible, suggesting that even if the accused had insisted on making
his statement immediately, at least twenty-four hours should have been
provided in a separate magistrate's jail to which the investigating police
have no access.'77 The court also indicated that a longer period for
"reflection" might be appropriate if it appeared that coercion had
been employed, and in another case the court held one day inadequate
to remove the presumption of involuntariness raised by continuous de-
tention in police custody during the previous two weeks.178 To
eliminate the possibility of police influence, the magistrate is expected
to assure the accused that he will be returned to the magistrate's jail
rather than to police custody after making his statement,179 and a
confession will be inadmissible if police visited the accused during his
"isolation" 180 or were present when the statement was recorded.'8'
In view of these stringent rules, police interrogation will usually prove
useful to the prosecution only when facts are discovered as a result of
a confession. Unlike many other common law countries, India not only
permits use of the evidence discovered but also allows this evidence to
render admissible the corroborated portions of a defendant's statements.
Normally, discoveries will not make the whole confession admissible
since under section 27 only that part of the confession that "relates
distinctly" to the facts discovered may be proved. The scope of section
27 has been narrowly construed in cases interpreting the "relates dis-
tinctly" test to require "confirmation" of the particular statement,182
and frequently all parts of a confession have been held inadmissible
when the facts discovered did not compel the conclusion that any one
part was true.'83 But confirmation is often possible for certain types of
statements, such as an admission that stolen property was hidden in
a particular place. In addition, the police can bring a statement within
section 27 by "feeding" information to the accused during interroga-
tion and then "discovering" the appropriate facts after he has repeated
them. The courts have attempted to prevent such evasions of the
purpose of section 27 by holding that confessions will not be admiss
if the facts relied upon for confirmation were known to the police bef
16 Sarwan Singh v. State of Punjab, I[9573 Sup. Ct. R. 953, 966, A.I
Sup. Ct. 637, 644 (alternative holding).
177 Ibid.; see State v. Debnu, A.I.R. I957 Himachal Pradesh 52 (altern
holding) (three and one-half hours inadequate).
178Nathu v. State of Uttar Pradesh, A.I.R. I956 SUp. Ct. 56 (I955). Compare
Yohannan v. State, I.L.R. [I958] Kerala 545, A.I.R. I958 Kerala 207 (two and
one-half hours adequate); Mohd. Ishaq v. State, A.I.R. I959 Punjab II0 (1958)
("one hour or so" adequate).
179 Findal v. State, A.I.R. I954 Himachal Pradesh ii (I953) (dictum).
180 Raja Khima v. State of Saurashtra, [I955] 2 Sup. Ct. R. I285, A
Sup. Ct. 2I7 (I955).
181 State v. Thingnam Dhabalo Singh, A.I.R. I955 Manipur i (I954); Parak
kar v. State, A.I.R. I955 Tripura I9 (I954).
182 See Brijesh Kumar v. State, A.I.R. I958 Allahabad 5I4 (I957) (dictum).
183 See, e.g., Kottaya v. Emperor, A.I.R. 1947 Privy Council 67 (I946).

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I966] DEVELOPMENTS - CONFESSIONS II09
the confession was made,'84 but the abuse is apparently still common.'85
Recently the courts have imposed new restrictions on the scope of
section 27 by relying on the Indian Constitution of I950, which for the
first time recognized a specific privilege against self-incrimination in
India.'86 Before independence it had been held on several occasions
that when discoveries proved the truth of a confession, the statement
could be admitted under section 27 even if it was involuntary by the
standards of section 24.187 In I958, however, the Bombay High Court
held that the constitution prohibited use of a coerced confession even
though the confirmation requirements of section 27 had been met.188
The issue was raised in the Supreme Court for the first time in I96I in
State of Bombay v. Kathi Kalu.'89 One of the defendants had revealed
under interrogation the location of several stolen rifles, and after find-
ing the rifles, the prosecution used section 27 to introduce the statement
at trial. The court held that use of section 27 was not unconstitutional,
since the interrogation alone had not rendered the statement involun-
tary. However, the court seemed to consider it clear that introduction
of a statement under section 27 would not be constitutional if coercion
were established. The issue has been raised in several other recent
cases, and in each the statement involved was held voluntary, but the
courts clearly intimated that proof of the confession under section 27
would be barred by the constitution if coercion were shown.190
In these last mentioned cases, statements were considered voluntary
despite evidence of prolonged questioning. It thus seems clear that,
when the truth of a confession is confirmed, the courts will before re-
jecting it require a much clearer showing of coercion than has been
necessary to exclude confessions recorded by a magistrate but not
corroborated. Nevertheless, the exception provided by section 27 may
become much less significant than in the past. Before the constitution
was adopted, the Indian rules were concerned solely with the problem of
reliability. Even if a confession to the police appeared to be voluntary,
it would be excluded on the ground that factors bearing on voluntariness
and hence on truth might have been concealed from the court. But
once the truth of a confession was established, there was no reason for
objecting to admissibility. The unusually extensive safeguards to en-
sure reliability have been retained, but they are no longer regarded as
sufficient. The courts have begun to regard the privilege against self-
incrimination as serving other purposes and consequently seem ready to
reject coerced confessions even when their truth is established.
The constitution further protects the accused by providing that "no
184 See, e.g., Raja Khima v. State of Saurashtra, [I955] 2 Sup. Ct. R. I285,
A.I.R. I956 Sup. Ct. 2I7 (I955).
185 See LAW COMMISSION OF INDIA, REP'T No. I4, REFORM OF JUDICIAL AD-
MINISTRATION 749-50 (1958).
186Article 20(3) provides: "No person accused of any offence shall be com
pelled to be a witness against himself."
187 See, e.g., Neharoo Mangtu Satnami v. Emperor, A.I.R. I937 Nagpur 220
(I936); Emperor v. Misri, I.L.R. 3I Allahabad 592 (1909).
188Amin v. State, I.L.R. [I957] 2 Allahabad IIO, A.I.R. I958 Allahabad 293
('957).
189 A.I.R. I96I Sup. Ct. i8o8.
190 See, e.g., Ahmedmiyan v. State, A.I.R. I963 Gujarat I59 (I962)

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-Ii IIOtHARVARD LAW REVIEW [Vol. 79:938
person who is arrested shall . . . be denied the right to consult, and

to be defended by, a legal practitioner of his choice." 191 The wording
of the article leaves little room for arguing that the right to counsel
attaches only at trial, and although the question apparently has not
arisen when the admissibility of a confession was in dispute (in other
words, in the Escobedo situation), courts have occasionally ordered
police to grant a prisoner an effective interview with his lawyer.'92 On
the other hand, the article may not require that indigents be provided
with counsel at state expense,'93 and even where a public defender sys-
tem has been established by rule of court, the accused might find him-
self without a lawyer if he does not explicitly request one.'94 Thus,
admission of a statement under section 27 might also be held unconstitu-
tional if the accused confessed after being denied access to his retained
counsel, but it seems unlikely that the constitutional article dealing
with right to counsel would be extended to require that all suspects be
provided with a lawyer or warned of their right to see one.
2. Trial. - The accused may testify in his own defense, but he must
give written consent before taking the stand, and failure to give evidence
may not be commented on by either the prosecution or the judge.195
When a confession recorded by a magistrate is offered under section 26,
voluntariness must still be established, and the Indian courts have fol-
lowed the English rule that the burden of proof in such a case is on the
prosecution.196 In addition, the courts apparently adhere to the English
rule requiring proof of voluntariness beyond a reasonable doubt, and
hence a showing that a defendant was held in police custody before the
magistrate recorded his statement will be sufficient to raise a pos-
sibility of coercion and render the confession inadmissible.197
There is little case law on the respective roles of judge and jury in
determining voluntariness.198 Under section 298(I) of the Code of
Criminal Procedure, all questions of admissibility are to be decided by
the trial judge, and when the admissibility of a confession is in issue,
it is apparently not sufficient for the judge to rule only provisionally on
the question and leave the ultimate determination of voluntariness to
the jury.199 If the confession is ruled admissible, however, the jury must
191 INDIA CONST. art. 22(I).

192 E.g., Moti Bai v. State, A.I.R. I954 Rajasthan 24I; accord, Sundar Singh v.
Emperor, A.I.R. I930 Lahore 945 (interpreting similar provision in the Code of
Criminal Procedure). It has been recognized, moreover, that the interview will not
serve its purpose if the police delay it until after a confession has been recorded.
Jahangiri Lal v. Emperor, A.I.R. I935 Lahore 230, 244 (i934) (dictum).
193 See Tara Singh v. State of Punjab, [I95I] Sup. Ct. R. 729, A.I.R. I95I Sup.
Ct. 44I (dictum).
194 See, e.g., Govinda Reddy v. State, I.L.R. [I957] Mysore I77, A.I.R. i958
Mysore I50 (i957).
195 Code of Criminal Procedure ? 342A, 3 INDIA CODE pt. 4 (1956).
196 See Hem Raj v. State of Ajmer, [I954] Sup. Ct. R. II33, A.I.R. I954 Sup.
Ct. 462 (dictum).
197 Nathu v. State of Uttar Pradesh, A.I.R. I956 Sup. Ct. 56 (i955).
198 The accused has no constitutional right to a trial by jury, and the mo
of trial is determined by the prosecution and the trial judge. See Code of Criminal
Procedure ? 269, 3 INDIA CODE pt. 4 (1956); Dhirendra v. Superintendent, [I955]
I Sup. Ct. R. 224, A.I.R. I954 Sup. Ct. 424 (I954).
199 See Khiro Mandal v. Emperor, I.L.R. 57 Calcutta 649, A.I.R. I929 Calcutta
726.

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I966] DEVELOPMENTS - CONFESSIONS I I II
evaluate its truth, and they may not be preclude

possibility of coercion.200
Even if voluntariness is established, the courts have said that the
confession will be inadmissible unless the prosecution establishes that
it is "true." 201 This requirement does not make the confession super-
fluous since the truth of the statement will be presumed if it has been
properly recorded by the magistrate. But the rule does have important
consequences - if there is any discrepancy between material statements
in the confession and other evidence before the court, the entire con-
fession must be excluded.202 In addition, a conviction cannot rest solely
on an uncorroborated confession; the strict confirmation requirements
of section 27 need not be satisfied, but there must be at least some in-
dependent evidence of guilt.203 This doctrine was originally described
as merely a rule of "prudence," and not a bar to conviction on a con-
fession alone in an appropriate case.204 More recently, however, the
supreme court has said that the rule of prudence has through usage
"sanctified itself into a rule of law," 205 and the Indian Law Com-
mission recommended in I958 that the rule be given statutory recogni-
tion.206
One unusual feature of Indian trial procedure is the questioning of
the accused by the trial judge. Under section 342 (I) of the Code of
Criminal Procedure the accused may be questioned at any time during
the trial, and he must be questioned at the end of the prosecution's case.
The procedure differs sharply from formal participation by the accused
as a witness, since this questioning is conducted entirely by the trial
judge and the accused is not put under oath. In addition, the scope of
such questioning is limited by the provision in section 342 (I) that it
shall be "for the purpose of enabling the accused to explain any cir-
cumstances appearing in the evidence against him." This limitation
is specifically intended to ensure that the questioning is not used for
the benefit of the prosecution. As the drafting committee explained, the
questioning was designed "to enable the Court, in cases where the
accused is undefended, to examine the witnesses in his interest. It was
never intended that the Court should examine the accused with a view
to elicit from him some statement which would lead to his conviction." 207
In practice, the questioning does not operate entirely to the advantage
of the accused since the Code specifies that the court or the jury may
infer guilt from a refusal to answer or from a false answer, and since
some courts will subject the accused to questioning even if he is
200 Kashimuddin v. Emperor, I.L.R. 62 Calcutta 3I2, A.I.R. I934 Calcutta 853.
201 Sarwan Singh v. State of Punjab, [I957] Sup. Ct. R. 953, 967, A.I.R. '957
Sup. Ct. 637, 644.
202 Id. (alternative holding).
203E.g., Ram Chandra v. State of Uttar Pradesh, A.I.R. 1957 Sup. Ct. 38I
(I956); Puran v. State of Punjab, A.I.R. I953 Sup. Ct. 459 (I952).
204 Sarwan Singh v. State of Punjab, [I957] Sup. Ct. R. 953, A.I.R. 1957 SUP.
Ct. 637 (dictum).
205 Subramania Goundan v. State of Madras, [I958] Sup. Ct. R. 428, 440,
A.I.R. I958 Sup. Ct. 66, 7I (I957).
206 LAW COMMISSION OF INDIA, op. cit. supra note i85, at 75I.
207 Select Committee Report on the Bill of Act X of 1882, in GELL, CRIMINAL
INVESTIGATION AND TR 4,403 (I962).

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represented by counsel.208 Aside from these considerations, however,

the rules developed under section 342 provide substantial protection
for the accused. Questions must be framed by the court, not the
prosecution,209 and in order to provide the defendant with adequate
opportunity to contest the prosecution's case, "he must be questioned
separately about each material circumstance which is intended to be
used against him." 210 In addition, the judge must not question the
defendant as a hostile witness or seek to elicit incriminating admissions
from him.211 When the accused has been properly examined, the courts
have allowed his answers to carry great weight in his favor 212 but have
limited the effect of possible adverse inferences by holding that he may
not be convicted when his answers to the questioning are the sole
evidence of guilt 213 or when there is other evidence but the answers
are necessary to establish a major element of the prosecution's case.214
Thus, although questioning of the accused under section 342 can un-
doubtedly work to his disadvantage in many situations, the courts have
attempted to minimize the opportunities for using the procedure as a
substitute for police interrogation. Largely because of the safeguards
provided, it has been held that the questioning procedure does not
violate the constitutional privilege against self-incrimination.215
3. Current Problems.- The present system has been carefully
studied by the Indian Law Commission, which published its eval-
uations in I958 in the report on Reform of Judicial Administration.216
Not surprisingly, the Commission found the police strongly in favor of
discarding present restrictions on the use of confessions. The police
argued that the rules were justified "in the days when the police force
was used for the suppression of the people," but that "in view of our
independent status and the changed set-up in the country, [the rules
should] be discarded and a certain measure of trust be reposed in the
police." The Commission also found, however, that public distrust was
still widespread and that despite substantial improvement in the quality
of the police, "the high sense of fairness and justice which might actuate
the superior personnel does not permeate the lower ranks." Con-
sequently, the Commission concluded:
To make a confession made to a subordinate police official admissible
208 See, e.g., Kusuma Devi v. Govind Singh, A.I.R. I965 Rajasthan 40 (I964).
But see, e.g., Prova Debi v. Fernandes, A.I.R. I962 Calcutta 203 (ig6i).
209 Md. Yasin v. State, A.I.R. I954 Patna 437; Hari Krishnaji v. Emperor,
A.I.R. I934 Nagpur 2I3.
20 Tara Singh v. State of Punjab, [I95I] Sup. Ct. R. 729, 742, A.I.R. I95I
Sup. Ct. 44I, 445; see Jai Dev v. State of Punjab, A.I.R. I963 Sup. Ct. 6I2 (I962)
(dictum). Failure to follow this procedure requires reversal only if the possibility
of prejudice to the defendant is shown. Compare Kedar Nath v. State of West
Bengal, A.I.R. I954 Sup. Ct. 66o, with Bihari Singh v. State of Bihar, A.I.R. I954
Sup. Ct. 692.
211 Shankar Rao v. State, I.L.R. [I957] Mysore 8i, A.I.R. I958 Mysore I (957)
(alternative holding); Hossein Buksh v. The Empress, I.L.R. 6 Calcutta 96, I02-03
(I88o).
212 See, e.g., Bhagat Ram v. State of Punjab, A.I.R. I954 Sup. Ct. 62I.
213 Vijendrajit Ayodhya v. State of Bombay, A.I.R. I953 Sup. Ct. 247.
214 In re Pandurangan, A.I.R. I953 Madras 4I8 (1952). Compare In re Basant
Chandra Ghosh, A.I.R. I960 Patna 430.
215 See In re Ramakrishna, A.I.R. I955 Madras ioo (I954).
218 LAW COMMISSION OF INDIA, op. cit. supra note I85, at 745-49.

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I966] DEVELOPMENTS- CONFESSIONS III3
in evidence would . . . be fraught with dangerous consequences. It is

seldom that a confession is voluntarily made to a police officer. It is
probably only after a considerable amount of questioning that a state-
ment is obtained from an accused person. At what stage the questioning
takes the form of undesirable methods can never be known. The ques-
tioning itself may be of such a nature as to deprive the statement of its
voluntary character. The reasons which have led to the laying down of
the rules mentioned above are equally valid today.
The Commission did note that one change could be justified. Since
"superior officers of the police are today recruited from the same social
strata as officers of other departments including even the judiciary,"
the Commission believed that "officers of the status of a deputy superin-
tendent of police and above might be trusted and . . . confessions
made to them can be accepted in evidence." It was emphasized, how-
ever, that the change proposed was to be a very limited one. First, since
subordinate officers who conduct the original investigation could induce
a suspect to confess and then simply turn him over to a superior officer
to satisfy formal requirements, the Commission specified: "This
relaxation must necessarily be restricted to cases which such officer
themselves investigate." In addition, the officer would be required to
caution the accused before receiving his statement. And even with
these limitations, the Commission thought that the change should not
be introduced in all parts of the country and recommended that it be
tried first "in the Presidency towns [Bombay, Calcutta, and Madras]
or places of like importance where investigations can be conducted by
superior police officers and where the average citizen would be more
educated and conscious of his rights." Thus, the Commission generally
seemed to regard the present restrictions on interrogation as tolerable
in view of shortcomings in the quality of the police. Even when new
circumstances seemed to justify greater confidence in law-enforcement
officials, the Commission approached the issue of change with great
caution, and apparently even the limited recommendations that it did
make have not yet been enacted.
The Commission also considered whether the exception allowed by
section 27 should be continued.217 Many observers had claimed that
the protection provided the accused by sections 25 and 26 "is to a large
extent destroyed by the ingenuity of the police officers in recording the
'information' given by the accused . . . . so as to make it appear that
it has led to the discovery of some facts incriminating the accused
person." However, the Commission refused to recommend repeal of
section 27 and did not consider the relationship of the section to the
privilege against self-incrimination. Though leaving the problem open
for later study, it took the view that "there is no reason why a state-
ment . . . corroborated by the discovery of a fact should not be avail-
able" and noted that repeal would "impose a handicap on the proof of
crime."
Recent judicial decisions, however, place much more emphasis on
the desirability of imposing some limits on the exercise of official power
217 Id. at 749-50.

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even when problems of reliability are not raised. In these cases, the
prosecution has, of course, made the argument accepted by the Law
Commission that such rules are a great handicap to effective prosecution
of the guilty. However, at least one important court has explicitly re-
jected the notion that this problem is comparable in importance to the
values underlying the privilege against self-incrimination. In Amin v.
State, which held that use of section 27 to prove a coerced confession
was unconstitutional, the court said: 218
The counsel for the State has urged that the view which we have taken
will not only make the task of the investigating agency extremely dif-
ficult, but we will be acquitting self-avowed murderers, which would be
highly injurious for the safety of the community. This argument is not
worthy of our consideration . . . . If the State wants to arm the in-
vestigating agency with the barbarous right of using compulsion and
violence for the purpose of extracting confessions, it can amend the
Constitution . . . . Apart from this in our opinion the escape of of-
fenders from punishment spells far less danger to the community at
large than the non-observance of law by those whose primary duty is to
uphold and maintain the law.
It is worth noting that such an attitude may be a direct response to

methods of coercion a good deal less subtle than those usually en-
countered in other common law countries. In Amin, for example, there
was evidence that both defendants had been severely beaten by the
police. But it seems clear that the Indian courts consider it possible
to maintain an effective criminal system not only with extraordinary
precautions against unreliable confessions, but also with further re-
strictions designed to ensure proper conduct by the police.
E. The Civil Law View

i. Introduction. - Investigation and trial of crimes in civil law
countries differ markedly from the common law pattern. Usually the
accused may not be compelled to incriminate himself, but the police are
granted extensive freedom to interrogate, and in judicial proceedings the
accused may find it difficult in practice to assert his right to remain
silent.219 There are, of course, significant differences among the civil
law countries. For example, in Germany a suspect is free to consult his
lawyer at any stage in the proceedings against him,220 while in France the
suspect generally has no right to counsel until he is formally charged.221
In the Netherlands access to counsel may be suspended up to six days
even after accusation if the magistrate in charge of the investigation
feels that the defense attorney is frustrating his efforts to discover the
truth.222 These differences, however, have less relevance for American
218 1.L.R. [I957] 2 Allahabad IIO, I44, A.IR. I958 Allahabad 293, 303 (I957).
219 See generally Pieck, The Accused's Privilege Against Self-Incrimination
the Civil Law, II AM. J. COMP. L. 585 (I962).
220 STRAFPROZESSORDNUNG ? I37(I) (Ger. I964).
221 See FRENCH CODE OF CRIMINAL PROCEDURE arts. II4, II6 (Kock transI.
1964) [hereinafter cited as C.C.P.].
222 NETHERLANDS CODE OF CRIMINAL PROCEDURE art. 50 (ig6o). Compare C.C.P.
art. Ii6 (recognition of right to communicate freely with counsel after charge).

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i966] DEVELOPMENTS - CONFESSIONS III 5
problems than the underlying contrast between the common law and
civil law conceptions of the proper role of police and courts. And this
contrast can be best illustrated by a discussion of the civil law system
as it operates in one country.223
2. France.224 -When the police learn of a crime, they may detain
on the scene anyone whose presence they deem necessary,225 or they may
require anyone believed to have useful information to come to police
headquarters and make a statement.226 After these preliminaries, investi-
gation is theoretically subject to close judicial control. The police are
required to report the crime to the prosecuting attorney (procureur),227
who in turn will petition a magistrate (juge d'instruction) to assume
the investigation; 228 the police are required to follow the magistrate's
instructions.229 In practice, however, the magistrate will usually
authorize a police officer to ascertain the facts with regard to the crime
in question, and the relationship of the police to the magistrate will
become one of "informal liaison." 230
The broad authorization from the magistrate, called a commission
rogatoire, empowers the police to interrogate witnesses and to take their
depositions under oath.23' Once suspicion focuses on a particular per-
son, however, he is entitled to be warned of his right to remain silent
and to be questioned only by the magistrate in the presence of counsel.
To protect these rights, a I955 case held that the police had no further
power to question a suspect at this point and that any statements made
could not be used as evidence.232 This rule was incorporated in article
I05 of the I958 Code of Penal Procedure, but in I960 the section was
amended 233 to prohibit questioning of a prime suspect only when the
police thereby intend to circumvent the rights of the defense. Protec-
tion for the accused is in practice even less than this limited safeguard
would indicate, since the police can simply ask a suspect to waive his
right to be brought before the magistrate, and frequently the suspect
will consent in order not to seem guilty.234 Thus, in practice the police
are probably free to take depositions under oath from the primary
suspect as well as from other witnesses.
The police may also take a witness or suspect into custody for
questioning, and the safeguards surrounding such interrogation seem
223 See also Cohen, The Criminal Process in the People's Republic of China:
An Introduction, 79 HARV. L. REV. 469 (i966).
224 The conclusions of this section are based in part on interviews with M.
Jean Paul Dorly, a graduate student at the Harvard Law School, who served as
an examining magistrate in Fontainebleau, France, from I959 to i965.
225 C.C.P. art. 6i.
226 C.C.P. art. 62.
227 C.C.P. art. ig.
228 See C.C.P. art. 8o.
229 C.C.P. art. I4.
230 Anton, L'Instruction Criminelle, 9 AM. J. COMP. L. 44I, 446 (i 96o).
231 See C.C.P. arts. I5I-53.
232 Fesch, Cour de Cassation (Ch. crim.), June i6, I955, [I955] Bulletin des
arrets de la Cour de Cassation 545 (Fr.).
233 Law of Feb. I3, ig6o, CODE DE PROCEDURE PENALE art. I05 (Fr. 3d ed.
Dalloz i962), amending I[I958] Recueil General des Lois - Lgislation 53.
234 See Anton, supra note 230, at 447. Whether this practice is in fact lawful
may turn on the manner in which the recent amendment to article Ios is inter-
preted by the Cour de Cassation.

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iii6 HARVARD LAW REVIEW [Vol. 79:938
limited. A person may be held for twenty-four hours without being

brought before a magistrate, and this period may be extended for
an additional twenty-four hours if there is substantial evidence justify-
ing an accusation and if either the magistrate or the prosecuting at-
torney approves.235 It is assumed that the suspect may not be com-
pelled to incriminate himself; 236 apparently, the principle is con-
sidered so basic that it does not require specific statutory or constitu-
tional recognition. The police are required to keep a record of the
length of questioning periods, the rest periods between interrogations,
and the time when custody started and ended,237 though it is not clear
how persistent interrogation must be before judges will consider a con-
fession illegally coerced.238 The code also attempts to guard against
coercion by providing that after twenty-four hours a person in custody
may demand a medical examination and that he must be advised of this
right.239 Thus, the safeguards provided indicate by common law stand-
ards a rather narrow, physical conception of "coercion," although
the French do recognize in principle that a confession may not be com-
pelled.
By the end of the two-day interrogation period, the suspect must be
brought before the examining magistrate and formally accused. Al-
though the magistrate will, as in American procedure, determine whether
further detention is warranted,240 his major function is to gather ad-
ditional information concerning the crime. He will first inform the
suspect of the charge and tell him that he may refuse to make a state-
ment.241 However, the magistrate will also tell the suspect that he may
make a statement if he wishes, and at this point the accused will often
repeat a confession previously given to the police.242 The magistrate will
then advise the accused that he may either choose counsel from among
the members of the local bar or have counsel designated for him.243
Often the accused decides not to be represented by counsel, and in such
a case further interrogation may take place immediately. Otherwise,
further proceedings will ordinarily be postponed, but the magistrate may
interrogate the accused or other witnesses at this time if there are
urgent reasons for immediate questioning.244
In the case of felonies, the magistrate must conduct additional hear-
ings regardless of whether a confession has been obtained, and he, rather
than the prosecutor, has the primary responsibility for taking "all acts
of investigation that he deems useful to the manifestation of the
truth." 245 Similar hearings are usually held in cases involving lesser
235 C.C.P. art. 63.
236See Pieck, supra note 2Ig, at 585-86 & n.5; Vouin, The Privilege Against
Self-Incrimination Under Foreign Law: C. France, 5I J. CRim. L., C. & P.S. I69-70
(I960).
237 C.C.P. art. 64.
238 See C.C.P. art. 428.
239 C.C.P. arts. 63-64.
240 See C.C.P. arts. I37-4I.
241 C.C.P. art. II4.
242 See Anton, supra note 230, at 448.
245 C.C.P. arts. 79, 8i; see Vouin, The Protection of the Accused in Fren
Criminal Procedure, 5 INT'L &COmP. L.Q. I,; 4 (I956).

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i966] DE'VELOPMENTS - CONFESSIONS 1 1 1 7
crimes, although the procedure is then only optional. The hearings are
conducted in secrecy,246 apparently in order to protect the accused from
publicity; each witness is heard out of the presence both of the accused
and of other witnesses.247 A major step in this investigation process
is the examination of the accused by the magistrate. Counsel must be
present when the accused appears unless the right has been expressly
waived, and counsel must be allowed to examine the dossier, which con-
tains all the prosecution's evidence, at least twenty-four hours before
the hearing.248 However, counsel for the accused may question his
client or other witnesses only with the permission of the examining
magistrate,249 and the accused may not confer with his lawyer prior to
answering any particular question. In theory, the accused may refuse
to answer all questions, but apparently such a refusal is rare since the
magistrate would be certain to draw adverse inferences from it.250
Indeed, the suspect's opportunity to participate in the inquiry and to
advance his version of the facts seems to be regarded as an important
right, rather than as an interference with liberty or privacy.25'
When conflicts appear in the testimony received, the magistrate will
frequently resort to confrontation; a witness whose testimony conflicts
with that of the accused will be asked to repeat his statement in the
presence of the accused, and the accused will then be asked to reconcile
his version of the facts with that just given.252 This technique is un-
doubtedly of great help to the magistrate in presenting him with de-
meanor and other clues to the reliability of testimony. In addition,
crucial admissions will often be made by the accused, and these become
a part of the record along with other testimony. Another device often
used to verify testimony is the reconstitution: the accused and the
witnesses, along with the magistrate, prosecutor, and defense counsel,
visit the scene of the crime, where each party re-enacts his role in the
incident under investigation. Frequently, this procedure will provide a
strong indication of the reliability of testimony, and again a record of
the proceedings is included in the dossier.
Thus, the accused occupies a central position in the investigation
process from beginning to end, and usually a confession is eventually
obtained. Moreover, the investigation will produce an elaborate dos-
sier, providing "a complete record of the events leading up to and con-
stituting the crime, a portrait of the personalities involved in it, and a
record of the judicial procedure which has followed upon it." 253 It
should be noted, however, that the record of a given proceeding can be
included in the dossier only if the required safeguards have been pro-
vided. Failure to notify the accused of his right to remain silent and
to have counsel, and failure to allow the accused's lawyer to examine
246 C.C.P. art. ii.
247 C.C.P. art. I02.
248 C.C.P. art. ii8. The prosecuting attorney has a right to be present, but
he rarely appears.
249 C.C.P. art. I20.
250 See Anton, supra note 230, at 449.
251 See Hamson, The Prosecution of the Accused-English and French Legal
Methods, I955 CRIM. L. REV. (Eng.) 272, 276-77.
252 See Anton, supra note 230, at 45I.
253 Id. at 452.

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iii8 HARVARD LAW REVIEW [Vol. 79:938
the dossier prior to an examination, will render all subsequent pro-

ceedings void,254 and the record of proceedings thus nullified must be
stricken from the dossier.255
On the basis of the material in the dossier, the magistrate must
determine whether to refer the case to an appropriate court for trial.
Apparently much more than "probable cause" is required - the
magistrate must conclude on the basis of the facts developed that the
accused committed the crime,256 and this criterion seems to be interpreted
to mean that doubts must be resolved in favor of the accused.257 More
over, in the case of felonies, the magistrate's order alone is not sufficient.
The case is automatically referred to an "indicting chamber" (chambre
d'accusation), composed of three magistrates who review the dossier,
hear argument by prosecution and defense attorneys, and determine
whether the facts developed justify trial on a felony charge.258
French trial procedure differs radically from that of the common law
countries. There is a jury only in felony cases, and even then the jury
deliberates with the three judges in reaching its verdict.259 The judges,
the prosecuting attorney, and - in felony cases - the jurors all may
question witnesses and the accused, but neither the accused nor his coun-
sel has a right to question witnesses except through the presiding judge.260
Normally the trial begins with the presiding judge's questioning of the
accused. The entire contents of the dossier are available to the court,
and the judges base their questions on the facts revealed in it. Both
favorable and unfavorable circumstances are discussed, and the testi-
mony often ranges broadly over factors not directly relevant to the
charge, such as the defendant's background and character.261 Thus,
the trial appears to be more a cooperative investigation than an ad-
versary proceeding.
The French trial also seems to have a purpose different from the one
generally recognized in common law countries. Apparently the general
feeling is that "the immensely careful preliminary investigations of
the juge d'instruction make it unlikely that persons who in France are
sent for trial are guiltless." 262 It is of course recognized that considera-
tion of the question of guilt in the trial court is desirable as "yet another
device to minimize the risk of prejudice and error," and acquittals do
occasionally occur.263 Nevertheless, it seems relatively rare even for the
question of guilt to be disputed at trial, since often the defendant will
254 C.C.P. art. I70.
255 C.C.P. arts. I73, 206. The accused may waive any irregularity prejudicial to
him, but the waiver must be made expressly and in the presence of counsel. C.C.P.
art. I70.
256 See C.C.P. arts. I76-8I.
257 Pugh, Administration of Criminal Justice in France: An Introductory Analy-
SiS, 23 LA. L. REV. I, 23 n.i63 (I962).
258 See C.C.P. arts. i8i, I94, I98-99, 2I4-
259 See Vouin, The Privilege Against Self-Incrimination Under Foreign Law: C.
France, 5I J. CRIM. L., C. & P.S. I63, I7I (I960).
260 See C.C.P. arts. 309-I2, 454, 536. In practice, the presiding judge w
allow defense counsel to question witnesses directly as long as he refrains from
leading or belligerent questioning.
261 See C.C.P. art. 33I; DAVID & DE VRiEs, THIE FRENCH LEGAL SYSTEM 76-77
(I958).
262 Anton, supra note 230, at 456.
263 Ibid.

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I966] DEVELOPMENTS - CONFESSIONS i i I9
have confessed on several occasions by that time. Although there have

been a few celebrated cases of false confessions,264 usually the confession
will also find full corroboration in other facts in the dossier.265
Thus the decision about guilt or innocence is usually a formality at
the trial stage, having been resolved for practical purposes at the pre-
trial examination. The major issue before the court is the determina-
tion of sentence - a decision made by judge and jury voting together,266
and in the context of such a process, the failure to insist upon an ad-
versary proceeding with clearly defined issues is understandable even
to the common law mind. However, just as extensive questioning and
resolution of guilt prior to trial tend to make an open-ended trial
procedure appropriate, so the United States Supreme Court has recently
pointed out that in the American system, denial of the right to counsel
prior to indictment "would make the trial no more than an appeal from
the interrogation; and the 'right to use counsel at the formal trial
[would be] a very hollow thing [if], for all practical purposes, the
conviction is already assured by pretrial examination.' " 267
264 See Hamson, supra note 25I, at 2 73-74.

265 Pugh, supra note 257, at 22.
266 C.C.P. art. 362.
267 Escobedo v. Illinois, 378 U.S. 478, 487 (i964), quoting In re Groban, 352
U.S. 330, 344 (I957) (Black, J., dissenting).

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Developments in the Law: Confessions

Stable URL: https://www.jstor.org/stable/1339001

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Ours is the accusatorial as opposed to, the inquisitorial system ....

III. SUBSTANTIE RULES GOVERNING THE ADMISSIBIMITY

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V. TACIT ADMISSIONS: REACTIONS OF THE ACCUSED TO STATEMENTS MADE

VI. ADMISSIBILITY OF WITHDRAWN GUILTY PLEAS ................... 1044

VII. PROCEDURAL TREATMENT OF CONFESSIONS ...... ............... 1047

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(c) The Effect of Jackson v. Denno .................... ... I063

V III. CORROBORATION .............................................. I I I072

X. EXPERIENCE IN OTHER COUNTRIES .. . ............................. I090

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use of confessions are condemned as soft-hearted or soft-h

Police Interrogation Practices

i. The Issues. - The heat of the confessions controversy is unfor-

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ing because they are extraordinary cases, having no relation to the

I See AMERICAN BAR FOUNDATION, THE ADMINISTRATION OF CRIMINAL JUSTICE

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compelling as to furnish a definite answer to the question whether

[D]oes anyone truly know that, as asserted in Escobedo . . . "a system

If Judge Friendly is correct in interpreting Mr. Justice Goldberg's

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interrogation is presently relied on for the solution of crimes. Although

In the great majority of cases . . . guilt [is] established without the

Notwithstanding this assertion, Judge Sobel also states that interroga-

18 Sobel, The Exclusionary Rules in the Law of Confessions: A Legal Perspective

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during interrogation, and to rely on these "fruits" of the confession

24 See pp. I024-30 infra.

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might lead to increased dependence on unreliable identifications?" 28

F8 Friendly, supra note i7, at 955 n.138.

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questionable. Unfortunately, the question of the extent to which the

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of his guilt to justify a prosecutor in going forward with a prosecution.40

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arresting patrolman or a desk officer on duty when the suspect was

49 LAFAVE 303 & nn.I4-i6.

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lude instruction in such questioning tactics; 59 thus the manuals prob-

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ingness to speak, the officer is fundamentally engaged in the task of

68 See generally AUBRY & CAPUTO I72-79.

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Police interrogation very frequently includes a "lie detector" examina-

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well, a practice that is infrequent among state police.89 Where a caution

II. THE THEORY OF ADMISSIBILITY OF A CRIMINAL DEFENDANT'S

The introduction in evidence of a defendant's out-of-court statement

1 Although the rules of voluntariness are the most significant qualifications

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term -"confession"- identifies the most important subcategory of

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not provide a satisfactory historical explanation for the exception be-

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a surrender, in violation of the privilege. But provided that the state-

III. SUBSTANTIVE RULES GOVERNING THE

13 WIGMopRE, EviDENCE ? 8i8, at 235-36 (3d ed. 1940) [hereinafter cited as

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