In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant extended discussion. It is urged that the confession was also inadmissible because not voluntary, even measured by due process standards, and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States , 318 U. S. 350 . However, the facts alleged fall well short of coercion, in my view, and I believe the involvement of federal agents in petitioner’s arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission of the evidence now protested by petitioner was, at most, harmless error, and two final contentions — one involving weight of the evidence and another improper prosecutor comment — seem to me without merit. I would therefore affirm Westover’s conviction.
In conclusion: nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously
taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette , 319 U. S. 157 , 181 (separate opinion):
“This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”
MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
I
The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment. As for the English authorities and the common law history, the privilege, firmly established in the second half of the seventeenth century, was never applied except to prohibit compelled judicial interrogations. The rule excluding coerced confessions matured about 100 years later,
“[b]ut there is nothing in the reports to suggest that the theory has its roots in the privilege against self-incrimination. And, so far as the cases reveal, the privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates.”
Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 18 (1949).
Our own constitutional provision provides that no person “shall be compelled in any criminal case to be a witness against himself.” These words, when
“[c]onsidered in the light to be shed by grammar and the dictionary . . . , appear to signify simply that nobody shall be
compelled to give oral testimony against himself in a criminal proceeding under way in which he is defendant.”
Corwin, The Supreme Court’s Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in the provisions of the then existing state constitutions or in state practice which would give the constitutional provision any broader meaning. Mayers, The Federal Witness’ Privilege Against Self-Incrimination: Constitutional or Common-Law? 4 American Journal of Legal History 107 (1960). Such a construction, however, was considerably narrower than the privilege at common law, and, when eventually faced with the issues, the Court extended the constitutional privilege to the compulsory production of books and papers, to the ordinary witness before the grand jury, and to witnesses generally. Boyd v. United States , 116 U. S. 616 , and Counselman v. Hitchcock , 142 U. S. 547 . Both rules had solid support in common law history, if not in the history of our own constitutional provision.
A few years later, the Fifth Amendment privilege was similarly extended to encompass the then well established rule against coerced confessions:
“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.'”
Bram v. United States , 168 U. S. 532 , 542. Although this view has found approval in other cases, Burdeau v. McDowell , 256 U. S. 465 , 475; Powers v. United States , 223 U. S. 303 , 313; Shotwell v. United States , 371 U. S. 341 , 347, it has also been questioned, see Brown v. Mississippi , 297 U. S. 278 , 285; United States v. Carignan ,
342 U. S. 36 , 41; Stein v. New York , 346 U. S. 156 , 191, n. 35, and finds scant support in either the English or American authorities, see generally Regina v. Scott , Dears. & Bell 47; 3 Wigmore, Evidence § 823 (3d ed.1940), at 249 (“a confession is not rejected because of any connection with the privilege against self-crimination”), and 250, n. 5 (particularly criticizing Bram ); 8 Wigmore, Evidence § 2266, at 400-401 (McNaughton rev.1961). Whatever the source of the rule excluding coerced confessions, it is clear that, prior to the application of the privilege itself to state courts, Malloy v. Hogan , 378 U. S. 1 , the admissibility of a confession in a state criminal prosecution was tested by the same standards as were applied in federal prosecutions. Id. at 6-7, 10.
Bram , however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial interrogation, had been compelled, and, if such interrogation was to be deemed inherently vulnerable, the Court’s inquiry could have ended there. After examining the English and American authorities, however, the Court declared that:
“In this court also, it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary, but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary.”
168 U.S. at 558. In this respect, the Court was wholly consistent with prior and subsequent pronouncements in this Court.
Thus, prior to Bram , the Court, in Hopt v. Utah , 110 U. S. 574 , 583-587, had upheld the admissibility of a
confession made to police officers following arrest, the record being silent concerning what conversation had occurred between the officers and the defendant in the short period preceding the confession. Relying on Hopt , the Court ruled squarely on the issue in Sparf and Hansen v. United States , 156 U. S. 51 , 55:
“Counsel for the accused insist that there cannot be a voluntary statement, a free open confession, while a defendant is confined and in irons under an accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner’s being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not, in itself, sufficient to justify the exclusion of a confession if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by promises. Wharton’s Cr.Ev. 9th ed. §§ 661, 663, and authorities cited.”
Accord, Pierce v. United States , 160 U. S. 355 , 357.
And in Wilson v. United States , 162 U. S. 613 , 623, the Court had considered the significance of custodial interrogation without any antecedent warnings regarding the right to remain silent or the right to counsel. There, the defendant had answered questions posed by a Commissioner, who had failed to advise him of his rights, and his answers were held admissible over his claim of involuntariness.
“The fact that [a defendant] is in custody and manacled does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. . . . And it is laid down
that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but, on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned.”
Since Bram , the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v. United States , 223 U. S. 303 , cited Wilson approvingly and held admissible as voluntary statements the accused’s testimony at a preliminary hearing even though he was not warned that what he said might be used against him. Without any discussion of the presence or absence of warnings, presumably because such discussion was deemed unnecessary, numerous other cases have declared that “[t]he mere fact that a confession was made while in the custody of the police does not render it inadmissible,” McNabb v. United States , 318 U. S. 332 , 346; accord, United States v. Mitchell , 322 U. S. 65 , despite its having been elicited by police examination, Wan v. United States , 266 U. S. 1 , 14; United States v. Carignan , 342 U. S. 36 , 39. Likewise, in Crooker v. California , 357 U. S. 433 , 437, the Court said that
“the bare fact of police ‘detention and police examination in private of one in official state custody’ does not render involuntary a confession by the one so detained.”
And finally, in Cicenia v. Lagay , 357 U. S. 504 , a confession obtained by police interrogation after arrest was held voluntary even though the authorities refused to permit the defendant to consult with his attorney. See generally Culombe v. Connecticut , 367 U. S. 568 , 587-602 (opinion of Frankfurter, J.); 3 Wigmore, Evidence § 851, at 313 (3d ed.1940); see also Joy, Admissibility of Confessions 38, 46 (1842).
Only a tiny minority of our judges who have dealt with the question, including today’s majority, have considered in-custody interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as
every member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions taken in the course of interrogation by the police after arrest.
II
That the Court’s holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious — that the Court has not discovered or found the law in making today’s decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. [ Footnote 1 ] This is what the Court historically has done. Indeed, it is what it must do, and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers.
But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the mode of this or any other constitutional decision in this Court, and to inquire into the advisability of its end product in terms of the long-range interest of the country. At the very least, the Court’s text and reasoning should withstand analysis, and be a fair exposition of the constitutional provision which its opinion interprets. Decisions
like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice, although each will perhaps play its part. In proceeding to such constructions as it now announces, the Court should also duly consider all the factors and interests bearing upon the cases, at least insofar as the relevant materials are available, and, if the necessary considerations are not treated in the record or obtainable from some other reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone.
III
First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence, the core of the Court’s opinion is that, because of the
“compulsion inherent in custodial surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his free choice,”
ante at 458, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden inrush of new knowledge requiring the rejection of 70 years’ experience. Nor does it assert that its novel conclusion reflects a changing consensus among state courts, see Mapp v. Ohio , 367 U. S. 643 , or that a succession of cases had steadily eroded the old rule and proved it unworkable, see Gideon v. Wainwright , 372 U. S. 335 . Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may
have occurred in the wake of more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence. [ Footnote 2 ] Insofar as appears from the Court’s opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today. Judged by any of the standards for empirical investigation utilized in the social sciences, the factual basis for the Court’s premise is patently inadequate.
Although, in the Court’s view, in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court’s rule, if the police ask him a single question, such as “Do you have anything to say?” or “Did you kill your wife?”, his response, if there is one, has somehow been compelled, even if the accused has
been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was “involuntary” in the sense the question provoked or was the occasion for the response, and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled.
Today’s result would not follow even if it were agreed that, to some extent, custodial interrogation is inherently coercive. See Ashcraft v. Tennessee , 322 U. S. 143 , 161 (Jackson, J., dissenting). The test has been whether the totality of circumstances deprived the defendant of a “free choice to admit, to deny, or to refuse to answer,” Lisenba v. California , 314 U. S. 219 , 241, and whether physical or psychological coercion was of such a degree that “the defendant’s will was overborne at the time he confessed,” Haynes v. Washington , 373 U. S. 503 , 513; Lynumn v. Illinois , 372 U. S. 528 , 534. The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant’s constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. See, e.g., Ashcraft v. Tennessee , 322 U. S. 143 ; Haynes v. Washington , 373 U. S. 503 . [ Footnote 3 ]
But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will.
If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. Compare Tot v. United States , 319 U. S. 463 , 466; United States v. Romano , 382 U. S. 136 . A fortiori , that would be true of the extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court’s view, they must be deemed incriminatory, but without any discussion of why they must be deemed coerced. See Wilson v. United States , 162 U. S. 613 , 624. Even if one were to postulate that the Court’s concern is not that all confessions induced by police interrogation are coerced, but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession.
On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by
the Court would still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as “Where were you last night?” without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? And why, if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth and that is what the accused does, is the situation any less coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but, at the same time, permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. It expects, however, that the accused will not often waive the right, and, if it is claimed that he has, the State faces a severe, if not impossible burden of proof.
All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination, and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions, but, for all practical purposes, forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled
self-incrimination the Court has created a limited Fifth Amendment right to counsel — or, as the Court expresses it, a “need for counsel to protect the Fifth Amendment privilege. . . .” Ante at 470. The focus then is not on the will of the accused, but on the will of counsel, and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege.
In sum, for all the Court’s expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts.
IV
Criticism of the Court’s opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it propounds are, at best, less than compelling. Equally relevant is an assessment of the rule’s consequences measured against community values. The Court’s duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is “to respect the inviolability of the human personality” and to require government to produce the evidence against the accused by its own independent labors. Ante at 460. More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus, the values reflected by the privilege are not the sole desideratum; society’s interest in the general security is of equal weight.
The obvious underpinning of the Court’s decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to
advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion — that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police’s asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife, or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent, see Escobedo v. Illinois , 378 U. S. 478 , 499 (dissenting opinion). Until today, “the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence.” Brown v. Walker , 161 U. S. 591 , 596; see also Hopt v. Utah , 110 U. S. 574 , 584-585. Particularly when corroborated, as where the police have confirmed the accused’s disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability, and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary, it may provide psychological relief, and enhance the prospects for rehabilitation. This is not to say that the value of respect for the inviolability of the accused’s individual personality should be accorded no weight, or that all confessions should be indiscriminately admitted. This Court has long read the Constitution to proscribe compelled confessions, a salutary rule from which there should be no retreat. But I see no sound basis, factual or otherwise, and the Court gives none, for concluding that the present rule against the receipt of coerced confessions is inadequate for the
task of sorting out inadmissible evidence, and must be replaced by the per se rule which is now imposed. Even if the new concept can be said to have advantages of some sort over the present law, they are far outweighed by its likely undesirable impact on other very relevant and important interests.
The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. New Jersey , 306 U. S. 451 , 455. These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values.
The modes by which the criminal laws serve the interest in general security are many. First, the murderer who has taken the life of another is removed from the streets, deprived of his liberty, and thereby prevented from repeating his offense. In view of the statistics on recidivism in this country, [ Footnote 4 ] and of the number of instances
in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not prevent crime or contribute significantly to the personal security of the ordinary citizen.
Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens, or for thinking that, without the criminal laws,
or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not borne out by any kind of reliable evidence that I have seen to this date.
Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the convict to society a better and more law-abiding man than when he left. Sometimes there is success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our present and future capabilities.
The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty, and to increase the number of trials. [ Footnote 5 ] Criminal trials, no
matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra , note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders: 1963, supra , note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra , note 4, at 2 (Table 1). But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused, and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now, under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State’s evidence, minus the confession, is put to the test of litigation.
I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.
In some unknown number of cases, the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of
course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.
Nor can this decision do other than have a corrosive effect on the criminal law as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not, we should post-haste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct.
And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and whose guilt could not otherwise be proved? Is it so clear that release is the best thing for him in every case? Has it so unquestionably been resolved that, in each and every case, it would be better for him not to confess, and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that, in many cases, it will be no less than a callous disregard for his own welfare, as well as for the interests of his next victim.
There is another aspect to the effect of the Court’s rule on the person whom the police have arrested on probable cause. The fact is that he may not be guilty at all, and may be able to extricate himself quickly and simply if he were told the circumstances of his arrest and were asked to explain. This effort, and his release, must now await the hiring of a lawyer or his appointment by the court, consultation with counsel, and then a session with the police or the prosecutor. Similarly, where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having several residents, compare Johnson v. State , 238 Md. 140, 207 A.2d 643 (1965), cert. denied , 382 U.S. 1013, it will often
be true that a suspect may be cleared only through the results of interrogation of other suspects. Here too, the release of the innocent may be delayed by the Court’s rule.
Much of the trouble with the Court’s new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence, such as kidnapping, see Brinegar v. United States , 338 U. S. 160 , 183 (Jackson, J., dissenting); People v. Modesto , 62 Cal.2d 436, 446, 398 P.2d 753, 759 (1965), those involving the national security, see United States v. Drummond , 354 F.2d 132, 147 (C.A.2d Cir.1965) (en banc) (espionage case), pet. for cert. pending , No. 1203, Misc., O.T. 1965; cf. Gessner v. United States , 354 F.2d 726, 730, n. 10 (C.A. 10th Cir.1965) (upholding, in espionage case, trial ruling that Government need not submit classified portions of interrogation transcript), and some of those involving organized crime. In the latter context, the lawyer who arrives may also be the lawyer for the defendant’s colleagues, and can be relied upon to insure that no breach of the organization’s security takes place even though the accused may feel that the best thing he can do is to cooperate.
At the same time, the Court’s per se approach may not be justified on the ground that it provides a “bright line” permitting the authorities to judge in advance whether interrogation may safely be pursued without jeopardizing the admissibility of any information obtained as a consequence. Nor can it be claimed that judicial time and effort, assuming that is a relevant consideration,
will be conserved because of the ease of application of the new rule. Today’s decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court’s constitutional straitjacket, which forecloses more discriminating treatment by legislative or rulemaking pronouncements.
Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584.
Footnotes
[ Footnote 1 ]
Compare United States v. Childress , 347 F.2d 448 (C.A. 7th Cir.1965), with Collins v. Beto , 348 F.2d 823 (C.A. 5th Cir.1965). Compare People v. Dorado , 62 Cal.2d 338, 398 P.2d 361, 42 Cal.Rptr. 169 (1964), with People v. Hartgraves , 31 Ill.2d 375, 202 N.E.2d 33 (1964).
[ Footnote 2 ]
See, e.g. , Enker & Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois , 49 Minn.L.Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449 (1964); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1 (1965); Dowling, Escobedo and Beyond: The Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J.Crim.L., C. & P. S. 143, 156 (1965).
The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U.C.L.A.L.Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965).
[ Footnote 3 ]
For example, the Los Angeles Police Chief stated that,
“If the police are required . . . to . . . establish that the defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or confession, and that he intelligently waived these guarantees . . . a whole Pandora’s box is opened as to under what circumstances . . . can a defendant intelligently waive these rights. . . . Allegations that modern criminal investigation can compensate for the lack of a confession or admission in every criminal case is totally absurd!”
Parker, 40 L.A.Bar Bull. 603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that
“[I]t begins to appear that many of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level of law enforcement.”
L.A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy, stated of Escobedo:
“What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while permitting the other to butt, gouge and bite.”
N.Y. Times, May 14, 1965, p. 39. The former United States Attorney for the District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that
“Prosecution procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain.”
Quoted in Herman, supra , n 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J.Crim.L., C. & P.S. 21 (1961).
[ Footnote 4 ]
This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
[ Footnote 5 ]
See, for example , IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931) [Wickersham Report]; Booth, Confessions, and Methods Employed in Procuring Them, 4 So. Calif.L.Rev. 83 (1930); Kauper, Judicial Examination of the Accused — A Remedy for the Third Degree, 30 Mich.L.Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U.Chi.L.Rev. 345, 357 (1936). See also Foote, Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw.U.L.Rev. 16 (1957).
[ Footnote 6 ]
Brown v. Mississippi , 297 U. S. 278 (1936); Chambers v. Florida , 309 U. S. 227 (1940); Canty v. Alabama , 309 U.S. 629 (1940); White v. Texas , 310 U. S. 530 (1940); Vernon v. Alabama , 313 U.S. 547 (1941); Ward v. Texas , 316 U. S. 547 (1942); Ashcraft v. Tennessee , 322 U. S. 143 (1944); Malinski v. New York , 324 U. S. 401 (1945); Leyra v. Denno , 347 U. S. 556 (1954). See also Williams v. United States , 341 U. S. 97 (1951).
[ Footnote 7 ]
In addition, see People v. Wakat , 415 Ill. 610, 114 N.E.2d 706 (1953); Wakat v. Harlib , 253 F.2d 59 (C.A. 7th Cir.1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight months’ medical treatment after being manhandled by five policemen); Kier v. State , 213 Md. 556, 132 A.2d 494 (1957) (police doctor told accused, who was strapped to a chair completely nude, that he proposed to take hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People , 113 Colo.194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to submit to a lie detector test when he wanted to go to the toilet); People v. Matlock , 51 Cal.2d 682, 336 P.2d 505 (1959) (defendant questioned incessantly over an evening’s time, made to lie on cold board and to answer questions whenever it appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary Examination and “The Third Degree,” 2 Baylor L.Rev. 131 (1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J.Pub.L. 25 (1965).
[ Footnote 8 ]
The manuals quoted in the text following are the most recent and representative of the texts currently available. Material of the same nature appears in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator 97-115 (1952). Studies concerning the observed practices of the police appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash.U.L.Q. 331; Barrett, Police Practices and the Law — From Arrest to Release or Charge, 50 Calif.L.Rev. 11 (1962); Sterling, supra , n 7, at 47-65.
[ Footnote 9 ]
The methods described in Inbau & Reid, Criminal Interrogation and Confessions (1962), are a revision and enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation (3d ed.1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory, and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences, and are the most effective psychological stratagems to employ during interrogations. Similarly, the techniques described in O’Hara, Fundamentals of Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000.
[ Footnote 10 ]
Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.
[ Footnote 11 ]
O’Hara, supra , at 99.
[ Footnote 12 ]
Inbau & Reid, supra , at 34-43, 87. For example, in Leyra v. Denno , 347 U. S. 556 (1954), the interrogator-psychiatrist told the accused, “We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things we aren’t really responsible for,” id. at 562, and again, “We know that morally, you were just in anger. Morally, you are not to be condemned,” id. at 582.
[ Footnote 13 ]
Inbau Reid, supra , at 43-55.
[ Footnote 14 ]
O’Hara, supra , at 112.
[ Footnote 15 ]
Inbau & Reid, supra , at 40.
[ Footnote 16 ]
Ibid.
[ Footnote 17 ]
O’Hara, supra , at 104, Inbau & Reid, supra , at 58-59. See Spano v. New York , 360 U. S. 315 (1959). A variant on the technique of creating hostility is one of engendering fear. This is perhaps best described by the prosecuting attorney in Malinski v. New York , 324 U. S. 401 , 407 (1945):
“Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure.
[ Footnote 18 ]
O’Hara, supra , at 105-106.
[ Footnote 19 ]
Id. at 106.
[ Footnote 20 ]
Inbau & Reid, supra , at 111.
[ Footnote 21 ]
Ibid.
[ Footnote 22 ]
Inbau & Reid, supra , at 112.
[ Footnote 23 ]
Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed.1953).
[ Footnote 24 ]
Interrogation procedures may even give rise to a false confession.  When this was discovered, the prosecutor was reported as saying:
“Call it what you want — brainwashing, hypnosis, fright. They made him give an untrue confession. The only thing I don’t believe is that Whitmore was beaten.”
N.Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N.Y. Times, Oct. 20, 1964, p. 22, col. 1; N.Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank & Frank, Not Guilty (1957).
[ Footnote 25 ]
In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia , 372 U. S. 391 (1963), our disposition made it unnecessary to delve at length into the facts. The facts of the defendant’s case there, however, paralleled those of his codefendants, whose confessions were found to have resulted from continuous and coercive interrogation for 27 hours, with denial of requests for friends or attorney. See United States v. Murphy , 222 F.2d 698 (C.A.2d Cir.1955) (Frank, J.); People v. Bonino , 1 N.Y.2d 752, 135 N.E.2d 51 (1956).
[ Footnote 26 ]
The absurdity of denying that a confession obtained under these circumstances is compelled is aptly portrayed by an example in Professor Sutherland’s recent article, Crime and Confession, 79 Harv.L.Rev. 21, 37 (1965):
“Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but themselves and their convenient ‘witnesses,’ keep her secluded there for hours while they make insistent demands, weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy, and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most righteous intentions. Would any judge of probate accept the will so procured as the ‘voluntary’ act of the testatrix?”
[ Footnote 27 ]
Thirteenth century commentators found an analogue to the privilege grounded in the Bible. “To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.” Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 116, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).
[ Footnote 28 ]
See Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 9-11 (1949); 8 Wigmore, Evidence 289-295 (McNaughton rev.1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv.L.Rev. 220, 290 (1897).
[ Footnote 29 ]
See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935); Ullmann v. United States , 350 U. S. 422 , 445-449 (1956) (DOUGLAS, J., dissenting).
[ Footnote 30 ]
Compare Brown v. Walker , 161 U. S. 591 (1896); Quinn v. United States , 349 U. S. 155 (1955).
[ Footnote 31 ]
Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44, Anderson v. United States , 318 U. S. 350 (1943); Brief for the United States, pp. 17-18, McNabb v. United States , 318 U. S. 332 (1943).
[ Footnote 32 ]
Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958).
[ Footnote 33 ]
The decisions of this Court have guaranteed the same procedural protection for the defendant whether his confession was used in a federal or state court. It is now axiomatic that the defendant’s constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond , 365 U. S. 534 , 544 (1961); Wan v. United States , 266 U. S. 1 (1924). This is so even if there is ample evidence aside from the confession to support the conviction, e.g., Malinski v. New York , 324 U. S. 401 , 404 (1945); Bram v. United States , 168 U. S. 532 , 540-542 (1897). Both state and federal courts now adhere to trial procedures which seek to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v. Denno , 378 U. S. 368 (1964); United States v. Carignan , 342 U. S. 36 , 38 (1951); see also Wilson v. United States , 162 U. S. 613 , 624 (1896). Appellate review is exacting, see Haynes v. Washington , 373 U. S. 503 (1963); Blackburn v. Alabama , 361 U. S. 199 (1960). Whether his conviction was in a federal or state court, the defendant may secure a post-conviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural requirements, Fay v. Noia , 372 U. S. 391 (1963); Townsend v. Sain , 372 U. S. 293 (1963). In addition, see Murphy v. Waterfront Comm’n , 378 U. S. 52 (1964).
[ Footnote 34 ]
See Lisenba v. California , 314 U. S. 219 , 241 (1941); Ashcraft v. Tennessee , 322 U. S. 143 (1944); Malinski v. New York , 324 U. S. 401 (1945); Spano v. New York , 360 U. S. 315 (1959); Lynumn v. Illinois , 372 U. S. 528 (1963); Haynes v. Washington , 373 U. S. 503 (1963).
[ Footnote 35 ]
The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel, and excludes any statement obtained in its wake. See People v. Donovan , 13 N.Y.2d 148, 193 N.E.2d 628, 243 N.Y.S.2d 841 (1963) (Fuld, J.)
[ Footnote 36 ]
In re Groban , 352 U. S. 330 , 340-352 (1957) (BLACK, J., dissenting); Note, 73 Yale L.J. 1000, 1048-1051 (1964); Comment, 31 U.Chi.L.Rev. 313, 320 (1964) and authorities cited.
[ Footnote 37 ]
See p. 454, supra. Lord Devlin has commented:
“It is probable that, even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not.”
Devlin, The Criminal Prosecution in England 32 (1958).
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California , 380 U. S. 609 (1965); Malloy v. Hogan , 378 U. S. 1 , 8 (1964); Comment, 31 U.Chi.L.Rev. 556 (1964); Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 1041-1044 (1966). See also Bram v. United States , 168 U. S. 532 , 562 (1897).
[ Footnote 38 ]
Cf. Betts v. Brady , 316 U. S. 455 (1942), and the recurrent inquiry into special circumstances it necessitated. See generally Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962).
[ Footnote 39 ]
See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 440, 480 (1964).
[ Footnote 40 ]
Estimates of 50-90% indigency among felony defendants have been reported. Pollock, Equal Justice in Practice, 45 Minn.L.Rev. 737, 738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L.Rev. 428, 433 (1965).
[ Footnote 41 ]
See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 64-81 (1965). As was stated in the Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice 9 (1963):
“When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law, but which, nevertheless, may occasionally affect determinations of the accused’s liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice.”
[ Footnote 42 ]
Cf. United States ex rel. Brown v. Fay , 242 F.Supp. 273, 277 (D.C.S.D.N.Y.1965); People v. Witenski , 15 N.Y.2d 392, 207 N.E.2d 358, 259 N.Y.S.2d 413 (1965).
[ Footnote 43 ]
While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple, and the rights involved too important, to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.
[ Footnote 44 ]
If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.
[ Footnote 45 ]
Although this Court held in Rogers v. United States , 340 U. S. 367 (1951), over strong dissent, that a witness before a grand jury may not in certain circumstances decide to answer some questions and then refuse to answer others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial factfinding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements.
[ Footnote 46 ]
The distinction and its significance has been aptly described in the opinion of a Scottish court:
“In former times, such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavourable to the suspect.”
Chalmer v. H. M. Advocate , [1954] Sess.Cas. 66, 78 (J.C.).
[ Footnote 47 ]
See People v. Dorado , 62 Cal.2d 338, 354, 398 P.2d 361, 371 42 Cal.Rptr. 169, 179 (1965).
[ Footnote 48 ]
In accordance with our holdings today and in Escobedo v. Illinois , 378 U. S. 478 , 492, Crooker v. California , 357 U. S. 433 (1958) and Cicenia v. Lagay , 357 U. S. 504 (1958), are not to be followed.
[ Footnote 49 ]
In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to pass on the constitutional questions involved in the Olmstead case.
[ Footnote 50 ]
Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 26 (1956).
[ Footnote 51 ]
Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were found in Westover’s car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart’s home at the outset of the investigation.
[ Footnote 52 ]
Dealing as we do here with constitutional standards in relation to statements made, the existence of independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. Washington , 373 U. S. 503 , 518-519 (1963); Lynumn v. Illinois , 372 U. S. 528 , 537-538 (1963); Rogers v. Richmond , 365 U. S. 534 , 541 (1961); Blackburn v. Alabama , 361 U. S. 199 , 206 (1960).
[ Footnote 53 ]
See, e.g. , Report and Recommendations of the [District of Columbia] Commissioners’ Committee on Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An extreme example of this practice occurred in the District of Columbia in 1958. Seeking three “stocky” young Negroes who had robbed a restaurant, police rounded up 90 persons of that general description. Sixty-three were held overnight before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate Judiciary Committee on H.R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.
[ Footnote 54 ]
In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated:
“Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory.”
“ * * * *”
“We can have the Constitution, the best laws in the land, and the most honest reviews by courts — but unless the law enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a career of honor, civil liberties will continually — and without end — be violated. . . . The best protection of civil liberties is an alert, intelligent and honest law enforcement agency. There can be no alternative.”
“ * * * *”
“. . . Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice.”
Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L.Rev. 175, 177-182 (1952).
[ Footnote 55 ]
We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver is necessarily high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts.
[ Footnote 56 ]
Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U.S.C. § 1201 (1964 ed.), white slavery, 18 U.S.C. §§ 2421-2423 (1964 ed.), bank robbery, 18 U.S.C. § 2113 (1964 ed.), interstate transportation and sale of stolen property, 18 U.S.C. §§ 2311-2317 (1964 ed.), all manner of conspiracies, 18 U.S.C. § 371 (1964 ed.), and violations of civil rights 18 U.S.C. §§ 241-242 (1964 ed.). See also 18 U.S.C. § 1114 (1964 ed.) (murder of officer or employee of the United States).
[ Footnote 57 ]
[1964] Crim.L.Rev. at 166-170. These Rules provide in part:
“II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.”
“The caution shall be in the following terms: ”
” You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence.”
“When, after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present.”
“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.”
“ * * * *”
“IV. All written statements made after caution shall be taken in the following manner: ”
“(a) If a person says that he wants to make a statement, he shall be told that it is intended to make a written record of what he says.”
“He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write, or that he would like someone to write it for him, a police officer may offer to write the statement for him. . . .”
“(b) Any person writing his own statement shall be allowed to do so without any prompting, as distinct from indicating to him what matters are material.”
“ * * * *”
“(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him.”
The prior Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958).
Despite suggestions of some laxity in enforcement of the Rules, and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e.g. , [1964] Crim.L.Rev. at 182, and articles collected in [1960] Crim.L.Rev. at 298-356.
[ Footnote 58 ]
The introduction to the Judges’ Rules states in part:
“These Rules do not affect the principles”
“ * * * *”
“(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that, in such a case, no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so. . . .”
[1964] Crim.L.Rev. at 166-167.
[ Footnote 59 ]
As stated by the Lord Justice General in Chalmers v. H.M Advocate , [1954] Sess.Cas. 66, 78 (J.C.):
“The theory of our law is that, at the stage of initial investigation, the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centered upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g. , to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged, he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice.”
[ Footnote 60 ]
“No confession made to a police officer shall be proved as against a person accused of any offence.” Indian Evidence Act § 25.
“No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.”
Indian Evidence Act § 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting:
“[I]t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession.”
Sarwan Singh v. State of Punjab , 44 All India Rep. 1957, Sup.Ct. 637, 644.
[ Footnote 61 ]
I Legislative Enactments of Ceylon 211 (1958).
[ Footnote 62 ]
10 U.S.C. § 831(b) (1964 ed.)
[ Footnote 63 ]
United States v. Rose , 24 CMR 251 (1957); United States v. Gunnels , 23 CMR 354 (1957).
[ Footnote 64 ]
Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that “No person accused of any offence shall be compelled to be a witness against himself.” Constitution of India, Article 20(3). See Tope, The Constitution of India 63-67 (1960).
[ Footnote 65 ]
Brief for United States in No. 761, Westover v. United States , pp. 44-47; Brief for the State of New York as amicus curiae , pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae , pp. 23-26.
[ Footnote 66 ]
Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that, during the interrogation, he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything.
[ Footnote 67 ]
One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally.
[ Footnote 68 ]
Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins , Civ. 9901 (D.C.W.D.N.Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31-33.
[ Footnote 69 ]
The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the objection available, the failure to object at trial does not constitute a waiver of the claim. See, e.g., United States ex rel. Angelet v. Fay , 333 F.2d 12, 16 (C.A.2d Cir.1964), aff’d , 381 U. S. 654 (1965). Cf. Ziffrin, Inc. v. United States , 318 U. S. 73 , 78 (1943).
[ Footnote 70 ]
Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno , 378 U. S. 368 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court’s decision in People v. Morse , 60 Cal.2d 631, 388 P.2d 33, 36 Cal.Rptr. 201 (1964).
[ Footnote 71 ]
After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no final judgment from which the State could appeal, since the judgment below directed that he be retried. In the event respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no appeal. Satisfied that, in these circumstances, the decision below constituted a final judgment under 28 U.S.C. § 1257(3) (1964 ed.), we denied the motion. 383 U.S. 903.
[ Footnote 1 ]
E.g. , Inbau & Reid, Criminal Interrogation and Confessions (196); O’Hara, Fundamentals Of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940).
[ Footnote 2 ]
As developed by my Brother HARLAN, post pp. 506-514, such cases, with the exception of the long-discredited decision in Bram v. United States , 168 U. S. 532 (1897), were adequately treated in terms of due process.
[ Footnote 3 ]
The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As in Brother HARLAN points out, post , pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General’s letter, ante , pp. 484-46, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as “a right to counsel”; nothing is said about a right to have counsel present at the custodial interrogation. ( See also the examples cited by the Solicitor General, Westover v. United States , 342 F.2d 684, 685 (1965) (“right to consult counsel”); Jackson v. United States , 337 F.2d 136, 138 (1964) (accused “entitled to an attorney”).) Indeed, the practice is that, whenever the suspect
“decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point. . . . When counsel appears in person, he is permitted to confer with his client in private.”
This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General’s letter states:
“[T]hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, [are advised] of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.”
So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself, and that he may have counsel appointed only when brought before the judge or at trial — but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court.
[ Footnote 4 ]
In my view, there is “no significant support” in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point, see the dissenting opinion of my Brother WHITE, post pp. 526-531.
[ Footnote 1 ]
My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.
[ Footnote 2 ]
The case was Bram v. United States , 168 U. S. 532 (quoted ante p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded “that no assertions could be more unfounded.” 3 Wigmore, Evidence § 823, at 250, n. 5 (3d ed.1940). The Court in United States v. Carignan , 342 U. S. 36 , 41, declined to choose between Bram and Wigmore, and Stein v. New York , 346 U. S. 156 , 191, n. 35, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell , 256 U. S. 465 , 475; see Shotwell Mfg. Co. v. United States , 371 U. S. 341 , 347. On Bram and the federal confession cases generally, see Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 959-961 (1966).
[ Footnote 3 ]
Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that, by the 1963 Term, 33 state coerced confession cases had been decided by this Court, apart from per curiams. Spano v. New York , 360 U. S. 315 , 321, n. 2, collects 28 cases.
[ Footnote 4 ]
Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col.L.Rev. 62, 73 (1966):
“In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice.”
See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 452-458 (1964); Developments, supra , n. 2, at 964-984.
[ Footnote 5 ]
See the cases synopsized in Herman, supra , n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. California , 343 U. S. 181 , in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible.
[ Footnote 6 ]
Among the examples given in 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev.1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise, and where the privilege has been nullified — as by the English Bankruptcy Act — the confession rule may still operate.
[ Footnote 7 ]
Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt § 2.03, at 15-16 (1959).
[ Footnote 8 ]
This, of course, is implicit in the Court’s introductory announcement that “[o]ur decision in Malloy v. Hogan , 378 U. S. 1 (1964) [extending the Fifth Amendment privilege to the States] necessitates an examination of the scope of the privilege in state cases as well.” Ante , p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has, in recent years, been “the same standard” as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S. at 7.
[ Footnote 9 ]
I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment, and indeed its citation in this regard seems surprising in view of Escobedo’s primary reliance on the Sixth Amendment.
[ Footnote 10 ]
Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 9’9, 943-948 (1965).
[ Footnote 11 ]
See supra , n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto , 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra , n. 4, at 72-73.
[ Footnote 12 ]
The Court’s vision of a lawyer “mitigat[ing] the dangers of untrustworthiness” ( ante , p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watt v. Indiana , 338 U. S. 49 , 59 (separate opinion of Jackson, J.): “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” See Enker & Elsen, Counsel for the Suspect, 49 Minn.L.Rev. 47, 66-68 (1964).
[ Footnote 13 ]
This need is, of course, what makes so misleading the Court’s comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante , pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain however the balance is resolved.
[ Footnote 14 ]
See, e.g. , the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut , 367 U. S. 568 , 578-579 (Frankfurter, J., announcing the Court’s judgment and an opinion).
[ Footnote 15 ]
In Westover , a seasoned criminal was practically given the Court’s full complement of warnings, and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera , the facts are complicated, and the record somewhat incomplete.
[ Footnote 16 ]
“[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
Snyder v. Massachusetts , 291 U. S. 97 , 122 (Cardozo, J.).
[ Footnote 17 ]
A narrow reading is given in: United States v. Robinson , 354 F.2d 109 (C.A.2d Cir.); Davis v. North Carolina , 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman , 342 F.2d 679 (C.A. 5th Cir.); United States ex rel. Townsend v. Ogilvie , 334 F.2d 837 (C.A. 7th Cir.); People v. Hartgraves , 31 Ill.2d 375, 202 N.E.2d 33; State v. Fox , ___ Iowa ___, 131 N.W.2d 684; Rowe v. Commonwealth , 394 S.W.2d 751 (Ky.); Parker v. Warden , 236 Md. 236, 203 A.2d 418; State v. Howard , 383 S.W.2d 701 (Mo.); Bean v. State , ___ Nev. ___, 398 P.2d 251; State v. Hodgson , 44 N.J. 151, 207 A.2d 542; People v. Gunner , 15 N.Y.2d 226, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney , 416 Pa. 331, 206 A.2d 288; Browne v. State , 24 Wis.2d 491, 131 N.W.2d 169.
An ample reading is given in: United States ex rel. Russo v. New Jersey , 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson , 336 F.2d 878 (C.A. 9th Cir.); People v. Dorado , 62 Cal.2d 338, 398 P.2d 361; State v. Dufour , ___ R.I. ___, 206 A.2d 82; State v. Neely , 239 Ore. 487, 395 P.2d 557, modified , 398 P.2d 482.
The cases in both categories are those readily available; there are certainly many others.
[ Footnote 18 ]
For instance, compare the requirements of the catalytic case of People v. Dorado , 62 Cal.2d 338, 398 P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 670.
[ Footnote 19 ]
The Court’s obiter dictum notwithstanding, ante p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual.
[ Footnote 20 ]
For citations and discussion covering each of these points, see Developments, supra , n. 2, at 1091-1097, and Enker & Elsen, supra , n. 12, at 80 & n. 94.
[ Footnote 21 ]
On comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U.Pa.L.Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id. at 167-169; guilt based on majority jury verdicts, id. at 185, and pretrial discovery of evidence on both sides, id. at 175.
[ Footnote 22 ]
Of particular relevance is the ALI’s drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code.
[ Footnote 23 ]
See brief for the United States in Westover , p. 45. The N.Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confession in New York.
[ Footnote 24 ]
The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court’s. N.Y. Times, May 24, 1966, p. 35 (late city ed.).
[ Footnote 25 ]
The Court waited 12 years after Wolf v. Colorado , 338 U. S. 25 , declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded, in Mapp v. Ohio , 367 U. S. 643 , that adequate state remedies had not been provided to protect this interest, so the exclusionary rule was necessary.
[ Footnote 1 ]
Of course, the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia, ante at 479, n. 48, and it acknowledges that, in the instant “cases, we might not find the defendants’ statements to have been involuntary in traditional terms,” ante at 457.
[ Footnote 2 ]
In fact, the type of sustained interrogation described by the Court appears to be the exception, rather than the rule. A survey of 399 cases in one city found that, in almost half of the cases, the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law — From Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41-45 (1962). Questioning tends to be confused and sporadic, and is usually concentrated on confrontations with witnesses or new items of evidence as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary § 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).
[ Footnote 3 ]
By contrast, the Court indicates that, in applying this new rule, it “will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.” Ante at 468. The reason given is that assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers’ claim that they gave the requisite warnings may be disputed, and facts respecting the defendant’s prior experience may be undisputed, and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden , 355 F.2d 453 (C.A. 7th Cir.1965), petition for cert. pending , No. 1146, O.T. 1965 (Secret Service agent); People v. Du Bont , 235 Cal.App.2d 844, 45 Cal.Rptr. 717, pet. for cert. pending No. 1053, Misc., O.T. 1965 (former police officer).
[ Footnote 4 ]
Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and in part because criminal records of convictions in different jurisdictions are not brought together by a central data collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on “Careers in Crime,” which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a prior arrest record on some charge. Over a period of 10 years, the group had accumulated 434,000 charges. FBI, Uniform Crime Reports — 1964, 27-28. In 1963 and 1964, between 23% and 25% of all offenders sentenced in 88 federal district courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia, between 28% and 35% of those sentenced had prior prison records, and from 37% to 40% had a prior record less than prison. Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).
A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of persons on federal probation had their probation revoked because of the commission of major violations (defined as one in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al. , Recidivism Studied and Defined, 56 J.Crim.L., C. & P. S. 59 (1965) (within five years of release, 62.33% of sample had committed offenses placing them in recidivist category).
[ Footnote 5 ]
Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases, 89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately 90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra , note 4, 3-6. In the District Court for the District of Columbia, a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the cases terminated prior to trial. Id. at 58-59. No reliable statistics are available concerning the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial.
Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or 23.9%, of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI, Uniform Crime Reports — 1964, 20-22, 101. Those who would replace interrogation as an investigatorial tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even when interrogation is included.
Contributors and Attributions
- Authored by : US Government . Located at : https://supreme.justia.com/cases/federal/us/384/436/case.html . License : Public Domain: No Known Copyright


5.5: Neoclassical
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- Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, & Shanell Sanchez
- Southern Oregon University via OpenOregon
Modern deterrence theory is perhaps the dominant philosophy of the American criminal justice system. Deterrence theory tries to change a person’s behavior through laws and punishments. As a form of social control, there is a belief that perceived punishments will serve as a warning of possible consequences, which would hopefully deter the person from committing the crime. There are two types of deterrence: general deterrence and specific deterrence. General deterrence uses punishment to deter crime among people in the general population. It uses punishment as an example for those people not punished. For example, capital punishment can serve as an example to other would-be offenders if they were thinking about murder. Specific deterrence uses punishment to reduce the crime of particular persons. The effect of the punishment depends on the nature of the punishment and who is punished.
News Box. In 1994, Oregon voters passed Measure 11, which established mandatory minimum sentencing for several serious crimes. Besides removing the judge’s ability to give a lesser sentence, Measure 11 prohibited prisoners from reducing their sentence through good behavior. Additionally, any defendant 15 years old or older who was accused of a Measure 11 offense was automatically tried as an adult. Recently, the Oregon Justice Resource Center reported the effects of Measure 11 on juveniles, especially minorities. Below are links to the news article and the report itself.
The Oregonian – “New Report Calls Measure 11 Sentences for Juveniles ‘Harsh and Costly'”
Measure 11 Exercise
After reading the above box and hyperlinks, please explain why many juveniles are not deterred from committing serious crimes in Oregon.
Classical ideology was the dominant paradigm for over a century, but it was eventually replaced by positivist approaches that seek to identify causes of criminal behavior. However, classical ideology had a resurgence during the 1970s in the United States. Neoclassical theory recognizes people experience punishments differently, and a person’s environment, psychology, and other conditions can contribute to crime as well. Therefore, crime is a choice based on context. Many crime-prevention efforts used classical and neoclassical premises to focus on “what works” in preventing crime instead of focusing on why people commit criminal acts.
Cornish and Clarke (1986) proposed a Rational Choice Theory to explain criminals’ behavior. [1] They claimed offenders rationally calculate costs and benefits before committing crime and assumed people want to maximize pleasure and minimize pain. The theory does not explain motivation, but instead, it expects some people will always commit a crime when given the opportunity. They do not assume offenders are entirely rational, but they do have bounded rationality. Bounded rationality is the constraint of both time and relevant information; offenders must make a decision in a timely fashion with the information at hand. Offenders cannot wait forever nor can they wait for more information before committing a crime. For example, if you were walking down a street and noticed an open window in a parked car, you may contemplate looking in. If you saw something inside, you may then consider stealing it. An entirely rational person may look around to see if there are any witnesses, try to determine if the owner is coming back soon, and so on. Ideally, you may wait until nightfall. However, you may miss your opportunity. Thus, you need to make a quick decision with the relevant facts at that time.
That was an example of a “crime-specific” model. All crimes have different techniques and opportunities. Additionally, they assume all crime is purposeful with the intention to benefit the offender. To dissuade offenders, Rational Choice Theory emphasized the significance of informal sanctions and moral costs. The theory advocates for a situational crime prevention approach by reducing opportunities. Reducing opportunities is much easier to manipulate and change compared to changing society, culture, or individuals. Ultimately, situational crime prevention strategies try to crime a less attractive choice.
Another neoclassical theory is Routine Activity Theory. Cohen and Felson (1979) claimed changes in the modern world have provided more opportunities for offenders. [2] Since the conclusion of World War II, more people have entered the workforce, and more people spend time away from home. Cohen and Felson stated that three things must converge in time in space for a crime to be committed – a motivated offender, a suitable target, and the absence of a capable guardian.
The motivated offender is considered to be a given as there will always be people who will seize opportunities to commit criminal offenses. Besides, there a variety of theories to explain why people commit a crime. Suitable targets can be vacant houses, parked cars, a person, or any item. In reality, almost anything can be a suitable target. Finally, the absence of a capable guardian facilitates the criminal event. What can serve as a “capable” guardian? A plethora of people and things can serve as a guardian. For example, police officers, security guards, a dog, being at home, increased lighting to allow other people to see, CCTV, alarm systems, and deadbolt locks can each reduce opportunities by serving as a capable guardian. Routine activity theory concentrates on the criminal event instead of the criminal offender.
- Cornish, D.B., & Clarke, R.V. (1986). Crime as a rational choice. In R.V. Clarke and D.B. Cornish, The reasoning criminal . New York, NY: Springer-Verlag. ↵
- Cohen, L.E., & Felson, M. (1979). Social change and crime rate trends: A routine activiity approach. American Sociological Review , 44 , 588-608. ↵


10.4: Cancer and the Cell Cycle
Skills to Develop
- Describe how cancer is caused by uncontrolled cell growth
- Understand how proto-oncogenes are normal cell genes that, when mutated, become oncogenes
- Describe how tumor suppressors function
- Explain how mutant tumor suppressors cause cancer
Cancer comprises many different diseases caused by a common mechanism: uncontrolled cell growth. Despite the redundancy and overlapping levels of cell cycle control, errors do occur. One of the critical processes monitored by the cell cycle checkpoint surveillance mechanism is the proper replication of DNA during the S phase. Even when all of the cell cycle controls are fully functional, a small percentage of replication errors (mutations) will be passed on to the daughter cells. If changes to the DNA nucleotide sequence occur within a coding portion of a gene and are not corrected, a gene mutation results. All cancers start when a gene mutation gives rise to a faulty protein that plays a key role in cell reproduction. The change in the cell that results from the malformed protein may be minor: perhaps a slight delay in the binding of Cdk to cyclin or an Rb protein that detaches from its target DNA while still phosphorylated. Even minor mistakes, however, may allow subsequent mistakes to occur more readily. Over and over, small uncorrected errors are passed from the parent cell to the daughter cells and amplified as each generation produces more non-functional proteins from uncorrected DNA damage. Eventually, the pace of the cell cycle speeds up as the effectiveness of the control and repair mechanisms decreases. Uncontrolled growth of the mutated cells outpaces the growth of normal cells in the area, and a tumor (“-oma”) can result.
Proto-oncogenes
The genes that code for the positive cell cycle regulators are called proto-oncogenes . Proto-oncogenes are normal genes that, when mutated in certain ways, become oncogenes , genes that cause a cell to become cancerous. Consider what might happen to the cell cycle in a cell with a recently acquired oncogene. In most instances, the alteration of the DNA sequence will result in a less functional (or non-functional) protein. The result is detrimental to the cell and will likely prevent the cell from completing the cell cycle; however, the organism is not harmed because the mutation will not be carried forward. If a cell cannot reproduce, the mutation is not propagated and the damage is minimal. Occasionally, however, a gene mutation causes a change that increases the activity of a positive regulator. For example, a mutation that allows Cdk to be activated without being partnered with cyclin could push the cell cycle past a checkpoint before all of the required conditions are met. If the resulting daughter cells are too damaged to undergo further cell divisions, the mutation would not be propagated and no harm would come to the organism. However, if the atypical daughter cells are able to undergo further cell divisions, subsequent generations of cells will probably accumulate even more mutations, some possibly in additional genes that regulate the cell cycle.
The Cdk gene in the above example is only one of many genes that are considered proto-oncogenes. In addition to the cell cycle regulatory proteins, any protein that influences the cycle can be altered in such a way as to override cell cycle checkpoints. An oncogene is any gene that, when altered, leads to an increase in the rate of cell cycle progression.
Tumor Suppressor Genes
Like proto-oncogenes, many of the negative cell cycle regulatory proteins were discovered in cells that had become cancerous. Tumor suppressor genes are segments of DNA that code for negative regulator proteins, the type of regulators that, when activated, can prevent the cell from undergoing uncontrolled division. The collective function of the best-understood tumor suppressor gene proteins, Rb, p53, and p21, is to put up a roadblock to cell cycle progression until certain events are completed. A cell that carries a mutated form of a negative regulator might not be able to halt the cell cycle if there is a problem. Tumor suppressors are similar to brakes in a vehicle: Malfunctioning brakes can contribute to a car crash.
Mutated p53 genes have been identified in more than one-half of all human tumor cells. This discovery is not surprising in light of the multiple roles that the p53 protein plays at the G 1 checkpoint. A cell with a faulty p53 may fail to detect errors present in the genomic DNA (Figure \(\PageIndex{1}\)). Even if a partially functional p53 does identify the mutations, it may no longer be able to signal the necessary DNA repair enzymes. Either way, damaged DNA will remain uncorrected. At this point, a functional p53 will deem the cell unsalvageable and trigger programmed cell death (apoptosis). The damaged version of p53 found in cancer cells, however, cannot trigger apoptosis.
Exercise \(\PageIndex{1}\)
Human papillomavirus can cause cervical cancer. The virus encodes E6, a protein that binds p53. Based on this fact and what you know about p53, what effect do you think E6 binding has on p53 activity?
- E6 activates p53
- E6 inactivates p53
- E6 mutates p53
- E6 binding marks p53 for degradation
- Answer
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D. E6 binding marks p53 for degradation.
The loss of p53 function has other repercussions for the cell cycle. Mutated p53 might lose its ability to trigger p21 production. Without adequate levels of p21, there is no effective block on Cdk activation. Essentially, without a fully functional p53, the G 1 checkpoint is severely compromised and the cell proceeds directly from G 1 to S regardless of internal and external conditions. At the completion of this shortened cell cycle, two daughter cells are produced that have inherited the mutated p53 gene. Given the non-optimal conditions under which the parent cell reproduced, it is likely that the daughter cells will have acquired other mutations in addition to the faulty tumor suppressor gene. Cells such as these daughter cells quickly accumulate both oncogenes and non-functional tumor suppressor genes. Again, the result is tumor growth.
Link to Learning
Go to this website to watch an animation of how cancer results from errors in the cell cycle.
Summary
Cancer is the result of unchecked cell division caused by a breakdown of the mechanisms that regulate the cell cycle. The loss of control begins with a change in the DNA sequence of a gene that codes for one of the regulatory molecules. Faulty instructions lead to a protein that does not function as it should. Any disruption of the monitoring system can allow other mistakes to be passed on to the daughter cells. Each successive cell division will give rise to daughter cells with even more accumulated damage. Eventually, all checkpoints become nonfunctional, and rapidly reproducing cells crowd out normal cells, resulting in a tumor or leukemia (blood cancer).
Glossary
- oncogene
- mutated version of a normal gene involved in the positive regulation of the cell cycle
- proto-oncogene
- normal gene that when mutated becomes an oncogene
- tumor suppressor gene
- segment of DNA that codes for regulator proteins that prevent the cell from undergoing uncontrolled division


3.8: Chapter 3 Summary
Remember that topic selection can make or break a successful speaker. Speakers should choose topics that they feel passionate about or know extensive amounts of information about. The speaker’s selection of a personally motivating topic can effectively cut anxiety in half. Consider a topic’s “share test”—if the information sounds worthy enough to share on social media, it will likely present a viable choice with which to work.
Next speakers need to determine the speech’s purpose: to inform, to persuade, or to entertain. From there, begin brainstorming topics right away, and the sooner, the better. While narrowing and focusing topic ideas, start working to develop a specific purpose statement. What should the audience know upon completion of the speech? If persuading, what is the goal? Identify the specific purpose first, and then start working on a draft of the central idea. Remember to keep everything fairly fluid and flexible, because, as the presentation develops, valuable information about what the audience members know (or don’t know) and how they feel about the topic (or don’t feel about it) may change how the speaker’s purpose ultimately looks and subsequently, the central idea.