1. Promptly and spontaneously after a housebreaking suspect had
been taken into custody by police officers and had arrived at the
police station, he admitted his guilt and consented to the
officers' recovering stolen property from his home. Held
that the admission of guilt and the property thus recovered were
admissible in evidence in a criminal prosecution in a federal
court, and that the admissibility of the evidence was not affected
by the subsequent illegal detention of the suspect for eight days
before arraignment. McNabb v. United States, 318 U.
, distinguished. P. 322 U. S.
2. The power of this Court to establish rules governing the
admissibility of evidence in the federal courts is not to be used
to discipline law enforcement officers. P. 322 U. S.
138 F.2d 426 reversed.
Certiorari, 321 U.S. 756, to review reversals, in two cases, of
convictions of housebreaking and larceny.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Under each of two indictments for housebreaking and larceny, the
defendant Mitchell was separately tried and convicted, but his
convictions were reversed by the Court of Appeals, 138 F.2d 426,
solely on the ground that the admission of testimony of Mitchell's
oral confessions and of stolen property secured from his home
through his consent was barred by our decision in McNabb v.
Page 322 U. S. 66
States, 318 U. S. 332
view of the importance to federal criminal justice of proper
application of the McNabb
doctrine, we brought the case
here. 321 U.S. 756.
Practically the whole body of the law of evidence governing
criminal trials in the federal courts has been judge-made.
See United States v.
12 How. 361, and Funk v. United
States, 290 U. S. 371
Naturally these evidentiary rules have not remained unchanged. They
have adapted themselves to progressive notions of relevance in the
pursuit of truth through adversary litigation, and have reflected
dominant conceptions of standards appropriate for the effective and
civilized administration of law. As this Court, when making a new
departure in this field, took occasion to say a decade ago, "The
public policy of one generation may not, under changed conditions,
be the public policy of another." Funk v. United States,
at 290 U. S. 381
decision was merely another expression of this
historic tradition, whereby rules of evidence for criminal trials
in the federal courts are made a part of living law, and not
treated as a mere collection of wooden rules in a game.
That case respected the policy underlying enactments of Congress
as well as that of a massive body of state legislation which,
whatever may be the minor variations of language, require that
arresting officers shall with reasonable promptness bring arrested
persons before a committing authority. Such legislation, we said in
"constitutes an important safeguard -- not only in assuring
protection for the innocent, but also in securing conviction of the
guilty by methods that commend themselves to a progressive and
self-confident society. For this procedural requirement checks
resort to those reprehensible practices known as the 'third degree'
which, though universally rejected as indefensible, still find
their way into use. It aims to avoid all the evil implications
Page 322 U. S. 67
of secret interrogation of persons accused of crime. It reflects
not a sentimental, but a sturdy, view of law enforcement. It
outlaws easy but self-defeating ways in which brutality is
substituted for brains as an instrument of crime detection. A
statute carrying such purposes is expressive of a general
legislative policy to which courts should not be heedless when
appropriate situations call for its application."
318 U.S. at 318 U. S.
In the circumstances of the McNabb
case, we found such
an appropriate situation, in that the defendants were illegally
detained under aggravating circumstances: one of them was subjected
to unremitting questioning by half a dozen police officers for five
or six hours, and the other two for two days. We held that
"a conviction resting on evidence secured through such a
flagrant disregard of the procedure which Congress has commanded
cannot be allowed to stand without making the courts themselves
accomplices in willful disobedience of law. Congress has not
explicitly forbidden the use of evidence so procured. But to permit
such evidence to be made the basis of a conviction in the federal
courts would stultify the policy which Congress has enacted into
318 U.S. at 318 U. S. 345
For like reasons, it was held in the Nardone
where wiretapping is prohibited by Congress, the fruits of illegal
wiretapping constitute illicit evidence, and are therefore
inadmissible. Nardone v. United States, 302 U.
; 308 U. S. 308
338. Inexcusable detention for the purpose of illegally extracting
evidence from an accused, and the successful extraction of such
inculpatory statements by continuous questioning for many hours
under psychological pressure, were the decisive features in the
case which led us to rule that a conviction on such
evidence could not stand.
We are dealing with the admissibility of evidence in criminal
trials in the federal courts. Review by this
Page 322 U. S. 68
Court of state convictions presents a very different situation,
confined as it is within very narrow limits. Our sole authority is
to ascertain whether that which a state court permitted violated
the basic safeguards of the Fourteenth Amendment. Therefore, in
cases coming from the state courts in matters of this sort, we are
concerned solely with determining whether a confession is the
result of torture, physical or psychological, and not the offspring
of reasoned choice. How difficult and often elusive an inquiry this
implies our decisions make manifest. And for the important relation
between illegal incommunicado detention and "third-degree"
IV, Report, National Commission on Law
Observance and Enforcement (better known as the Wickersham
Commission) (1931) pp. 4, 35 et seq.,
152, and the debates
in the House of Commons on the Savidge
case, 217 H.C.Deb.
(5th ser.1928) pp. 1216-1220, 1303-1339, 1921-1931, and Inquiry in
Regard to the Interrogation by the Police of Miss Savidge, Cmd.
3147 (1928); Report of the Royal Commission on Police Powers and
Procedure, Cmd. 3297 (1929). But, under the duty of formulating
rules of evidence for federal prosecutions, we are not confined to
the constitutional question of ascertaining when a confession comes
of a free choice and when it is extorted by force, however subtly
applied. See United States v. Oppenheimer, 242 U. S.
, 242 U. S. 88
decision was an exercise of our duty to
formulate policy appropriate for criminal trials in the federal
courts. We adhere to that decision, and to the views on which it
was based. For cases in which applications of the McNabb
doctrine by circuit courts of appeals were left unchallenged by the
Government, see United States v. Haupt,
136 F.2d 661;
Gros v. United States,
136 F.2d 878; Runnels v. United
138 F.2d 346.
Page 322 U. S. 69
But the foundations for application of the McNabb
doctrine are here totally lacking. Unlike the situation in other
for instance, §§ 25 and 26 of the Indian
Evidence Act, 1872, [Footnote
] under the prevailing American criminal procedure, as was
pointed out in the McNabb
case, "[t]he mere fact that a
confession was made while in the custody of the police does not
render in inadmissible." 318 U.S. at 318 U. S. 346
Under the circumstances of this case, the trial courts were quite
right in admitting, for the juries' judgment, the testimony
relating to Mitchell's oral confessions as well as the property
recovered as a result of his consent to a search of his home. As
the issues come before us, the facts are not in dispute, and are
In August and early October, 1942, two houses in the District of
Columbia were broken into, and from each property was stolen. The
trail of police investigation led to Mitchell, who was taken into
custody at his home at 7 o'clock in the evening on Monday, October
12, 1942, and driven by two police officers to the precinct
station. Within a few minutes of his arrival at the police station,
Mitchell admitted guilt, told the officers of various items of
stolen property to be found in his home, and consented to their
going to his home to recover the property. [Footnote 2
] It is
Page 322 U. S. 70
these admissions and that property which supported the
convictions, and which were deemed by the court below to have been
inadmissible. Obviously the circumstances of disclosure by Mitchell
are wholly different from those which brought about the disclosures
by the McNabbs. Here, there was no disclosure induced by illegal
detention, no evidence was obtained in violation of any legal
rights, but, instead the consent to a search of his home, the
prompt acknowledgment by an accused of his guilt, and the
subsequent rueing apparently of such spontaneous cooperation and
concession of guilt.
But the circumstances of legality attending the making of these
oral statements are nullified, it is suggested, by what followed.
For not until eight days after the statements were made was
Mitchell arraigned before a committing magistrate. Undoubtedly his
detention during this period was illegal. The police explanation of
this illegality is that Mitchell was kept in such custody without
protest through a desire to aid the police in clearing up thirty
housebreakings, the booty from which was found in his home.
Illegality is illegality, and officers of the law should deem
themselves special guardians of the law. But, in any event, the
illegality of Mitchell's detention does not retroactively change
the circumstances under which he made the disclosures. These, we
have seen, were not elicited through illegality. Their admission
therefore would not be use by the Government of the fruits of
wrongdoing by its officers. Being relevant, they could be excluded
only as a punitive measure against unrelated wrongdoing by the
police. Our duty in shaping rules of evidence relates to the
propriety of admitting evidence.
Page 322 U. S. 71
This power is not to be used as an indirect mode of disciplining
MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE concur in the
MR. JUSTICE BLACK dissents.
§ 25: "No confession made to a Police officer, shall be proved
as against a person accused of any offence."
§ 26: "No confession made by any person whilst he is in the
custody of a Police officer, unless it be made in the immediate
presence of a Magistrate, shall be proved as against such
In both cases, Mitchell denied the testimony of the officers
that he had in fact made prompt and spontaneous confession and
consent to the search of his home, and, on the basis of such
denial, motions were made to exclude the evidence. The trial judges
ruled that whether these statements were in fact made in the
circumstances narrated were questions of fact for the juries. As
such, they were left to the juries, and we here accept their
verdict as did the court below. Mitchell, it must be emphasized,
merely denied that he made these statements, and so did not contest
the time of making them. While at the trial there was a claim by
Mitchell that he was abused by the police officers, in the state of
the record, that issue is not here.
MR. JUSTICE REED.
As I understand McNabb v. United States, 318 U.
, as explained by the Court's opinion of today,
rule is that, where there has been illegal
detention of a prisoner, joined with other circumstances which are
deemed by this Court to be contrary to proper conduct of Federal
prosecutions, the confession will not be admitted. Further, this
refusal of admission is required even though the detention plus the
conduct do not together amount to duress or coercion. If the above
understanding is correct, it is for me a desirable modification of
However, even as explained, I do not agree that the rule works a
wise change in Federal procedure.
In my view, detention without commitment is only on factor for
consideration in reaching a conclusion as to whether or not a
confession is voluntary. The juristic theory under which a
confession should be admitted or barred is bottomed on the
testimonial trustworthiness of the confession. If the confession is
freely made without inducement or menace, it is admissible. If
otherwise made, it is not, for if brought about by false promises
or real threats, it has no weight as proper proof of guilt.
Ziang Sung Wan v. United States, 266 U. S.
, 266 U. S. 14
Wilson v. United States, 162 U. S. 613
162 U. S. 622
3 Wigmore Evidence, 1940 Ed., § 882.
As the present record shows no evidence of such coercion, I
concur in the result.