No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Perhaps one reason the Court did not squarely confront the application of the Self-Incrimination Clause to police interrogation and the admissibility of confessions in federal courts was that, in McNabb v. United States, 1 it promulgated a rule excluding confessions obtained after an
unnecessary delay in presenting a suspect for arraignment after arrest. 2 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts 3 and hence not applicable to the states, 4 was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure, 5 and was clearly informed with concern over incommunicado interrogation and coerced confessions. 6 Although the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment could invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented. 7
State Confession Cases Before Miranda
In its first encounter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions extorted through repeated whippings with ropes and studded belts. 8 For some 30 years thereafter the Court attempted through a consideration of the
totality of the circumstances surrounding interrogation to determine whether a confession was
voluntary and admissible or
coerced and inadmissible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it. 9
The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. 10 Obviously, a court seeking to determine whether a confession was voluntary operated under a severe handicap, as the interrogation process was in secret with only police and the suspect witness to it, and as the concept of voluntariness referred to the defendant’s mental condition. 11 Despite, then, a bountiful number of cases, binding precedents were few.
On the one hand, many of the early cases disclosed clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture, 12 but other overtly coercive tactics as well were condemned. Chambers v. Florida 13 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee 14 held inadmissible a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas, 15 voided a conviction based on a confession obtained from a suspect who had been questioned continuously over the course of three days while being driven from county to county and told falsely of a danger of lynching.
Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’ A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror. 16
Although the Court would not hold that prolonged questioning by itself made a resultant confession involuntary, 17 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention. 18 In Stein v. New York, 19 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado detention. Although the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance
the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal. 20 By the time of the decision in Haynes v. Washington, 21 however, which held inadmissible a confession made by an experienced criminal because of the
unfair and inherently coercive context in which the confession was made, it was clear that the Court often focused more on the nature of the coercion without regard to the individual characteristics of the suspect. 22 Nevertheless, the Court did continue to cite at times age and intelligence as demonstrating the susceptibility of the particular suspects to even mild coercion. 23
totality of the circumstances was looked to in determining admissibility. In some of the cases a single factor could be thought to stand out as indicating the involuntariness of the confession, 24 but in other cases the Court recited a number of contributing factors, including age, intelligence, incommunicado detention, denial of requested counsel, denial of access to friends, trickery, and other things, without seeming to rank any factor above the others. 25 Confessions induced through the exploitation of some illegal action, such as an illegal arrest 26 or an unlawful search and seizure, 27 were found inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court did not assume that the subsequent confession was similarly involuntary, but independently evaluated whether the coercive actions which produced the first continued to produce the later confession. 28
From the Voluntariness Standard to Miranda
Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona. 29 Though the historical basis of the rule excluding coerced and involuntary confessions, in both early state confession cases 30 and earlier cases from the lower federal courts, 31was their untrustworthiness, 32 in Lisenba v. California, 33 Justice Roberts drew a distinction between the common law confession rule and the standard of due process.
[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false. Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness. 34
Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that, in Rogers v. Richmond, 35 Justice Frankfurter spoke for six other Justices in writing:
Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system – a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth. Nevertheless, Justice Frankfurter said in another case,
[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved. 36 Three years later, in Malloy v. Hogan, 37 in the process of applying the Self-Incrimination Clause to the states, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi 38 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that, beginning with Lisenba v. California, 39 a
federal standard had been developed. The Court had engaged in a
shift [that] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. Today, continued Justice Brennan,
the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when Bram v. United States had announced that the Self-Incrimination Clause furnished the basis for admitting or excluding evidence in federal courts. 40
One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms: although it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois, 41 it held inadmissible a confession obtained from a suspect in custody who repeatedly had requested and been refused an opportunity to consult with his retained counsel, who was at the police station seeking to gain access to his client. 42 Although Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights. 43