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The Impact Of The "Miranda" Decision On Police Procedures And Morale
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The Impact Of The "Miranda" Decision On Police Procedures And Morale
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THE IMPACT OF THE MIRANDA DECISION ON
POLICE PROCEDURES AND MORALE
by
James William Witt
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Political Science)
August 1970
INFORMATION TO USERS
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T H IS D IS S E R T A T IO N HAS BEEN M IC R O F IL M E D E X A C T L Y AS R E C E IV E D .
U N IV E R S IT Y O F S O U T H E R N C A L IF O R N IA
T H E G R A D U A T E S C H O O L
U N IV E R S IT Y P A R K
LO S A N G E L E S . C A L IF O R N IA 9 0 0 0 7
This dissertation, u ritte n by
James William Witt
under the direction of /ii.s... Dissertation C o m
mittee, and approved by all its members, has
been presented to and accepted by The G ra d u
ate School, in partial fu lfillm e n t of require
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TABLE OF CONTENTS
Page
LIST OF T A B L E S ....................................... iv
Chapter
I. INTRODUCTION AND RELATED TOPICS ............. 1
Introduction
Approach
Importance of the Study
Methodology
Definitions of Terms
II. THE HISTORY AND MATURATION OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION ................. 11
Classical Derivation
English Precedents
The American Experience with the Privilege
Against Self-Incrimination
III. THE HISTORY AND MATURATION OF THE RULE OF
CONFESSIONS................................. 28
Historical Antecedents
False Confessions and Their Dangers
The Legal Development of the Rule Governing
the Admission of Confessions
IV. POLICE INTERROGATION PRACTICES AND PROCEDURES
--COERCIVE OR ORTHODOX? .................... 66
Police Manuals and Texts
Report of the National Commission on Law
Observance and Enforcement--1931
Past Confession Cases Decided by the Court
The 1943 House Judiciary Subcommittee
Hearings
Report of the President's Committee on
Civil Rights--1947
The 1957 House Hearings Relating to the
Mallory Decision
ii
Chapter Page
The 1958 Senate Hearings Relating to
the Mallory Decision
The Report of the 1961 Commission on
Civil Rights
1962 District of Columbia Report on
Police Arrest for Investigation
The 1967 House Hearings--Anti-Crime
Program
The 1967 Senate Hearings--Anti-Crime
Program
The President's Commission on Law
Enforcement and Administration of
Justice--1967
V. NON-COERCIVE INTERROGATION AND THE ADMINIS
TRATION OF CRIMINAL JUSTICE ............... 97
Arguments for and against Interrogation
The Practical Approach
Studies Relating to Interrogation
Practices
The Results of the Los Angeles Study
VI. THE IMPACT OF COURT DECISIONS ON POLICE MORALE 147
Background
The Officer1s Perception of His Career
Police Satisfaction with Their Work
The Police Officer's Perception of His
External Problems and His Response
VII. CONCLUSIONS 175
BIBLIOGRAPHY 181
APPENDICES 216
A. The City and the Respondents
B. Sample Questionnaire . . .
217
222
iii
LIST OF TABLES
Table Page
1. Detective Evaluation of the Importance of
Interrogation ................................. 119
2. Need for Interrogation......................... 122
3. Outcome of Formal Interrogation (Murder,
Forcible Rape, Robbery, Burglary) ........... 125
4. Detective Description of the Purposes of
Interrogation ................................. 130
5. Extra Results from Interrogation .............. 131
6. Property--Stolen and Recovered ................ 135
7. Conviction Rate................................. 137
8. Evidence for the Prosecution.................. 139
9. Clearance Rate--Crime--Seaside City ............. 143
10. Main Reasons for Decision to Become Police
Officer....................................... 153
11. What Like Most About J o b ...................... 155
12. What Like Least About J o b ...................... 158
13. Changes Which Occurred in Working Conditions
Since Becoming Policeman .................... 161
14. Would You Still Become a Peace Officer? .... 163
15. Reasons for Increases in Violent Crimes .... 166
16. Factors That Most Deter Controlling Crime in
Los Angeles................................... 168
17. Change in Behavior of Public Toward Police . . 171
18. Changes Noticed in Suspects' Attitudes .... 173
iv
CHAPTER I
INTRODUCTION AND RELATED TOPICS
Introduction
Possibly, the most significant and pressing problem
currently confronting constitutional government in the
United States is the necessity to effect a balance between
the rights of the individual and the rights of society.
Nowhere is this problem more obvious than in the conflict
surrounding recent applications, by the courts of the self
incrimination clause of the Fifth Amendment to criminal
accused.
Much of the current debate over the rules protect
ing the rights of suspects against self-incrimination
1 2
swirls around the controversial Escobedo and Miranda
decisions. A myriad of negative allegations, regarding the
impact of these rulings on law enforcement and crime in
general, have been circulated by spokesmen both in and out
of law enforcement. Since most of these allegations have
^Escobedo v. Illinois, 378 U.S. 478 (1964).
^Miranda v. Arizona, 384 U.S. 436 (1966).
no foundation in fact, the purpose of this study is to
empirically examine the impact that Miranda has had on two
elements of law enforcement--police procedures and morale.
The main conclusion to be drawn from this study is:
Although the Miranda decision did not appear to signifi
cantly affect police procedures, it did appear to have some
adverse effects upon police morale.
This writer has made an effort to deal with this
topic both from the theoretical viewpoint of a scholar and
the practical viewpoint of a former police officer.
Approach
In order to do justice to this topic, it was neces
sary to build a strong foundation upon which the empirical
analysis could rest. Therefore, the following approach was
used:
1. The literature relating to the concept of the
privilege against self-incrimination was researched. Since
the Privilege is not indigenous to the United States, it
was necessary to incorporate information from classical and
common law sources in order to effect its full under
standing .
2. Since the rule of confessions differs from the
Privilege, both in meaning and in chronological development,
the literature relative to this principle was researched.
3
Again, it was necessary to include material from sources
outside of American jurisprudence--the common law.
3. The study then shifts to the analysis of the
data, upon which the Court based its rationale for effect
ing the Miranda decision. This analysis is expanded to
include similar data, which were available to but not used
by the Court.
4. Next, the study concerns itself with any impact,
which Miranda might have had upon police procedures. After
examining the problem from a practical viewpoint and
scrutinizing results from several allied studies, an analy
sis was made of 478 cases from the files of a West Coast
3
police department. This was done to test for any impact,
which Miranda might have had on the department's procedures
and efforts to control crime.
5. An additudinal survey questionnaire^ was admin
istered to forty-three veteran detectives in order to
ascertain the impact of Miranda upon their morale. These
results are tabulated in Chapter VII.
6. In the concluding chapter, a summary of the
conclusions reached in this study is set forth and several
suggestions for future study and improvements in the
criminal justice system are made by the author.
3
See Appendix A for a profile of this department--
the Seaside City Police Department.
^See Appendix B.
4
Importance of the Study
"The final cause of the law is the welfare of
society. The rule that misses its aim can't permanently
justify its existence. . . .
Traditionally, the study of the courts has been
orientated towards analyzing the various opinions of the
courts and reporting the rationale for the decisions. This
approach has some utility, in that it provides the means
for revealing the prejudices of the judges writing the
decisions. However, if the late Justice Cardozo's above
statement is valid, such an approach does not furnish the
tools for measuring whether a decision is in the best
interest of society. After all, opinions are mere ration
alizations of the courts' decisions.
It would seem that the energies of contemporary
legal scholars would be better spent if they concentrated
their efforts upon ascertaining the impact of the courts'
decisions on society. The output of their studies would
furnish much needed empirically formulated knowledge for
assessing the actual benefits or detriments of these
decisions.^
^Benjamin Cardozo, The Nature of the Judicial
Process (New Haven, Conn.: Yale University Press, 1968),
p . 66.
£
In what is probably the best article to date on
the topic of impact analysis, Arthur Miller makes a strong
case for the utility of this procedure in "On the Need for
The immediate undertaking is geared to just such a
task. Recognizing the importance of law enforcement to a
viable democratic society, the author has attempted to
study the impact that the Supreme Court's decision in
Miranda v. Arizona has had upon one group of law enforce
ment officers.
Methodology
Upon examining the literature during the initial
phase of this study, the author found that very little
reliable data were available regarding the behavior and
attitudes of law enforcement officers or their interroga
tion procedures. There are no dissertations dealing with
the topic. Since 1965, there have been several published
studies, of varying degrees of sophistication, analyzing
the effects of either the Escobedo or Miranda decisions on
law enforcement;^ however, most of these studies are
'Impact Analysis' of Supreme Court Decisions," Georgetown
Law Journal, 53 (Winter, 1965), 365-401. Also Ernest Jones
makes a similar pitch in "Impact Analysis and Sociology of
the Law," Wisconsin Law Review, 1966 (1966), 331-339.
Jones' approach differs in that he wants the sociologists
of the law to pursue the task. Some representative
articles utilizing this approach are as follows: Robert
Birkby, "The Supreme Court and the Bible Belt: Tennessee
Reaction to the 'Schempp' Decision," Wisconsin Law Review,
1965 (1965), 204-220; Frank Sorauf, "Zorach v. Clausen: The
Impact of a Supreme Court Decision," American Political
Science Review, 53 (September, 1959), 777-791.
^These studies are reviewed in Chapter V.
6
preoccupied with the impact of these decisions on obtaining
confessions, rather than the interrogation process. From
those studies dealing with police interrogation procedures,
the author was able to avail himself of a pre-tested ques
tionnaire and some tried methods of analysis. The following
are the procedures used in obtaining data dealing with the
author's two areas of inquiry--the impact that the decision
had upon police procedures and police morale.
In order to test the impact upon police procedures,
it was necessary to tap information contained in police
files. Normally, this source is unavailable to social
scientists; however, being a former police officer, the
writer was able to gain access to the files of a West Coast
g
police department.
Only cases dealing with four categories of crimes--
g
murder, forcible rape, robbery and burglary--were utilized
in this study.^ The area of inquiry was further narrowed
g
The Chief of the department in question, a former
supervisor of the writer, was gracious enough to open his
department's files to the author. However, he requested
that the department not be identified in the study; hence,
the pseudonym "Seaside City."
9
This does not include cases of strong-arm
robberies where one juvenile robbed another juvenile.
■^Due to the limited time and resources available to
effect this study, it was restricted to these four cate
gories of crimes. Furthermore, it would have been desirable
to have used data dating back to 1960; however, all files
prior to 1964 were being microfilmed and were not available
for use in this study.
7
by using only those cases in which suspects were actually
arrested and incarcerated by the Seaside City Police
Department. This eliminated all cases in which suspects
were detained for questioning but never incarcerated. As
the result of this elimination process, 478 cases remained
to comprise the sample. Each of these cases was read and
analyzed by the author who, in most cases, used analytical
methods gleaned from a similar study conducted by the Yale
University Law School.^
In order to test the morale variable, a modified
form of the questionnaire, used in the New Haven Study, was
employed by the writer. In a conversational setting, the
respondents were questioned and their answers recorded on
the questionnaire by the writer. By using respondents who
had been detectives prior to the 1964 Escobedo decision, it
was felt that a better perspective of any impact could be
gained. This presented a problem, because the Seaside City
Police Department did not have enough detectives who fell in
this category to permit a representative sample to be
effected. Consequently, detectives from the Los Angeles
Police Department and the Los Angeles County Sheriff's
Department were interviewed in order to fill this void.
The employment of three different law enforcement agencies
^See "Interrogation in New Haven: The Impact of
Miranda," Yale Law Journal, 76 (July, 1967), 1519-1648
[hereinafter cited as the New Haven Study].
8
in the sample should not distort it because: (1) the
department’s jurisdictions are adjacent to each other and
overlap in some cases, which means that they work in close
proximity with one another, (2) the crime problem is the
same in all three jurisdictions, i.e., major metropolitan
crime, (3) all three departments seem to employ the same
caliber of personnel, and (4) the personnel are equally well
trained.
Due to the vast amount of adverse criticism which
has been heaped upon the police during recent years, the
problem of questionnaire bias could not be disregarded.
Would the respondents view the interview sessions as an
opportunity to try to provide a good public image of the
police? This problem particularly concerned the writer,
because in short-term interviews this bias becomes a great
possibility. In order to alleviate this problem, the
respondents were engaged in general conversation for a
short period of time prior to each interview. They were
informed that the writer was a former police officer.
Police jargon was used as much as possible and the "old
days" were discussed. Hence, when the interviews were
conducted, the officers appeared to be more at ease and
their responses were more natural.
At the outset, a note of caution should be issued
against unwarranted generalizing from the data which follow.
Due to the fact that we practice local autonomy in this
9
country, police practices will vary widely from locality to
locality.
Definitions of Terms
Admission. An acknowledgment by a suspect of one
or more facts in the case under investigation. This falls
short of being a confession because there is no actual
admission of guilt.
Confession. A statement in which one acknowledges
all of the essential elements of a crime; an acknowledgment
of guilt. In the context of this study, it means a written
acknowledgment of guilt.
Criminal justice. This refers to all of the
activities pertaining to crime prevention--corrections, the
police, the prosecutor, courts, probation and parole.
Custodial interrogation. Questioning by the police
after a person has been divested of his freedom in any
significant way.
Exculpatory statement. An oral statement in which
one asserts his innocence.
Inculpatory statement. An oral incriminating
statement.
10
Interrogation. The questioning of suspects in
order to learn facts and, if possible, obtain admissions or
confessions. Unless indicated, in this study it refers to
all questioning by the police.
Interview. The questioning by the police of
persons not implicated in a criminal act, but may have some
knowledge of it.
Involuntary confession. A confession given after
pressures of some sort have been brought to bear on a
suspect.
Oral admission of guilt. An admission of guilt
that is not put in writing.
CHAPTER II
THE HISTORY AND MATURATION OF THE PRIVILEGE
AGAINST SELF-INCRIMINATION
"... Nor shall any person be compelled in any
criminal case to be a witness against himself. . . ."^ Due
to the fact that in the United States the privilege against
self-incrimination is pervasive, anyone investigating the
intricate aspects of criminal procedure must eventually
contend with the maxim. For those depicting efficiency as
2
being the criterion of good government, the Privilege
3
offers a special enigma. Furthermore, at a time when some
are using the Privilege to escape exploratory examination
by congressional committees and a general demand exists to
curb the increase in crime, criticism of the maxim has
^U.S. Constitution, Amendment V.
2
In a classic study of the Fifth Amendment, the
author refers to the Privilege as a "right." This would
seem to be an authentic judgment. However, for the purposes
of this research, the concept of Privilege will be utilized.
See Leonard Levy, Origins of the Fifth Amendment (New York:
Oxford University Press, 1968), p. vii.
3
A more valid test of good government would seem to
be whether or not the people obey out of assent or fear.
See Zechariah Chafee, Jr., The Blessings of Liberty
(New York: J. B. Lippincott Co., 1956), pp. 180-186.
11
reached a veritable crescendo. This is not a unique condi
tion, because the privilege against self-incrimination has
been under sporadic attack almost from the time it became
ingrained in English law.^
Chief Justice Warren said:
The privilege against self-incrimination is a right
that was hard earned by our forefathers. The reason
for its inclusion in the Constitution--and the
necessities for its preservation--are to be found in
the lessons of history.5
A survey of the history of the privilege should increase
one's understanding of the problem.
Classical Derivation
Although there is no proof that the common law
privilege against self-incrimination resulted from, or was
For representative critical works, see the follow
ing: A. Lawrence Lowell, "The Judicial Use of Torture,"
Harvard Law Review, 11 (December 25, 1897), 297-300; Ernest
Carmon, "A Plea for the Withdrawal of Constitutional
Privilege from the Criminal," Minnesota Law Review. 22
(December, 1937), 200; Richard Baker, "Self-Incrimination:
Is the Privilege an Anachronism?" American Bar Association
Journal, 42 (July, 1956), 633; Sidney Hook, Common Sense
and the Fifth Amendment (New York: Criterion Books, 1957);
Lewis Mayers, Shall We Amend the Fifth Amendment? (New York
Harper and Brothers, 1959); John Browning (ed.), The Works
of Jeremy Bentham. Vol. 7 (11 vols.; New York: Russell and
Russell, Inc., 1962), pp. 451-455; Henry J. Friendly, "The
Bill of Rights as a Code of Criminal Procedure," California
Law Review, 53 (October, 1965), 929. Also see the comments
of Thomas E. Dewey in U.S. News and World Report, December
9, 1968, p. 14.
5Quinn v. U.S., 349 U.S. 155, at 161 (1955).
13
£
influenced by, Hebraic law, expression of the concept
itself can be found in the Talmudic maxim ein adam meissim
atsmo rasha--". . . a man cannot represent himself as
7
guilty, or as a transgressor." In Talmudic law, unlike
Anglo-American law, voluntary self-incriminating testimony
was rejected as evidence in criminal matters.
A leading authority in the field of evidence, John
Wigmore, holds that the Privilege "... distinguished the
q
common law from all other systems of jurisprudence." The
above evidence would tend to taint the reliability of that
statement.
The privilege against self-incrimination has been
traced to a statement by St. Chryostomous in about 400 A.D.,
and this version of the maxim was incorporated into a
collection of the Canon Law--the Decretum of Gratian--in
1150. Evidence of an engrossment with the Privilege can
One writer holds that the doctrine is "essentially
a religious principle," and that the doctrinal basis for the
Anglo-American maxim can be found in Hebraic sources. See
George Horowitz, "The Privilege Against Self-Incrimination:
How Did It Originate?" Temple Law Quarterly, 31 (Winter,
1958), 121-144.
^Levy, o£. cit. , p. 434. Levy offers what is
perhaps the best statement on the relationship between
Talmudic law and the Privilege in ibid., pp. 433-444.
Q
John Wigmore, Evidence in Trials at Common Law,
Vol. 8 (revised by J. T. McNaughton; Boston: Little, Brown
and Co., 1961), p. 304. Both Levy, o£. cit., p. 439, and
Haim Cohn in "The Privilege Against Self-Incrimination under
Foreign Law: Israel," Journal of Criminal Law, Criminology
and Police Science, 51 (July-August, 1960), 175, also see
the fallacy of Wigmore's contention.
14
also be found in the writings of two medieval jurists--
g
Durantes and Gandinus. Further vestiges of the Privilege
have been found in the writings of Thomas Aquinas and in
some procedural aspects of the Roman Law.^
Contrasting with the above observations, one scholar
of the Roman Law has suggested that the Anglo-American
doctrine against self-incrimination was unheard of in Roman
criminal procedure."^
English Precedents
"... The origins of the right against self-
12
incrimination [as we know it] are English." The maxim
13
ensued from a power struggle between church and state and
9
Stefan Riesenfeld, Law Making and Legislative
Precedent in American Legal History," Minnesota Law Review,
33 (January, 1949), 118-119. One writer, Edward Corwin,
"The Supreme Courts Construction of the Self-Incrimination
Clause, Michigan Law Review, 29 (November, 1930), 4, con
tends that the maxim has no source in any text of the Canon
Law.
^John Connery, "The Right to Silence," Marquette
Law Review, 39 (Winter, 1955-1956), 181-182. This writer
also ascribes to the thinking of one Abbos Panormitanus in
the Fifteenth Century the maxim as it appears today.
^Hjilliam Burdick, The Principles of Roman Law and
Their Relations to Modern Law (Rochester, N.Y.: The Lawyers
Cooperative Publishing Co., 1938), p. 694.
12,
Levy, o£. cit., p. i x.
"^See Adrian Fink, Jr., "The Privilege Against Self-
Incrimination: A Critical Re-Appraisal," Western Reserve
Law Review, 13 (September, 1962), 722; and John A . Kemp,
"The Background of the Fifth Amendment in English Law,
William and Mary Law Review, 1 (1958), 247.
15
resistance by Englishmen to despotic procedures of the
law.^ Its formulation and development was effected
entirely by the courts without parliamentary assistance.
Any attempt to delineate the history of the privi
lege must be based on the knowledge that the doctrine
evolved along two separate but parallel lines of develop
ment. And one was the offshoot of the other.^ The first
started in the 1200's as resistance to the ex officio
1 6
oath of the ecclesiastical courts and carried over into
the 1600's. The second--resistance to the incriminating
question in the common law courts--began in the 1600's and
ran into the 1700's. On the whole, these were to a great
extent independent trends; however, there was some overlap
ping in the 1600's.^
Wigmore, n. 9 supra, pp. 270-292; Corwin, loc.
cit.; E. M. Morgan, "The Privilege Against Self-Incrimina
tion," Minnesota Law Review, 34 (December, 1949), 1.
^John Wigmore, "The Privilege Against Self-
Incrimination: Its History," Harvard Law Review, 15 (April,
1902), 610; Charles T. McCormick, Handbook of the Law of
Evidence (St. Paul, Minn.: West Publishing Co., 1954),
p. 453; Roy Moreland, "Historical Background and Implica
tions of the Privilege Against Self-Incrimination,"
Kentucky Law Journal, 44 (Winter, 1956), 268.
"^Before it was abolished, suspects were required to
swear to the oath ex officio. This meant that he had to
truthfully answer aTl interrogatories administered to him.
If he refused to take it, he was condemned as guilty. If
he took it, he could be condemned by his own admissions.
■^Wigmore, Evidence in Trials at Common Law.
Vol. 8, p. 277.
16
Prior to the Norman Conquest, only Common-law courts
existed in England. During the Eleventh Century a separate
system of ecclesiastical courts was instituted with primary
jurisdiction. Due to jurisdictional problems between the
Church and state courts, the statute De Articulas Cleri was
enacted in the early 1300's and ecclesiastical jurisdiction
over laymen was restricted to "matrimonial" and "testamen-
18
tary" matters. When the purge against heretics began in
the Sixteenth Century, a national ecclesiastical court--the
Court of High Commission--with jurisdiction over all England
was set up to carry out the Crown's Church policy. Func
tioning with this court was a national criminal court--the
19
Star Chamber.
The oath ex officio was interjected into the eccle-
20
siastical court system in the early Thirteenth Century.
1 O
Wigmore, "The Privilege Against Self-Incrimina
tion: Its History," p. 612.
19
See G. R. Elton, Star Chamber Stories (London:
Methuen and Co., Ltd., 1958), for six interesting essays
dealing with the activities of the Star Chamber during the
middle years of Henry VIIl's reign; also James Stephen,
A History of the Criminal Law of England. Vol. 1 (London:
McMillan and Co., 1883), pp. 166-183, 216-225, 324-345, for
another good account of Star Chamber procedures.
Of)
William 0. Douglas, The Right of the People
(Garden City, N.Y.: Doubleday and Co., Inc., 1958), p. 125,
said of this oath:
"The oath, especially when combined with the procedures
whereby the accused was not informed of the nature of
the charges against him, and was not confronted by his
anonymous accusers, was particularly suited to the trial
of heresy and other crimes of conscience. It was a
17
It must be understood that the actual questioning by the
judges was not at issue, because "the notion that the
accused was exempt from questioning was unknown to the
21
English law of that day." The problem emerged from the
fact that under the common law courts, an accused was not
questioned under oath; hence, there was no procedure for
22
punishing one who balked at answering questions. On the
other hand, in the ecclesiastical courts and the Star
Chamber, an accused was required to testify under oath and
by judicial probing was forced to reveal his own offences.
Initially, questioning under the oath ex officio
was confined to specific charges against the accused and no
particular antagonism was encountered. In the 1500's
suspects began to be questioned without being first accused
and a vocal popular disapproval of the oath emerged.
In the early Seventeenth Century a rule emerged
whereby ecclesiastical courts could not subject laymen to
procedure used to open windows into man's soul, to
probe his mind by compelling him to answer questions
concerning his beliefs."
21
Mayers, o£. cit., p. 10. Under the old procedure
of trial by compurgation, the oath taken by the accused and
in most cases his oath-helpers" was simply an affirmation
of his innocence, and it was curbed only by the sacrilege
of false swearing. False swearing was supposed to endanger
one's chances for entry into heaven, and the perjurer would
be eternally damned. Such a deterrent would be hardly
efficacious today. There was no questioning by the judges.
22
In reality an accused was under pressure to
answer questions, because if he did not, he was presumed
guilty. Badgering by judges was probably effective, too.
See Mayers, o£. cit. , pp. 11-12.
18
the ex officio oath in matters concerning penal charges.
The court of Star Chamber was not affected by this rule;
therefore, the oath in conjunction with torture continued
to be utilized against heretic and criminal alike.
The evils of the oath ex officio unfolded as the
2 8
result of the Lilburne trial in 1637. In 1640, the Court
of High Commission and the Court of Star Chamber along with
the oath ex officio were abolished.
The second phase of the history of the privilege
developed in the common law courts. Here there was no
immediate effect from the Lilburne case. The judges in the
common law courts continued to question accused people and
committing magistrates examined prisoners. As the Lilburne
case became public knowledge, "It begins to be claimed,
flatly, that no man is bound to incriminate himself, on any
u • "24
charge . . . , or m any court. . . .
The privilege against self-incrimination was fully
acknowledged when it was applied to witnesses as well as
accused in 1679. Wigmore recounts that:
23
The earliest actual statement of the privilege
was in the case, Cullier v. Cullier, 4 Leonard's King's
Bench Reports 194 (1589) as cited in Levy, o£. cit., p. 475,
n. 27. Howell State Trials 1315 (1637-1645) as cited in
Eigmore, Evidence in Trials at Common Law. VIII, p. 291.
wigmore, "The Privilege Against Self-Incrimina
tion: Its History," p. 633.
19
. . . the privilege . . . until well on into the
tune of the English Revolution, remained not much
more than a bare rule of law, which judges would
recognize on demand. The spirit of it was wanting
in them. The old habit of questioning and urging
the accused died hard,--did not disappear . . .
until the 1700's had b e g u n .^5
Although the questioning of an accused at his trial ceased
in the Eighteenth Century, pretrial interrogation by the
committing magistrate persevered until its alteration by
Sir John Jervis' Act in 1848.2^
Several scholars make light of the fact that the
concept of a privilege against self-incrimination was never
27
contained in any of the famous English charters. There
fore, they do not consider the maxim to be a "constitutional
landmark" as our Fifth Amendment is so regarded. However,
other scholars hold that the privilege was so well engrained
in the common law, it was not thought to be necessary to
28
incorporate it into the major charters.
25Ibid.. p. 635.
2 6
McCormick, og. cit. , p. 254. Under this act, an
accused could not be questioned, but he could make a
statement after being warned he did not have to do so.
2 7
See C. Dickerman Williams, "Problems of the Fifth
Amendment," Fordham Law Review, 25 (Spring, 1955), 20;
Wigmore, The Privilege Against Self-Incrimination: Its
History," p. 636; McCormick, o£. cit., p. 255; Baker,
op. cit., p. 633.
28
See Erwin Griswold, The Fifth Amendment Today
(Cambridge, Mass.: Harvard University Press, 1955), p. 4;
Moreland, o£. cit., p. 272; Kemp, o£. cit.. p. 285;
Riesenfeld, o£. cit., p. 120.
20
The American Experience with the Privilege
Against Self-Incrimination
It is generally held that the privilege against
self-incrimination, contained in the English common law,
was introduced to America by the early colonists as part of
29
their common-law heritage. This would seem to hold true
despite the fact that the maxim was evolving as a component
of the English Common law at the same time the New World
30
was being settled. One cannot doubt that it was the
intention of the English to impose their system of law on
their colonies. However, due to the fact that colonization
was not uniform and effected by different groups under
dissimilar circumstances, it is not unexpected to find
common-law criminal procedures differing in the several
colonies. But the common law was so much a part of the
colonial inheritance that not even the popular hostility to
England during the Revolutionary era could alter that
29
See Levy, o£. cit. , p. 333; McCormick, oj>. cit. ,
p. 255. Baker, o£. cit., p. 634, contends that the
privilege is not as "deeply rooted" in our history as are
some of the other liberties. He sees the privilege materi
alizing as a consequence to unfavorable experiences with
colonial judges and governors. This is a minority view.
30
Colonization was being effected when the inquisi
torial procedures of the ecclesiastical courts and the Star
Chamber were at their zenith. Many of the colonists,
especially the Puritans, were victims of this procedure.
21
31
system as the basis of the emergent American law.
Although many of the colonists were persecuted
evacuees who had had firsthand experience with a system not
affording a protection against self-incrimination, the
privilege was not "... easily, ritualistically, or
32
uniformly adopted in America."
The embryo of the privilege in the United States was
nurtured by the inquisitorial procedures of the mother
country and by firsthand experiences with similar procedures
during the first century of the colonial venture. Although
there was never a Court of High Commission or a Star
Chamber, these institutions had their "rough equivalent" in
33
certain colonies. There were the prerogative courts of
the Royal Governors, especially Governors Berkeley in
31
Levy, op. cit. . p. 337. It would seem that a
deviant view in Michael Franklin, "The Encyclopediste Origin
and Meaning of the Fifth Amendment," Lawyers Guild Review,
15 (Summer, 1955), 41-62, is unfounded"! Franklin finds the
roots of the privilege in the ideas of the French Encyclo-
pedistes as brought here by Jefferson. Williams, op. cit.,
pp. 21-22, also sees a French influence on the privilege.
R. Carter Pittman, "The Colonial and Constitutional History
of the Privilege Against Self-Incrimination in America,"
Virginia Law Review, 21 (May, 1935), 763, contends that the
French were influenced by the American experience.
"^This is the position of Levy, op. cit., p. 333,
and it would appear to be bona fide. Baker, op. cit.,
p. 633, to some degree adheres to this position. The con
tentions of Pittman, op. cit. . pp. 775-783, and McCormick,
op. cit., p. 255, are somewhat suspect.
33
Ford Hall, "The Common Law: An Account of Its
Reception in the United States," Vanderbilt Law Review, 4
(June, 1951), 799-800.
22
34
Virginia and Andros in Massachusetts; oaths of purgation--
an oath taken to clear oneself of inferences being held
35
against him--were used in the colonies; numerous instances
of the utilization of inquisitorial procedures are also
recorded such as the Salem witch-trials and there was an
example of oppressive statutory legislation aimed at
restricting the privilege--Liberty 45 of the Body of
Liberties of 1641. This piece of legislation permitted the
use of torture for the purpose of obtaining information
regarding confederates or conspirators from convicted
defendants in capital cases. The use of torture to force a
defendant to incriminate himself was not permitted under
., . 36
this statute.
At the close of the 1600's, the privilege against
o /
In regard to Berkeley, Thomas Wertenbaker takes
important notice of this in Virginia under the Stuarts
(Princeton, N.J.: Princeton University Press, 1914),
passim; the exploits of Andros are handled very well by
Michael G. Hall £t al. (eds.), The Glorious Revolution in
America: Documents on the Colonial Crises of 1689 (Chapel
Hill: University of North Carolina Press, 1964), passim;
Pittman, op. cit., p. 793, holds that use of compelled
testimony Dy prerogative courts in colonial America was one
of the motivating forces behind the sanctioning of the
privilege.
^Levy, o£. cit., pp. 355-356, 381-382, 401-403.
O fi
See George L. Haskins, Law and Authority in Early
Massachusetts (New York: The Macmillan Co., I960), pp. 36-
37, 119-132; Reisenfeld, og. cit., p. 130; Leyy, o£. cit.,
p. 345, for good discussions o£ the Body of Liberties;
Haskins and Reisenfeld are more generous concerning the
positive effects of Liberty 45 than is Levy.
23
37
self-incrimination was "uncertainly founded in America."
On the whole, however, despite the silence of the
sources, the breaches, the lapses, and the incon
sistencies, there had been considerable progress
over the course of the century toward the establish
ment of the right.38
As the Eighteenth Century dawned, the economic and
political systems of the colonies began to mature. Swayed
by English treatises and precedents, colonial legal systems
began to reflect those of England. This was especially true
in the field of criminal procedure. By the middle of the
Eighteenth Century, "In seven colonies . . . the regret
against self-incrimination was well secured in common-law
39
trials." During this period, the privilege took effect
only when a defendant himself invoked it. There was no
legal obligation to advise any defendant of his rights.
Hence, when the Revolution began, the privilege in the
colonies was comparable with that in the mother country.
By 1789, the Privilege could be found in the
37
Levy, op. cit., p. 367.
~^Ibid. Also Levy, pp. cit. „ pp. 368-404, conclu
sively negates the thesis of Julius Goebel and Raymond
Naughton in Law Enforcement in Colonial New York (New York:
The Commonwealth Fund, 1944), p. 656, that the privilege
did not exist in New York prior to the Revolution.
39
Rhode Island after 1664; New Hampshire after
1696; Pennsylvania, Massachusetts, Delaware after 1701;
South Carolina after 1731; and Virginia after 1734. See
Levy, pp. cit.. p. 376.
24
constitutions or bills of rights of eight of the new
states.^ It was Virginia's Declaration of Rights--the
preamble to the Virginia Constitution, written by George
Mason--that served as a model for the other states' bills
of rights.
Section 8 of the Virginia Declaration of Rights
read as follows:
That in all capital or criminal prosecutions a man
hath a right to demand the cause and nature of his
accusation, to be confronted with the accusers and
witnesses, to call for evidence in his favor, and to
a speedy trial by an impartial jury of twelve men of
his vicinage, without whose unanimous consent he
cannot be found guilty; nor can he be compelled to
give evidence against himself; that no man can be
deprived of his liberty, except by the law of the
land or the judgment of his peers.42
During the debates at the Virginia Convention over
the Federal Constitution, Patrick Henry advocated that the
Privilege be incorporated into the Constitution by
In order, beginning in 1776 and ending in 1784,
Virginia, Pennsylvania, Maryland, North Carolina, Vermont,
Massachusetts, and New Hampshire. See Levy, o£. cit. , pp.
409-410.
^Robert Rutland brings this out with great clarity
in his discussion of Mason's role in The Birth of the Bill
of Rights: 1776-1791 (Chapel Hill: University of North
Carolina Press, 1955), pp. 30-44. Levy, o£. cit., p. 405,
contends that "(to Mason) . . . belongs the credit for
initiating the constitutionalization of the old rule of
evidence that a man cannot 'be compelled to give evidence
against himself.'"
/ o
Francis Thorpe (ed.), The Federal and State
Constitutions. Colonial Charters, and Other Organic Laws,
Vol. 7 (Washington, D.C.: Government Printing Office,
1909), p. 3813.
25
/ 1
Amendment. Even though proposals were offered at all of
the state conventions for amending the Constitution, only
four states offered amendments for an anti self-incrimina
tion clause--Virginia, New York, North Carolina, and Rhode
r i a 44
Island.
In his fight for a bill of rights at the First
Session of the First Congress, Madison offered his personal
version of the self-incrimination clause that read as
follows: "... nor shall (any person) be compelled to be
45
a witness against himself. . . . In noting the varia
tion between Madison's proposal and the proposals of the
various states, one scholar holds that Madison held most of
the amendments offered by the states to be "propaganda
material"; hence, he used the principles set forth in the
various state constitutions as guidelines by which to draw
up his own proposal.^ "Madison, going beyond the
Jonathan Elliot (ed.), The Debates in the Several
Conventions on the Adoption of the Constitution, Vol. 3
(2d ed. rev.; Philadelphia: J\ B. Lippincott Co., 1941),
p. 3813.
^ Ibid. , Vol. 3, pp. 447-448, 451-452 (Virginia);
Vol. 1, p. 328 (New York); Vol. 1, p. 334 (Rhode Island);
and Vol. 4, p. 243 (North Carolina).
^See Annals of Congress. I (1798), p. 434, for
Madison's speech relative to the proposed amendment. Edward
Dumbauld, The Bill of Rights and What It Means Today
(Norman: University of Oklahoma Press, 1957), pp. 206-222,
shows how Madison's proposed amendments fared in the House,
Senate, the Joint Conference Committee and finally as
proposed by Congress to the states.
^Edward Dumbauld, "State Precedents for the Bill of
Rights," Journal of Public Law. 7 (Fall, 1958), 341.
26
recommendations of the states and the Constitution of his
own state, phrased his own proposal to make it coextensive
with the broadest practice.
Significant changes were made in Madison's proposed
amendment when it reached the House. John Lawrence, a
delegate from New York, felt that Madison's suggested anti
self-incrimination clause was too "general" and should "be
48
confined to criminal cases." Lawrence's amendment was
accepted and Madison's clause was amended and adopted. The
records contain no data as to whether Lawrence's motion was
even debated or the count on the final vote on the motion.
Lawrence's version of the clause was accepted by the Senate
without change and is the one currently manifested in our
Fifth Amendment.
Taken literally, the anti self-incrimination clause,
as drafted by the Founding Fathers, was confined to an
49
accused only and in criminal cases. Since the courts are
not bound by rigid definitions when interpreting a consti
tutional clause, the privilege has been interpreted on the
^Levy, op- cit. , p. 424.
^ Annals of Congress. I (1798), p. 753.
49
This is an argument used by Lewis Mayers, "The
Federal Witness' Privilege Against Self-Incrimination:
Constitutional or Common Law?" American Journal of Legal
History. 4 (I960), 114-119, and others who attack the
courts on the basis that there is no historical precedent
for expanding the privilege.
27
basis of its common-law meaning. This means that the
privilege against self-incrimination has been expanded to
include witnesses in judicial as well as non-judicial
proceedings. For more than a century, the United States
Supreme Court held that the Fifth Amendment protection
against self-incrimination was binding only on the federal
government and not the states.In 1964, in the case of
Mallory v. Hogan'*'*' the Privilege was made binding on the
states by its incorporation into the due process clause of
the Fourteenth Amendment. Historically, the Privilege
doctrine and the rule of confessions were considered to be
unrelated principles. The following chapters will examine
the development of the rule of confessions in order to put
the topic into its proper contemporary perspective.
This does not mean that the people lacked protec
tion against having to incriminate themselves at the state
level. Iowa and New Jersey were the only states not having
similar provisions in their constitutions. However, Iowa
incorporated the privilege as an element of due process of
law--Amana Society v. Selzer, 250 Iowa 380 (1959) and State
v. Height, 117 Iowa 650 (1902). In New Jersey, the privi
lege was considered to be binding as part of the common
law--State v. Zdanowicz, 69 N.J.L. 619 (1903). Later it
was made binding by statutory law--New Jersey, Revised
Statutes (1952), sec. 2A.
51378 U.S. 1 (1964).
CHAPTER III
THE HISTORY AND MATURATION
OF THE RULE OF CONFESSIONS
Historical Antecedents
Safeguards against the use of untrustworthy confes
sions as evidence were engendered due to the realization
that confessions procured by force are inimical to the
concept of justice. These safeguards matured during a
period when a general revulsion against the unjust treatment
of accused persons existed in both England and America.^-
Chronologically, the privilege against self
incrimination and the rule of confessions developed sepa-
2
rately. However, most authorities concede that there is a
3
"kinship" between the two rules. Like the law against
^John Wigmore, Evidence in Trials at Coimnon Law.
Vol. 3 (3rd ed. rev. ; Boston: Little, Brown and Co.,
1940), pp. 229-231.
2
Wigmore states that "there never was any historical
connection . . . between the constitutional clause and the
confession doctrine." See ibid., p. 250, n. 5. For a good
statement of this distinction, see Brown v. Mississippi,
297 U.S. 278, 285 (1936).
3
Wigmore, o£. cit., Vol. 8 (McNaughton rev. ed.,
1961), pp. 440-441. Charles McCormick, Handbook of the Law
28
29
self-incrimination, contemporary rules pertaining to the
admissibility of confessions in evidence are the result of
constant evaluation and change.
The Anglo-American law relating to the admissibility
4
of confessions has undergone a five-stage development.
During the Fourteenth and Fifteenth Centuries, confessions
were unqualifiedly admitted into evidence. Since confes
sions were manifestations of guilty pleas, they eliminated
the need for evidence. Thus, during this period, the use
of torture to secure confessions was both standard and
acceptable
It was not until the middle of the Eighteenth
Century that some jurists began to recognize the untrust
worthiness of some confessions. Rudd1s Case in 1775 was
the first authoritative qualification to the admissibility
£
of "ordinary confessions." The Warickshall Case in 1783
of Evidence (St. Paul, Minn.: West Publishing Co., 1954),
p. 155.
4
The first four stages are developed in ibid. ,
Vol. 3, pp. 232-238.
^Before this period, the use of torture was held in
check by the centralized English judicial system coupled
with the jury trial. Torture as a legal method was borrowed
from the French criminal procedures. It was used both by
the Stuarts and Tudors in treason and criminal trials. See
A. Lawrence Lowell, "The Judicial Use of Torture," Harvard
Law Review. 11, No. 5 (December, 1897), 292-297.
^Rex v. Rudd, 98 Eng. Rep. 1114 (1775). One should
note that the holding in this case concerned only factual
situations where the promise of a pardon was made to induce
an accused to incriminate an accomplice. A confession, in
30
signified the issuance of the modern standard for the
admissibility of confessions. In this case a confession
was rejected for the first time, because it was obtained by
"threat or promise"; hence, it was untrustworthy and
inadmissible.^
The third stage in the development of the rule of
confessions emerged at the beginning of the Nineteenth
Century. During this period, the rejection of confessions
as evidence became the standard practice. Factors such as
the obvious social plight of the lower classes, inadequate
procedures for appeal and the restrictions against a
defendant testifying for himself nurtured a strong bias in
g
the minds of many judges against confessions. For example,
confessions were excluded for such police admonishments as
a
"it [would] be better for [you] to make a full disclosure"
and "if [you] set the barn on fire, [you] had better own it
r . - | »|10
L sic J.
Due to an awareness among the judiciary that such
holdings relating to confessions had caused the pendulum of
the current sense of the term, was not involved. See
Wigmore, op. cit., supra, n. 1, pp. 237-238.
^King v. Warickshall, 168 Eng. Rep. 234 (1783).
According to one authority, confessions remained the best
evidence of guilt and few were excluded. See Wigmore,
supra, n. 1, p. 238.
^Wigmore, supra, n. 1, pp. 352-353.
^People v. Barrie, 49 Cal. 342, 345 (1874).
10State v. York, 37 N.H. 175, 184 (1858).
31
justice to move too far in one direction"^ and because of a
general improvement in criminal procedures, the pendulum
swung back in the early Twentieth Century. And to some
extent, confessions again became a prime source of evidence.
The fifth stage appears to have evolved in 1936
with the Supreme Court's first reversal of a state confes-
12
sion case in Brown v. Mississippi. Due to the attention
that the Court has given to the rule of confessions and the
fact that the privilege against self-incrimination has
evolved as the controlling principle governing the admis
sion of confessions, it appears that the pendulum has
returned almost to the position that it held in the Nine-
13
teenth Century.
Since a confession is an acknowledgment of guilt,
why in recent years have many authorities shown a concern
about their trustworthiness?
For examples of this awareness see Hopt v. Utah,
110 U.S. 574, 584 (1883). Judge Hand's dicta in U.S. v.
Garsson, 291 F. 646, 649 (1923); and Justice Cardozo's
statement in Snyder v. Mass., 291 U.S. 97, 122 (1933).
12297 U.S. 278 (1936).
13
If the current majority on the Supreme Court
adopts the philosophy of Justice Douglas, relative to con
fessions, the trend might turn toward a wholesale ban on
confessions as evidential tools. See William 0. Douglas,
"The Means and the End," Washington University Law
Quarterly. 1959 (April, 1959), l20-lzl.
False Confessions and Their Dangers
32
Some of the authorities who advocate stringent
procedural rules for the admissibility of confessions
hypothesize that there are convictions obtained through
false confessions; that is, confessions resulting from
emotional or mental infirmities, pressure of conscience or
from ulterior motives.
For those perceiving the emotional instability of a
suspect as a factor presenting substantial danger to the
trustworthiness of confessions, interrogation within the
secluded confines of the station house is an unsound
procedure. This argument is based upon the belief that
once a mentally or emotionally ill suspect is confronted
with the hostile atmosphere of the station house, he
succumbs to police suggestibility and falsely confesses.^
There are some empirical data to buttress this position.^
For sources expounding the dangers of false con
fessions, see Harold Brutt, Legal Psychology (New York:
Prentice-Hall, Inc., 1931), pp. 169-175; Hans Gross,
Criminal Psychology, trans. Horace Kallen (Boston: Little,
Brown and Co., 1918), pp. 30-36; Note, "Voluntary False
Confessions: A Neglected Area in Criminal Administration,"
Indiana Law Review, 28 (Spring, 1953), 374-392; Otto Poliak,
"The Errors of Justice, Annals, 284 (November, 1952), 115-
123; William Sargent, Battle for the Mind (London:
Heinemann, 1957), p. 186; and Edwin Driver, "Confessions
and the Social Psychology of Coercion," Harvard Law Review,
82 (November, 1968), 42.
^For examples of cases involving untrue confessions
see Harold Cummings, "State vs. Harold Israel," Journal of
Criminal Law and Criminology, 15 (November, 1924), 406-434;
Reginald Paget and S. S. Silverman, Hanged--and Innocent?
(London: V. Gollancz, 1953); Michael Eddowes, The Man on
33
However, a study involving the conviction of
innocent people offers some evidence that pathological
confessions are not the threat to criminal justice that
16
some purport them to be. Sixty-five criminal cases,
where people were convicted and later found to be innocent,
were selected randomly for analysis. False confessions
were involved in only seven of these cases. The principal
causes for most of the convictions were mistaken identity,
perjury and circumstantial evidence."^ Due to the strin
gent procedural rules currently governing the admissibility
in evidence of confessions, the danger of false confessions
18
leading to conviction would seem to be infinitesimal.
Your Conscience (London: Cassell Co., 1955); James
McLemore, "The Strange Case of Reverend Ernest Lyons Who
Falsely Confessed Murder and Suffered Accordingly,"
Virginia Law Review. 17 (February, 1931), 369-372; and
Boy Who Wanted to Die," Time Magazine. 87 (March 11, 1966),
pp. 57, 59.
16
Edwin Borchard, Convicting the Innocent (Hamden,
Conn.: Archon Books, 19617^
■^Borchard, o£. cit., pp. 371-372. In the seven
cases where confessions were involved, Borchard ascribed
two to incorrect questioning by police and one subject
confessed after he was convicted. See ibid., pp. xiii-xix.
In another study involving thirty-six cases of erroneous
conviction, only two involved false confessions, and these
were the results of third degree treatment. See Jerome
Frank and Barbara Frank, Not Guilty (New York: Doubleday
and Co., Inc., 1957), pp. 165-186. Dean Wigmore also con
tends that instances of false confessions are rare. See
Wigmore, o£. cit., supra, n. 1, pp. 359-360.
18
Most jurisdictions require independent proof of
corpus delicti before a confession can be admitted in
evidence. See Note, "Proof of the Corpus Delicti Aliunde,
the Defendant's Confession," University of Pennsylvania Law
Review, 103, No. 5 (March, 1955), passim.
34
Some people confess through the "pressure of con
science ."
. . . In the normal person (not the habitual crim
inal) the consciousness of guilt of a serious crime,
plus the nervous strain of avoiding detection, lead
naturally to a confession upon being detected and
arrested.19
People who fall into this category are usually nervous and
entertain apparitions of their victim. Some are overwhelmed
20
by religious guilt. The inability to withstand a subjec
tive compulsion to confess is not indicative of the habitual
criminal, who usually succumbs only to prolonged and skill
ful interrogation. If the arguments of one writer are
correct, all so-called conscience confessions from normal
21
persons should be suspect.
19
John Wigmore, The Science of Judicial Proof (3rd
ed. rev.; Boston: Little, Brown and Co., 1937), p. 627.
Wigmore also notes that the compulsion to confess is a
"short-time phenomenon which will evaporate once the suspect
consults with third parties or ponders upon the possibility
of escaping punishment." Also see Theodore Reik, The
Compulsion to Confess (New York: Farrar, Strauss and
Cudahy, 1959), p. lfiO, who contends that men have a ". . .
compulsive, unconscious tendency to confess, or more gener
ally speaking to communicate or depict endopsychically
perceived happenings. . . ."
20
One authority does not consider confessions
induced by hallucinations or religious influence to be a
real conscience confession but one due to an "abnormally
excited imagination." One made in response to "mere
pressure" would be a conscience confession. See Gross,
op. cit., supra. n. 13, p. 32.
21
See Emily Marx, "Psychosomatics and Coerced
Confessions," Dickinson Law Review. 62 (October, 1952), 12.
However, Milton Horowitz, "Psychology of Confession,"
Journal of Criminal Law. Criminology and Police Science. 47,
No. 2 (July-August, 1956). passim, would probably take
35
Finally, some contend that one might falsely con
fess due to ulterior motives such as: (1) mitigation of
punishment, (2) vanity, (3) deception, (4) to secure medical
care or lodging, (5) nobility, (6) to place more blame on
22
another, or (7) to effect an alibi for a greater crime.
It would seem from an analysis of the above data
that confessions have some aspects which lend to verity.
Although there are several psychological bases from which
one could challenge the authenticity of a confession, in
most cases it seems logical "... that one who is innocent
will not imperil his safety or prejudice his interests by
23
an untrue statement, . . ." Therefore, confessions
obtained without evidence of coerced persuasion should have
evidential value.
The greatest danger from untrustworthy confessions
does not seem to be within the realm of false statements,
but in the utilization of coercive measures to induce one
to confess. A historical analysis of the legal developments
in the law of coerced confessions discloses determined and
extensive efforts exerted by the courts to eliminate this
danger.
issue with Marx. Horowitz contends that, if certain
psychological conditions prevail, a confession will result
in most cases.
22
Gross, o£. cit., supra, note 13, pp. 31-32.
23Wilson v. U.S., 162 U.S. 613, 622 (1896).
36
The Legal Development of the Rule Governing
the Admission of Confessions
The confession is a functional legal commodity. If
it is uncoerced, a confession can be regarded as the clear
est evidence of guilt--evidence that will largely guarantee
conviction. A confession also functions, more than any
other evidence, to dispel uncertainties that linger in the
minds of judges and jurors. To function democratically, a
confession should be bound by a set of exclusionary rules.
Initially, confession cases in both the federal and
states courts were resolved on a nonconstitutional prin-
25
ciple--the common-law doctrine of trustworthiness. In
order to be trustworthy, a confession had to be voluntarily
made, that is, free from inducements, threats and prom-
2 6
ises. The legitimacy of this doctrine was rooted in the
9 /
It would be impossible to develop the case law in
this area up to and including 1964 without overlapping the
excellent and prolific law review article, "Developments in
the Law--Confessions," Harvard Law Review, 79, No. 5 (March,
1966), 935-1119 (hereafter cited as Developments). Wilfred
Ritz, "Twenty-five Years of State Criminal Cases in the
United States Supreme Court," Washington and Lee Law Review,
19, No. 1 (Spring, 1962), 35-70, also presents an excellent
survey of the case law.
^Hopt v. Utah, 110 U.S. 574 (1884); Sparf v. U.S.,
156 U.S. 51 (1895); Pierce v. U.S.. 160 U.S. 355 (1896);
Wilson v. U.S., 162 U.C. 613 (1896); State v. Novak, 109
Iowa 717 (1899).
26
A classic pronouncement of this doctrine is as
follows:
"A confession is not admissible in evidence where it is
obtained by temporal inducement, by threat, promise, or
hope of favour held out to the party, in respect of his
37
common-sense belief that no person would normally imperil
his freedom by making a voluntary false statement against
27 28
himself. Thus, being "confined and in irons" and not
29
being advised of one's constitutional right to silence
were not conditions that would render a confession involun
tary under the traditional common-law doctrine. Under the
common law, involuntary confessions were rejected not
because of any constitutional doctrine or any impropriety
in their acquisition, but because they were unreliable.
It was not until the end of the nineteenth century
that the Court indicated that a confession could be excluded
30
on a constitutional basis. In Bram v. U.S. the Fifth
Amendment privilege against self-incrimination was used to
exclude a confession. The Court stated:
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 . . . commanding that no person
escape from the charge against him, by a person in
authority, or where there is reason to presume, that
such person appeared to the party to sanction such
threat or inducement."
Henry Joy, "On the Admissibility of Confessions in Criminal
Cases in England and Ireland," The Law Library. Vol. 40,
ed. Thomas Wharton (Philadelphia: J. S. Littell, 1843),
p. 13.
27
Wigmore, op. cit., supra, n. 1, p. 239.
28Sparf v. U.S., 156 U.S. 51, 55 (1895).
29Wilson v. U.S., 162 U.S. 613, 623 (1896).
30Bram v. U.S., 168 U.S. 532 (1897).
38
"shall be compelled in any criminal case to be a
witness against himself."31
The Bram decision found favor in the dicta of some
32
subsequent cases. In general, the decision received scant
33
support from most jurists and legal authorities, and it
was abandoned in favor of the common-law evidentiary rule.
The test for the admissibility of confessions as
evidence in federal trials was broadened in Ziang Sung Wan
35
v. U.S. The controlling factors in the Court's decision
for the petitioner were the circumstances of detention and
36
interrogation. This indicated that factors other than
31Ibid., p. 542.
32
For example, see Burdeau v. McDowell, 256 U.S.
465, 475 (1921); Shotwell v. U.S., 371 U.S. 341, 347 (1963).
33
For a scathing indictment of the Bram decision,
see Wigmore, o£. cit., supra, n. 1, pp. 249-250, n. 5.
Although Bram interlaced the privilege against self
incrimination with the confession rule, it was not used
again until Miranda v. Ariz., 348 U.S. 436 (1966).
3 /
One authority holds that Bram "... was not meant
to be as innovational as the language would imply."
Developments. op. cit., supra. n. 23, p. 960. Subsequent
cases lend credence to this belief. For example, Twining v.
New Jersey, 211 U.S. 78 (1908) (the Fifth Amendment exemp
tion from compulsory self-incrimination is not applicable
to the states); Admanson v. California, 332 U.S. 46 (1947)
(the Fifth Amendment guarantee against self-incrimination
is not made effective by the Fourteenth Amendment as a
protection against state action). Both of these decisions
were subsequently overruled.
35266 U.S. 1 (1924).
The Petitioner was a Chinese student who was held
incommunicado and interrogated for nine days while being
seriously ill.
39
inducement and reliability would be considered by the
federal courts when determining admissibility of confessions
in federal cases.
In the first state confession case to be reversed by
37
the Supreme Court, Brown v. Mississippi, the due process
clause of the Fourteenth Amendment furnished the initial
constitutional basis for federal intervention in such cases.
The facts in the Brown case reveal a blatant disregard for
an individual's constitutional rights--physical torture,
fear, threats, arrest without a warrant and no counsel. It
should be noted that the Court reversed the Brown decision
not because of police misconduct as such, but on the
premise that the misconduct had prevented Brown from
receiving a fair trial. This violated his right to due
process. The Court stated:
That complaint is not of the commission of mere
error, but of a wrong so fundamental that it made
the whole proceeding a mere pretense of a trial
and rendered the conviction and sentence wholly
void.38
297 U.S. 278 (1936). Prior to Brown, ". . . the
federal Constitution had not been interpreted as imposing
restrictions on the admissibility of coerced confessions as
evidence in state courts in criminal trials." See Donald
Targan, "Justice Black-Inherent Coercion: An Analytical
Study of the Standard for Determining the Voluntariness of
a Confession," American University Law Review. 10, No. 1
(January, 1961), 53. Traditionally, federal courts intrude
in state judicial activities relating to criminal law
administration only when federal constitutional provisions
are violated.
38Ibid.„ p. 286.
40
Unfortunately, as with many legal rules, the
development of the due process test of voluntariness was
jumbled, because the Court had neither defined nor clearly
identified the "fundamental unfairness" that would disallow
due process. This meant that the courts would have to
weigh the facts and circumstances in each individual case
in order to discern whether one's right to due process had
been violated. In cases where police brutality was blatant
and physical torture involved, the courts had no problem.
However, a problem did arise when police interrogation
practices became more subtle and psychological coercion
39
became the vogue.
39
The following cases reflect the inconsistency of
the Court in determining due process violations. Chambers
v. Florida, 309 U.S. 227 (1940) (uneducated Negro, held
incommunicado eight days, five of which were sustained
periods of questioning; conviction set aside); Lisenba v.
California, 314 U.S. 219 (1941) (intelligent businessman,
questioned fourteen days, forty hours at one session, and
slapped once; conviction sustained); Lyons v. Oklahoma, 322
U.S. 596 (1944) Oklahoma, 322 U.S. 596 (1944) (Negro eight
hours of continuous questioning with victim's bones on his
lap; first confession held coerced but another secured
twelve hours later valid; affirmed); Watts v. Indiana, 338
U.S. 49 (1949) (Negro, held incommunicado six days and
continuously interrogated by teams of officers; reversed);
Gallegos v. Nebraska, 342 U.S. 55 (1951) (illiterate
Mexican, held twenty-five days without arraignment and no
attorney for twenty-seven days; sustained); Gallegos v.
Colorado, 390 U.S. 49 (1963) (fourteen-year-old boy,
confessed voluntarily, no contention of coercion, no
parents or counsel present; reversed); Thomas v. Arizona,
356 U.S. 390 (1958) (Negro, confessed in court twenty hours
after threats of lynching; sustained).
41
In order to ascertain whether due process had been
violated, the Court at various times used a subjective or
an objective test.4^ In the first few cases after Brown v.
Mississippi,4' * ' the Court used a subjective test; "... that
is, the Court looked to see whether the accused had been
deprived of his freedom to choose between confessing and
/ 9
remaining silent." This meant that the Court would
scrutinize each case in order to ascertain whether the
confession was a by-product of brutality or psychologically
coercive police procedures; thereby violating the fair
trial standard implicit in the due process guarantee of the
Fourteenth Amendment. The focus of the Court was still on
the trustworthiness of the confession.
However, to some it soon became apparent that
trustworthiness was not to be the only constitutional test
43
for confessions. In Ashcraft v. Tennessee, the Court
These tests are evaluated in Edmond Cohn,
"Federal Constitution Limitations on the Use of Coerced
Confessions in the State Courts," Journal of Criminal Law,
Criminology and Police Science, 50, No. 3 (September-
October, 1959), 265-273; Frank Way, Jr., "The Supreme Court
and State Coerced Confessions," Journal of Public Law. 12,
No. 1 (1963), 53-67; J. A. Spanogle, "The Use of Coerced
Confessions in State Courts,' Vanderbilt Law Review, 17,
No. 2 (March, 1964), 421-461; Comments, *'The Coerced
Confession Cases in Search of Rationale," University of
Chicago Law Review, 31, No. 2 (Winter, 1964), 312-327.
41297 U.S. 278 (1936).
4^John Bennett, "The Decade of Change Since the
Ashcraft Case," Texas Law Review, 32, No. 4 (April, 1954),
43TT
43322 U.S. 143 (1943).
42
held that thirty-six hours of continuous incommunicado
relay-questioning resulting in a confession was "inherently
coercive" and reversed the conviction. Speaking for the
majority, Justice Black said:
We think that a situation such as that here shown by
uncontradicted evidence is so inherently coercive
that its very existence is irreconcilable with the
possession of mental freedom by a lone suspect
against whom its full coercive force is brought to
bear
The Court's approach in Ashcraft was a strict
objective test; that is, ". . . any evidence of coercive
practices used in obtaining a confession will suffice to
void conviction--with no consideration of the effect of
such practices upon the individual involved.Under this
test, the entire custodial period is examined in order
". . .to determine whether a minimum of decency has been
46
observed." When this approach was utilized, factors such
as arraignment time, span of interrogation, and legality of
the arrest are examined. If these factors are deemed
"inherently coercive," a confession will be excluded regard
less of its trustworthiness.^^
^Ibid. , p. 154. Note Justice Jackson's strong
dissent, ibid., pp. 156-174, where he criticizes the Court
for failing to determine whether the confession was coerced.
45
Cohn, o£. cit., supra. n. 39, p. 267.
4 6
Targan, ojd. cit. , supra, n. 36, p. 57.
Some examples of other cases decided on the basis
of this test are: Haley v. Ohio, 322 U.S. 596 (1948);
Turner v. Pennsylvania, 338 U.S. 62 (1949); Watts v.
43
The rationale for the "inherently coercive" rule
appears to lie in the rule's utility in fostering a prophy
lactic effect against undesirable police interrogation
procedures--procedures felt by the Court to contravene the
basic standards of "fairness and decency.
The Ashcraft "inherently coercive" rule held sway
for nine years until it was replaced by a new subjective
test for voluntariness^ in Stein v. New York.^ Speaking
for the majority, Justice Jackson said:
The limits on any case depend upon a weighting of
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.51
Indiana, 338 U.S. 49 (1949); Harris v. South Carolina, 338
U.S. 68 (1949).
^®See Fred Inbau, "The Confession Dilemma in the
United States Supreme Court," Illinois Law Review, 43
(September-October, 1948), 443-447; John Maguire, "'Invol
untary1 Confessions," Tulane Law Review. 31 (December,
1956), 127; Ronald King, "Developing a Future Constitutional
Standard for Confessions," Wayne Law Review. 8 (Summer,
1962), 489. For an authority who takes issue with the
preceding writers, see Comments, n. 39 supra, pp. 318-320.
49
Bennett, n. 41 supra, p. 433, attributes this
change to the replacement of Justices Murphy and Rutledge--
supporters of the "inherently coercive" test--by Justices
Clark and Minton, who opposed it.
50346 U.S. 156 (1953).
~^Ibid. . p. 185. Also see Justice Jackson's dissent
in Ashcraft v. Tennessee, 377 U.S. 143 (1943) in which he
expounded the same subjective test.
44
Under this test, ". . . the Court looks at the facts and
determines if the accused was coerced into confessing
52
against his will." Once again it was reliability, that
is, the probability of the truth or falsity of a confession,
53
that became the focal point for the Court. The Stein
subjective test appeared to reflect the majority's belief,
that police interrogation had a positive "social value.
Following the Stein decision, there was another
broad change in the Court's personnel."^ Consequently, the
new subjective test was refuted and the Court returned to
the objective test in confession cases. In Rogers v.
Richmond, the Court completely rejected the notion that
52
Cohn, n. 39 supra, p. 271. In Fikes v. Alabama,
352 U.S. 191 (1957), this new subjective test was further
developed into a "totality of circumstances" test. In this
test, the Court weighed all of the pressures utilized
against a defendant to secure a confession against the
personal characteristics of the person confessing in order
to ascertain admissibility.
53
The Stein subjective test was used in such cases
as the Fikes case. Ibid.; Thomas v. Arizona, 356 U.S. 390
(1958); Payne v. Arkansas, 356 U.S. 560 (1958); and Spano
v. New York, 360 U.S. 315 (1959).
■^For an excellent criticism of the Stein subjective
test, see Way, n. 39 supra, pp. 60-63.
■ ’■ ’Chief Justice Warren replaced the deceased Chief
Justice Vinson and Justice Brennan replaced Justice Minton.
These justices in conjunction with Justices Black, Douglas
and Frankfurter gave the objective school a majority on the
Court.
56365 U.S. 534 (1961).
45
the truth or falsity of a confession was the guideline for
its admissibility. In reversing the conviction, the Court
said:
(C)onvictions following the admission into evidence
of confessions which are involuntary . . . 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. . . .
The Court to date has shown no inclination to deviate from
5 8
the Rogers objective test.
In conjunction with the traditional voluntary
trustworthy exclusionary rule and the due process exclu
sionary rule, the Court imposed a third restriction on the
admissibility of confessions in federal courts--the McNabb-
59
Mallory rule. In McNabb, the Court held that failure to
^7Ibid.. pp. 540-541.
c Q
Since 1961 many of the Court’s rulings in confes
sion cases have produced leading cases: Wong Sun v. U.S.,
371 U.S. 47 (1963) (confession resulting from an unlawful
intrusion and an illegal arrest is inadmissible); Massiah
v. U.S., 377 U.S. 201 (1964) (incriminating statements made
after indictment and in absence of counsel not admissible);
Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment right
to silence applicable to states); Jackson v. Denno, 378
U.S. 368 (1964) (question of the voluntariness of a confes
sion must be ruled on by trial judge first and not the
jury); Escobedo v. Illinois, 378 U.S. 478 (1964) (right to
counsel violated when police refused requests of a defendant
to talk to his counsel during interrogation); and Miranda
v. Arizona, 384 U.S. 436 (1966) (rule governing the admis
sibility of confessions rests on the Fifth Amendment
privilege against self-incrimination).
59McNabb v. U.S., 318 U.S. 332 (1943) and Mallory v.
U.S., 354 U.S. 449 (1957).
46
comply with a federal statute requiring that an arrestee be
taken immediately before a magistrate made any confession
secured during the delay inadmissible regardless of its
60
voluntariness or trustworthiness. Hence, unlawful deten
tion alone renders inadmissible a confession obtained
during that period.
Writing for the majority, Justice Frankfurter said:
Judicial supervision of the administration of crim
inal justice in the federal courts implies the duty
of establishing and maintaining civilized standards
of procedure and evidence. Such standards are not
satisfied merely by observance of those minimal
historic safeguards for securing trial by reason
which are summarized as "due process of law."®1
The McNabb decision is a clear manifestation of the Court’s
power to exercise its supervisory authority over the
administration of criminal justice in the federal courts.
During this period, there were four federal
statutes relating to arraignment procedures. Each of these
statutes contained dissimilar wording concerning the
arraignment time of a suspect. These statutes were worded
to the effect that a suspect had to be brought "immedi
ately," "immediately and without delay," "forthwith," and
"immediately and without unnecessary delay" before a
magistrate. See U.S., Congressional Record. 78th Cong., 2d
Sess., 1944, XC, Part 7, pp. 9366-9368. These statutes
were originally drafted to prohibit federal officers from
swindling the government and not to prevent prearraignment
incommunicado interrogation. It seems that federal officers
would transport accuseds to distant magistrates in order to
collect more mileage. See Harry Carver, "Criminal Law:
Evidence: Admissibility of Confessions Made Before Arraign
ment," Oklahoma Law Review. 2, No. 3 (August, 1949), 342-
345.
61McNabb v. U.S., 318 U.S. 332, 340 (1943). In
dissent, Justice Reed flayed the Court for assuming the
task of disciplining the police. Ibid., p. 249.
47
But, like many Court decisions, it was not explicit in
62
content--as subsequent events would prove.
The McNabb rule was criticized by all levels of
society. Nowhere was this criticism more pronounced than
in the Congress of the United States, where the Hobbs
63
Bill was introduced to invalidate the effects of the
McNabb decision. The bill passed the House but was stalled
in the Senate, due to a belatedness in reaching the upper
house. The bill passed the House on two other occasions
but failed to receive favorable action by the Senate
Judiciary Committee.^
The McNabb decision was not received well in the
/ : c
lower federal courts. As a result, several different
62
See James Hogan and Joseph Snee, "The McNabb-
Mallory Rule: Its Rise, Rationale and Rescue," Georgetown
Law Journal. 47, No. 1 (Fall, 1958), 4-5; John Waite,
"Police Regulation by Rules of Evidence," Michigan Law
Review. 42? No. 4 (February, 1944), 680; Comments, "The Law
of Confessions as Affected by Supreme Court Decisions,"
Fordham Law Review. 27, No. 3 (Autumn, 1958), 400.
6 3
H.R. 3690. Introduced by Representative Hobbs on
November 18, 1943. See U.S., Congressional Record. 78th
Cong., 1st Sess. , 1943, Vol. 89, Part 7, p. 9711.
64
For information on the Hobbs Bill and later meas
ures, see U.S., Congress, House, Subcommittee No. 2 of the
Committee of the Judiciary, Hearings, on H.R. 3690. 78th
Cong., 1st Sess., 1944, Vol. 90, Part 7, pp. 9197-9200,
9366-9376. It should be noted that the McNabbs were later
tried and convicted. See 142 F. 2d 904 (6th Cir. 1944).
65See U.S. v. Haupt, 136 F. 2d 661, 671 (7th Cir.
1943) for a typical response by the lower federal courts.
48
fifi
versions of the McNabb rule were utilized by those courts.
67
In Mitchell v. U.S., the Court seemed to deviate
to some extent from its holding in McNabb. In Mitchell, the
petitioner had confessed immediately after his arrest, but
he was held eight days before being arraigned. The Court
held that illegal detention subsequent to confessing does
not render a confession inadmissible in evidence.
There are indications that the lower federal Courts
diagnosed the Mitchell holding as being a modification of
the McNabb rule. For approximately eighteen months after
the Mitchell decision, the McNabb rule was used successfully
68
in only one case. The Court's position on prearraignment
incommunicado interrogation in federal cases was made clear
69
in Upshaw v. U.S. In a 5-4 decision, the Court held that
illegal detention alone would suffice to bar any confession
made during such detention.However, the Court did not
66
See Hogan and Snee, o£. cit., supra, n. 61,
pp. 5-6, for an excellent analysis of these various
holdings.
67322 U.S. 65 (1944).
68Cikowskey v. U.S., 158 F. 2d 649 (1946). See
Hogan and Snee, op* cit., supra, n. 6., p. 8, n. 34.
69355 U.S. 410 (1948).
7^What is surprising about the Upshaw decision is
not its holding but the narrowness of the vote. In Upshaw
the Court was faced with a blatant disregard for a citizen's
rights. The petitioner had been illegally arrested and was
questioned intermittently for thirty-one hours without being
arraigned. Local authorities even admitted that the sole
reason for the illegal detention was to extract damaging
49
set forth the amount of time that would be permitted
between the time of arrest and the time a suspect was to be
taken before a magistrate. For several years after Upshaw,
opponents of the McNabb rule tried to increase the time
limit between arrest and arraignment.^
72
In Mallory v. U.S. the Court ruled directly on
the meaning of "unnecessary delay" as required under 5(a)
of the Federal Rules of Criminal Procedure. In reversing a
District of Columbia rape conviction, the Court held that a
seven and one-half hour delay in arraignment rendered a
confession inadmissible. In his majority opinion Justice
Frankfurter, who also wrote the majority opinion in the
McNabb case, made it clear that delays in arraignment for
statements. During the appeals Court proceedings, the U.S.
District Attorney stated that the conduct of the police
warranted an application of the McNabb rule.
^See Garner v. U.S., 174 F 2d 499 (1949) where the
Court held that incommunicado detention during the early
evening and arraignment the next morning did not constitute
"unnecessary delay." The Garner Court ruled on provision
5(a) of the Federal Rules of Criminal Procedure, promulgated
in 1946, which required that "an officer making an arrest
. . . shall take the arrested person without unnecessary
delay before the nearest available commissioner or before
any other nearby officer empowered to commit persons charged
with offenses against the laws of the United States." As
cited in Lester Orfield, Criminal Procedure under the
Federal Rules, Vol. 1: Rule 1-Rule 9 (San Francisco;
Bancroft, Whitney Co., 1966), p. 199.
^345 U.S. 449 (1957). One authority depicts the
Mallory decision as being a barrier against the institution
of a more relaxed rule by the lower federal courts. See
Notes, "The McNabb Rule: Upshaw Through Mallory," Virginia
Law Review. 43, No. 6 (October, 1957), 931.
50
the purpose of interrogation were not permissible. Justice
Frankfurter said:
The scheme for initiating a federal prosecution is
plainly defined. The police may not arrest on mere
suspicion but only on probable cause. The next
step in the proceeding is to arraign the arrested
person before a judicial officer as quickly as
possible so that he may be advised of his rights
and so that the issue of probable cause may promptly
be determined. . . . He is not to be taken to police
headquarters in order to carry out a process of
inquiry that lends itself, even if not so designed,
to eliciting damaging statements to support the
arrest and ultimately his guilt.73
The Court failed to specify what delay would be acceptable
between arrest and arraignment, when no magistrate was
available. However, the Court did make it clear that court
decisions would be used to discourage unlawful police prac
tices by invalidating the results of such practices.
Like McNabb, the Mallory decision prompted congres
sional indignation and seven different measures were intro-
74
duced to rescind the rule. A bill was passed in the
House to prevent the exclusion of a confession in evidence
73Ibid.« p. 454.
7^Most prominent among these were: S.3325, 85th
Cong., 2d Sess. (1958) (The Morse Bill); S.3355, 85th Cong.,
2d Sess. (1958) (The Butler Bill); and H.R.11477, 85th
Cong., 2d Sess. (1958) (The Willis-Keating Bill). See
Hogan and Snee, o£. cit., supra. n. 61, pp. 33-46, for a
complete discussion of these measures. Also Notes and
Comments, "Prearraignment Interrogation and the McNabb-
Mallory Miasma," Yale Law Journal, 68, No. 5 (April, 1959),
1028-1031. Some authorities have intimated that the McNabb-
Mallory doctrine has "constitutional roots," which makes
attempts at repeal unconstitutional. See Hogan and Snee,
op. cit., supra» n. 61, pp. 41-42, and Developments.
op. cit., supra, n. 23, p. 987.
51
solely on the basis of delay in arraignment; however, it
was amended in the Senate to permit a "reasonable delay"
and no compromise ensued. Until congressional hearings
were instituted in 1967, which resulted in the passage of
the Omnibus Crime Control and Safe Streets Act of 1968, no
further viable attacks were mustered against the McNabb-
Mallory rule.^
The McNabb-Mallory rule is applicable only to
7 6
federal officers and cases and the Court has refused to
make it applicable to the states.^ But the Court has
indicated that unlawful delay in arraignment will be con
sidered in the "totality of circumstances," determining the
78
voluntariness of a confession.
This bill permits federal authorities to hold a
suspect in custody for up to six hours--or more under
certain circumstances--before arraignment and still secure
an admissible confession.
7 f i
Three states have enacted similar rules: by
decision, Michigan has embodied the rule into the due
process clause of the Michigan Constitution--People v.
Hamilton, 359 Mich. 410 (1960); Delaware by judicial deci
sion- -Vorhauer v. State, 212 A 2d 886 (Del., 1965);
Connecticut by statute--Corm. Gen. Stat. Rev, sec. 54-lc,
1965 Supp.
^For articles advocating that the McNabb-Mallory
rule be imposed in the state, see: Way, o£. cit., supra,
n. 39, p. 67; Targan, 0£. cit., supra, n. 36, p. 61; Dale
Broeder, "Wong Sun v. United States: A Study in Faith and
Hope," Nebraska Law Review. 42, No. 3 (April, 1963), 584-
594. Justice Douglas has long advocated making the McNabb-
Mallory rule applicable to the states. See his concurring
opinions in Watts v. Indiana, 338 U.S. 49, 57 (1949);
Stroble v. California, 343 U.S. 181, 197 (1952); and
Crooker v. California, 357 U.S. 433, 437 (1958).
7O
See White v. Texas, 310 U.S. 530 (1940); Ward v.
52
Even though most states have "prompt production"
statutes,^ compliance by the police has been sparse.In
most cases, the state courts have balked at adopting the
81
McNabb-Mallory rule. The failure of the state courts to
adopt the rule, believing it to contain deficiencies,
apparently led the Court to seek more doctrinal answers to
the admissibility of confessions in state court cases.
The "defendant stage exclusionary rule, rooted in
the Sixth Amendment right to counsel, emanated from the
82
decision in Massiah v. U.S. and is the first manifestation
of the doctrinal approach. There were few cases prior to
83
Powell v. Alabama that were decided on the constitutional
issue of the right to counsel.Subsequent to Powell,
Texas, 316 U.S. 547 (1942); Haley v. Ohio, 332 U.S. 596
(1948); Fikes v. Alabama, 352 U.S. 191 (1957).
79
For a listing of these states and their statutes,
see McNabb v. U.S., 318 U.S. 332, 342 n. 7 (1943) and
Culombe v. Connecticut, 367 U.S. 568, 584 n. 26 (1961).
80
Way, o£. cit., supra, n. 39, p. 54.
81
See William Wicker, "Some Developments in the Law
Concerning Confessions," Vanderbilt Law Review. 5 (April,
1952), 515, n. 28, for a listing of state cases in which
the courts have refused to follow the McNabb rule.
82377 U.S. 201 (1964).
8^287 U.S. 45 (1932). This case required the state
courts to furnish counsel to needy defendants in capital
cases.
84
For the best historical survey of the right to
counsel doctrine, see Comment, "A Historical Argument for
the Right to Counsel during Police Interrogation," Yale Law
Journal, 73 (May, 1964), 1000-1057.
53
OC
there were several significant decisions on this question,
but none of these decisions dealt with the right to counsel
86
"during police interrogation before trial or indictment."
87
In two 1958 Cases, the Court, in 5-4 decisions, rejected
the notion that an automatic exclusionary rule should be
applicable to cases in which suspects were denied their
right to counsel.
In Massiah, the petitioner was a defendant in a
federal narcotics case, who had been indicted and released
on bail. The police, with the consent of an accomplice of
the petitioner, planted an eavesdropping device in the
accomplice1s car and obtained incriminating statements from
the petitioner. These statements were used against him at
his trial. The conviction was reversed on the grounds that
one's Sixth Amendment right to counsel is violated when
statements obtained after indictment and in the absence of
88
counsel are used against him in court.
^See Hamilton v. Alabama, 368 U.S. 52 (1961) (when
arraignment is a "critical stage" in a criminal proceeding,
one must have counsel); White v. Maryland, 373 U.S. 59
(1963) (one must be furnished counsel at preindictment
proceedings); Gideon v. Wainwright, 372 U.S. 335 (1963)
(grants the right to counsel to all indigents in non
capital cases at the state level).
86
See Developments, 0£. cit., supra, n. 23, p. 998.
^Crooker v. California, 357 U.S. 433 (1958);
Cicenia v. La Gay, 357 U.S. 504 (1958).
88
See Justices Stewart and Black's concurring opin
ion in Spano v. New York, 360 U.S. 315, 327 (1959), which
suggests that the Massiah decision was inevitable. It
54
By using the right to counsel doctrine as the basis
for their decision, the Court embraced an equalitarian
rationale; that is, in an accusatorial system of justice
the chances of both the prosecution and defense must be
89
equal in both the trial and investigatory stages. The
"defendant stage exclusionary rule" was quickly made
90
applicable to the states.
A month after the Massiah decision the Court ruled
that the indictment was not the place where the right to
91
counsel was to originate. In Escobedo v. Illinois the
right to counsel was moved back to the "accusatory stage";
thus emerged the "accusatory stage exclusionary rule."
92
Like Brown v. Mississippi, Escobedo provided a new
constitutional basis for the exclusion of confessions--the
Sixth Amendment right to counsel.
should be noted that the Massiah rule had already been law
in the New York Courts. People v. De Biase, 7 N.Y. 2d 544
(1960) .
89
Gideon made the assistance of counsel available
at the trial stage and Massiah extended it to the post
indictment investigatory process. This extension was the
major issue in the dissenting opinions. One writer claims
that the real issue in Massiah was not the right to counsel.
It was a problem involving the Fifth Amendment right against
self-incrimination. He further takes the Court to task for
not meeting the issue squarely. See Arnold Enker and
Sheldon Elsen, "Counsel for the Suspect," Minnesota Law
Review, 49 (November, 1964), 57-58.
90McLeod v. Ohio, 381 U.S. 356 (1965).
91378 U.S. 478 (1964).
92297 U.S. 278 (1936).
55
In Escobedo, the petitioner had been subjected to
unsuccessful custodial interrogation in relation to a homi
cide investigation and released. Ten days later a
co-defendant advised the police that the petitioner had
committed the crime. The petitioner was rearrested. While
at the station house, the petitioner's attorney made numer
ous efforts to see the petitioner with negative results.
The petitioner's requests to see his attorney were also
denied. Upon being confronted with his co-defendant, the
petitioner confessed to his part in the crime.
By a 5-4 note the Court reversed the decision
holding:
(W)here as here, the investigation is no longer a
general inquiry into an unsolved crime but has begun
to focus on a particular suspect, the suspect has
been taken into police custody, the police carry out
a process of interrogations that lends itself to
eliciting incriminating statements, the suspect has
requested and been denied an opportunity to consult
with his lawyer, and the police have not effec
tively warned him of his absolute constitutional
right to remain silent, the accused has been denied
"the Assistance of Counsel" in violation of the
Sixth Amendment. . . .^3
Further on in the decision, the Court clarified its holding
by stating:
We hold only that when the process shifts from the
investigatory to the accusatory--when its focus is
on the accused and its purpose is to elicit a
confession--our adversary system begins to operate,
OQ
Ibid., pp. 490-491. Justice Stewart who wrote
the majority decision in Massiah wrote a sharp dissenting
opinion.
56
and, under the circumstances here, the accused must
be permitted to consult with his attorney.94
By moving back the "critical stage" of the criminal proceed
ings to the "accusatory stage," the Court instituted a
pre-indictment right to counsel during interrogation--the
period when most confessions are obtained.
"The opinion's combination of sweeping language with
an abstemiously narrow 'holding' . . . engendered diverse
9 5
and conflicting views about the implication of the case.
This point is obvious too in the widely diverse interpreta-
96
tions of the decision. Many courts took a narrow view of
94Ibid., p. 492.
^ Developments, n. 23 supra, pp. 1000-1001. For
sources favorable toward the Escobedo decision, see:
Comments, "The Right to Counsel during Police Interroga
tion," Maryland Law Review, 25 (Spring, 1965), 165-176;
Donald Dowling, "Escobedo and Beyond; The Need for a Four
teenth Amendment Code of Criminal Procedure," Journal of
Criminal Law. Criminology and Police Science, 56 (June,
1965) , 143-157; Notes, Escobedo in the Courts," Rutgers
Law Review, 19 (Fall, 1964), 111-139; Henry Rothblatt,
"Police Interrogation and the Right to Counsel," Hastings
Law Journal, 17 (October, 1965), 41-52; Arthur Sutherland,
Jr., "Crime and Confession," Harvard Law Review, 79
(November, 1965), 21-41. For sources critical of the
Escobedo decision, see: Enker and Elsen, n. 87 supra; W. H.
Parker, "A Lawman s Lament," The Los Angeles Bar Bulletin,
40 (October, 1965), 607; David Robinson, Jr., "Massiah,
Escobedo, and Rationales for the Exclusion of Confessions,"
Journal of Criminal Law. Criminology and Police Science, 56
(December, 1965), 412-431; Wall Street Journal, April 26,
1965, p. 6, cols. 1-2; Wall Street Journal. November 26,
1965, p. 1, col. 1; New York Times, Augus~t 22, 1964, p. 23,
col. 5; New York Times. September 10, 1965, sec. 4, p. 1,
col. 1; "Still Waiting on Confessions," Time Magazine. 85
(June 11, 1965), 61.
96
These interpretations with their accompanying
cases are excellently covered by Developments. n. 23 supra,
57
Escobedo and held that the Escobedo rule applied only when
97
a retained counsel sought to see his client. Other
courts took a broad view and held that the police must warn
98
a defendant of his rights to counsel and silence. How
ever, in 1965, when the Court granted certiorari in several
99
confession cases, there were indications that new guide
lines were going to be provided for the rule of confessions.
In the landmark case, Miranda v. A r i z o n a the
petitioner had been arrested for rape and identified by the
victim. A written and signed confession was obtained after
pp. 1000-1007; B. J. George, Jr., Constitutional Limitations
on Evidence in Criminal Cases (Ann Arbor, Mich.: Institute
of Continuing Education, 1966), pp. 95-99; John Rogge,
"Proof by Confession," Villanova Law Review, 12 (Fall,
1966), 21-24.
97
Rothblatt, 0£. cit., supra, n. 92, pp. 51-52,
contends that narrowing the interpretation of Escobedo only
serves to delude those who are not ready to face the
inevitable.
98
One Court relied on the statement on Escobedo
stressing the right to be warned of the right to silence
and reversed a conviction on that basis. See State v.
Neely, 239 Or. 487 (1964). Kenneth Graham, Jr., "What Is
'Custodial Interrogation'? California's Anticipatory Appli
cation of Miranda v. Arizona," U.C.L.A. Law Review, 14,
No. 1 (November, 1966), 64, sees some merit for this
rationale. However, one authority finds it hard to "recon
cile" this viewpoint with the Court's particular emphasis
on the Sixth Amendment. See Developments, op. cit., supra,
n. 23, p. 1003.
^Miranda v. Arizona, 98 Ariz. 18 (1965); Vignera v.
New York, 15 N.Y. 2d 970 (1965); California v Stewart, 62
Cal. 2d 571 (1965); and Westorer v. U.S., 342 F. 2d 684
(9th Cir. 1965). The opinion in Miranda v. Arizona, 384
U.S. 436 (1966) covers these four cases.
100384 U.S. 436 (1966).
58
approximately two hours of interrogation. The petitioner
had not been advised of his constitutional right to have
counsel present during interrogation. On the basis of a
statement concerning knowledge of rights, which was at the
top of the confession, the state claimed that the petitioner
was aware of his rights. There were no allegations of
threats, force, coercion, or promise of immunity. The
Court held:
. . . that when an individual is taken into custody
or otherwise deprived of his freedom by the author
ities and is subjected to questioning, the privilege
against self-incrimination is jeopardized. Proce
dural safeguards must be employed to protect the
privilege, and unless other fully effective means
are adopted to notify the person of his right to
silence and to assure that the exercise of the right
will be scrupulously honored, the following measures
are required. He must be warned prior to any ques
tioning, that he has the right to remain silent,
that anything he says can be used against him in a
court of law, that he has a right to the presence of
an attorney, and if he can not afford an attorney
one will be appointed for him prior to any question
ing if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the
interrogation. After such warnings have been given,
and such opportunity afforded him, the individual
may knowingly and intelligently waive these rights
and agree to answer questions or make a statement.
But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evi
dence obtained as a result of interrogation can be
used against him.101
By extending the Fifth Amendment privilege against self
incrimination to proceedings outside the criminal court;
~^^Ibid., pp. 478-479. Miranda has brought the Bram
doctrine of the late nineteenth century into full bloom.
Bram v. U.S., 168 U.S. 532 (1897).
59
that is, law enforcement interrogation, the adversary stage
of the criminal proceedings was again moved backward from
102
the "accusatory stage" to the "police custody stage."
The rationale behind the Miranda decision is appar
ently rooted in the Court's belief that in-custody interro
gation is intrinsically compulsive and intimidating:
Therefore, in order for statements obtained by the police
to be unequivocal outputs of free choice, this compulsion
103
must be eradicated. The Court has used its policy-making
power to correct a police practice which it felt to be
repugnant and detrimental to a person's privilege against
self- incrimination.The privilege against self-
incrimination now has become the controlling principle
102
Historically, the Miranda decision is insignifi
cant in that this was the first instance in which the
privilege against self-incrimination was ever applied
outside the formal courtroom. See the dissenting opinion
of Justice Harlan, pp. 510-513.
103
For two works containing excellent analyses of
Miranda, see George, o£. cit., supra, n. 93, pp. 103-125,
for a critical analysis and Nathan Sobel, The New Confession
Standards (New York: Gould Publications, 1966), pp. 50-102,
for favorable analysis. It is Sobel's thesis that the
Miranda "police custody" exclusionary rule supplants all
other exclusionary rules except the Massiah "defendant
stage" exclusionary rule. Sobel reasons that any of the
circumstances needed to ascertain voluntariness would be
inconsistent with the Miranda guidelines on "waiver."
^®^This is obvious from the Court's failure to rely
significantly on the facts of the case to formulate their
decision. Instead they concentrated on such data as the
antiquated Wickersham Report of 1931, the 1961 Commission
on Civil Rights Report, and various manuals written for
police interrogations.
60
governing the admissibility of confessions.
In the week following the Miranda decision, the
Court ruled upon the retroactivity problem for both the
Miranda and Escobedo decisions. In Johnson v. New
Jersey,the Court held that the decisions were not
106
retroactive.
In addition to the piercing criticisms emanating
from the dissenting opinions in Miranda, the decision has
been severely criticized by many writers,but the
105384 U.S. 719 (1966).
106,rhe Court held that Escobedo applied only to
cases tried after the date of the decision--June 22, 1964;
and Miranda to cases that went to trial after June 13, 1966.
Rogge, op. cit., supra. n. 93, pp. 80-81, points out that
the Court's decision on retroactivity is not "drastic,"
because federal cases can still be contested on the basis
of the McNabb-Mallory rule and state cases on the basis of
the due process clause of the Fourteenth Amendment. Davis
v. North Carolina, 384 U.S. 737 (1966) was a confession
case decided after Miranda, but did not fall under the
Miranda rule. The Court, in viewing the "totality of
circumstances," considered the failure of the police to warn
the petitioner of his rights as part of the "circumstances"
and reversed the decision. Yale Kamisar, "A Dissent from
the Miranda Dissents," Michigan Law Review, 65, No. 1
(November, 1966), 102, contends that the Davis case is a
good example of the "ineffectiveness" and "unworkability"
of the old voluntariness test.
■^^See B. J. George, Jr., "Interrogation of Crim
inal Defendants--Some Views on Miranda v. Arizona," Fordham
Law Review, 35, No. 2 (December, 1966), 193-198 (contends
Miranda is a threat to the traditional power of the federal
and state governments to create criminal laws); Richard
Kuh, "Interrogation of Criminal Defendants--Some Views on
Miranda v. Arizona." Fordham Law Review. 35, No. 2
(December, 1966), 233-244 (stresses the importance of con
fessions and wants the public to decide the fate of interro
gation) ; Karl Warden, "Miranda: Some History, Some
Observations, Some Questions," Vanderbilt Law Review, 20,
61
108
decision also has its disciples.
The Miranda decision was rendered at a time when a
nationwide concern was being expressed over "crime in the
streets." On February 6, 1967, President Johnson delivered
a message to Congress on crime in which he advanced the
broadest federal anticrime measure in the nation's history-'
No. 1 (December, 1966), 39-60 (stresses the ethical dilemma
that Miranda places upon the defense attorney); and Sam
Ervin, Jr., "Miranda v. Arizona: A Decision Based on
Excessive and Visionary Solicitude for the Accused,"
American Criminal Law Quarterly, 5, No. 3 (Spring, 1967),
125-129 (contends that the Court has offset the balance
between the rights of the individual and the rights of
society). Also see: "Don's Say a Word, Mac: Supreme
Court Decision," National Review, 18 (June 28, 1966), 606-
608; Robert Cipes, "Crime, Confessions and the Court," The
Atlantic, 218 (September, 1966), 51-58; "The Question of
Questioning," Reporter. 34 (June 30, 1966), 8-9; New York
Times, July 22~ 1966, p. 11, col. 1; New York Times.
August 6, 1966, p. 9, col. 2; New York Times. February 21,
1967, p. 36, cols. 4-5.
108
Graham, o£. cit. , supra, n. 95 (an excellent
positive analysis of Miranda); Rogge, o£. cit. . supra. n. 93
(advocates exclusion of all confessions except guilty pleas
with attorney present); Kamisar, o£. cit., supra, n. 103
(praises adoption of Miranda test due to unworkability of
the voluntariness test); George Edwards, "Interrogation of
Criminal Defendants--Some Views on Miranda v. Arizona."
Fordham Law Review. 35, No. 2 (December, 1966)” lSl-192
(sees Miranda eliminating physical torture); Alvin
Goldstein, Jr., "Miranda v. Arizona: A Reply to Senator
Ervin," American Criminal Law Quarterly. 5, No. 4 (Summer,
1967), 173-177 (applauds Miranda as a means for all to
assert their constitutional rights). Also see: G. L.
Chamberlain, "Crime Confessions and the Supreme Court:
Miranda Decision," America, 117 (July 8, 1967), 32-34;
Yale Kamisar, "Citizen on Trial: The New Confession Rules,"
Current History, 53 (August, 1967), 76-81; Isidore Silver,
"Confession and the Court," Commonwealth, 84 (July 8, 1966),
435-437; New York Times, May 1, 1967, p. 24, col. 4.
62
109
the Safe Streets and Crime Control Act of 1967. This Act
was not considered during the 1967 session of Congress.
In 1968, a presidential election year, President
Johnson proposed a twenty-two-point program to fight crime
which included another plea for the passage of the "safe
streets" bill. An amended version of the bill--renamed the
Omnibus Crime Control and Safe Streets Act--was passed and
signed into law on June 20, 1968.
The most controversial portions of the Act deal
with the admissibility of confessions and police interroga-
112
tion. The President expressed his distaste for these
portions of the Act and instructed federal law enforcement
109
For the complete text of this message, see Crime
and Justice in America (Washington, D.C.: A Publication of
the Congressional Quarterly Service, 1967), pp. 54-58. Mr.
Johnson had previously delivered two major statements on
crime to Congress on March 8, 1965 and March 9, 1966.
^^An amended version was passed in the House, but
the bill failed to be reported out of the Senate Judiciary
Committee.
■^^For a comprehensive analysis of the 1968 action
on the bill, see Crime and Justice in America (2d ed. rev.;
Washington, D.C.: A Publication of the Congressional
Quarterly Service, 1968), pp. 30-44.
112
Under the Act voluntariness is again adopted as
a guideline for the admissibility of confessions in federal
court actions. The Miranda warnings are to be considered
in the "totality of circumstances" test for voluntariness.
In effect, this overrules Miranda in the federal courts.
Also, the federal authorities are now permitted to hold a
suspect in custody for six hours— or more if the conditions
so merit--before arraignment and still secure an admissible
confession. This, in effect, nullifies the McNabb-Mallory
rule. See Title II of the Omnibus Crime Control and Safe
Streets Act in ibid., p. 34.
63
officers to continue functioning under the old Miranda and
113
McNabb-Mallory procedures. The constitutionality of
Title II is yet to be tested.
Due to the court's focus upon the legitimacy of
police practices, the "fruits of the poisonous tree
doctrine"^^ has become more applicable to confessions.
Problems involving this doctrine have generally been inter
twined with those of the Fourth Amendment. However, since
confessions are no longer judged by the trustworthiness
standard, the "fruits" doctrine has become important in
confession cases.
As it pertains to confession cases, a confession
can either be the "fruit" or the "tree." The confession as
a "fruit" was dealt with in Wong Sun v. U.S.^'* where the
113
An inquiry at the local FBI office on April 29,
1969, disclosed that Mr. Johnson's order is still in effect.
^ "^Basically, this doctrine excludes evidence that
is acquired as an indirect result of an unofficial act. The
phrase itself was first enunciated by Justice Frankfurter
in Nardone v. U.S., 308 U.S. 338, 341 (1939). See John E.
Hoover, "The Complex of Proof," Fordham Law Review. 35,
No. 4 (May, 1967), 609-617, and Developments, op. cit.,
supra, n. *3, pp. 1024-1030, for excellent analyses of this
doctrine.
115371 U.S. 471 (1963). In Weeks v. U.S., 232 U.S.
383 (1914), bars the use of evidence secured through an
illegal search and seizure cannot be used in court. In
Silverthorne Lumber Co. v. U.S., 251 U.S. 385 (1920), the
Weeks doctrine was extended to indirect evidence. And in
Fahy v. Conn., 375 U.S. 85 (1963), the Court held that a
confession is inadmissible if induced by being confronted
with illegally seized evidence.
64
Court held that statements made during an unlawful arrest
are "fruits" of unlawful police conduct and not admissible
in evidence. In Wong Sun, the petitioner made self-
incriminating statements during an illegal search.
In situations where the confession is the "poisonous
tree" itself, the rule at common law was that evidence
secured as the result of an involuntary confession need not
be excluded. Since it seemingly is the policy of the
Court to control the unconstitutional conduct of law
enforcement officers, "(a)n unconstitutional confession
taints all fruits, tangible or intangible, directly derived
from it."117
Despite both Congressional and public clamor over
the Court's rulings relating to confessions, the Court has
not indicated any signs of vacillation in its scrutiny of
118
the criminal justice system.
^"^Rex v. Warickshall, 168 Eng. Rep. 234 (1783).
^ 7See Sobel, £2 - cit. , supra, n. 100, pp. 105-106.
For a case involving the exclusion of tangible evidence,
see People v. Ditson, 57 Cal. 2d 415 (1962), and, for
intangible evidence, see Greenwell v. U.S., 336 F. 2d 962
(1964).
118
See, for example, Orozco v. Texas, 89 S. Ct.
1095 (1969), in which the Court held that Miranda was not
to be interpreted as dealing solely with station house
interrogation. Hence, whenever the police question anyone
who is in custody, the Miranda warnings must be given. For
an excellent article that had previously advocated this
holding, see John Ritter, "Criminal Law--Confession--
Custodial Interrogation, Western Reserve Law Review. 18,
No. 5 (July, 1967), 1777-1778.
65
Since most of the Court's landmark decisions per
taining to the admissibility of confessions are not
supported by precedent, the major question at this point is,
has the Court accurately assessed the wrongs that it is
trying to correct? An examination of the data, relating to
police practices and procedures, disclosed by the various
governmental commissions and committees regarding confes
sions and police interrogation should shed some light on
this question.
CHAPTER IV
POLICE INTERROGATION PRACTICES AND PROCEDURES--
COERCIVE OR ORTHODOX?
The major hypothesis upon which the Miranda^- deci
sion rests is that police interrogation methods in general
are harrowing and violative of a suspect's rights against
self-incrimination. The Court apparently felt that certain
universal and unsavory practices are employed by law
enforcement officials in securing custodial statements.
2
These practices are commonly termed the third degree.
■^Miranda v. Arizona, 384 U.S. 436 (1966).
2
In the context of this paper, the term third-
degree means the use of physical or psychological coercion
to extort confessions. Etymologically, the word is believed
to be derived from the ceremony conferring the third degree
of Masonry--the Master Mason. See "The Third Degree,"
Encyclopaedia Britannica, 14th ed., Vol. 22. Professor
Wigmore took note of an evolution in the meaning of the
term, that is, from a term connoting the use of some sort
of violence in securing confessions to one applicable to
"any process of simple interrogation." John Wigmore,
Evidence in Trials at Common Law. Vol. 3 (3rd ed. rev.;
Boston: Little, Brown and Co., 1940), p. 314. For some
representative works on the subject, see Harry Barnes, The
Story of Punishment (Boston: Stratford Co., 1930); H. C.
Beyle and Spenser Parrott, "Approval and Disapproval of
Third Degree Practices," Journal of Criminal Law and
Criminology. 28, No. 4 (1937), 526-550; Bates Booth, "Con-
fessions and the Methods Employed in Procuring Them,"
Southern California Law Review. 4, No. 2 (December, 1930),
83-102; Charles Doyle, "The Third-Degree--Its Historical
Background. The Present Law and Recommendations," Kentucky
66
67
The data supporting the Court's premise emanate
from three main sources: (1) various police manuals and
texts," (2) the 1931 report of the National Commission on
Law Observance and Enforcement, (3) confession cases decided
3
by the Court in the past.
Police Manuals and Texts
In Miranda, the Court takes recognizance of the fact
that police interrogations are conducted in a setting of
"privacy" and secrecy."4 In order to penetrate this veil of
secrecy, the Court referred to several "police manuals and
texts" which describe and prescribe interrogation proce
dures.^ In its decision, the Court set forth several
Law Journal, 43, No. 3 (Spring, 1955), 392-406; Ernest
Hopkins, Our Lawless Police (New York: The Viking Press,
1931); Note, "The Third Degree," Harvard Law Review, 43,
No. 4 (February, 1930), 617-623; Monrad Paulsen, "The Four
teenth Amendment and the Third Degree," Stanford Law Review,
6 (May, 1954), 411-437: Charles Potts, "The Prelimination
and 'The Third Degree, " Baylor Law Review. 2, No. 2
(Winter, 1950), 131-158.
3
Also, it would be feasible to expect that the
individual Justice's judgment, based upon other sources as
to what transpires during police custodial interrogation,
permeated their assessments of the practice. See Justice
Douglas' concurring opinion in U.S. v. Carignan, 342 U.S.
36, 46 (1951), stating:
"What happens behind doors that are opened and closed
at the sole discretion of the police is a black chapter
in every country. . . ."
4384 U.S. 436, 448 (1966).
^Some of these texts are: William Dienstein,
Technics for the Crime Investigator (Springfield, 111.:
Thomas Publishing Co., 1959); Worth R. Kidd, Police
68
psychological procedures recommended by the authors of the
texts for a successful interrogation and noted the dangers
£
of these procedures. The Court stated: "These texts [the
texts cited in the decision] are used by law enforcement
agencies themselves as guides."^ However, "Not one is
shown by the record . . . to be the official manual of any
police department, much less in universal use in crime
detection.
Report of the National Commission on Law
a
Observance and Enforcement--1931
As further evidence of what possibly takes place in
the "secrecy" of the interrogation room, the Court in
Interrogation (New York: R. V. Basuino Co., 1948); Fred
Inbau and John Reid, Criminal Interrogation and Confessions
(Baltimore: Williams and Wilkins Co., 1962); Charles
O'Hara, Fundamentals of Criminal Investigation (Springfield,
111.: Thomas Publishing Co., 1956). Ibid., ~pp. 448-449,
ns. 8-9.
0
Ibid.. pp. 448-455. One writer found a notable
similarity between the recommendations of the various police
manuals and texts and those used by Russian and Chinese
interrogators. See David Sterling, "Police Interrogation
and the Psychology of Confession, Journal of Public Law,
14 (1965), 38-46.
^Ibid., pp. 448-449.
®See ibid., pp. 499-500, the dissenting opinion of
Justice Clark"! 5lso, this writer has had seven years'
police experience, most of which was investigative work,
and never had any knowledge of the texts and manuals cited
by the court in its decision.
9
U.S. National Commission on Law Observance and
Enforcement (14 vols.; Washington. D.C.: Government
69
Miranda cites the findings of the 1931 Wickersham Report.^
The Wickersham Report was the result of the first compre
hensive investigation of crime and criminal justice in
America.^
After examining some eighty books, articles, and
numerous press stories, studying the results of some sixty-
seven appellate court cases in which proof of third-degree
methods to extort confessions was evident and scrutinizing
police interrogation procedures in fifteen cities, the
Commission concluded that the use of the "third degree" was
12
extensive in the United States. In another report, the
Commission criticized police organization, administration
Printing Office, 1931) [hereinafter cited as The Wickersham
Report].
"^384 U.S. 436, 445-48 (1966). Specifically, the
Court cites U.S., National Commission on Law Observance and
Enforcement, Report on Lawlessness in Law Enforcement
(Washington, D.C.: Government Printing Office, 1931).
^The Wickersham Commission was composed of eleven
prominent men, who studied the problem of criminal law
enforcement in America for two years--June, 1929 to June,
1931. See "Reports on the National Commission on Law
Observance and Enforcement," Michigan Law Review, 30, No. 1
(November, 1931), 1-132, for a good analysis of the
Commission's fourteen reports.
12
See Report on Lawlessness in Law Enforcement,
op. cit., supra, n. 9, pp. 4, 153-154. Also see E. M. Camp,
lawlessness in Law Enforcement --No. 11," American Bar
Association Journal, 17, No. 1 (January, 1432), §65-868,
for similar comments.
70
and personnel.
Although the Commission put forth a commendable
effort under adverse conditions,^ an analysis of the
Report on Lawlessness in Law Enforcement reveals serious
methodological defects. In reaching the conclusion that
"third degree" methods were widely utilized by the police,
the Commission, for the most part, relied upon secondary
sources of data and carried out little direct scientific
investigation of factual situations. One critic of the
Report states, "... the reliance of the Commission's
consultants upon 'books and articles' written by others, to
amplify the negligible evidence of the relatively few
authenticated cases, is both unscientific and misleading."^
13
U.S., National Commission on Law Observance and
Enforcement, Report on Police (Washington, D.C.: Government
Printing Office, 1931), supra. For a good analysis of this
Report, see August Vollmer, Abstract of the 'Wickersham'
Police Report, Journal of Criminal Law and Criminology.
22, No. 5 (January, 1932), 716-723.
■^See "Reports of the National Commission on Law
Observance and Enforcement," o£. cit., supra, n. 10, pp.
2-3, n. 3, for a discussion of the Commission's problems.
^See John Waite, "Report on Lawlessness in Law
Enforcement: Comment," Michigan Law Review. 30, No. 1
(November, 1931), 57. Waite also notes that even assuming
that "third degree" methods were used in sixty-seven Court
cases plus thirty-nine other cases manifesting evidence of
such practice, over the period covered by the Report--ten
years--this would "only average 1/5 of one instance per
year per state of the use of the third degree" [p. 55].
For a critical review of a book written by a Commission
consultant, see John Waite, Review of Our Lawless Police,
by Ernest Hopkins, Michigan Law Review. 30, No. 5 (March,
1932), 820-821.
71
In seeking information relative to current police
interrogation procedures, it would be somewhat questionable
to place any reliance upon a report based primarily upon
secondary sources and rendered over three decades ago.
Past Confession Cases Decided by the Court
The "incommunicado police dominated atmosphere"
within which custodial interrogation takes place was the
focal point of the Miranda decision.^ In dicta, the Court
stated that even without physical or psychological coercion,
". . . custodial interrogation exacts a heavy toll on indi
vidual liberty and trades on the weakness of individuals. " ' * ' 7
Reliance was placed upon the facts in past and contemporary
confession cases decided by the Court to prove the validity
18
of that contention.
In criticizing the use of past Court experiences as
a means for authenticating a blanket violation of individual
rights, one judge has stated:
16
"In the cases before us today . . . we concern
ourselves primarily with this interrogation atmosphere and
the evils it can bring." See Miranda v. Arizona, 384 U.S.
436, 456 (1966).
17Ibid., p. 455.
18
In addition to the major confession cases dis
cussed above, the Court cited several state cases involving
blatant police brutality in the securing of confessions.
For example, People v. Portelli, 15 N.Y. 2d 235 (1965);
People v. Wakat, 415 I..1 610 (1953); People v. Matlock, 51
Cal. 2d 682 (1959). See ibid., pp. 446, n. 7.
72
. . . The Court, by virtue of its selectively con
trolled calendar, is unfortunately the recipient of
a disproportionate number of police brutality cases.
Conversely, the overwhelming majority of cases which
involve no instances of police brutality or oppres
sion of rights are . . . seldom, if ever, presented
to the Court.19
When attempting to reach a factual determination as
to prevailing police practices, the Court had access to
other empirical data which, to a great degree, was not
utilized— the findings of the various congressional commit
tees and governmental commissions relative to police
practices and procedures
The 1943 House Judiciar
Subcommittee Hearings
The 1943 House Hearings were conducted relative to
the Hobbs Bill, which proposed the nullification of the
22
McNabb rule. These were the first hearings of any
19
See the statement of Judge William Campbell,
Chief Judge, U.S. District Court for the Northern District
of Illinois, in U.S., Congress, House, Subcommittee No. 5
of the Committee on the Judiciary, Hearings. Anti-Crime
Program, 90th Cong., 1st Sess., 1967, p. 1491.
20
Only in one instance was any of these data
referred to in the Miranda decision--a conclusion drawn by
the 1961 Commission on Civil Rights. See Miranda v.
Arizona, 384 U.S. 436, 446 (1966).
21
U.S., Congress, House, Subcommittee No. 2 of the
Committee on the Judiciary, Hearings. Admission of Evidence
in Certain Cases. 78th Cong., 1st Sess., 1943 [hereinafter
cited as the 1943 House Hearings].
22
The rule emanating from the decision in McNabb v.
U.S., 318 U.S. 332 (1943) by which evidence obtained
73
consequence pertaining to improper police practices and
procedures subsequent to the Wickersham Report.
No credible empirical evidence of improper police
practices resulted from the five-day hearings. Several
opponents of the Hobbs bill represented organized labor and
they expressed an opposition to illegal incommunicado
detention. To buttress their argument they cited a case in
which FBI agents presumedly utilized the "evil effects" of
23
unlawful detention to secure confessions from strikers.
The crux of the labor spokesmen's position was:
. . . that the incommunicado process can be used
effectively against organized workers to defeat
their legal right to struggle for collective
bargaining, when all the usual tricks of strike
breaking and union smashing have failed.24
From an analysis of the statements of the various union
spokesmen, it would seem that their major concern rested
more with the possible utilization of incommunicado deten
tion and interrogation as a strike-breaking tool rather
between arrest and arraignment was not admissible in federal
cases, if a defendant was not taken immediately before a
magistrate.
23Anderson v. U.S., 318 U.S. 350 (1943). In this
case several union members were arrested and convicted for
blowing up TVA power poles carrying electricity to a struck
mine. It was the union's contention that arrests were part
of a plot to break the strike and that the convictions were
the result of coerced confessions--psychological coercion
resulting from illegal incommunicado detention and prolonged
questioning in a "hostile atmosphere."
2 A
1943 House Hearings, supra. n. 19, p. 87.
74
than with improper police practices in securing confessions.
Several attorneys also testified against the pro
posed measure, but their testimony would seem to have been
rooted in their own subjective fears and preconceptions
25
rather than in concrete empirical data. One attorney
claimed that his client was "brutally beaten by the police."
However, questioning by committee members disclosed that
this contention could be sustained only by the client and
his relatives. The allegation was not upheld by the court
2 6
and the confession was admitted in evidence.
The results of these hearings revealed that the
central issue at this time was not police brutality per se,
but that incommunicado detainment provides the opportunity
for the police to utilize brutal methods.
Report of the President's Committee
on Civil Rights--1947
In 1947, President Truman's advisory committee on
27
Civil Rights reported that third-degree methods were
still being used to extort confessions, and police
25
An example of this bias can be found in the
following statement by one attorney: "The police always
shove around a suspect, especially a colored man. . . ."
See ibid., p. 69.
^Ibid., pp. 65-67.
2 7
U.S., Report of the President's Committee on
Civil Rights, To Secure These Rights (Washington, D.C.:
Government Printing Office, 1947) [hereinafter cited as
the 1957 Civil Rights Report].
75
28
brutality, although not universal, was still an actuality.
The Report was based upon data gleaned from public
hearings, information received from private citizens and
organizations, statements made by witnesses at private
2 9
conferences and from "staff studies." Except for accusa
tions that the police were acting improperly, no empirical
data were presented to that effect.
Although praiseworthy from the standpoint of an
attempt to stimulate the Federal Government's interest in
civil rights, the Report offers sparse evidence that the
30
police were utilizing improper and illegal procedures.
The 1957 House Hearings Relating
to the Mallory Decision
32
The 1957 Mallory decision initiated another round
of hearings relating to police practices and procedures in
2ft
Ibid., pp. 20-27. The Committee declared that
Negroes were especially susceptible to such practices.
29
There was no "staff study" made of police prac
tices and procedures.
30
It should be noted that the Committee acknowledged
that efforts had been made by the police to do away with
improper police practices with some degree of success. See
1947 Civil Rights Report, supra. n. 25, p. 25.
31
U.S., Congress, House, Special Subcommittee of the
Committee on the Judiciary, Hearings, to Study Decisions of
the Supreme Court of the United States. 85th Cong., 2d
Sess., 1958 [hereinafter cited as the 1957 House Hearings].
32Mallory v. U.S., 354 U.S. 449 (1957) holding that
a suspect must be taken to a magistrate as soon as possible
after arrest. Any "unnecessary delay" invalidates a
76
the House of Representatives. The usual impressive array
of witnesses testified for and against modifications of the
Mallory rule.
For those testifying against any alteration of the
Mallory rule, the most revealing comments came from an
attorney and seven-year veteran of the Washington, D.C.,
33
police department. The witness advocated that restraints
be placed upon the police and based his request upon per
sonal knowledge of what transpired behind the "closed doors"
34
of the station house. It was this witness contention
that the "illiterate" and those in the "lower economic-
status" were the groups sustaining the impact of civil
rights violations by the police. The witness buttressed
his point by concluding, "I am utterly convinced that the
moment a person is under arrest by the police, he is in
hostile hands.
A lengthy memorandum, drafted by a committee of the
American Bar Association headed by the distinguished civil
confession obtained from an accused prior to his appearance
before a magistrate.
33
See the testimony of James Scullen in the 1957
House Hearings, supra, n. 29, pp. 152-157. Most of the
witnesses testifying against alterations were attorneys.
34
The witness made no allegation that any wrong
doings were being perpetrated by the police at the time of
the hearings, but only that they did occur during his
tenure as a police officer.
^The 1957 House Hearings, supra, n. 29, p. 155.
77
libertarian Zechariah Chafee, Jr., was also offered in sup-
36
port of the Mallory rule. However, the memorandum made
no allegations of police misconduct and depicted the Mallory
rule as being a preventive measure against the possibility
37
of the third degree.
Several police officials and other witnesses
testified for the modification of the Mallory rule. The
statements of one attorney were particularly informative as
to the then current practices of the police in Washington,
D.C., testifying on behalf of the District of Columbia Bar
38
Association's Law Enforcement Council, the witness down
graded implications of police brutality made by previous
witnesses. He disclosed that in four years of receiving
complaints Gn the Council, there never had been any com-
39
plaints of "police brutality." It was also the Council's
contention that "... the Court's fear of illegal 'third-
degree' methods by Federal or District of Columbia law-
enforcement officers . . . [was] without any basis or
3 6
The memorandum is entitled On the Detention of
Arrested Persons and Their Production Before a Committing
Magistrate, and can be found in ibid.., pp. 247-297.
^See especially ibid., pp. 261-263.
38
The Law Enforcement Council was a committee set
up by the District Bar Association to hear complaints
against improper District police procedures.
39
The 1957 House Hearings, supra. n. 29, p. 159.
78
foundation in fact."4^
The House Hearings do offer some insights into what
goes on behind the "closed doors" of the station house;
however, the two general themes that ran through most of
the testimony were: (1) the need for measures such as the
Mallory rule to prevent third-degree tactics, and (2) the
need for a limited period of police interrogation before
arraignment in order to effect viable law enforcement. The
matter was carried over into the Senate.
The 1958 Senate Hearings Relating to
the Mallory Decision
In 1958 Senate hearings were held to deal specif
ically with the arrest and detention of suspects and the
confessions obtained during detention. The usual parade of
witnesses testified at the Hearings and these included a
prominent judge and scholar.4^
Once again the prevailing theme of those supporting
the Mallory rule was the prevention of police wrongdoings
and not the fact that misfeasance was being effected by the
40Ibid., p. 158.
41
U.S., Congress, Senate, Subcommittee on Constitu
tional Rights of the Committee on the Judiciary, Hearings.
Confessions and Police Detention. 85th Cong., 2nd Sess.,
1958 [hereinafter cited as the 1958 Senate Hearings].
42
Federal District Judge Alexander Holtzoff testi
fied against the Mallory rule and Professor Arthur
Sutherland for it.
79
L )
police. There was only one allegation of actual police
misconduct and this was in the form of a correspondence to
44
the committee.
The 1958 Senate Hearings provided no real evidence
that the police were violating their public trust.
The Report of the 1961 Commission
on Civil Rights ^
The 1961 Commission on Civil Rights Report is cited
by the majority in the Miranda decision as evidence that
46
the police still use coercion to elicit confessions. The
/
This theme permeates the statement of one attor
ney who said:
"We don't have to fear in this country encroachments on
our liberties by evil minded badly motivated people
because we are always alert to them. We have to fear
encroachments on the liberty of individuals from well-
meaning zealots without understanding. And that is
where it comes from."
See the statement of Edward Williams, the 1958 Senate Hear
ings, supra, n. 39, p. 98. Also see the statements of John
Silard, ibid., pp. 155-158, and James Hogan, ibid., pp. 166-
169.
^ Ibid., p. 182. This was a letter from an indi
vidual engaged in the task of prisoner rehabilitation, who
alleged that defendants in the District of Columbia were
being brutalized, coerced and victimized by third-degree
methods. His sources of information for these allegations
were prisoners, whom he was trying to rehabilitate.
^U.S., Commission on Civil Rights Report, Justice
(Washington, D.C.: Government Printing Office, 196T)
[hereinafter cited as Justice]. The Commission's report
was presented in five books--Voting, Education. Employment.
Housing, and Justice. Data relevant to this analysis were
secured from the fifth book--Justice.
^Miranda v. Arizona, 384 U.S. 436, 446 (1966)
80
Court declared that "the 1961 Commission on Civil Rights
found much evidence to indicate that 'some policemen still
resort to physical force to obtain confessions' . . . .
What was this "evidence" upon which the Commission based
its conclusion?
The Commission utilized evidence from several
sources to reach its conclusion^--the 1931 Wickersham
49
Report, the infamous Brown v. Mississippi case, the
twenty-one cases reversed between 1936 and 1961 due to alle
gations of coerced confessions, the successful prosecution
of two policemen under the Federal Civil Rights Acts in the
1950's"*^ and the Commission's Alabama Advisory Committee
Report
48
See Justice, supra, n. 43, pp. 16-25, for data
concerning coerced confessions and the third-degree.
AQ
297 U.S. 278 (1936), where torture was used to
extort confessions.
50Pool v. U.S., 260 F. 2d 57 (1958) and United
States v. Lowery, Crim. no. 13235, S.D. Tex., Feb. 19, 1958,
as cited in Justice, supra. n. 43, p. 179 and n. 69, 70.
These defendants were small-town police chiefs who used
physical coercion to secure confessions.
"^One of the sources of data used by the Commission
was the reports received from the fifty State Advisory
Committees, which were established under the 1957 Civil
Rights Act. The reports of these state committees are
found in U.S., Commission on Civil Rights, The Fifty States
Report (Washington, D.C.: Government Printing Office,
1961) [hereinafter cited as The 50 States Report 1.
81
The Alabama Advisory Committee reported that
Alabama police were using third-degree methods to extort
confessions, brutalizing prisoners, inflicting violent
physical attacks on minorities, and practicing other forms
52
of illegal police practices.
It should be noted that "The Administration of
Justice" was one of the topics to be considered by the
Advisory Committees. However, only twenty-two states found
that they had to comment on the topic and many of these
53
comments were favorable. Of these twenty-two states only
54
seven reported instances of police brutality and only
one, Alabama, reported that the police were using third-
52
The Advisory Committee obtained its information
from questionnaires sent to "well-informed observers"
throughout the state. Of the 120 questionnaires sent, the
Advisory Committee received 46 responses. Twenty-three
respondents reported that the police in their areas used
third-degree methods to extort confessions.
53
Alabama, Alaska, Arizona, Colorado, Delaware,
Idaho, Iowa, Kansas, Maine, Massachusetts, Mississippi,
Missouri, Nevada, New Hampshire, New Mexico, Oklahoma,
South Carolina, Texas, Utah, West Virginia, Wisconsin,
Wyoming.
54
Alabama, supra; Delaware, scattered instances of
brutality by some "untrained policemen" in the southern part
of the state. The 50 States Report, supra, n. 49, p. 94;
Mississippi, many "unbelievable reports of "atrocities" and
"brutalities" by the police; however, no specific instances
are cited. Ibid., p. 317; Missouri, some scattered com
plaints concerning police brutality. Ibid., p. 351; New
Mexico, numerous complaints of police brutalizing arrested
Indians but none were verified. Ibid., p. 425; South
Carolina, reported more complaints of police brutality"
than the sum of all other types of discrimination but no
specific cases were cited. Ibid., p. 567; and Texas
reported "few""alleged" violations of civil rights by the
police. Ibid., p. 596.
82
degree methods to extract confessions.
The Commission summarized its findings as to
’’Unlawful Police Violence" in the United States as follows:
Police brutality— the unnecessary use of violence
to enforce the mores of segregation, to punish,
and to coerce confessions--is a serious problem
in the United States. . . . Yet, most policemen
have demonstrated that it is possible to perform
their duties effectively without resorting to
unlawful violence. . . .55
In view of the data used by the Commission to reach
its findings, especially the reports of its fifty-state
advisory committees and the Commission’s ambiguous summary,
it would be seemingly impossible to draw any sound general
conclusions from the report. One attempting to resolve
questions relating to the seriousness of police misfeasance
would have to judge the Commission's findings on the basis
of his own values. Perhaps this is what the majority did
in the Miranda decision.
Justice, supra, n. 43, p. 28. The data used by
the Commission to formulate its summary came from "the
alleged facts in 11 typical cases of police brutality."
These "alleged facts" emanated from the facts in Supreme
Court cases, press accounts of cases alleging police
brutality, Justice Department files and transcripts, state
ments by victims to the Commission, independent studies,
minutes from police Commission hearings dealing with
allegations of brutality against officers and the Commis
sion s own investigations.
1962 District of Columbia Report on Police
Arrest for Investigation"^
Although concerned only with the procedure prac
ticed by the District police in which arrests were made for
investigation and without warrants in felony cases, the
Horsky Report‘ d offers some insights into police behavior
in the District of Columbia.
The Committee's Report contained no allegations of
police misconduct. The recommendation submitted by the
Committee, that arrest for investigation be discontinued,
was made on the assumption that it would eliminate the
5 8
danger of the third degree.
A clear manifestation of the Committee's confidence
in the District police can be seen in its failure to
propose procedures for assuring that its recommendation be
carried out. Reliance was placed upon the "integrity" of
59
the District police to practice the new procedure.
5 6
District of Columbia, Commissioners' Committee on
Arrest for Investigation. Report and Recommendations
(Washington, D.C.: Government Printing Office, 1962)
[hereinafter cited as the Horsky Report].
"^Charles Horsky was the chairman of the Conmittee
appointed by the District of Columbia Commissioners to
conduct the inquiry and make recommendations.
58
The Committee stressed the fact that it was not
alleging misconduct on the part of the District police.
See the Horsky Report, supra, n. 54, pp. 46-47.
59Ibid., p. 52.
84
The Horsky Committee’s recommendations were not
proposed as remedial measures but as preventive measures,
that is, to prevent police misfeasance and not eliminate an
existent practice. The Report offers some insights into
the modus operandi of the District of Columbia Police
Department.
The Horsky Report was the last source of conse-
60
quence prior to the Miranda decree. However, data,
resulting from Committee hearings and commission reports
subsequent to the Miranda ruling, are available and will be
utilized in this evaluation of the Court's assessment of
police procedures.
The 1967 House Hearings--
/f s
Anti-Crime Program
Crime in 1967 continued to be a pressing national
problem and consequently an important issue in the Congress.
In his February 6, 1967 special Message on Crime in America
to the Congress, President Johnson outlined his program for
60
Hearings were held by the Senate Subcommittee on
Criminal Laws and Procedure in March and May of 1966, rela
tive to the admission in evidence of confessions. However,
the results of these hearings are inconsequential to this
analysis. See U.S., Congress, Senate, Subcommittee on
Criminal Laws and Procedure of the Committee on the
Judiciary, Hearings. Criminal Law and Procedure. 89th Cong.,
2d Sess. , 1966.
^U.S. Congress, House, Subcommittee No. 5 of the
Committee of the Judiciary, Hearings. Anti-Crime Program.
90th Cong., 1st Sess., 1967 [hereinafter cited as the 1967
House Hearings].
85
62
confronting the problem. Extensive hearings on the House
version of the Administration's anticrime legislation
(HR 5073) were conducted during March and April of 1967.
Even though none of the proposed legislation dealt specif
ically with police interrogation and confessions, some
remarks relating to the topic were made at the hearings.
Former Attorney General Ramsey Clark was questioned exten
sively about his impressions of the Miranda ruling and its
ramifications. Mr. Clark championed the Court's action in
Miranda and minimized the role of confessions, generally,
in the "total criminal justice process." In his view,
police misfeasance in the area of confessions was non-
64
existent.
62
This program included the proposed Safe Streets
and Crime Control Act of 1967, a gun control law, a unified
federal corrections system, a witness-immunity law, a
request for Senate ratification of the 1961 International
Narcotics Convention, a proposed agency for making federal
court administration more effective, and an anti-wiretapping
measure. See Congressional Quarterly Service, Crime and
Justice in America (Washington, D.C.: Congressional Quar
terly Service, 1968), pp. 13-27. No legislation was offered
by the Administration to offset any of the Supreme Court
decisions.
^The 1967 House Hearings, n. 59 supra, p. 45.
^The following statement by Clark offers some
evidence of his thinking relative to the question of
prevailing illegal police procedures. See ibid., pp. 70-71.
"In 1931 I think the Wickersham Commission found there
was an extensive use of force in coercing confessions
in law enforcement throughout the United States.
Happily, the present Crime Commission [the 1965 Presi
dent's Commission on Law Enforcement and Administration
of Justice] did not feel that."
86
Some congressmen proposed that legislation be
drafted to counteract an "overzealous" Court. Some
rebuked both the Commission on Law Enforcement and Adminis
tration of Justice and proponents of the Administration's
anticrime proposal for not dealing with problems of law
66
enforcement provoked by recent Supreme Court decisions.
Also, some offered specific legislation to cope with the
•<- 67
situation.
In addition to testimony offered by Congressmen and
Government officials, most of the testimony relative to
police procedures was tendered by functionaries of the
criminal justice system. One prominent police official
claimed that "... the Miranda decision has almost, if not
completely, taken the police out of the inquiry system."
The most penetrating testimony was given by a United
6Q
States District Court Judge--Judge William J. Campbell.
^For example, see the statement of William
McCullock (R-Ohio), ibid., p. 297.
66
See especially the testimony of Rep. Richard Poff
(R-Va.), ibid., pp. 1418-1424.
^Robert Taft, Jr. (R-Ohio) offered a bill, the
"Federal Interrogation Act of 1967"--HR 7384--designed to
permit three hours of interrogation under the scrutiny of a
special court official. The bill also provided for penalty
for errant officers. See ibid., pp. 1453-1455.
68
This point was made by Orlando Wilson, Superin
tendent, at that time, of the Chicago Police Department.
See ibid., p. 404.
69Ibid., pp. 1488-1492.
87
Judge Campbell earnestly questioned the correctness of what
he depicted as being the major premise of the Miranda
decision--"that the prevailing practice in police custodial
interrogation is to abuse the constitutional rights of
defendants.
Since police confession and interrogation problems
were not a primary matter of concern for this committee,
little testimony was offered in support of the Court's
decisions. However, there were no positive imputations of
police misfeasance.
The 1967 Senate Hearings--
---
Anti-Crime Program
72
The Senate version of the Administration bill was
not reported out by the Senate Judiciary Committee in 1967,
but an amended measure was passed by the Senate Judiciary
Judge Campbell stated in ibid., p. 1491:
"Contrary to the majority premise and finding of the
Court [in the Miranda decision], I now suggest to this
committee that the invasion of individual rights inci
dent to police custodial interrogation is a rare
instance. I further suggest that police practices in
my district and area [Northern Illinois] are, and are
continually, improving."
^U.S., Congress, Senate, Subcommittee on Criminal
Laws and Procedures of the Committee on the Judiciary,
Hearings. Controlling Crime Through More Effective Law
Enforcement, 90th Cong.. 1st Sess.. 1967 [hereinafter cited
as the 1967 Senate Hearings].
^S.917, 90th Cong., 1st Sess.
88
73
Subcommittee on Criminal Law and Procedures. Two of the
amendments dealt with confessions. One provided for confes
sions to be admissible in the federal courts, if the trial
judge had determined that they were voluntary. Also, con
fessions were not to be excluded solely on the basis of
delay in arraignment.^ The other denied the prerogative
of review to the federal courts, on the question of the
voluntariness of a confession, if the highest court in a
state had upheld a trial court's ruling on voluntariness.^
There was considerable testimony relating to these conten-
t ious amendment s. ^
Germane to this analysis is the testimony of several
jurists and other officials bearing upon the issue of
73
The amended measure added "Title II: Confessions
and Eyewitness" which was inserted for the purpose of over
turning the Mallory, Miranda and U.S. v. Wade, 388 U.S. 318
(1967) (identification based on police lineup when no
attorney present is inadmissible at trial).
^S.674, 90th Cong., 1st Sess.
^S.1194, 90th Cong., 1st Sess.
7 6
The House agreed on the Senate's amendments and
HR 5037 was passed on June 6, 1968, and sent to the Presi
dent, where it was signed into law--Public Law No. 351,
90th Cong., 2d Sess. (June 20, 1968)"! "The Omnibus Crime
Control and Safe Streets Act." In its final form the law
provides for the admission in evidence of confessions if
they are voluntary and even if a suspect had not been
advised of his constitutional rights. Also the police are
permitted to detain a suspect for up to six hours— or more
under certain conditions--without arraignment and still
secure a valid confession. See Title II of PL90-351, supra.
These provisions do not apply to the state courts, where
most of the criminal trials are held.
89
police misfeasance. The following comments are representa
tive of these spokesmen. Judge Lawrence Wren, Superior
Court, Flagstaff, Arizona:77
. . . In the 6 years I spent in the county attorney's
office, and in the many more hours that I spent
discussing these questions and problems [allegations
of police brutality] with other prosecutors in
Arizona, I have never come across a single case of
police coercion on a confession. . . .7o
Judge Oliver Schulingkamp, District Court, New
Orleans, Louisiana:
. . . The proponents of the [Miranda] exclusionary
rule argue there is much police abuse and brutality
. . . , and I feel this has been much exaggerated.
Of course there are some rotten apples in any
barrel. . . . But this does not mean that the vast
majority of police officers do those things.79
Quinn Tamm, Executive Director, International
80
Association of Chiefs of Police:
It has been my experience and my very strong feel
ing, . . . that the accusations and charges of
police brutality are extremely exaggerated, over
emphasized, . . . Thirty years ago yes but we are
living in the present time, and if we have to go
back 30 years to look for faulty police practice,
then I question our thinking. . . . I can tell you
without equivocation that this practice [police
77Judge Wren was the trial judge of the Miranda
retrial.
78
The 1967 Senate Hearings, supra. n. 69, p. 533.
79Ibid., p. 851.
80
Mr. Tamm had been a police officer for thirty-
three years, twenty-six of which were with the FBI where he
served as Assistant Director.
90
brutality] is not in existence to any degree in the
law enforcement agencies of our country today.81
Aaron Koota, District Attorney of Kings County,
New York:
. . . I, in this 17 years I have been in office,
have never seen those pamphlets [the Inbau work on
interrogation quoted in the majority Miranda opin
ion]. They have no place, they have never made any
appearance at any station house in the city of New
York.82
During the Subcommittee Hearings there were few
contravening remarks by witnesses or liberal committee
members. The following statement by Senator Philip Hart
(D-Michigan) would seem to sum up the feelings of the
dissenters:
I know that we have, if any, very few police depart
ments where they beat up suspects any more, thanks
in part to court decisions. But now we have improved
psychological techniques which leave no blood, but
can be perhaps just as influential in operating on
a person held in custody.83
The Senate Judiciary Committee reported the bill
after changing its name to the "Omnibus Crime Control and
Safe Streets Act." A group of Senate liberals, led by
Joseph Tydings (D-Maryland) and Hiram Fong (R-Hawaii),
spearheaded an effort to extirpate, or at least weaken,
Title II of the Act during floor debate in the Senate.
81
The 1967 Senate Hearings, supra. n. 69, p. 336.
82Ibid., p. 227.
83
Ibid., p. 137. Also see the minority views of
the liberal block of Senators on Title II of S.917 in
S.Rept. 1097, 90th Cong., 2d Sess., pp. 147-160.
91
In his debate with proponents of the measure,
Senator Tydings cited, among other things, the Spanish
Inquisition, the excesses of the Stuart Kings, Brown v.
84
Mississippi, the Wickersham Report, the 1961 Commission
on Civil Rights Report, and cases involving alleged police
brutality listed in the Miranda decision as reasons for
Q C
removing Title II of S.917. Tydings summed up his feel
ings when he said:
These [Court cases involving police brutality] are
exceptions. I am hopeful that these shocking cases
will become more and more infrequent. But proce
dural protections must exist to ensure that brutality
does not again rear its ugly head.86
After a heated floor debate and seven roll-call
8 7
votes, Title II was passed in a revised form. Again, no
legitimate empirical evidence was offered to establish that
contemporary police practices involve the use of brutal
methods to obtain confessions.
84297 U.S. 278 (1936).
85
U.S., Congressional Record. 90th Cong., 2d Sess.,
1968, Vol. 114, Part II, pp. S.5887, S.5888, S.6006, and
S.6007.
88Ibid. , p. S.5888. Senator Fong echoed Tydings'
feelings when he stated, "Passages of Title II could bring
back the wanton police brutality of the past." Ibid.,
p. S.5999.
87
See footnote 76, supra.
92
The President's Commission on Law Enforcement
------------------------------------------------------------------------------------------------------------ g g ---------
and Administration of Justice--1967
This eighteen-month study of crime in the United
States was the most intensive study of the problem since
the Wickersham Report of 1931. The Crime Commission Report
89
does not treat the subject of confessions in its report,
but the Report does contain additional views by seven
90
members dealing with the topic.
The Commission used several task force reports as
supporting documentations for its conclusions. One of
these task force reports was a comprehensive study of the
91
police in the United States. This Report, too, does not
delve into the problems of station house interrogation or
confessions, but it does reach some conclusions concerning
police misfeasance. The Task Force Report states that:
88
U.S., President's Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime in a
Free Society (Washington, D.C.: Government Printing
Office, 1967) [hereinafter cited as the General Report].
89
See ibid., p. 94, where the Commission concludes
that there is not enough data available to deal construc
tively with the issue.
90Ibid.. pp. 303-308.
91 i
U.S., President s Commission on Law Enforcement
and Administration of Justice, Task Force Report: The
Police (Washington, D.C.: Government Printing Office,
1967) [hereinafter cited as the Task Force on Police].
93
The Commission [the President's Commission on Law
Enforcement and Administration of Justice] was not
able to determine the extent of physical abuse by
policemen in this country since recent studies have
generally not been systematic. Earlier studies,
however, found that police brutality was a signifi
cant problem. . . . The Commission believes that
physical abuse is not as serious problem as it was
in the past. The few statistics which do exist
suggest small numbers of cases involving excessive
use of force. Although the relatively small number
of reported complaints cannot be considered an
accurate measure of the total problem, most persons
. . . believe that verbal abuse and harassment, not
excessive use of force, is the major police-commu
nity relations problem today.92
The Task Force did find "... that excessive force remains
a serious problem in parts of the South . . . [and] still
remains as a significant problem outside the South as
93
well." However, the "excessive force" referred to in the
Report relates to the manner in which the police deal with
Negroes, civil rights workers and people whom they consider
to be undesirables, and not police interrogation practices.
In its general report, the Commission found "...
that today the third degree is almost nonexistent . . .
[and] few Americans regret its virtual abandonment by the
Ibid., pp. 181-182. The "earlier studies" cited
by the Report— The Wickersham Report, the 1947 President's
Commission on Civil Rights and the 1961 U.S. Civil Rights
Commission Report are analyzed supra. A reporter for the
Washington Post reached the same conclusion as the Task
Force a year before the Task Force Report was released.
See William Raspberry, "Physical Violence May be Gone, but
Police Brutality Still Exists," Washington Post, May 27,
1966, sec. B, p. 1, cols. 1, 2, 3.
93Ibid., p. 182.
94
police." In noting that many police officers and citizens
assume that Court decisions render the police's job of
protecting the public more arduous, the Commission holds
that this is in part due to the fact that:
. . . many . . . court decisions were made without
the needs of law enforcement, and the police policies
that are designed to meet those needs, being effec
tively presented to the court. . . . As a result, the
courts often must rely exclusively on intuition and
common sense in judging what kinds of police action
are reasonable or necessary, even though their
decisions about the actions of one police officer
can restrict police activity in the entire n a t i o n .95
The use by the Court of police manuals and textbooks to
reach its conclusion "... that interrogation in the
isolated setting of a police station constituted informal
compulsion to confess" is referred to by the Commission as
96
an illustration of this assumption.
The Commission's failure to study the question of
police interrogation and confessions in relation to contem
porary Court decisions was felt to be of such importance by
seven of the nineteen members of the Commission that they
inserted "additional views" on the question at the end of
the Report. It was these members' belief that "if the
majority opinion in Miranda is implemented in its full
sweep, it could mean the virtual elimination of pretrial
94
The General Report, supra. n. 85, p. 93.
95Ibid.. p. 94.
95
97
interrogation of suspects. . .
The concern of the minority members seems to be
reiterated in the following quotation:
It is . . . true that the danger of abuse and the
difficulty of determining "voluntariness" have long
and properly concerned the courts. Yet, one wonders
whether these acknowledged difficulties justify the
loss at this point in our history of a type of
evidence considered reliable and so vital to law
enforcement.98
The rationale for the Miranda decision is rooted in
99
a history of what many term "police brutality." It would
appear that the above analysis does not sustain that
rationale.'*'9^ Therefore, one could hypothesize that
Supreme Court decisions are not the product of detached and
objective judgments. Instead they are subjective manifesta
tions of the justices1 sentiments on basic issues of
American democracy at a particular time.
There is sparse empirical evidence that law enforce
ment agencies engage in deliberate practices, either
physical or mental, which do not concur with our traditional
97Ibid., p. 304.
98Ibid., p. 306.
99
This conclusion is based upon the numerous cita
tions of past commission reports and cases referred to by
the Court in its decision.
^ ■ 99The conclusion reached in the above analysis
buttresses the statement by Justice Clark in his dissenting
opinion in Miranda v. Arizona, 384 U.S. 436, 499-500 (1966).
In his opinion, Justice Clark points out the paucity of
information and almost complete lack of empirical knowledge
in support of the majority decision.
concepts of fair play and justice. However, one must
realize that there are isolated cases where constraint and
trickery are utilized by law enforcement officials against
individuals. The question remains: Are these actions
sufficient in number and degree to warrant the behavior
prescribed by Miranda?’ ^'*' Is the interrogation of suspects
so vital to law enforcement that its elimination, by a
strict application of Miranda, will seriously hamper effec
tive law enforcement? The latter is a question that will
be examined in the following chapter.
In one of the few studies based upon the actual
observations of police interrogation techniques, the
researchers concluded that "... most suspects interro
gated . . . do not face the massed array of interrogation
techniques paraded by the Court in Miranda." See "Interro
gation in New Haven: The Impact of Miranda," Yale Law
Journal, 76 (July, 1967), 1549.
CHAPTER V
NON-COERCIVE INTERROGATION AND THE
ADMINISTRATION OF CRIMINAL JUSTICE
Arguments for and against Interrogation
Historically, the revulsion against police interro
gation was spawned from the displeasure caused by judicial
inquisition in political cases.^ Interrogation has become
a police function fortuitously and it has never been
2
legally sanctioned. However, even without legalization,
questioning has been felt by some authorities to be "an
indispensable instrumentality of justice." Due to the
increasing Supreme Court supervision over state police
interrogation practices, one of the most perplexing and
contentious questions in American criminal procedure has
evolved--should law enforcement authorities be permitted to
utilize post-arrest questioning?
^"See Chapter II, supra.
2
Lewis Mayers, Shall We Amend the Fifth Amendment?
(New York: Harper and Brothers, 1959), p. 87.
3
For example, see Justice Jackson dissenting in
Ashcraft v. Tennessee, 322 U.S. 143, 160 (1944).
97
98
The arguments championing the elimination of or the
placing of vigorous restraints upon post-arrest questioning
seem to rest upon several interrelated premises. Some
writers hold the guarantees of the Bill of Rights to be
more important than any reduction of police efficiency
4
caused by restrictions on police interrogation. Other
writers examine the psychological aspects of post-arrest
questioning and conclude that the safeguards provided by
recent Supreme Court decisions are almost futile.^ These
writers appear to be making a case for the complete elimina
tion of post-arrest questioning. A few authorities expound
Bernard Weisberg takes important notice of this in
"Police Interrogation of Arrested Persons: A Skeptical
View," Journal of Criminal Law. Criminology and Police
Science. 51 (May-June, 1961), 37, and offers what is proba-
bly the most definitive analysis of the anti-interrogation
position. Also see Kenneth Pye, "The Supreme Court and the
Police: Fact and Fiction," Journal of Criminal Law.
Cruninology and Police Science. 57 (December, 1966), 405;
Walter Schaefer, "Federalism and State Criminal Procedure,"
Harvard Law Review. 70 (November, 1956), 26; James
Vorenberg, "Police Detention and Interrogation of Uncoun
selled Suspects: The Supreme Court and the States," Boston
University Law Review. 44 (Fall, 1964), 425; Yale Kamisar,
"What Is an ‘involuntary1 Confession?" Rutgers Law Review.
17 (Summer, 1963), 732.
C
Edwin Driver, "Confessions and the Social Psychol
ogy of Coercion," Harvard Law Review. 82 (November, 1968),
59; Henry Rothblatt and Robert Pitler, "Police Interroga
tion: Warnings and Waiver--Where Do We Go from Here?"
Notre Dame Lawyer, 42 (April, 1967), 494. However, Emily
Marx examined the psychological aspects of incommunicado
interrogation in "Psychosomatics and Coerced Confessions,"
Dickinson Law Review. 57 (October, 1952), 1-23, and found
it to be less damaging to one's mental health than the
stresses of everyday life.
99
the virtues of the modern scientific techniques for detec
tion, which they feel should preclude the need for any
questioning in many cases. Seemingly, their rationale is
that, in most cases, the utilization of modern investiga
tive techniques should cause the arrest to take place, only
after the investigation produces sufficient evidence to
sustain it. Finally, others recognize that police interro
gation is an established practice, but they perceive its
dangers. They advocate that interrogation be effected
under controlled conditions.^
Support for those advocating the necessity of post-
g
arrest questioning can be found in pre-Miranda decisions
9
relative to confessions, in the argument that it serves as
See Gerhard Mueller, "The Law Relating to Police
Interrogation Privileges and Limitations," Journal of Crim
inal Law. Criminology and Police Science. 52 (May-June,
1961), 2-15; Robert Hughes, "Confessions and Their Uncer
tainty," Loyola Law Review. 14 (1967-1968), 173.
^The eminent Roscoe Pound in "Legal Interrogation
of Persons Accused or Suspected of Crime," Journal of Crim
inal Law and Criminology. 24 (March-April, 1934), 1017-18,
advocated questioning in the presence of counsel before a
magistrate as a solution to the excesses of post-arrest
questioning. It is interesting to note that Pound, too,
was writing at a time when "law and order" was a major
issue in the United States. Realizing the futility of try
ing to fortify the rights of criminals during this period,
Pound's solution was to eliminate the justification for
illegal interrogation, i.e., to preserve law and order by
substituting a procedure that offered safeguards for the
accused.
^Miranda v. Arizona, 384 U.S. 436 (1966).
q
For example, see Cicenia v. LaGay, 357 U.S. 504,
509 (1959) and Crooker v. California, 357 U.S. 433, 441
(1958).
100
a means for innocent suspects to clear themselvesand in
its utility for averting a breakdown of the trial court
system.^ Generally, the most prevalent justification for
this position rests in the contention that it is necessary
for effective law enforcement in modern urban life. The
most prolific proponent of this argument is Professor Fred
Inbau, who offers the following rationale for his position:
1. Many criminal cases, even when investigated by
the best qualified police departments, are
capable of solution only by means of an admis
sion or confession from the guilty individual
or upon the basis of information obtained from
the questioning of other criminal suspects.
2. Criminal offenders, except, of course, those
caught in the commission of their crimes,
ordinarily will not admit their guilt unless
questioned under conditions of privacy, and
for a period of perhaps several hours.
3. In dealing with criminal offenders, and conse
quently also with criminal suspects who may
actually be innocent, the interrogator must of
necessity employ less refined methods than are
considered appropriate for the transaction of
ordinary, everyday affairs by and between law-
abiding citizens.
See David Robinson, Jr., "Massiah, Escobedo, and
Rationales for the Exclusion of Confessions," Journal of
Criminal Law. Criminology and Police Science. 56 (December,
1965), 429.
■^Edward Barrett, Jr. brings this point out in
"Police Practices and the Law--From Arrest to Release or
Charge," California Law Review. 50 (March, 1952), 45.
12
Fred Inbau, "Police Interrogation--A Practical
Necessity," Journal of Criminal Law. Criminology and Police
Science, 52 (May-June, 1961), 16-20. Other works by Inbau
favoring the same approach are "Law and Police Practice:
Restrictions in the Law of Interrogation and Confessions,"
Northwestern University Law Review, 52 (March-April, 1951),
101
This position, which is rooted in the concept of police
efficiency and the general social utility of post-arrest
13
questioning, claims many adherents.
In contrast to the antagonists of post-arrest
interrogation, the protagonists seem to reason that a
77-89; "More about Public Safety v. Individual Civil Liber
ties," Journal of Criminal Law. Criminology and Police
Science, 53 (September, 1962), 329-332; and Fred Inbau and
John Reid, Criminal Interrogation and Confessions (2d ed.
rev.; Baltimore, Md.: Williams and Wilkins Co., 1967),
passim. A scathing criticism of the later work by a civil
libertarian, Edward Cray, can be found in "Criminal Interro
gation and Confessions: The Ethical Imperative," Wisconsin
Law Review, 1968 (1968), 173-183. Other criticisms of
Inbau's thesis can be found in the writings of his chief
adversary--Yale Kamisar. For example, see "Public Safety v.
Individual Liberties: Some 'Facts and 'Theories,'" Journal
of Criminal Law. Criminology and Police Science, 53 (June,
1962), 171-193, and "On the Tactics of Police Prosecution
Orientated Critics of the Court," Cornell Law Quarterly, 49
(Spring, 1964), 436-477.
13
Some who have taken this position include Paul
Bator and James Vorenberg, "Arrest, Detention, Interrogation
and the Right to Counsel: Basic Problems and Possible
Legislative Solutions," Columbia Law Review, 66 (January,
1966), 62-78; David Craig, "To Police the Judges--Not Just
Judge the Police," Journal of Criminal Law. Criminology and
Police Science. 57 (September, 1966), 305-311: Richard Kuh,
"The 'Rest of Us' in the 'Policing the Police Controversy,"
Journal of Criminal Law, Criminology and Police Science, 57
(September, 1966), 244--/50; Wayne LaFave, "Detention for
Investigation by the Police: An Analysis of Correct Prac
tices," Washington University Law Quarterly, 1962 (June,
1962), 331-399; James Thompson, "The Supreme Court and the
Police: 1968?" Journal of Criminal Law. Criminology and
Police Science. 57 (December, 1966), 419-425; Glanville
Williams, "Police Interrogation Privileges and Limitations
under Foreign Law: England," Journal of Criminal Law.
Criminology and Police Science, 52 (May-June, 1961), 50-57.
One should note that the latter volume of the Journal of
Criminal Law. Criminology and Palice Science contains sev-
eral articles summarizing police interrogation practices
and limitations in several foreign countries.
102
stable and safe society is dependent upon an efficient
police department. Therefore, some sacrifices of individual
rights and liberties must be made in order to achieve this
end. Also intertwined with this rationale is the assump
tion that "men with honest motives and purposes do not
remain silent when their honor is assailed.
To all appearances, these opposing arguments and
points of view fail to surpass the narrow bounds of emotion.
Therefore, an attempt will be made below to ascertain the
role of post-arrest interrogation to the administration of
criminal justice. First a practical approach will be
applied to the problem followed by an analysis of the find
ings of the various empirical studies to date on the topic.
Finally, the data gathered specifically for this study will
be examined, and the results will be compared with those of
other studies. Conclusions will be drawn from this compara
tive analysis.
The Practical Approach^
Those who would eliminate or greatly restrict
police interrogation practices appear to be laboring under
a false impression of how the law enforcement process
functions. They seemingly presume that the investigative
14U.S. v. Mammoth Oil Co., 14 F2d 705, 729 (8th
Cir. 1926).
^ A similar approach is used by Kuh, n. 2 supra,
pp. 245-247.
103
process should be one in which the investigator goes to the
crime scene, collects physical evidence, conducts inter-
1 6
views, and then stalks his prey until he has enough
evidence to prove his case. Furthermore, they reason that
if a skillful hard-working investigator is assigned to the
case, the need for any interrogation should be eliminated.^
Unfortunately, the police law enforcement function
involves more than solving a few major crimes. In large
metropolitan areas, for example, numerous suspects are
18
arrested for serious, but not major, crimes. In order to
effect equitable disposition of these cases, suspects must
be ’’screened” as quickly as possible. The only way this
can be done is through routine precursory interrogation.
This procedure is necessary both to absolve the innocent as
well as to charge the guilty.^ Granted, some guiltless
1 f \
In contrast to interrogation, interviews are con
ducted to glean information from those who have some knowl
edge of the crime but are not involved in same.
^For an example of this point of view held by a
lettered scholar, see Gerhard Mueller, "Of Liberalism and
Conservative in American Criminal Law,” Duquesne University
Law Review. 3 (Spring, 1965), 152-159.
18
A typical case of this type might be the mugging
case, in which the suspect is arrested several hours after
the crime on the basis of descriptive information furnished
by the victim. Due to the undependability of this type of
evidence, interrogation is essential.
19
Some hold that the loss of freedom during deten
tion is not the primary concern of anti-interrogation
writers. The principal concern is with the possibility
that interrogation might take place during detention. See
Wayne LaFave, n. 13 supra, p. 385.
104
people are inconvenienced under this procedure; however,
due to the procedural and social benefits of the screening
process, is it an inordinate restriction upon the rights of
the individual? If law enforcement is to be one of the
20
functions of the police, it would be hard to justify the
abandonment of this procedure.
Underlying the thinking of many opponents of post
arrest interrogation is the assurance that crimes can be
solved by a sole reliance upon extrinsic evidence such as
physical evidence and identification by victims and wit-
21
nesses. In reality, there are many cases where neither of
these evidential sources exist; therefore, the solution of
22
the crime becomes dependent upon skillful interrogation.
Increases in financing and manpower are sometimes
held out as the means necessary to offset the need for
interrogation. Is this a practical solution? In the year
James Q. Wilson depicts the two major functions
of the police as being "law enforcement" and "order main
tenance in "What Makes a Better Policeman?" Atlantic
Monthly, 223 (March, 1969), 130-131.
21
This type of thinking seems to be rooted in giving
credence to the exploits of fictional sleuths like Sherlock
Holmes, who solved most of his crimes through deductive
reasoning.
22
A dramatic example of this point is provided by
Truman Capote in his best seller In Cold Blood. This book
deals with the actual brutal murder of a Kansas family— a
murder that probably would never have been solved without
interrogation. See a report of Capote's plea for the
retention of police interrogation in the New York Times,
July 22, 1966, p. 11.
105
23
1969, for example, 7,039 Part I crimes alone were reported
in Seaside City.^ It can be assumed that with a force of
128 men, the authorities of Seaside City could not conduct
exhaustive investigations into every one of these crimes.
Would it be economically feasible to provide the manpower
and resources needed for such a task? Could the courts
handle the deluge of cases that would result from the elim
ination of guilty pleas--guilty pleas that are the result,
25
in many cases, of police interrogation? Common sense
would deem that these questions be answered in the negative.
Consequently, shortcuts resulting from interrogation, such
as incriminating and exculpatory statements and physical
evidence revealed through interrogation, must be taken.
Finally, the argument is offered by some post-arrest
interrogation antagonists that "... the solution of
single crimes cannot be made the test for procedural
2 6
rules." The crux of this argument seems to be that the
23
These are the seven crimes--murder, forcible rape,
robbery, aggravated assault, burglary, larceny ($50.00 and
over in value) and auto theft--that are used as an index to
measure crime in the United States. See FBI Uniform Crime
Reports for the United States--1968 (1969), p. 4.
24
Seaside City is the pseudonym for the city, the
data from which are analyzed in this study. See Appendix A.
25
Barrett, writing as early as 1952, contends that
the courts "... would be burdened to the verge of collapse
if the percentage of guilty pleas were substantially
reduced." See n. 11 supra, p. 45.
26
Weisberg, n. 4 supra, p. 37.
106
security of the community is not dependent upon the solu
tion of most of its crimes; therefore, police efficiency
should be subjugated to the value of personal liberty--a
liberty in this context to engage in conduct which preju
dices individual and community interests.
From an idealistic viewpoint, this kind of thinking
is commendable, but from a practical standpoint it has
flaws. Positing that the public's confidence in law
enforcement rests upon law enforcement's ability to solve
crimes, what would be the ramifications of the loss of this
confidence due to the inability of the police to solve
crimes? Would the citizens of such a community adhere to
the primacy of the value of personal liberty when their
safety and the safety of their families and property are at
27
stake? Furthermore, does the prospect that one dangerous
felon may be removed from the streets as the result of post
arrest interrogation warrant the retention of that procedure
even at the risk of a possible loss of personal liberty?
Listed above are arguments for post-arrest interro
gation based upon a common-sense approach. However,
Voltaire has illustrated that common sense is not so
27
An early empirical study by two political scien
tists showed that during a period when "law and order" was
a national issue, the people were willing to sacrifice the
"doctrinal freedom of the individual." See H. C. Beyle and
Spencer Parratt, "Approval and Disapproval of Third Degree
Practices." Journal of Criminal Law and Criminology. 28
(1937), 541-355":
107
28
common; therefore, a more empirically orientated approach
must be utilized, in order to be able to draw any valid
conclusions relative to the value of post-arrest interroga
tion. This is especially important when dealing with
procedures involving human rights.
Studies Relating to Interrogation Practices
Subsequent to the 1966 Miranda decision, there have
been several p u b l i s h e d studies dealing with the effects of
that decision on law enforcement. These impact studies
were made, in many cases, to test the numerous unfounded
29
exhortations of Miranda critics.
Several of these initial undertakings were based
solely on statistical data. One pre-Miranda study was
compiled by a former Chief of Detectives of the Detroit
30
Police Department in December of 1965. This effort was
28
Voltaire, "Common Sense," Voltaire's Philosoph
ical Dictionary, selected and trans. by H. I. Woolf
(London: George Allen and Unwin, Ltd., 1929), pp. 78-79.
29
For examples of some of these criticisms, see New
York Times, August 22, 1964, p. 23; New York Times. May 14,
1965, p. 39; New York Times. September 10, 1965, p. 1; New
York Times, November 27, 1965, p. 1; New York Times,
January 24, 1966, p. 35; New York Times, July 23. 1966,
p. 54; and New York Times, August 6. 1966. p. 9. Also for
a collection of critical comments made on the floor of
Congress, see Thornton Robison, "Police Interrogation of
Suspects: The Court Versus Congress," California Law
Review, 57 (May, 1969), 754-759.
30
The results of this study can be found in Theodore
Souris, "Stop and Frisk or Arrest and Search--The Use and
Misuse of Euphemisms," Journal of Criminal Law. Criminology
108
31
an attempt to ascertain the impact of the Escobedo deci
sion upon the confession rate of the Detroit Police
Department. The confessions in nine categories of felony
prosecutions for the year 1961 were compared with matching
data from the first nine months of 1965--the period when
the Escobedo requirements were in effect.
The results of the study revealed that in 1961
confessions were obtained in 60.8 per cent of the cases as
compared to 58 per cent of the cases in the nine months of
32
1965. It would be dangerous to generalize on the basis
of such a limited study. However, if the Escobedo require
ments had any effect on the Detroit Police Department's
33
ability to secure confessions, it was obviously slight.
In 1966, the District Attorney of Los Angeles
County conducted a limited study in order to ascertain
whether the Miranda requirements were affecting the
and Police Science. 57 (September, 1966), 263-264. These
findings are also summarized in New York Times. February 28,
1966, p. 18 [hereinafter cited as the Detroit Study]. The
former article will be used as a reference point when
further references to this study are made.
■^Escobedo v. Illinois, 378 U.S. 478 (1964). This
case held that when an investigation began to focus upon an
accused, he must be warned of his right to silence and any
request to see his counsel must be honored.
32
Souris, n. 25 supra, p. 264.
33
The Detroit figures also revealed that the convic
tion rate had also dropped from 84.2 per cent to 56.6 per
cent during the period surveyed. Escobedo could have had
an impact on the conviction rate by preventing the police
from building stronger cases through interrogation. How
ever, this is mere conjecture.
109
successful prosecution of criminal cases in Los Angeles
o /
County. After examining all of their cases at the com
plaint, preliminary and trial stages of the legal proceed
ings for a three-week period following the institution of
the Miranda requirements, they found that there was no
decrease in the percentage of cases where accuseds made
confessions or admissions. They also found that only a very
small percentage of cases were dependent upon confessions
35
for their successful prosecution. However, they did
conclude that the various confession decisions had made it
harder for the police to uncover the truth in their inves-
36
tigations.
o f
The results of this study are reported in Evelle
Younger, "Results of a Survey Conducted in the District
Attorney's Office of Los Angeles County Regarding the Effect
of the Miranda Decision upon the Prosecution of Felony
Cases," American Criminal Quarterly, 5 (Fall, 1966), 32
[hereinafter cited as the Younger Study]. This study has
also been reprinted with comment and criticism in U.S.,
Congress, Senate, Subcommittee on Criminal Laws and Proce
dures of the Committee on the Judiciary, Hearing.
Controlling Crime Through More Effective Law Enforcement,
90th Cong., 1st Sess., 1967, pp. 341-353, 1121-1122. Also
see Evelle Younger, "Interrogation of Criminal Defendants--
Some View on Miranda v. Arizona," Fordham Law Review. 35
(December, 1966), 255-262.
"^Younger Study, pp. 37-38.
O f i
It should be noted that this study deals only with
the prosecutors' ability to convict. It does not measure
the possible impediments to law enforcement wrought by the
confession decisions.
110
Another statistical study was made by Justice
Nathan Sobel of the Supreme Court of New York, Kings
37
County. Judge Sobel reviewed 2,000 closed cases over a
six-month period--September, 1965 through February, 1966--
and found that confessions were involved in only 14 per
cent of the total cases. Based upon his observations that
the police, in many of the cases, had enough evidence to
convict without confessions, Judge Sobel concluded that a
large number of the confessions were obtained when they
38
were not needed. Judge Sobel clearly leaves the implica
tion from his study that confessions and even interrogation
39
have little practical value for the police.
37
See Nathan Sobel, The New Confession Standards
(New York: Gould Publications, 1966), pp. 140-151 Therein
after cited as the New York Study]. See also by the same
author, "The Exclusionary Rules in the Law of Confessions,"
New York Law Journal, 154 (November 22, 1965), 1, for an
earlier study by Judge Sobel. In this study with a sample
of 1,000 cases, Judge Sobel reached the same conclusions as
he did in the above study.
^The New York Study, p. 144.
39
Judge Miles McDonald of the New York Supreme
Court, in a letter to the Senate Judiciary Committee, points
out the errors in Judge Sobel1s methodology and lays the
study open to serious questions of reliability. See Senate
Hearings, n. 29 supra, pp. 687-688. For other criticisms
of the Sobel study, see Fred Inbau, "Democratic Restraints
upon the Police," Journal of Criminal Law. Criminology and
Police Science, 57 (September, 1966), 269; Thompson, n. 17
supra, p. 421. For a criticism of the Detroit, Younger and
Sobel Studies on the basis of their methodologies, see
"Interrogation in New Haven: The Impact of Miranda," Yale
Law Journal, 76 (July, 1967), 1641-1643 [hereinafter cited
as the New Haven Study]. Statistics presented by the New
York County District Attorney also refute Judge Sobel's
conclusions in Senate Hearings, n. 29 supra, pp. 1120-1124
and the New York Times, December 2, 1965, p. 1. For other
Ill
In 1967, a fourth and more sophisticated statis
tical study was conducted by two law professors using the
detective bureau files of the Pittsburg, Pennsylvania
Police Department.4^ The files on each of five categories
of crimes were examined for a forty-two month period--1964
through June 30, 1967--for the number of confessions
obtained by the police. They also computed the conviction
and clearance rates of the Pittsburg Police for the same
period. A comparison of the pre-Miranda and post-Miranda
data revealed that the Pittsburg Police were getting 16.2
per cent fewer confessions after Miranda, 21.4 per cent
fewer statements, the conviction rate did not decline and
the clearance rate had declined slightly .4' * ' The authors
concluded that the declines were the result of Miranda, but
the data did not support the generalization that the
Pittsburg Police were "significantly" hindered in their job
of apprehending and convicting criminals.
statements by New York City law enforcement officers on the
same problem, see New York Times, May 14, 1965, p. 39;
New York Times, September10, 1965, p. 1; and New York
Times, August 13, 1966, p. 1.
4®See Richard Seeburger and R. S. Wettick, Jr.,
"Miranda in Pittsburg--A Statistical Study," University of
Pittsburg Law Review. 29 (October, 1967), 1-26 [hereinafter
cited as the Pittsburg Study].
41Ibid.. pp. 23-34.
42
Ibid., p. 26. They had observed that 73 out of
74 suspects who refused to talk were charged anyway. This
indicated to the authors that the police did not need to
interrogate them. See ibid., p. 14.
112
All of the above studies concluded that confessions
were of a minor importance to a viable system of criminal
justice. It is the preoccupation with confessions rather
than the interrogation process itself that imposes limita
tions on their use as sources of comparative data for the
immediate study.
The initial study of interrogation procedures them
selves was carried out by a group of Yale law students in
the summer of 1966. For three months the students
observed the in-custody interrogation procedures of the New
Haven police department and reported their observations on
a questionnaire. Additional data were obtained from
personal interviews with suspects, detectives, and
attorneys.
From the results of their studies, the project
editors drew several important conclusions: (1) the study
generally concluded that the Miranda decision had had a
slight impact on law enforcement, (2) in cities the size of
New Haven, interrogation plays a "secondary role" in solv
ing crime, (3) the Miranda requirements only slightly affect
the success of the police interrogation process, (4) the
mere requiring the police to issue the Miranda warnings
before interrogation does not assure that a suspect's
rights will be protected, (5) decisions like Miranda seem
^The New Haven Study, n. 39 supra.
113
44
to have an adverse effect on police morale. They further
concluded that the positive "long run" effects of decisions
like Miranda is to make suspects more aware of their rights
and the police to soften their tactics through fear of
45
review.
Another empirical study dealing with police inter
rogation procedures, and authorized by the President's
Commission on Law Enforcement and Administration of Justice,
46
was conducted in the summer of 1966. This study was
based upon observations of field interrogations conducted
by police in Boston, Chicago and Washington, D.C. Unlike
44Ibid., pp. 1613-1616.
^ Ibid. , pp. 1615-1616. For a criticism of this
study, see the remarks of Senator Sam Ervin (D-N.C.) in
U.S., Congressional Record, 90th Cong., 2d Sess., 1968,
CXIV, Part 11, p. 14020. One of the participants in the
study, Richard Ayres, published an article based on the
study, "Confessions and the Court," Yale Alumni Magazine,
December, 1968, pp. 18-22. For another interesting study
based on the same format, but on a smaller scale, see John
Griffiths and Richard Ayres, "A Postscript to the Miranda
Project: Interrogation of Draft Protesters," Yale Law
Journal, 77 (December, 1967), 300-319. In this study, the
authors analyzed the effectiveness of the Miranda warnings
on twenty-one Yale student and professor draft protestors,
who had undergone noncustodial interrogation after receiv
ing the Miranda warnings. They found that this "elite"
group was unable to exercise its constitutional rights
effectively when questioned by the police.
^The results of this study were reported in U.S.
President's Commission on Law Enforcement and Administration
of Justice. Field Survey III. Studies in Crime and Law
Enforcement in Major Metropolitan Areas (1967) [hereinafter
cited the President's Crime Commission Study]. A summary
of this study can be found in Albert Reiss, Jr. and Donald
Black, "Interrogation and the Criminal Process," Annals,
374 (November, 1967), 47-57.
114
the New Haven Study, this project did not deal with in-
47
custody interrogation at the station house.
On the basis of observing 248 field encounters, the
authors of this project concluded that the extension of the
Miranda warnings to field interrogations would have little
effect on the rate of arrest. This conclusion was based
upon their observations that in most field situations the
police already had enough independent evidence to warrant
an arrest. They also discovered that the majority of field
interrogations did not produce admissions
Unlike the above projects which approach the prob
lem from the perspective of law enforcement, the Institute
of Criminal Law and Procedure of the Georgetown University
Law Center focused on ", . . the effect of Miranda on the
role played by defense counsel at the station house and the
defendant's perception of his legal rights.Also,
unlike the above studies, the data for analysis were
obtained strictly from interviews with suspects and their
^Initially, the data resulting from this study
were not relevant to the Miranda holding, because Miranda
dealt with station house interrogation. However, Miranda
has now been extended to interrogation by the police
outside of the station house in Orozco v. Texas, 394 U.S.
324 (1969).
48
See Black and Reiss, n. 38 supra, pp. 56-57.
49
For the results of this study, see Richard
Medalie, Leonard Zeitz and Paul Alexander, "Custodial Police
Interrogation in Our Nation's Capital: The Attempt to
Implement Miranda," Michigan Law Review. 66 (May, 1968) ,
1347-1422 [hereinafter cited as the D.C. Study].
115
attorneys, "Volunteer Attorney Reports" filled out by
attorneys, and "telephone log records" kept by a project
switchboard operator over a one-year time span.
At the termination of the undertaking, the authors
found, as did the New Haven researchers, that the police
were not effectively warning suspects of their Miranda
rights. They also found that 40 per cent of the interview
ees, arrested subsequent to the Miranda decision and given
the Miranda warnings, had given statements to the police.
A final study, dealing with the impact of Escobedo
and Miranda on law enforcement, assumes yet a different
approach to the problem.The data analyzed in this study
were gleaned from questionnaires that had been sent to a
nation-wide sample of small-town police, city police and
prosecutors. These respondents were asked to record their
evaluations of the effects of Escobedo and Miranda on
Ibid., pp. 1394-1395. Another interesting find
ing of this study was that, although free counsel was made
available on a twenty-four basis for persons arrested for
felonies and serious misdemeanors by a volunteer attorney
group, only 7 per cent (1,262) of the 15,430 people
arrested and advised of this service availed themselves of
same. For a further attempt at explaining some of the
findings of this study, see Leonard Zeitz, Richard Medalie
and Paul Alexander, "Anomie, Powerlessness, and Police
Interrogation," Journal of Criminal Law, Criminology and
Police Science. 60 (September, 1969), 314-322.
■^The results of this study can be found in Cyril
Robinson, "Police and Prosecutor Practices and Attitudes
Relating to Interrogation as Revealed by Pre- and Post-
Miranda Questionnaires: A Construct of Police Capacity to
Comply," Duke Law Journal, 1968 (June, 1968), 425-524
[hereinafter cited as the Duke Study].
116
52
various aspects of the interrogation process.
They found that most of the respondents believed
that the requirement to issue the Escobedo and Miranda
warnings had had an adverse effect upon their confession
53
rates and the number of suspects giving statements. The
data also revealed that the police had gradually accepted
the guidance of the Court in interrogation procedures and
had made ". . .at least a formal effort to follow the
Court's dictates. . .
What remains to be done is to find out how some of
the above findings compare with those of the immediate
study. This will be done in an attempt to ascertain
whether the restrictions imposed upon in-custody interroga
tion by the courts have put too heavy a burden upon efforts
by the police to decrease crime.
52
In order to obtain a more concise picture of the
police's reactions to both Escobedo and Miranda and their
impact generally, questionnaires were sent both before and
after Miranda. However, most of the data used are pre-
Miranda material.
53
It should be noted that the respondents were not
unanimous in their response to the query pertaining to the
decrease in confessions and the refusal of suspects to
talk. It was more of a matter of degree, e.g., "decreased
some," "considerably decreased," or "remained the same."
See the Duke Study, n. 43 supra, p. 479.
54Ibid.. p. 480.
117
The Results of the Los Angeles Study~ * ~ *
In the wake of the Supreme Court decisions limiting
5 6
police interrogation came utterances by scholars, police
57 58
officials and prosecutors and jurists portending a fore
boding future for law enforcement. Most of these observers
discerned a correlation between police interrogation and
effective law enforcement. Very little reliable informa
tion was offered by any of these critics to buttress their
grim premonitions.
When conducting interviews, it was noted that the
respondents were inclined to feel that Miranda was
adversely affecting certain aspects of their work. Since
these people are considered to be the experts in their
59
field, it would be assumed that they would be the ones
most aware of these adverse effects. Therefore, in an
"^The immediate study will hereinafter be cited as
the Los Angeles Study.
"^See n. 12 supra.
^^See n. 24 supra.
5 8
For critical remarks by appellate court judges,
see the statement by the Chief Judge of the United States
Court of Appeals in New York, J. Edward Lumbard, in the New
York Times, August 6, 1966, p. 9; and State Appellate Court
Judge Robert English, "Lawyers in the Station House?"
Journal of Criminal Law. Criminology and Police Science, 57
(September, 1966), 283-z90.
59
Only detectives who had been detectives prior to
the Escobedo decision in 1964 were interviewed in order to
get a better perspective of the impact that the confession
decisions were reputed to have had on law enforcement.
118
attempt to empirically study the affinity between the vari
ables of interrogation and law enforcement, six of the more
frequent complaints uttered by the respondents will be
presented in terms of hypotheses and tested below.
The Importance of Interrogation
to Crime Solution
During the interviews, the respondents were asked
the following question: "Are there ways investigation could
60
replace interrogation?" The responses to the question
compare favorably with those obtained by the New Haven
interviewers, even though differences in approach make it
difficult to compare the data in the immediate undertaking
with those of other germane studies. (See Table 1.)
In the New Haven Study 71 per cent of a sample of
twenty-one detectives felt that interrogation was indis
pensable, 19 per cent thought that it was not absolutely
necessary for effective law enforcement, but it would be too
costly to replace, and 10 per cent felt that the elimina
tion of interrogation would not impede their work.^ Thus,
when asked abstractly, the results indicate that the
60
See question thirteen of the questionnaire in
Appendix C.
61
The respondents in both studies perceiving an
absolute need for interrogation differed in their reasons.
In the New Haven Study 54 per cent thought interrogation
was necessary due to the lack of evidence in many cases and
46 per cent saw its need resting in its complemental
effects. See New Haven Study, n. 39 supra, p. 1592, n. 195.
Cf. Table 1.
119
TABLE 1
DETECTIVE EVALUATION OF THE IMPORTANCE OF INTERROGATION
Los Angeles Study
Evaluation (N=43)______
_________________________________________________ No_.________%
No alternate methods could substitute 28 65
for interrogation
1. Interrogation compliments other 20 72
investigative methods and there
can be no substitutions
2. In many cases evidence does not 8 28
exist
Interrogation not absolutely necessary 12 28
but other means are too costly in
terms of time and resources
Interrogation could be eliminated with- 3 7
out loss to law enforcement ___ ___
43 100
120
respondents perceived interrogation to be necessary for
62
effective law enforcement.
As the result of the above findings, the first
hypothesis to be tested is as follows: Interrogation is
essential to the solution of most crimes. In order to
effect a test, an examination was made of the Seaside City
Police Department files. The files of 478 cases in which
arrests were made for four major crimes (murder, forcible
z : o
rape, robbery and burglary) in the period 1964-1968 were
reviewed. Using the "Evidence-Investigation Scale" as
formulated in the New Haven Study,^ a judgment was formed
as to the amount of evidence available in each case for a
65
conviction. On the basis of these data, the need for
interrogation was categorized as being "essential,"
62
It should be noted that during the interviews
none of the respondents criticized the courts for excluding
involuntary confessions. Their primary concern was with
the emasculation of legal interrogation procedures and the
possibility that interrogation might completely be elimi
nated in the future.
6*1
Originally, it was intended to use data from
1960-1968; however, the files preceding 1964 were not
available due to their being microfilmed.
^See the New Haven Study, n. 39 supra, pp. 1582-
1588.
^Admittedly, this is an unscientific study and the
danger involved when a researcher attempts to assume the
role of judge and jury is immense. However, judgment in
this instance was fortified by the researcher s seven years
of police experience and his study of the court system.
121
6 6
"important," "not important," or "unnecessary." The
number of "essential" and "important" interrogations should
be one indicator of the importance of interrogation to the
solution of the specific crime for which the suspect is
accused.^
Table 2 indicates that interrogation was found to
be "necessary," i.e., "essential" or "important," in only
24 per cent of the cases reviewed. Generally, the figures
in Table 2 compare favorably with those in the New Haven
Study, where interrogation was deemed "necessary" in only
13 per cent of the cases, "not important" in 9 per cent,
68
and "unnecessary" in 77 per cent of all cases.
Interrogation was deemed "essential" if there
appeared to be no physical evidence, witnesses or other
investigative substitutes; "important" if there were some
small leads, but very little other evidence; "not impor
tant" if a sizable amount of evidence existed for conviction
or little difficulty was forseen in securing same; and
"unnecessary" if the evidence seemed to exist overwhelmingly
against the suspect. See the New Haven Study, n. 39 supra,
pp. 1583-1584.
^It should be recognized that interrogation has
other uses than merely solving crimes. These uses will be
examined infra.
^New Haven Study, n. 39 supra, p. 1585. The 11
per cent difference in the findings relative to the "neces
sity" to interrogate may be due to the writer's bias, when
analyzing his data. Due to the court's current preoccupa
tion with the accused's civil rights and the difficulties
involved in predicting the amount of evidence needed for
conviction, there probably was a tendency by the writer to
overestimate the amount of evidence needed for conviction
in some cases. In a field patrol setting, the results of
the President's Crime Commission Study revealed that in all
of the 30 felony arrests observed, there was enough evidence
for arrest without the need for field interrogation, n. 46
122
TABLE 2
NEED FOR INTERROGATION
^ B a s a ^ ^ ^ ^ ^ B s a s s s s s s a B a s a s s ^ ^ s s B s s s s s B a s a
N=478 Cases
___________________________________No_.______ %_
Interrogation essential 75 16
Interrogation important 38 8
Interrogation not important 40 8
Interrogation unnecessary 325 68
478 100
123
After taking into account the possible bias
involved in gathering the data, it appears that in most
cases interrogation was not needed to solve the immediate
69
crimes for which the suspects were accused. Hence, if
the respondents were referring to crime in general, when
they equated the necessity to interrogate with the solution
of crimes, their assumptions are not supported by the above
data.
Outcome of Formal Interrogation
The respondents were in almost complete agreement
over the effect that the Miranda warnings were having on
the outputs of formal interrogation. Most believed that
they were getting many fewer confessions, admissions and
statements. Hence, one could hypothesize that since the
police have been required to fulfill the Miranda require
ments, there has been a considerable decrease in the
quantity of confessions, admissions and statements being
obtained by law enforcement officers.
supra, p. 56. In an examination of 47 murder, burglary and
robbery cases, Sobel found that confessions secured through
interrogation were "essential" or "helpful" in only 21 per
cent of the cases; New York Study, n. 37 supra. p. 146.
69
Any comparisons drawn between the findings in the
New Haven Study and the immediate study must be guarded,
due to the quality of the personnel interviewed and the
crime problem in each jurisdiction. Based upon the New
Haven Study's observations as compared with the writer's,
the Seaside City personnel would appear to be of a higher
quality. Also, the New Haven police are not confronted
with the same crime problems as those encountered by departr
ments in large metropolitan areas.
124
In order to test this hypothesis, a comparison was
made between the various outputs of formal interrogation
prior to the Seaside City Police Department's compliance
with the Miranda dictum and the outputs subsequent to the
compliance. For the purposes of this comparison, July 1,
1966 was the date when the Seaside City detectives began to
observe the Miranda precepts.^
71
The figures in Table 3 reveal that questioning
72
was successful in 69 per cent of the cases before comply
ing with the Miranda requirements, and in 67 per cent of
the cases after compliance. There was a drop of 7 per cent
in the number of signed confessions after compliance, but
this figure is inconclusive due to procedures followed by
In January of 1965, a ruling by the California
Supreme Court, in the case of the People v. Dorado, 398
P.2d 361 (1965), expanded the scope of the Escobedo decision
in California. Dorado required the police to advise a
suspect of his right to counsel before interrogating him.
Even though the California police were restrained more than
police in other jurisdictions by this ruling, most officers
agreed that their chances for useful interrogation were not
significantly impaired by Dorado. Since the respondent's
principal complaints were directed toward Miranda, the date
when it took effect was used for this comparison.
^Table 3 is a modified version of a table used in
the New Haven Study, n. 33 supra, p. 1589, n. 184.
72
"Successful" as used in this context means that
the police were able to get a signed confession, an oral
admission of guilt, a signed incriminating statement, or
some type of oral incriminating evidence or other useful
material for conviction through interrogation.
TABLE 3
OUTCOME OF FORMAL INTERROGATION (MURDER, FORCIBLE RAPE, ROBBERY, BURGLARY)
Pre- Post-
1964 1965 1966 1967 1968 Miranda Miranda
Outcome (N=105) (N=80) (N=69) (N=104) (N=120) (N=224) (N=254)
__________________________No. % No. 7 o No. % No. % No. 1 No. % No. %
Suspect not questioned 1 1 3 4 1 1 19 16 4 2 20 8
Suspect refused to talk 6 6 5 6 3 7 10 10 10 8 14 6 22 9
Interrogation unproductive 27 26 18 23 7 10 19 18 19 16 49 22 41 16
Signed confession 7 7 6 8 4 6 1 1 2 2 17 8 3 1
Oral admission of guilt 40 38 38 48 38 55 43 41 42 35 96 43 105 41
Signed statement 3 3 1 1 2 2 4 2 2 1
Oral incriminating evidence 19 18 8 10 10 15 30 29 26 22 33 15 60 24
Insufficient data 2 2 1 1 1 1 3 1 1 1
Interrogation productive
but form unknown
1 1 2 3 1 1 4 2
105 101* 80 101* 69 99* 104 100 120 101* 224 101* 254 101'
% cases questioning
unsuccessful 67 70 77 71 61 69 67
■^Percentages might not total 100 due to rounding.
TABLE 3 (continued)
OUTCOME OF FORMAL INTERROGATION (MURDER, FORCIBLE, RAPE, ROBBERY, BURGLARY)
19 6 6
Pre-Miranda Post-Miranda
Outcome (N=39) (N=30)
________________________________No. 7c____________No. %
Suspect not questioned 3 8
Suspect refused to talk 3 8 2 7
Interrogation unproductive 4 10 3 10
Signed confession 4 10
Oral admission of guilt 18 46 20 67
Signed statement
Oral incriminating evidence 6 15 4 13
Insufficient data 1 3
Interrogation productive _JL 3 __ ___
but form unknown
39 100 30 100
7o cases questioning
successful 74 80
126
127
73
the Seaside City detectives.
Another comparison of some consequence can be made
between the pre-Miranda year of 1964 and the post-Miranda
year of 1967--years in which the arrest rate was almost the
same. In 1964, 67 per cent of the interrogations were
successful, as compared with 71 per cent in 1967. Further
more, the police were able to secure oral admissions of
guilt in only 38 per cent of the cases before complying
with Miranda, but were able to get the same evidence in 41
per cent of the cases after compliance. It should also be
noted that prior to compliance with the Miranda precepts,
18 per cent of the suspects interrogated incriminated them
selves. However, after compliance, 29 per cent performed
the same act.
A comparison of the percentage of cases, in which
interrogation was successful by years, reveals that the
percentage has dropped 16 per cent since the peak year of
73
From the files, it was impossible to make any
determination regarding Miranda's impact on the Seaside
City police's ability to secure signed statements or con
fessions. This material was not appended to the reports.
Although it is the department's policy to secure a signed
statement whenever possible, the reports did not reflect
that this policy was being followed. From conversations
with the detectives, it was obvious that since Miranda and
the court's preoccupation with procedural matters, they do
not want to question suspects in cases where they have
enough evidence to convict without interrogation. The
human factor is probably involved here, too, in that
unenterprising detectives can now rationalize their
indolence.
128
74
1966--from 77 per cent in 1966 to 61 per cent in 1968.
However, one would be hard pressed to try to attribute this
decline to Miranda because, as the figures in Table 3 indi
cate, there were no attempts made to interrogate 16 per
cent of the suspects in 1968. One would seem to be on
firmer ground in holding that Miranda had an indirect
effect on successful interrogation.^
Table 3 also reveals that more suspects are refus
ing to talk to the police. Again, this could be due to
Miranda; however, due to the small percentage of increase
in this figure, it would seem that there could be a more
plausible answer. This increase may simply be the result
of enlarged publicity via the mass media or verbally from
confidants and others through which suspects have been made
more aware of their rights.
Generally speaking, the above hypothesis does not
seem to be supported by the data. There is little indica
tion from the above data that the Miranda requirements have
materially affected the outcome of formal police interroga-
7 f i
tion in Seaside City.
^It is noteworthy that from January through June,
1966, i.e., before the Miranda requirements took effect,
the police were successful in 74 per cent of their interro
gations. However, after initiating their warning procedure
in July, they were successful in 80 per cent of their
interrogations for the remainder of the year.
^See n. 73 supra.
7 f i
Although different approaches were used, the
129
Collateral Functions of Interrogation
When responding to the question, "In what ways
besides getting evidence for trial is the information from
interrogation used?" the interviewees cited several
collateral functions performed by the interrogation process.
See Table 4.^ Most respondents were quick to point out
that the performance of these functions had been consider
ably impeded by the Miranda decision. Hence, the hypoth
esis that interrogation provides the means by which several
important collateral functions needed for effective law
enforcement are fulfilled. Since the Miranda decision,
these functions have been seriously curtailed.
In looking at Table 5, one sees that the police
were able to obtain additional information in four impor
tant areas as the result of interrogation. In a five-year
span, the police were able to implicate accomplices in 12
findings of some of the other interrogation studies lend
support to this conclusion. After Escobedo, the Detroit
Study recorded a mere 2.8 per cent drop in the confession
rate, n. 30 supra, p. 1573. The New Haven Study registered
a "10 to 15 per cent" decline in the number of suspects
giving incriminating evidence, n. 39 supra, p. 1573. How
ever, the New Haven researchers attributed this decline to
factors other than Miranda, ibid., p. 1563. The Pittsburg
Study discovered a 16.9 per cent drop in the confession
rate subsequent to Miranda and contributed this decline
largely to Miranda, n. 40 supra, p. 11.
^Table 4 is a slightly modified version of its
counterpart in the New Haven Study, n. 39 supra, p. 1593,
n. 197.
130
TABLE 4
DETECTIVE DESCRIPTION OF THE PURPOSES OF INTERROGATION
Los Angeles New Haven
Study Study
Purpose (N=32) (N=21)
___________________________________________ No.*________No.*
Implicate accomplices 25 14
Solve other crimes 24 16
Recover stolen goods 23 9
Understand criminal motivation 2 8
General criminal intelligence 26 6
Eliminate narcotics sources 5 5
Remove weapons from circulation 1 3
Plea-bargaining 2
Help suspects clear selves 7 2
Detour suspects into other processes 2
Personal satisfaction 2
Public relations 1 1
Lecture youths and first offenders 1
Make good informant out of suspect 2
Be able to personally help the suspect 3
by knowing him better
*The numbers are not mutually exclusive.
TABLE 5
EXTRA RESULTS FROM INTERROGATION
(N=478 cases)
Pre- Post-
1964 1965 1966 1967 1968 Miranda Miranda
Results (N=105) (N=80) (N=69) (N=104) (N=120) Average (N=224) (N=254)
________________ No. 7, No. 7c No. % No. 7 o No. % %_______ 1_______ %
Implicate
accomplices
Solve other
crimes
10 10 10 13 10 15 14 13 12 10 12
16 15 20 25 18 26 17 16 15 13 18
12.3
22.3
11.6
14.3
Recover stolen
property 8 8 10 13 11 16 13 13 5 10 11.9 8.0
Help suspect
clear self
Nil
26 25 7 9 2 3 26 25 8 15
54 51 44 55 36 52 52 50 89 74 58
14.3
54.9
15.0
62.9
NOTE: Numbers and percentages are not mutually exclusive.
132
78
per cent of the interrogations, solve other crimes in 18
79
per cent, recover stolen property in 10 per cent, and
80
help suspects clear themselves in 15 per cent of the cases
where post-custodial questioning was utilized.
The interesting figures in Table 5 are those depict
ing the decline in the percentage rate of the instances in
which the police were getting collateral results from
interrogation. This decline is accompanied by a parallel
increase in the percentage of cases in which no collateral
results were being obtained. The reasons listed above for
the decline in the rate of successful cases of interroga
tion might well apply here, but it might well be the case
that Miranda has had an adverse impact on these figures.
For example, the Seaside City detectives did not signifi
cantly curtail their efforts to interrogate suspects until
78
The results of the New Haven Study indicate that
interrogation helped the New Haven police to identify or
implicate accomplices in 27 out of 90 cases, or 30 per cent
of the time; however, they downgrade these results, n. 39
supra. pp. 1593-1594.
79
The New Haven researchers found that interroga
tion was instrumental in clearing 12 unsolved crimes or
". . . 10 to 15% of all crimes investigated ..." during
their study, n. 39 supra. p. 1595, n. 203. The clearance
rate variable is one that is open to serious questions as
to its utility. This will be discussed further, when the
clearance rate of the Seaside City police is analyzed infra.
80
This figure coincides with the numerous incidents,
related by the respondents, of suspects refusing to talk
due to legal advice not to do so or befuddlement as the
result of being issued the Miranda warnings.
133
81
1968. Yet, as Table 5 indicates, in the year following
Miranda there was a 2 per cent drop in instances of accom
plice implication, a 10 per cent decrease in the crime
clearance figures, and a 3 per cent decline in cases where
stolen property was recovered through interrogation. Prior
to Miranda, there had been a steady increase in these
figures.
Table 5 reveals that interrogation has furnished
some important collateral benefits for law enforcement in
Seaside City and that there has been a diminution of these
benefits since the Miranda decision. Therefore, it would
appear that the above hypothesis has received some corrobo
ration from the data.
Effect of the Miranda Decision
on the Percentage of Stolen
Property Recovered
Another problem of grave concern for the respondents
was what they perceived to be a decline in their recovery
rate of stolen property. They attributed this decline to
Miranda because of the restrictions it imposes upon their
talking to suspects. In contrast to the New Haven Study
where only 9 per cent of the respondents felt that recover
ing stolen property was a reason for interrogation, 23 per
cent of the respondents in the Los Angeles Study held this
81See Table 3.
134
82
view. From this information it is possible to hypothe
size that due to the restraints imposed upon the interroga
tion procedures by the Miranda requirements, the police are
recovering less stolen property.
From the figures in Table 6 it would appear that if
questioning suspects is a major criterion for recovering
stolen property, Miranda is having little, if any, impact
on the Seaside City police. Over a ten-year period, the
Seaside City police recovered an average of 10.6 per cent
of their stolen property each year. In the pre-Miranda
years, they recovered 10.7 per cent of their stolen
property. In the three post-Miranda years, they recovered
the same amount--10.7 per cent. If the 15 per cent recovery
rate in 1969 is not an aberration, an argument could be
made that Miranda has helped the recovery rate by requiring
more stringent investigation. This argument could gain
some support from the figures in Table 5 that indicate a
sharp decrease in the amount of stolen property recovered
through interrogation.
Regardless of how one chooses to interpret the
above data, the results do not seem to be consistent with
the holding of the hypothesis.
82See Table 4.
TABLE 6
PROPERTY--STOLEN AND RECOVERED
1960 1961 1962 1963 1964
Property stolen*
Property recovered
Per cent of recovery
$420,327
34,872
8%
$443,397
50,379
11%
$500,367
45,537
10%
$576,721
111,979
19%
$686,141
78,544
11%
1965 1966 1967 1968 1969
Property stolen*
Property recovered
Per cent of recovery
$894,440
50,575
6%
$783,940
83,284
10%
$977,207
84,080
9%
$1,227,134
105 ,369
8%
$1,315,988
180,869
15%
*Stolen autos are not included in the above figures.
NOTE: Average rate of recovery for the above period = 10.6 per cent per year.
i -1
u>
tn
136
Conviction Rate
The number of accused convicted at the trial stage
would seem to afford another indicator of the impact of
Miranda upon law enforcement effectiveness. The respond
ents continuously cited instances to the interviewer in
which cases were dismissed at the trial level due to some
legal technicality. Many of these technicalities, accord
ing to the respondents, had their roots in the Miranda
requirements. They also felt that limitations on the
interrogation procedures were keeping them from building
stronger cases at a time when they were greatly needed.
Therefore, one could hypothesize that procedural technical
ities emanating from Miranda and Miranda's impact upon the
police's efforts to build strong cases through interroga
tion have resulted in a decrease in the conviction rate.
Table 7 depicts a 9 per cent drop in the conviction
rate--from 92 per cent of 841 cases in the pre-Miranda
years to 83 per cent of 384 cases in the post-Miranda
period. Other figures reveal that 64 per cent of the 83
per cent of those found guilty in the post-Miranda period
were found guilty of lesser offenses. This is in contrast
83
to the 55 per cent in the pre-Miranda period.
83
The Pittsburg Study reported a decline of .4 per
cent in the conviction rate in the post-Miranda period in
Allegheny County, Pennsylvania, n. 40 supra, p. 19.
TABLE 7
CONVICTION RATE
Guilty
Guilty of
a Lesser
Offense
Acquitted
or
Otherwise
Dismissed
% of Cases
in Which
Defendant
Found Guilty
% of Cases in
Which Defendant
Guilty of a
Lesser Offense
1961 115 67 12 94 36
1962 65 80 17 90 53
1963 67 61 9 93 48
1964 31 91 14 90 50
1965 30 70 12 89 70
1966 40 64 6 95 62
1967 48 80 20 87 54
1968 38 65 20 84 63
1969 28 60 25 78 68
Pre-Miranda
(1961-66)
Totals 348 423 70 92 55
Post-Miranda
Totals 114 205 65 83 64 u>
- v j
138
In testing the above hypothesis, the figures
84
contained in Table 8 reveal that in most of the 478 cases
examined in this study, there was very strong evidence
against the accused when he went to trial. When this fact
is added to the remarks made by many of the interviewees
chiding the district attorney's office for prosecuting only
"sure" cases, the above hypothesis appears to be somewhat
doubtful.^
These above facts added to the data from Table 2
showing that interrogation was necessary in only 24 per
cent of the cases handled by the Seaside City police would
indicate that only strong cases must have reached the trial
stage. With the outcome of the case at the trial level
being dependent upon such imponderables as attorney's
acumen, judge's attitudes, jury capriciousness and witness
availability, it would be difficult to attribute a drop in
the conviction rate to a specific court decision or for
that matter court decisions.
^The format for this table was taken from the New
Haven Study, n. 39 supra, p. 1580.
85
The fact that District Attorney Younger is
informed in the matter can be seen in a comment from his
study. Upon acknowledging that his office's conviction
rate had dropped 10.2 per cent due to the exclusion of
several confessions with consequential acquittals, Mr.
Younger remarked, "Since each of these 22 cases was filed
prior to Miranda, we can anticipate that this same problem
will not occur when cases filed after Miranda reach the
superior court." See n. 34 supra, pp. 38-39.
139
TABLE 8
EVIDENCE FOR THE PROSECUTION
Witness
%
Los Angeles
7
/o
New Haven
Police 59 78
Complainant as witness 34 57
Eyewitness 22 25
Expert 18 25
Alleged confession or admission 43 19
Family and friends of complainant 5 18
Accomplice--turned state's evidence 5 9
Other witnesses 20 7
NOTE: Percentages indicate the per cent of cases each
source of evidence was utilized. Since each
case might contain several sources, the percentages
will not total 100.
140
Table 7 also reveals that 9 per cent more accused
have been convicted of lesser offenses in the post-Miranda
years. From the data available to this researcher, it was
not possible to ascertain to what extent this figure was
affected by Miranda. However, allowing that the Miranda
requirements could possibly contribute to this increase,
there would seem to be two more plausible explanations for
this situation. First, there could be a substantial degree
86
of plea bargaining being practiced by the prosecutors.
This could result from incompetent or overtaxed prosecutors
or by the simple fact that the court system itself is too
strained to handle the cases.
Second, the prosecutor's office might have the
tendency to reduce charges in cases where the conviction of
a felony could involve grave additional problems for the
accused, to circumvent a mandatory minimum sentence, or to
avoid a community obloquy that could be affixed to an
accused convicted of certain offenses.
To test this hypothesis adequately, one would have
to examine each case in which an accused was found not
guilty or guilty of a lesser offense and tabulate the
reasons for these results. Since these data were not
86
The procedure whereby the prosecutor and defense
counsel will negotiate an agreement by which the accused
pleads guilty either of a lesser charge or for a more
desirable sentence recommendation by the prosecutor.
141
available, the evidence for the above hypothesis would have
to be deemed inconclusive.
O * 7
The Clearance Rate
Again, most of the respondents were quick to refer
to a decline in their clearance rate when discussing prob
lems emanating from the Miranda decision. Other police
88
officials have expressed the same concern, and justifica
tion for these apprehensions can be found in the Uniform
89
Crime Reports. In the years 1960-1968 the Crime Index
has risen 122 per cent, but the Clearance Rate has declined
90
to -32 per cent. Hence, one may hypothesize that the
clearance rate has been adversely affected by court deci
sions which limit the police's ability to question suspects
about crimes--crimes which they might have committed other
87
This refers to ". . . the percentage of crimes
known to the police which the police believe have been
'solved.'" See Jerome Skolnick, Justice Without Trial
(New York: John Wiley and Sons, 1966), p. 168. It is one
of the means used by the police to measure their effective
ness .
88
The Deputy Commissioner for Community Relations
of the New York City Police Department attributed a 10 per
cent decline in their clearance rate to Supreme Court
decisions in the New York Times, February 21, 1967, p. 36.
Also see U.S., Congressional Record, n. 45 supra. p. 14020.
89
The Crime Index is used by the FBI to measure
crime and is composed of seven of the most important
offenses.
90
FBI, Crime in the United States: Uniform Crime
Reports--1968, p. 32. During this period the population
rose 11 per cent.
than the one for which they are charged.
91
As the figures in Table 9 indicate, the clearance
rate for the Seaside City police did drop 3 per cent in the
post-Miranda period. Furthermore, the chart shows that the
decline has affected all four categories of crimes used for
92
this analysis. However, the decline did not begin in the
1966 Miranda year; in fact the clearance rate actually rose
3 per cent in the first year following Miranda with subse
quent decreases. If Miranda did have an adverse effect on
the clearance rate, it is reasonable to assume that it
would be reflected in the 1967 figures. Since this was not
the case, it would be hard to assume that a revival of the
pre-Miranda interrogation procedures would rally the clear
ance rate.
It would seem that any decline in the clearance
rate could not be totally attributed to Miranda. Factors
such as increased police workloads without commensurate
increases in manpower, increasing criminal mobility and the
plain fact that the police are interrogating fewer people
would have to be taken into consideration in any valid
analysis of the clearance rate.
91
This table is modeled after one used in the
Pittsburg Study, n. 40 supra, p. 21.
92
In the Pittsburg Study it was found that the post-
Miranda clearance rate exceeded the pre-Miranda rate by 1.4
per cent.
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CLEARANCE RATE--CRIME--SEASIDE CITY
144
Even though crimes can be cleared through interro
gation, many authorities question the use of the clearance
93
rate as a means to measure law enforcement efficiency.
For example, Skolnick makes an excellent case which
94
supports this misgiving. In many instances the suspect
will help the police solve other crimes as a means of
mitigating his own circumstances; therefore, what is accom
plished? The case has usually been lying dormant in the
pending file and the stolen property, if any, is seldom
recovered.
The data above would appear to lend some corrobora
tion to the hypothesis being tested. The police do clear
crimes by questioning people. Therefore, if the Miranda
decision causes the police to interrogate fewer people,
either through indolence or fear of losing their principal
case on technicalities, then Miranda does affect the clear
ance rate. This conclusion must be guarded because it is
93
For a general criticism of dependence upon police
statistics, see Harry Shulman, "The Measurement of Crime in
the United States," Journal of Criminal Law. Criminology
and Police Science, 57 (December, 1966), 483-492. For
criticisms of the clearance rate specifically, see Pye,
n. 4 supra, pp. 412-413; Kamisar, On the Tactics of Police
Prosecution Orientated Critics of the Court," n. 12 supra,
pp. 466-467; Caleb Foote, "Law and Police Practice," North
western University Law Review. 52 (March-April, 1957),
23-24; Skolnick, n. 87 supraT pp. 168-181; and the New
Haven Study, n. 39 supra, p. 1596.
94
Skolnick, o£. cit., pp. 168-176. He also points
out that our conception of due process and equal punishment
might be jeopardized by an overemphasis on efficiency, as
measured by the clearance rate, by the police.
145
possible that the trend in the clearance rate may change.
One could conclude from the above data, as did Pye in his
article, "... that the data now available do not support
the repeated assertions that the right to interrogate is a
95
panacea for a dropping clearance rate."
From the results of the Los Angeles Study, one
would have to conclude that Miranda's impact on law enforce
ment in that area has been meager. It is highly improbable
whether any true analysis of Miranda's impact on law
enforcement can be made from data like that presented above.
If Miranda has had an impact, this would be more likely to
96
show up at the filing stage of the legal proceedings and
these data are not available for analysis. Also, and very
importantly, there is no way of determining how many cases
never reach the filing stage due to the impact of Miranda.
The available studies of this problem, including
the immediate study, are limited both in size and implica
tion. However, none suggests the thesis that the confes
sion decisions are fossilizing the interrogation process.
Although the results of this study do not lend themselves
to generalization, they do seem to suggest reservations
95
Pye, n. 4 supra, p. 412.
96
This is the stage when the police present their
case to the district attorney and he decides whether there
is enough evidence for trial. By being restricted in their
interrogation procedures, the police could be restrained
from building a strong enough case for trial.
146
about any unqualified claim that interrogation is valueless.
Even though the available data seem to indicate that
the impact of Miranda and its predecessors has been slight
on police procedures, the data indicate that such decisions
have had a strong impact on the minds of the police them
selves. Since this is not a matter of small concern, an
attempt will be made in the following chapter to examine
the problem.
CHAPTER VI
THE IMPACT OF COURT DECISIONS
ON POLICE MORALE
Background
"... The [Miranda] decision has substantially
affected the attitudes and morale of the police them
selves."'*' This was one of the conclusions reached by a
group of Yale law students, after studying the impact of
2
the Miranda decision on the New Haven, Connecticut Police
3
Department. Group morale is important because it affects
the way individuals within the group perform their respec
tive tasks. Since the police perform the important dual
functions of enforcing the laws of society and maintaining
4
order among its citizens, their morale should be a matter
"^"Interrogation in New Haven: The Impact of
Miranda," Yale Law Journal, 76 (July, 1967), 1610 [herein
after cited as the New Haven Study].
^Miranda v. Arizona, 384 U.S. 436 (1966).
3
In the context of this paper, the term morale
refers to the mental and emotional attitude of the group
and its individuals toward their work.
^See James Q. Wilson, "What Makes a Better Police
man?" The Atlantic. 223 (March, 1969), 130-131.
147
of concern for all elements of the community.
Concern for police morale can be found in the unau
thenticated pronouncements of those in close contact with
law enforcement,^ and scholars such as Glanville Williams
who holds that the "... sporting theory of justice has a
debilitating effect upon police moraleWilliams is
fearful that restrictions placed upon police interrogation
might initiate an outgrowth of "cynicism" among the police.^
In a more empirical approach to the problem, the
New Haven researchers reported that the Miranda decision
affected the New Haven detectives by making them take a
Q
". . . more negative attitude toward their work." They
9
were remiss in obtaining statements and other aspects of
Several of these pronouncements can be found in
U.S., Congress, Senate, Subcommittee on Criminal Laws and
Procedures of the Committee on the Judiciary, Hearings,
Controlling Crime Through More Effective Law Enforcement,
90th Cong., 1st Sess., 1967, pp. 328-329, 626, 848.
^By the phrase "sporting theory of justice,"
William is referring to the treatment of law enforcement
as a game between the police and the lawbreaker, in which
the police are bound by certain rules, the infringement of
which could result in a forfeiture of the game by the
police. See "Police Interrogation Privileges and Limita
tions under Foreign Law: England," Journal of Criminal Law,
Criminology and Police Science, 52 (May-June, 1961), 54.
^lb id. The central theme of A. Niederhoffer's book,
Behind the Shield: The Police in Urban Society (Garden
City, N.Y.: Doubleday and Co., 1967), pp. 173-174, is that
the real danger from restrictive court decisions arises
from their reinforcing effect upon police cynicism.
g
See the New Haven Study, n. 1 supra.
9
The immediate study also reflects this finding.
See Table 3.
149
their work. Also, they evinced . .a basic distrust of
courts and lawyers .
Manifestations of frustration and cynicism were
observed by this writer during the interview sessions with
the respondents and in later offhand discussions. As
reported by Lipset, it would seem that "many police have
consciously come to look upon themselves as an oppressed
minority. . . .n11
According to Krech and Crutchfield, one factor
determining morale is the necessity for the individual
member of a group to feel that his positive goals can be
12
achieved through the group. If progress toward these
13
goals are stymied, the individual may become frustrated
and react aggressively toward the sources of his frustration
or withdraw from the frustrating predicament.^ As far as
the community is concerned, either path is undesirable for
a police officer to trod.
When one considers the numerous demoralizing
factors which are constantly working upon the individual
"^New Haven Study, n. 1 supra, pp. 1610-1611.
■^Seymour Lipset, "Why Cops Hate Liberals--and Vice
Versa," The Atlantic, 223 (March, 1969), 80.
12
David Krech and Richard Crutchfield, Theory and
Problems of Social Psychology (New York: McGraw-Hill Book
Co. , 1948) , p. 408.
13Ibid., p. 50.
14
Ibid., pp. 55-57. It should be noted that the
effects of frustration do not necessarily have to be bad.
150
police officer such as: (1) the various legal barriers to
effective police action,^ (2) working with a hostile
public, (3) having to enforce laws about which the public
16
has mixed feelings, (4) the constant contacts with the
seamy side of life, (5) living an abnormal family and
private life, and (6) in many cases enduring poor working
conditions, the psychological plight of the police officer
becomes clearly a matter for concern and study.
The following pages will endeavor to analyze the
condition of the morale of the sample of police officers
used in this study. Particular focus will be given to
legal barriers in the form of restrictive court decisions.
The degree of morale will be deduced from the respondent's
reactions to queries concerning his career, job satisfac
tion and his viewpoints of the problems involved in being a
police officer.^ Where possible, comparisons will be made
Douglas McBroom holds that restrictions on the
rules of arrest are more frustrating to the patrol officer
than appellate decisions on confessions in "Enforcement of
the Common Law Rules of Arrest," Duquesne Law Review, 6
(1967-1968), 371-372. One of the possible effects of such
decisions could be to force the police to lie in order to
make their case. See Kenneth Pye, "The Supreme Court and
the Police: Fact and Fiction," Journal of Criminal Law.
Criminology and Police Science, 57 (December, 1966), 414.
■^For example, see John Gardener's article, "Public
Attitudes toward Gambling and Corruption," Annals, 374
(November, 1967), 123-134.
^Since this writer was aware of no set way to
measure morale, the above three factors, which were used by
the researchers for the President's Crime Commission Study,
were used in this undertaking. See Albert Reiss, Jr.,
151
with the results of the President's Crime Commission Study.
The Officer's Perception of His Career
One factor that determines high morale is the
motivation one has to perform his assigned work. If this
motivation grows out of the need to satisfy some positive
goal such as prestige or helping other people, one's morale
18
should be higher than another who works simply to survive.
Positing that one's motivations should be rooted in one's
reasons for pursuing a particular occupation, the respond
ents were asked, "Why did you become a police officer?"
(See Table 10.)
If the above approach is valid, the respondents in
this study would appear to be at least susceptible to a
lower degree of morale than some of the other professions.
Table 10 shows that the officers do not appear to moralize
or idealize when discussing their motivations for becoming
police officers. They seem to perceive their occupation
simply as "another job." In fact, 19 per cent indicated
"Career Orientations, Job Satisfaction, and the Assessment
of Law Enforcement Problems," in U.S. President's Commis
sion on Law Enforcement and Administration of Justice"
Field Survey III. Section II (Washington, D .C.: Government
Printing Office, 1967) , p. 5 [hereinafter cited as the
Reiss Study]. This is a three-city (Boston, Chicago and
Washington, D.C.) empirical study of police organization
and occupation. A sample of 204 respondents was used in
this study.
1R
Krech and Crutchfield, n. 11 supra, pp. 408-409.
152
19
as much. Only 2 per cent viewed their career in terms of
values, i.e., in terms of wanting to help other people.
The Reiss Study reflects the same motivations, on
the part of their respondents, toward satisfying certain
20
mundane needs in pursuing a police career. Some 70 per
cent of the officers in that study became policemen because
of job security, their desire to do police work, or because
they were influenced by members of their family or friends
to pursue a police career. Only the 4 per cent responding,
that prestige and respect for the job motivated them to
become policemen, showed any signs of trying to satisfy
higher values by becoming a police officer.
The figures in Table 10 are interesting in another
respect. The respondents in the immediate study averaged
2.4 years of college education, most of which was geared to
a Police Science curriculum. Therefore, it would seem that
the responses of the interviewees should indicate a high
degree of professionalization within their ranks; however,
this does not seem to be the case. If one accepts the
premise that true professionalism emphasizes "professional
21
ideals and values" and not mere "technical competence,"
19
Most of this 19 per cent stated that they had
become policemen simply because they needed a job.
20
See the Reiss Study, n. 15 supra, pp. 16-19.
21
Jerome Skolnick sets forth this idea in Justice
Without Trial (New York: John Wiley and Sons, Inc., 1967),
p. 235.
153
TABLE 10
MAIN REASONS FOR DECISION TO BECOME POLICE OFFICER
Los Angeles Study Reiss Study
Reasons (N=43)________ (N=204)
_________________________________No.________%___________7 o
Needed a job 8 19
Chance to do police work 11 26 30
Variety in the job 3 7 7
Family or friends in
police work 10 23 11
Security 5 12 29
Want to help other people 1 2
Economic attractions 4 9 7
Other or hard to say 1 2 5
Prestige and/or respect
of job
Like working with people
4
__7
43 100 100
154
the respondents do not appear to have reached a high degree
22
of professionalization. Except for the general statement
that they wanted a chance to do police work, only 2 per cent
of the respondents gave any indication that "ideals and
values" were the motivating force behind their entrance
23
into police work.
Police Satisfaction with Their Work
It would seem reasonable to posit that job satis
faction would afford another indicator of the officer's
morale. When asked, "What things about your job do you like
the most or find the most interesting?" the respondents
again appeared to be more pleased with the mundane features
of their job. They displayed only a slight interest in
2 A
being able to satisfy moral or idealistic values (see
Table 11). Only 12 per cent of the sample indicated an
enjoyment in being able to make a better society through
playing the police role.
When comparing the responses in Table 11 with those
in Table 10, it appears that the officers tend to value
22
In discussions with the officers, most of them
indicated a desire to be recognized as "professionals" by
the general public.
23
Reiss in his study reached the same conclusion.
See n. 15 supra, p. 19.
o /
This represents another indication of the low
degree of professionalism manifested by the officers in
this study.
155
TABLE 11
WHAT LIKE MOST ABOUT JOB
Nothing--just another job
Chance to do police work
Working with people
Variety in the work
Making a better society
The men they work with
Security
Pay and fringe benefits
Responsibility of position
Prestige of position
Los Angeles Study Reiss Study
(N=32) (N=204)
No.________%__________ 7 o
2 5 11
17 40 3
6 14 27
9 21 30
5 12 2
3 7 1
1 2 9
6
8
__3
43 100 100
156
other qualities of police work after entering the occupa
tion. For example, they seem to enjoy working with people
more and receive more pleasure from the variety of the
25
work. Also, the longer the officers stay on the job,
they seem to be generally more satisfied with their work.
For example, only 5 per cent of the respondents perceived
their job as being "just another job" after working at it
for a period of time. This represents a 14 per cent decline
from those in Table 10, who became policemen because they
needed a job. Table 11 also shows an increase of 14 per
cent in the number of officers gaining satisfaction from
their chance to do police work. In Table 10, only 26 per
cent indicated that they became policemen to do police work.
After a period of time on the job, security appears
to become a secondary factor in job evaluation by the
police. In Table 10, 12 per cent of the officers listed
security as the reason for becoming policemen, but only 2
per cent listed security as the factor they liked the most
about their job in Table 11. It may be that after becoming
a policemen the individual officer finds more satisfaction
in other facets of his work and security becomes a secondary
2 6
factor. However, a more plausible reason would seem to
25
The same conclusion was reached in the Reiss
Study, n. 15 supra. p. 19.
26
For example, Table 11 shows sharp increases in
responses associated with the individual officer’s job,
such as the chance to do police work, variety of the work,
the men they work with, and working with people.
157
be that they just take security for granted.
A comparison of the figures in Table with those in
27
the Reiss Study produces some interesting findings. The
officers in both the Reiss and immediate studies appear to
be almost equally unprofessional in their approach to their
work. In the Reiss Study, 13 per cent of the officers
reported receiving satisfaction from such moral and ideal
istic values as the responsibility of their positions, the
prestige of their job, and their opportunity to make a
better society. This compares favorably with the 12 per
cent in the immediate study who secured satisfaction from
helping other people.
When examining what the officers liked least about
their job, the figures in Table 12 show that factors
external to their departments have a more vexatious effect
on the officers. Restrictions upon police procedures,
emanating from the courts or other sources, are the main
things that the officers dislike about their job. More
than one-fourth of the officers mentioned this factor. The
next nearest complaint was the lack of respect shown to
them by the public, and it was voiced by 12 per cent of the
interviewees.
27
The Reiss Study, n. 15 supra, p. 20. In this
study the respondents were asked to report what they liked
most about their job as compared to other jobs.
TABLE 12
WHAT LIKE LEAST ABOUT JOB
158
Los Angeles Study Reiss Study
(N=43)______ (N=204)
No.
% 7 o
Inadequate staffing
Court or other restrictions
on police
Hours or work schedule
Paperwork
Lack of public respect
Cannot say
Lack of adequate equipment
Salary
Military aspects of job
Going to court
The people they have to
deal with
Commuting to work
Danger of job
Leadership or supervision
Poor promotion system
No family or private life
12
3
5
5
7
1
3
1
2
1
2
28
7
12
12
16
2
7
2
5
2
5
7
36
1
23
10
43 1 0 0
2
10
2
__2
100
159
Upon categorizing the figures in Table 12, one
notes that 39 per cent of the complaints were voiced
against problems emanating from society, 28 per cent are
bothered by internal problems particular to their jobs, 17
per cent dislike features of their jobs which are affected
28
by both internal and external factors, and 16 per cent
were unable to single out any specific dislike.
These figures also indicate that the community
could create better morale by providing the departments
concerned with more personnel, higher salaries, and more
equipment. Internally, the departments1 supervisors could
try to eliminate some of the paperwork, make adjustments in
hours and working schedules, and allow officers to work
closer to their homes.
When comparing the above figures with those in the
Reiss Study, one notes an almost complete reversal in the
sources of dissatisfaction. Over one-half of the officers'
dislikes (53 per cent) are rooted in problems particular to
the internal workings of their departments. Only 14 per
cent found societal problems as being the source of their
dissatisfaction. Also, 23 per cent complained of problems
unique to both internal and external sources and 10 per
28
These are the lack of public respect, which the
officers have to earn and the public has to grant, and con
sideration for the officer's time in setting trial dockets.
Although going to court is a problem unique to the job,
many officers are displeased with the lack of concern for
their time displayed by the courts and prosecutors.
160
29
cent had no complaints.
This differential could result from a condition in
which the Los Angeles area officers are more satisfied with
their internal working conditions; hence, they tend to
gravitate toward external sources of irritation. Con
versely, the working conditions of the officers in the
Reiss Study might be poor; hence, they pay less attention
to external sources of dissatisfaction.
Another test of the job satisfaction variable can
be made by ascertaining the type of positive and negative
changes perceived by the officers in their working condi
tions. The respondents were asked, "What changes have
occurred in your working conditions since you became a
peace officer?" As indicated by the figures in Table 13,
the officers perceived more positive than negative changes
in their working conditions. Again leading the list of the
negative factors was the restrictions on their work proce
dures fostered by court decisions. Nineteen officers cited
this change, and most of them felt that the change affected
30
them adversely. The most positive changes discerned by
the officers are to be found in improved working
29
It is interesting to note that only 7 per cent of
the officers in the Reiss Study complained about court
decisions, whereby 26 per cent in the immediate study
voiced the same complaint.
30
In fact, if this figure was deleted from Table 13
the negative changes perceived by the officers would have
been insignificant.
TABLE 13 161
CHANGES WHICH OCCURRED IN WORKING CONDITIONS
SINCE BECOMING POLICEMAN
Los Angeles Study Reiss Study
Changes (N=43)___ (N=204)
_______________________________________ No.*______________7 o
Better and more rigid
supervision 2
Less support from public
officials 1 4
Improved working conditions 13
Laws and courts restrict police 19 13
Equipment and technological
advances 9
Job more professional 7
Better caliber of men 10
Better training 1
Work more complex 5
Loss of contact with public 1
Attitude of public toward police 5 20
More community pressures 2
More crime and work 7
Department inadeqate and
morale low 3
Less real police work and
more service 7
Less opportunity than expected 6
Other ways 16
Not much change 22
100
*The numbers are not mutually exclusive.
162
conditions--wages, fringe benefits and hours. They also
felt that a better caliber of men were becoming policemen.
This fact alone goes a long way in improving the morale of
a dedicated officer.
Again there are sharp variances between the find
ings of the immediate study and those of the Reiss Study.
The Los Angeles officers saw the changes in their working
conditions as being positive and distinct; however, the
officers in the Reiss Study leaned toward societal factors
as being the most instrumental in effecting changes in
their working conditions, i.e., factors such as less public
respect, court-imposed restrictions, and more crime and
31
work. These figures could indicate that due to the great
strides made in bettering the working conditions of the Los
Angeles officers, such improvements were fresh in the minds
of the officers during the interviews. On the other hand,
there could have been less positive changes effected in the
working conditions of the Reiss respondents; hence, the
32
outside pressures would appear to be greater.
31
The Reiss Study, n. 15 supra, pp. 72-74.
32
Comparison is difficult on this point because the
Reiss Study is more exact and cites its findings in per
centages. In the immediate study the respondents were
asked verbally what changes they noted. This meant that
the officers could list more than one change. However, it
would seem that the variance between the studies on the
point of perceiving internal or external factors affecting
changes in their working conditions is valid. One should
note, too, that 22 per cent of the Reiss respondents saw
little change, but none of the officers in the immediate
163
As a final test for job satisfaction, the officers
were asked, "if you had it to do over, would you still
become a peace officer? If not, why?" (See Table 14.)
TABLE 14
WOULD YOU STILL BECOME A PEACE OFFICER?
Answer No. %
Yes 27 63
No 12 28
Undecided 4 9
Despite their misgivings about their work as indi
cated by the figures in Table 12, 63 per cent of the
officers answered the above question in the affirmative.
Only 28 per cent would have shied away from a police career
33
and 9 per cent were undecided.
study responded in this manner. This might be explained by
the fact that only veteran officers were utilized in the
immediate study, but the Reiss Study sampled both new and
veteran officers.
33
There were three reasons given by the officers,
who stated that they would not become policemen again, for
taking this stand: (1) their talents and energies could
reap greater economic rewards in other endeavors, (2) it
was too frustrating to try to do the job under court
harassment, and (3) disrespect by the public toward the
police.
164
If job satisfaction can be used as a measure of
high morale, the Los Angeles area departments used in this
study would appear to be faring well in this regard. In
the immediate study, the officers' negative attitudes toward
the courts' role in defining law enforcement procedures
could result from their college training. Even though the
respondents represented a high ratio of college-educated
personnel (they averaged 2.4 years of college), this educa
tion is rooted in a vocationally orientated Police Science
curriculum. This curriculum is not conducive to an adequate
understanding of the courts' role in the American political
process. Possibly a liberal arts orientated Criminal
Justice curriculum might alleviate this situation by making
the officers more cognizant of the entire role of the
courts in our democratic system.
The Police Officer's Perception of His
External Problems and His Response
During the interviews, most of the officers
evidenced a high degree of exasperation when discussing
problems emanating from sources external to their depart
ments— problems over which they seemed to feel they had no
control. They appeared to be satisfied that intradepart-
mental problems were understood by their supervisors and
165
34
were being rectified as much as possible. The officers
were asked, "Do you think that there are more or less
crimes of violence being committed in Los Angeles County
than there were ten years ago (or when you joined the
department)? If more, what do you think accounts for this?"
All of the officers thought that crimes of violence had
increased. When asked for the causes of this increase, 35
per cent of the officers attributed the increase to the
belief that crime was going unpunished (see Table 15).
Restrictions imposed by court decisions were seen by 9 per
cent of the officers as offering an incentive for potential
criminals to commit violent crimes. Thus, 44 per cent of
what were considered to be external sources of police prob
lems were attributed to the courts.
These figures compare favorably with those in the
Reiss Study, where 40 per cent of the officers attributed
the increase in violent crimes to the belief that crime was
. , , 35
going unpunished.
Furthermore, in the immediate study 28 per cent of
the officers attributed the rise in violent crimes to an
overly permissive and "liberal thinking" society. This is
more than double that given by the officers in the Reiss
34
This observation would seem to be buttressed by
the figures in Table 13, where most of the intradepartmental
changes were perceived as being positive.
"^The Reiss Study, n. 15 supra, p. 92.
166
TABLE 15
REASONS FOR INCREASES IN VIOLENT CRIMES
Reasons
Los Angeles Study Reiss Study
(N=43) (N=204)
No. T fo 1
After trial crime goes
unpunished
Changes in family and
society
Court decisions impede
the arrest of suspects
Population increase
All other
More firearms
Not enough police protection
Doesn't apply
Not enough opportunities
15
12
4
9
3
35
28
9
21
7
40
13
43 100
20
4
3
14
__6
100
Study, where only 13 per cent attributed the increase in
3 6
crime to family and societal changes. There is nothing
in the data indicating the reason for the difference.
Perhaps West Coast residents are more permissive and
"liberal thinking" than those residing in the East and
Midwest.
The interviewees in the immediate study viewed the
great population increase in California as a major factor
contributing to the increase in violent crimes. Of the
21 per cent eliciting this response, many felt that migra
tion to California had brought, generally, a lower class of
individual to the West Coast. And it was necessary for
many of these individuals to commit crimes of violence in
order to survive in the highly technical California milieu.
Since most of the officers depicted courts as being
the major obstructionist, they were given several possible
sources of deterrence to their work and were asked to rank
in order the sources they felt most hindered them in their
efforts to control crime (see Table 16). As the figures in
Table 16 indicate, almost one-half of the officers felt
that federal appellate court decisions were having the most
inhibiting effect upon their efforts to control crime.
Nearly one-third more perceived the trial courts as their
greatest obstacle and one-fifth pointed toward the attitudes
TABLE 16
FACTORS THAT MOST DETER CONTROLLING CRIME IN LOS ANGELES
Factors
1st 2nd 3rd 4th 5th
No % No. % No 7 , No. 7o No. 7 =
State Appellate Court Decisions 0 0 19 44 12 28 11 26 1 3
Federal Appellate Court Decisions 21 49 11 26 9 21 2 5 0 0
Trial Court Decisions 13 30 7 16 16 37 7 16 0 0
Public Attitude Toward Crime 9 21 6 14 4 9 17 40 7 16
District Attorney's Power to
Institute Felony Proceedings
0 0 0 0 2 5 6 14 35 81
ON
00
169
of the general public toward crime.
One factor that might indicate a paucity of knowl
edge on the part of the officers about the court system can
be seen from their ranking of the state appellate courts.
Although they criticized the state decision in People v.
37
Cahan more than any other decision in their conversations
with this writer, they ranked the state appellate courts
only second in the hierarchy of deterrents. The state
appellate courts' decisions have more impact on local law
enforcement than those of the Supreme Court, because of
their numerical quantity and the special fact situations
involved in such cases.
Police morale is improved when they have the
3 8
support and respect of the public. One of the ramifica
tions of good morale is better service. In his 1954 study,
Gourley found, from a selected sample of 3,100 citizens,
that, "generally, the citizens of Los Angeles felt that
39
they had a very good police department." The results of
the immediate study indicate that the police themselves
thought that the public was responding more favorably
"^44 Cal. 2d 434 (1955). In this case, California
adopted the exclusionary rule involving illegal search and
seizure. This case probably had far more impact upon the
police in California than did the Miranda decision.
38
See Douglas Gourley, "Police Public Relations,"
Annals, 291 (January, 1954), 137.
* 5 0
Ibid., p. 139. It should be noted that this
sample was taken before the 1965 Watts Riots.
170
toward them. The officers were asked, "Since you became a
police officer, has there been a change in the behavior of
the public toward the police?" Table 17 shows that 33 per
cent of the officers saw the public responding more favor
ably toward them. Another 9 per cent thought that the
public had always been favorably disposed toward them and
still was. Some 29 per cent felt that the public behavior
had changed in some negative manner toward them. They
blamed this change on the news media.
The respondents attributed the positive changes in
public behavior to their "clean image" and to the upgrading
of their profession and their departments. However, most
of the officers felt that the public's response was more
favorable, because they had come to realize the importance
of the police function. They thought that the 1965 Watts
Riots was the primary cause of this awareness.
A significant number of officers (28 per cent)
sensed a polarization in the attitude of the public. This
group felt that the law-abiding middle and upper classes
were aligned with them against the law-breaking elements of
the lower classes, the minority groups, and the criminal
element of the community. They depicted this polarization
as becoming explicit following the Watts Riots.
A comparison of the above findings with those of
the Reiss Study discloses a wide variance in results. Of
the 83 per cent of the officers perceiving changes in the
171
TABLE 17
CHANGE IN BEHAVIOR OF PUBLIC TOWARD POLICE
Change
More respect for police
Less respect for police
Majority for police,
minority against
Less cooperative
All other changes (negative)
Unchanged (positive)
Undecided
More hostile
Los Angeles Study Reiss Study
______(N=43) (N=204)
No.________%___________%
14 33
9 21 8
12 28 18
2
5 3
1 3 14
4 9 44
1 3 8
__5
43 100 100
172
general public's attitude toward them, only 16 per cent
40
thought that this was a positive change. The other 67
per cent sensed a feeling of less respect and other
negative attitudes toward them.^
When asked, "Have you noticed a change in suspect's
attitudes or behavior since the Miranda decision?" the
officers expressed the view that relationships had deterior
ated (see Table 18). Some 88 per cent of the officers
sensed a more negative attitude on the part of suspects.
Of this group, 45 per cent felt that suspects were more
uncooperative, 32 per cent saw them as being more belliger
ent, and 23 per cent perceived them as being more arrogant.
In discussions with the officers, most of them attributed
this change to the impact that Miranda and its progeny has
had on the attitudes of suspects.
If one can evaluate the morale of the respondents
in this study on the bases of their perceptions of their
careers, job satisfaction and problem bearing external
forces, the Miranda decision does not appear to have
adversely affected their morale to any measurable degree.
^Reiss Study, n. 15 supra. p. 84.
41
Ibid. It should be noted that none of the cities
surveyed in the Reiss Study (Boston, Chicago and Washington,
D.C.) had been subjected to any major disturbances of the
type experienced by Los Angeles. It would be interesting
to re-sample the Chicago respondents on this question,
since they experienced similar problems during the 1968
Democratic Convention.
173
TABLE 18
CHANGES NOTICED IN SUSPECTS1 ATTITUDES
Changes No. %
Yes 38 88
No 4 9
Very little 1 3
Although they do not perceive their job in the sense of it
being a vehicle for reaching moral and idealistic goals,
they do manifest a positive satisfaction toward their work,
after a period of time on the job.
The real danger of Miranda, as perceived by police
officers, seems to lie in what it could portend for the
future. The police seem to feel that a positive affinity
has developed between themselves and the law-abiding
elements of their community--an affinity that bears not
only good will but other positive benefits such as higher
wages and recognition as a profession. In order to keep
this alliance intact, the police might feel that they must
implant a feeling of security in the minds of their allies--
a security of person and property. Therefore, if they
believe that the courts are frustrating them in their
efforts to achieve this end, they might become indolent
toward their work. However, it is more probable to assume
that they might use extra-legal means to achieve their
goal. In either case, society will be the lower.
CHAPTER VII
CONCLUSIONS
The crucial problem of attaining a balance between
individual rights and societal interests lies at the heart
of the controversy over post-arrest interrogation. The
solution to this problem cannot be found in the Framers'
intent or in abstract theories of individual rights. It
must be found in the context of the times. Normally, in a
representative democracy the development of systems of
criminal procedure is the prerogative of the legislature;
however, in the United States the judiciary, on occasion,
has been charged with this task. This study was initiated
to evaluate the impact that the handiwork of the judiciary
has had upon the procedures and morale of the police.
The historical development of the privilege against
self-incrimination and the law of confessions need not be
repeated here. It should only be recognized that both
doctrines have been developed to coincide with what the
courts have felt to be "the needs of the times"; hence,
they bear slight semblance to their early counterparts.
175
176
It was not until the Court quit making piecemeal
rulings in the law of confessions and extended the Fifth
Amendment privilege against self-incrimination to police
interrogation practices in the Miranda decision, that a
real cause for concern arose among those charged with the
duty of law enforcement. Upon examining the Miranda deci
sion, it appears that its rationale is rooted in the
Court's belief that the police were using iniquitous methods
during post-arrest interrogation. A survey of the sources,
supposedly used by the Court to reach this conclusion and
other possible sources of data available to the Court,
failed to disclose any credible amount of empirical data
supporting such a belief.
These findings have caused this writer to conclude
that the Court's willingness to generalize as to the stand
ards of police procedures on the basis of little or no
empirical data is a dangerous practice. In the first
place the Court has little basis for discerning the impact
of such a decision upon law enforcement. Furthermore, the
justices have no special expertise in the art of criminal
investigation; hence, they are not equipped to gauge the
needs of investigators in specific cases. This should be
the prerogative of the legislature.
What has been the impact of the Miranda decision on
police procedures? A review of the various studies dealing
with the topic indicates that the impact of Miranda has been
177
slight. In the immediate study it was found that even
though the officers conceived interrogation to be essential
in solving most crimes, it was actually necessary in only
about one quarter of the cases surveyed. Furthermore, an
analysis of 478 cases by the author produced very little
indication that the Miranda requirements had materially
affected the outcome of formal police interrogation, or any
other factors such as the recovery of stolen property.
Even though there had been a decline in both the conviction
and clearance rates of the department study, for the
reasons set forth in this study, one would be hard pressed
to attribute these declines specifically to Miranda.
Interrogation performs many collateral functions
for the police. It is here that the impact of Miranda was
more distinct. The police were found to be implicating
fewer accomplices, clearing fewer crimes and recovering
less property through interrogation, and helping fewer
suspects clear themselves. Therefore, the writer concludes
that the impact of Miranda on law enforcement in the
jurisdiction studied was slight. This substantiates the
findings of other relative studies. The results do not
support the thesis that police interrogation is unnecessary.
In order to be able to ascertain any real impact
from Miranda and other similar decisions, one should
probably study the attitudes and morale of those directly
affected by the decisions. A study of the morale of the
178
officers utilized in this undertaking revealed that they
held a high degree of job satisfaction. On the other hand,
most of the officers depicted the courts as being the
societal factor giving them the most cause for concern and
frustration.
It was also discovered that even though most
officers spoke either in terms of police work being a
profession or wanting it to be a profession, very few were
actually motivated to do their work by factors usually
associated with professionalism.
Unlike other studies, the officers in the immediate
study perceived the law-abiding general public as respond
ing favorably toward them. Therefore, one could conclude
that the improvements in the working conditions of the
officers in this study might have offset any adverse impact
on their morale emanating from Miranda. Whether this
condition will continue to endure in the future is somewhat
problematical. If the police steadfastly perceive positive
gains arising from their alliance with the general public,
court decisions frustrating their efforts to nurture this
alliance could lead to morale and other problems.
As the result of this study, the author feels that
several suggestions are in order:
1. There should be more studies dealing with the
significance of police interrogation. These
studies must be well funded and "truly
179
objective" in order to be of any value.
2. More studies of the values and attitudes of the
police themselves are needed. A knowledge of
the psychology and sociology of police officers
would be invaluable to those working in the
area of criminal justice.
3. In view of the fact that police morale has been
affected, further studies of the behavior of
the police should be conducted.
4. In order to solve the problems of the police,
one must be able to consult with them; hence,
academicians, who are going to work in this
area, must realize that police are not social
undesirables and must be able and willing to
engage in meaningful dialogue with them.
5. In the interest of better law enforcement,
judicial decisions setting the standards for
criminal law administration should be explicit
in context and composition.
6. If the purpose of criminal justice is to ascer
tain the truth, exclusionary rules should be
replaced by commensurate remedies of criminal
and/or civil prosecutions against offending
officers.
7. Since approximately 90 per cent of a police
officer's time is spent in social service
180
activities, any meaningful educational program
for the police will have to be liberal arts
oriented rather than geared to a vocational
curriculum.
In order to balance the scale upon which rests the
rights of the individual and the interests of society, the
proponents in each camp will have to realize that they are
playing a game of give-and-take. Those championing the
rights of the individual must be ready to sacrifice some
individual rights and liberties in order to foster a type
of society in which all can enjoy a certain measure of
rights. On the other hand, those championing the cause of
society must understand that police efficiency has to yield
on occasions to the rights and liberties of the individual.
B I B L I O G R A P H Y
181
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--------August 22, 1964, p. 23, col. 5.
-. May 14, 1965, p. 39, col. 1.
-------- . August 29, 1965, p. 1, col. 1, p. 17, col. 1.
-------- . September 10, 1965, p. 1, col. 1.
-------- "A, cces" to Lawyers Is Urged by Koota,"
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-. December 2, 1965, p. 1, col. 2.
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Key Cases
Adamson v. California, 332 U.S. 46 (1947).
Akowskey v. U.S., 158 F. 2d 649 (D.C. Cir. 1948).
Anderson v. U.S., 318 U.S. 350 (1943).
Ashcraft v. Tennessee, 322 U.S. 143 (1944).
Ashdown v. Utah,357 U.S. 426 (1958).
Betts v. Brady, 316 U.S. 455 (1942).
Blackburn v. Alabama, 361 U.S. 199 (1960).
Boyd v. U.S., 116 U.S. 616 (1886).
Bram v. United States, 168 U.S. 532 (1897).
Brown v. Allen, 344 U.S. 443 (1952).
Brown v. Mississippi, 297 U.S. 278 (1936).
Burdeau v. McDowell, 256 U.S. 465 (1921).
California v. Stewart, 384 U.S. 436 (1966).
Chambers v. Florida, 309 U.S. 227 (1940).
Cicenia v. Lagay, 357 U.S. 504 (1958).
Crooker v. California, 357 U.S. 433 (1958).
Culombe v. Connecticut, 367 U.S. 568 (1961).
Davis v. North Carolina, 384 U.S. 737 (1966).
Escobedo v. Illinois, 378 U.S. 478 (1964).
Fahy v. Connecticut, 375 U.S. 85 (1963).
Fay v. Noia, 372 U.S. 391 (1963).
Fikes v. Alabama, 352 U.S. 191 (1957).
212
Gallegos v. Colorado, 370 U.S. 491 (1962).
Gallegos v. Nebraska, 342 U.S. 55 (1951).
Garner v. U.S., 174 F. 2d 499 (D.C. Cir. 1949).
Garrity v. N.J., 385 U.S. 493 (1967).
Gideon v. Wainwright, 372 U.S. 335 (1963).
Greenwell v. United States, 336 F. 2d 962 (D.C. Cir. 1964).
Griffin v. California, 380 U.S. 609 (1965).
Grosso v. U.S., 390 U.S. 62 (1968).
Haley v. Ohio, 332 U.S. 596 (1948).
Hamilton v. Alabama, 368 U.S. 52 (1961).
Harris v. South Carolina, 338 U.S. 68 (1949).
Harrison v. U.S., 392 U.S. 219 (1968).
Haynes v. Washington, 373 U.S. 503 (1963).
Hopt v. Utah, 110 U.S. 574 (1884).
Hurtado v. California, 110 U.S. 516 (1884).
In re Gault, 387 U.S. 1 (1967).
In re Groban, 352 U.S. 330 (1957).
Jackson v. Denno, 378 U.S. 368 (1964).
Johnson v. New Jersey, 348 U.S. 719 (1966).
Johnson v. Pennsylvania, 340 U.S. 881 (1950).
Johnson v. Zerbst, 304 U.S. 458 (1938).
Kahriger v. U.S., 345 U.S. 22 (1953).
King v. Warickshall, 168 Eng. Rep. 234 (1783).
Lankford v. Gelston, 364 F. 2d 197 (4th Cir. 1966).
Leyra v. Denno, 347 U.S. 556 (1954).
Lisenba v. California, 314 U.S. 219 (1941).
Lynumn v. Illinois, 372 U.S. 528 (1963).
Lyons v. Oklahoma, 322 U.S. 596 (1944).
Malinski v. New York, 342 U.S. 401 (1945).
Mallory v. U.S., 354 U.S. 449 (1957).
Malloy v. Hogan, 378 U.S. 1 (1964).
Marchetti v. U.S., 390 U.S. 39 (1968).
Massiah v. U.S., 377 U.S. 201 (1964).
Mathes v. U.S., 391 U.S. 1 (1968).
McLeod v. Ohio, 381 U.S. 356 (1965).
McNabb v. United States, 318 U.S. 332 (1943).
Miranda v. Arizona, 384 U.S. 436 (1966).
Mitchell v. U.S., 322 U.S. 65 (1944).
Payne v. Arkansas, 356 U.S. 560 (1958).
People v. Aranda, 63 Cal. 2d 518 (1965).
People v. Barrie, 49 Cal. 342 (1874).
People v. Cahan, 44 Cal. 2d 434 (1955).
People v. De Biasi, 7 N.Y. 2d 544 (1960).
People v. Ditson, 57 Cal. 2d 415 (1962).
People v. Donovan, 13 N.Y. 2d 148 (1963).
People v. Dorado, 62 Cal. 2d 338 (1965).
People v. Hamilton, 359 Mich. 410 (1960).
People v. Hartgraves, 31 111. 2d 375 (1964).
People v. Matlock, 51 Cal. 2d 682 (1959).
People v. Portelli, 15 N.Y. 2d 235 (1965).
People v. Stewart, 62 Cal. 2d 571 (1965).
People v. Wakat, 415 111. 610 (1953).
214
Pierce v. U.S., 160 U.S. 355 (1896).
Pool v. U.S., 260 F. 2d 57 (9th Cir. 1958).
Powell v. Alabama, 287 U.S. 45 (1932).
Quinn v. U.S., 349 U.S. 155 (1955).
Reck v. Pate, 367 U.S. 433 (1961).
Rex v. Rudd, 98 Eng. Rep. 1114 (1775).
Rogers v. Richmond, 365 U.S. 534 (1961).
Russo v. New Jersey, U.S. ex rel., 351 F. 2d 429 (3d Cir.,
1965).
Screws v. U.S., 325 U.S. 91 (1945).
Silverthorne Lumber Co. v. United States, 251 U.S. 385
(1920).
Snyder v. Mass., 291 U.S. 97 (1933).
Spano v. New York, 360 U.S. 315 (1959).
Sparf v. United States, 156 U.S. 51 (1895).
State v. Neely, 239 Ore. 487 (1965).
State v. Novak, 109 Iowa 717 (1899).
State v. Reed, 62 Me. 129 (1874).
State v. York, 37 N.H. 175 (1858).
Stern v. New York, 346 U.S. 156 (1953).
Stroble v. Calif., 343 U.S. 181 (1952).
Thomas v. Arizona, 356 U.S. 390 (1958).
Thomas v. Mississippi, 380 U.S. 524 (1965).
Townsend v. Sain, 372 U.S. 293 (1963).
Turner v. Pennsylvania, 338 U.S. 62 (1949).
Twinning v. New Jersey, 211 U.S. 78 (1908).
Upshaw v. United States, 335 U.S. 410 (1948).
215
U.S. v. Carignan, 342 U.S. 36 (1951).
U.S. v. Garson, 291 F. 646 (1923).
U.S. v. Kroll, 402 F. 2d 221 (3rd Cir. 1968).
U.S. v. Haupt, 136 F. 2d 661 (7th Cir. 1943).
U.S. v. Mammoth Oil Co., 14 F. 2d 705 (8th Cir. 1926).
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Vignera v. New York, 384 U.S. 436 (1966).
Walder v. United States, 347 U.S. 62 (1954).
Ward v. Texas, 316 U.S. 547 (1942).
Watts v. Indiana, 338 U.S. 49 (1949).
Weeks v. United States, 232 U.S. 383 (1914).
Westover v. U.S., 384 U.S. 436 (1966).
White v. Maryland, 373 U.S. 59 (1963).
White v. Texas, 310 U.S. 530 (1940).
Wilson v. United States, 162 U.S. 613 (1896).
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Ziang Sung Wan v. U.S., 266 U.S. 1 (1924).
APPENDICES
216
APPENDIX A
THE CITY AND THE RESPONDENTS
217
THE CITY AND THE RESPONDENTS
The City
Seaside City, California, the pseudonym for the city
studied in this undertaking, is an eight square mile enclave
in the Los Angeles metropolitan area with a population of
1 2
83,249. Only 6.2 per cent of the population is non-white,
3
and the median income is $6,845 per year. Educationally,
the residents average 12.3 years of completed school work
and 57.3 per cent finished high school.^
Although principally a residential community, a
major aircraft manufacturing facility and numerous small
manufacturing firms and sub-contracting firms are located
within its city limits. The University of California at Los
Angeles is situated near enough to make Seaside City an
^U.S. Bureau of Census, U.S. Census of Population;
1960, Vol. 1, Characteristics of~the Population, jap. 1-72.
TEe-1970 census will probably disclose that the population
now exceeds 100,000. Also, most of the other statistics,
listed above, will probably undergo alteration.
3 lb id., pp. 1-184.
3Ibid., pp. 1-341.
^Ibid., pp. 1-337. All of the above listed figures
are higher than the national median for cities in the same
category as Seaside City.
218
219
attractive place for many academicians to reside. A large
urban renewal program has been instrumental in clearing
away some of the worst slums in the beach area of Seaside
City. These slums have been replaced by luxury high rise
apartment s.
Since Seaside City is a semitropical beach city
located within a major metropolitan area, law enforcement
is a complex business. Nearly 12 million people visit its
beach recreation areas every year,"’ and its location makes
it an attractive place for social undesirables to congre
gate. Consequently, there has been a steady rise in
Seaside City's "Crime Index" over the past five years--a
rise that has kept it in the upper 5 per cent of the cities
of comparable size.^
Due to the geographic location of Seaside City, the
make-up of its residents and the fine quality of police
employed by the city, its crime patterns will not resemble
those of other cities of comparable size; therefore, one
should be very cautious about drawing generalizations from
^Seven crimes--murder, forcible rape, robbery,
aggravated assault, burglary, larceny ($50,000 and over in
value) and auto theft--are used by the FBI as an index to
measure crime. FBI. Uniform Crime Reports for the United
States--1968 (Washington, D.C.: Government Printing Office,
1969), p. 4.
^See Seaside City's Annual Report--1967-68. p. 6,
which was available at the Seaside City, City Hall.
^See FBI. Uniform Crime Reports for the United
States for the years 1964 through 1968.
220
this study and applying them to cities of comparable size.
The Department
There are 128 police officers in Seaside City,
g
exclusive of 39 civilian employees. These men are
organized into three divisions--investigation, uniform and
staff services. Twenty-five of the officers are assigned
to the detective bureau and three to the vice squad. The
department is under the supervision of a chief, who could
be categorized as a progressive "old-timer."
Although the department's salaries and benefits are
higher than the national average for municipal police
officers, the department experiences a high rate of
personnel turnover. This is probably due to the attractive
opportunities available in private industry in Southern
California. In order to offset this situation, the
Q
department has instituted a "Police Cadet" program and a
helicopter patrol.
As stated above, detectives from the Los Angeles
Police Department and the Los Angeles County Sheriff's
O
FBI. Uniform Crime Reports for the United States--
1968, n. 5, supra, p. 154.
g
Under this program, 18-25-year-old college
students are paid to work, under the supervision of veteran
officers, at a multiplicity of assignments. When the cadet
reaches the age of 21 and/or has enough college credits, he
can qualify to become a regular police officer.
221
Department were used in this undertaking in order to effect
a more representative sample. A profile of these officers
shows that on the average they were 46 years old, with 21
years of police service--of which 12 years were spent in
investigative work. Also, they had completed 2.4 years of
college.
APPENDIX B
SAMPLE QUESTIONNAIRE
222
SAMPLE QUESTIONNAIRE
1. Agency?
2. How long?
3. Age and education.
4. Why did you become a peace officer?
5. What things about your job do you like the most or
find the most interesting?
6. What changes have occurred in your working conditions
since you became a peace officer?
7. What things about your job do you like the least?
8. Do you believe court decisions have affected your
work? How? In particular, in what ways has the
Miranda decision affected your work?
9. In what ways besides getting evidence for trial is the
information from interrogations used?
10. Are there ways investigation could replace interroga
tion?
11. Do you think that there are more or less crimes of
violence being committed in Los Angeles County than
were being committed when you first became a police
officer? What do you think accounts for this?
12. Have you noticed a change in suspects' attitudes or
behavior since the Miranda decision?
13. Since you became a peace officer, has there been a
change in public opinion toward the police? What
kind; What do you think accounts for this?
14. If you had it to do over, would you still become a
peace officer? If not, why?
223
224
15. Controlling crime is one of the dominant issues in
contemporary America. Would you please rank the
following factors in the order you believe that they
deter the goal of controlling crime in Los Angeles
County.
1 - Most deterrent 5 - Least deterrent
a. Decisions of the State Appellate Courts.
b. Decisions of the Federal Appellate Courts includ
ing the Supreme Court.
c. The decisions of the trial courts and sentencing.
d. Public attitude toward crime and law enforcement.
e. The district attorney's power to institute all
felony proceedings.
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Witt, James William
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Core Title
The Impact Of The "Miranda" Decision On Police Procedures And Morale
Degree
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Political Science
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