 |
 |
 |
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
MR. JUSTICE HARLAN, dissenting.
MR. JUSTICE STEWART,
dissenting.
In Massiah v. United States, 377 U.S. 201,
the Court held that as of the date of the indictment the prosecution
is disentitled to secure admissions from the accused. The Court
now moves that date back to the time when the prosecution begins
to "focus" on the accused. Although the opinion purports
to be limited to the facts of this case, it would be naive to
think that the new constitutional right announced will depend
upon whether the accused has retained his own counsel, cf. Gideon
v. Wainwright, 372 U.S. 335; Griffin v. Illinois, 351 U.S. 12;
Douglas v. California, 372 U.S. 353, or has asked to consult with
counsel in the course of interrogation. Cf. Carnley v. Cochran,
369 U.S. 506. At the very least the Court holds that once the
accused becomes a suspect and, presumably, is arrested, any admission
made to the police thereafter is inadmissible in evidence unless
the accused has waived his right to counsel. The decision is thus
another major step in the direction of the goal which the Court
seemingly has in mind -- to bar from evidence all admissions obtained
from an individual suspected of crime, whether involuntarily made
or not. It does of course put us one step "ahead" of
the English judges who have had the good sense to leave the matter
a discretionary one with the trial court. 1
I reject this step and the invitation to go farther which the
Court has now issued.
By abandoning the voluntary-involuntary test
for admissibility of confessions, the Court seems driven by the
notion that it is uncivilized law enforcement to use an accused's
own admissions against him at his trial. It attempts to find a
home for this new and nebulous rule of due process by attaching
it to the right to counsel guaranteed in the federal system by
the Sixth Amendment and binding upon the States by virtue of the
due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright,
supra. The right to counsel now not only entitles the accused
to counsel's advice and aid in preparing for trial but stands
as an impenetrable barrier to any interrogation once the accused
has become a suspect. From that very moment apparently his right
to counsel attaches, a rule wholly unworkable and impossible to
administer unless police cars are equipped with public defenders
and undercover agents and police informants have defense counsel
at their side. I would not abandon the Court's prior cases defining
with some care and analysis the circumstances requiring the presence
or aid of counsel and substitute the amorphous and wholly unworkable
principle that counsel is constitutionally required whenever he
would or could be helpful. Hamilton v. Alabama, 368 U.S. 52; White
v. Maryland, 373 U.S. 59; Gideon v. Wainwright, supra. These cases
dealt with the requirement of counsel at proceedings in which
definable rights could be won or lost, not with stages where probative
evidence might be obtained. Under this new approach one might
just as well argue that a potential defendant is constitutionally
entitled to a lawyer before, not after, he commits a crime, since
it is then that crucial incriminating evidence is put within the
reach of the Government by the would-be accused. Until now there
simply has been no right guaranteed by the Federal Constitution
to be free from the use at trial of a voluntary admission made
prior to indictment.
It is incongruous to assume that the provision
for counsel in the Sixth Amendment was meant to amend or supersede
the self-incrimination provision of the Fifth Amendment, which
is now applicable to the States. Malloy v. Hogan, 378 U.S. 1.
That amendment addresses itself to the very issue of incriminating
admissions of an accused and resolves it by proscribing only compelled
statements. Neither the Framers, the constitutional language,
a century of decisions of this Court nor Professor Wigmore provides
an iota of support for the idea that an accused has an absolute
constitutional right not to answer even in the absence of compulsion
-- the constitutional right not to incriminate himself by making
voluntary disclosures.
Today's decision cannot be squared with other
provisions of the Constitution which, in my view, define the system
of criminal justice this Court is empowered to administer. The
Fourth Amendment permits upon probable cause even compulsory searches
of the suspect and his possessions and the use of the fruits of
the search at trial, all in the absence of counsel. The Fifth
Amendment and state constitutional provisions authorize, indeed
require, inquisitorial grand jury proceedings at which a potential
defendant, in the absence of counsel, is shielded against no more
than compulsory incrimination. Mulloney v. United States, 79 F.2d
566, 578 (C. A. 1st Cir.); United States v. Benjamin, 120 F.2d
521, 522 (C. A. 2d Cir.); United States v. Scully, 225 F.2d 113,
115 (C. A. 2d Cir.); United States v. Gilboy, 160 F.Supp. 442
(D. C. M. D. Pa.). A grand jury witness, who may be a suspect,
is interrogated and his answers, at least until today, are admissible
in evidence at trial. And these provisions have been thought of
as constitutional safeguards to persons suspected of an offense.
Furthermore, until now, the Constitution has permitted the accused
to be fingerprinted and to be identified in a line-up or in the
courtroom itself.
The Court chooses to ignore these matters and
to rely on the virtues and morality of a system of criminal law
enforcement which does not depend on the "confession."
No such judgment is to be found in the Constitution. It might
be appropriate for a legislature to provide that a suspect should
not be consulted during a criminal investigation; that an accused
should never be called before a grand jury to answer, even if
he wants to, what may well be incriminating questions; and that
no person, whether he be a suspect, guilty criminal or innocent
bystander, should be put to the ordeal of responding to orderly
noncompulsory inquiry by the State. But this is not the system
our Constitution requires. The only "inquisitions" the
Constitution forbids are those which compel incrimination. Escobedo's
statements were not compelled and the Court does not hold that
they were.
This new American judges' rule, which is to
be applied in both federal and state courts, is perhaps thought
to be a necessary safeguard against the possibility of extorted
confessions. To this extent it reflects a deep-seated distrust
of law enforcement officers everywhere, unsupported by relevant
data or current material based upon our own experience. Obviously
law enforcement officers can make mistakes and exceed their authority,
as today's decision shows that even judges can do, but I have
somewhat more faith than the Court evidently has in the ability
and desire of prosecutors and of the power of the appellate courts
to discern and correct such violations of the law.
The Court may be concerned with a narrower
matter: the unknowing defendant who responds to police questioning
because he mistakenly believes that he must and that his admissions
will not be used against him. But this worry hardly calls for
the broadside the Court has now fired. The failure to inform an
accused that he need not answer and that his answers may be used
against him is very relevant indeed to whether the disclosures
are compelled. Cases in this Court, to say the least, have never
placed a premium on ignorance of constitutional rights. If an
accused is told he must answer and does not know better, it would
be very doubtful that the resulting admissions could be used against
him. When the accused has not been informed of his rights at all
the Court characteristically and properly looks very closely at
the surrounding circumstances. See Ward v. Texas, 316 U.S. 547;
Haley v. Ohio, 332 U.S. 596; Payne v. Arkansas, 356 U.S. 560.
I would continue to do so. But in this case Danny Escobedo knew
full well that he did not have to answer and knew full well that
his lawyer had advised him not to answer.
I do not suggest for a moment that law enforcement
will be destroyed by the rule announced today. The need for peace
and order is too insistent for that. But it will be crippled and
its task made a great deal more difficult, all in my opinion,
for unsound, unstated reasons, which can find no home in any of
the provisions of the Constitution.
---- Begin EndNotes ----
1 "It
seems from reported cases that the judges have given up enforcing
their own rules, for it is no longer the practice to exclude evidence
obtained by questioning in custody. . . . A traditional principle
of 'fairness' to criminals, which has quite possibly lost some
of the reason for its existence, is maintained in words while
it is disregarded in fact. . . .
"The reader may be expecting at this point a vigorous denunciation of the police and of the judges, and a plea for a return to the Judges' Rules as interpreted in 1930. What has to be considered, however, is whether these Rules are a workable part of the machinery of justice. Perhaps the truth is that the Rules have been abandoned, by tacit consent, just because they are an unreasonable restriction upon the activities of the police in bringing criminals to book." Williams, Questioning by the Police: Some Practical Considerations, [1960] Crim. L. Rev. 325, 331-332. See also [1964] Crim. L. Rev. 161-182.
|
|
|
© 1995 - 2009, Touro Law Center