In a New York state court, a jury found the three petitioners
guilty of murder, and they were sentenced to death. The murder
allegedly was committed while petitioners, and an accomplice who
turned state's evidence, were engaged in an armed holdup. The
evidence at the trial included separate written confessions by two
of the petitioners. Each written confession implicated all three
petitioners, and all objected to introduction of each confession on
the ground that it was coerced. The trial court denied a motion by
the third petitioner that, if the confessions were admitted, all
reference to him be stricken from them. The court heard evidence in
the presence of the jury as to the issue of coercion, and left
determination of that issue to the jury, which rendered a general
verdict of guilty. The New York Court of Appeals affirmed without
opinion.
Held: There was no violation of the Fourteenth
Amendment in the proceedings, and the judgments are affirmed. Pp.
346 U. S.
159-197.
1. Petitioners were not denied a fair hearing on the coercion
issue. Pp.
346 U. S.
170-179.
(a) The Fourteenth Amendment cannot be construed as allowing
petitioners to testify to their coercion by the police without
becoming subject to any cross-examination. Pp.
346 U. S.
174-176.
(b) In the trial of a coercion issue, as of every other issue,
when the prosecution has made a case to go to the jury, an accused
must choose between the disadvantage from silence and that from
testifying. P.
346 U. S.
177.
(c) The Fourteenth Amendment does not forbid jury trial of the
issue whether a confession was coerced; nor does it forbid its
submission to a jury tentatively and with proper instructions along
with the issue of guilt, although a general verdict of guilty
Page 346 U. S. 157
does not disclose the jury's decision on the issue of coercion.
Pp.
346 U. S.
177-179.
2. On the record in this case, it did not violate the Fourteenth
Amendment if the jury resolved that the confessions were admissible
as a basis for conviction. Pp.
346 U. S.
179-188.
(a) When the issue as to whether confessions were coerced has
been fairly tried and reviewed by the courts of a State, and there
is no indication that constitutional standards of judgment have
been disregarded, this Court will accept the state's determination
of the issue, in the absence of impeachment by conceded facts. Pp.
346 U. S.
180-182.
(b) Upon the evidence in this case, the state courts could
properly find that the confessions were not obtained by physical
force or threats. Pp.
346 U. S.
182-184.
(c) Upon the evidence in this case, the state courts could
properly find that the confessions were not obtained by
psychological coercion. Pp.
346 U. S.
184-186.
(d) The illegal delay in the arraignment of petitioners did not
alone require rejection of the confessions under the Fourteenth
Amendment. Pp.
346 U. S.
186-188.
3. If the jury rejected the confessions, it could
constitutionally base a conviction on other sufficient evidence.
Pp.
346 U. S.
188-194.
(a) There was no constitutional error in the trial court's
refusal of petitioners' request for instruction to the jury that,
if it found the confessions to have been coerced, it must return a
verdict of acquittal. Pp.
346 U. S.
188-193.
(b) The submission of a confession to a state jury tentatively
and under proper instructions for judgment of the coercion issue
does not preclude a conviction on other sufficient evidence if it
rejects the confession. P.
346 U. S. 190.
(c) The other evidence of petitioners' guilt, consisting of
direct testimony of the surviving victim and of a well corroborated
accomplice, as well as incriminating circumstances unexplained, is
such that, apart from the confessions, it could not be held
constitutionally or legally insufficient to warrant the jury
verdict. Pp.
346 U. S.
190-192.
(d) The Fourteenth Amendment does not enact a rigid exclusionary
rule of evidence, rather than a guarantee against conviction on
inherently untrustworthy evidence. Pp.
346 U. S.
192-193.
(e) Whatever may have been the grounds of the New York Court of
Appeals' affirmance of the judgments in this case, the
Page 346 U. S. 158
decision here is based not upon the ground of harmless error,
but upon the ground that there was no constitutional error. Pp.
193194.
4. As to the third petitioner's objections relating to the
admissibility of the confessions to which he was not a party, there
was no constitutional error such as would justify setting aside his
conviction. Pp.
346 U. S.
194-196.
(a) The holding that it was permissible for the state courts to
find that the confessions were voluntary takes away the support for
this objection in this Court. P.
346 U. S.
194.
(b) In the light of the other testimony in the case, the
deletion of this petitioner's name from the confessions would not
have helped him. P.
346 U. S.
194.
(c) This petitioner's rights under the Fourteenth Amendment were
not infringed by the fact that he was unable to cross-examine the
confessors. P.
346 U. S.
195.
(d) The hearsay evidence rule, with all its subtleties,
anomalies and ramifications, is not embraced by the Fourteenth
Amendment. P.
346 U. S.
196.
(e) That the methods adopted by the New York courts to protect
this petitioner against any disadvantage from the use of the
confessions may not have been the most effective conceivable does
not render them violative of the Fourteenth Amendment. P.
346 U. S.
196.
5. On the record in this case, there is no justification for
reading the Fourteenth Amendment to deny the State the power to
hold these petitioners guilty. Pp.
346 U. S.
196-197.
303 N.Y. 856, 104 N.E.2d 917, affirmed.
Page 346 U. S. 159
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioners were found guilty of felony murder [
Footnote 1] by a jury in Westchester County,
New York, and sentenced to death. The New York Court of Appeals
affirmed without opinion. [
Footnote
2] We granted certiorari, because of questions raised by use of
two confessions. [
Footnote
3]
The trial lasted over seven weeks, and the record runs to more
than 3,000 pages. Evidence proffered and heard, subject to
rejection or acceptance in the judgment of the jury, included two
written confessions by petitioners Cooper and Stein, together with
testimony as to their incidental oral confessions and admissions.
Each written confession implicated all three defendants, and all
objected to introduction of each confession on the ground that it
was coerced. Wissner further moved as to each that, if Cooper's and
Stein's confessions were admitted, all reference to him be stricken
from them. T he trial court heard evidence in the presence of the
jury as to the issue of coercion, and left determination of the
question
Page 346 U. S. 160
to the jury. Petitioners claim that such use of these
confessions creates a constitutional infirmity which requires this
Court to set aside the conviction.
I
. FACTS ABOUT THE CRIME
The main office of Reader's Digest is thirty-one miles from New
York City, in the relatively rural area of northern Westchester
County, near the town of Pleasantville. From this secluded
headquarters, a truck several times each day makes a run to and
from town. On April 3, 1950, William Waterbury was driver of the
2:50 p.m. trip into Pleasantville. He picked up Andrew Petrini, a
fellow employee, and various bags containing mail, about $5,000 in
cash, and about $35,000 in checks, and started down the lonely
country roads to town. Neither was armed. After a few hundred
yards, Waterbury was cut off and halted by another truck that had
been meandering slowly in front of him. He observed a man wearing a
false nose and eyeglasses and with a revolver in his hand running
toward him. After an unsuccessful attempt to open the door, the
assailant fired one shot into Petrini's head. Waterbury was then
ordered into the back of the truck where another man tied him up.
His captors took the bag containing the money and checks and
abandoned the truck on a side road with Waterbury bound and gagged
therein. A few minutes later, he was released by a passer-by and
had Petrini hurried to the hospital, where he died shortly from the
effects of a .38 revolver bullet lodged in his skull.
Near the scene of the crime, police found the abandoned truck
used by the killers to block the way of Waterbury. It was learned
to be the property of Spring Auto Rental Co., on New York's lower
East Side, and at the time of the murder to have been out on hire
to a man who had rented the same truck on three prior occasions and
who each time had identified himself by producing
Page 346 U. S. 161
New York driver's license No. 1434549, issued to W. W. Comins,
of 228 West 47th Street, New York City. The address turned out to
be a hotel and the name fictitious. However, the police managed to
establish that the license had been procured by one William
Cooper.
It is more than a figure of speech to say that William Cooper
had an ironclad alibi: at the time of this crime, he was serving a
sentence in a federal penitentiary. Suspicion attached to members
of his family. Nearly two months ran on with no solution of the
crime, however, until, toward the end of May or the beginning of
June, when police learned that William's brother, petitioner Calman
Cooper, had served a sentence in federal prison where he was a
"working partner" and chess-playing buddy of one Brassett, who was
serving time for having rifled mails addressed to the Reader's
Digest while working in Pleasantville. It appeared that, during
their prison association, Brassett had told Calman Cooper of the
opportunity awaiting at Reader's Digest for an enterprising and
clever robber.
On June 5, 1950, police arranged for Arthur Jeppeson, who had
rented the Spring truck to "W. W. Comins," to be on a street in New
York City where they expected Calman Cooper to pass. Jeppeson
testified on the trial that Cooper recognized him and said to him
that "this truck that he rented from me was in a killing upstate,
and he had nothing to do with it. . . ." Jeppeson testified that he
then asked Cooper two questions: "Why the hell didn't you report it
to the police?" and ". . . why did he give me that license . . .?"
Cooper's reply was stated to be, "That is the license they gave him
to give me." Jeppeson further testified that Cooper had inquired if
the officers had shown him any pictures and asked him not to
identify Cooper to the police.
At the end of this conversation, on Jeppeson's signal, two
policemen closed in and arrested Cooper. That
Page 346 U. S. 162
night (2 a.m., June 6) petitioner Stein was arrested. On June 7,
about 9 a.m., petitioner Wissner was arrested. The three
petitioners were arraigned and charged with murder on the evening
of June 8. A fourth suspect, Dorfman, was sought, but remained at
large until he voluntarily surrendered on June 19, 1950.
All four were indicted for murder. When the time came for trial,
the case against Dorfman, who turned state's evidence, was severed.
A motion for separate trial by petitioner Wissner was denied, and
trial proceeded against the three remaining defendants.
Other than two alibi witnesses offered by Wissner and a
half-hearted attempt by Cooper to establish insanity, the defense
consisted almost entirely of attempts to break down the
prosecution's case. None of the defendants testified.
The confessions constituted only a part of the evidence
submitted to the jury. We can learn the context in which the
confessions were obtained by the police and received in evidence
only from a summary of the whole testimony.
Waterbury, who was in the truck with the murdered Petrini,
identified Wissner as the man who fired the shot and Stein as the
man who tied him up. [
Footnote
4] He testified that, on the 8th of June, the police brought
him to Hawthorne Barracks, and that, upon entering a room in which
Stein was present, defendant Stein pointed out Waterbury as the
driver of the truck. [
Footnote
5] On cross-examination,
Page 346 U. S. 163
he recounted that he had picked Wissner out of a lineup at
Hawthorne Barracks on June 8 and identified him as the killer.
[
Footnote 6]
Jeppeson testified that the rental truck had been let to Cooper
an April 3 and on three previous occasions, Cooper having in each
case used an alias and a false license as before stated, and having
given his occupation as "bookseller." He also testified as to his
conversation with Cooper on the morning of the latter's arrest.
Dorfman, in substance, testified that he and Wissner were
partners in an auto rental business on the lower East Side of New
York City. Cooper and Stein had approached them about six weeks
before April 3 with the suggestion that they collaborate on a
robbery at the Reader's Digest. The truck used in the killing had
been rented by Cooper on April 3 and on three previous occasions
when the conspirators had driven to Pleasantville to "case" the
area and determine whether conditions were favorable for success in
the crime. At these times, and one other, they also brought to
Pleasantville an auto
Page 346 U. S. 164
owned by the Dorfman-Wissner agency. On April 3, the four set
out for Pleasantville with the truck, the car, and a tan valise
containing three guns owned by Wissner. They left the car about a
mile from the Reader's Digest and all got in the rented truck. The
guns were distributed, Dorfman getting a black automatic and
Wissner a nickel-plated revolver. The holdup proceeded in the
manner described by Waterbury. Dorfman heard a short during the
holdup, but did not see who fired it. On the way back, however,
Wissner expressed regret at the necessity of shooting the guard.
The defendants threw away their guns, left the Reader's Digest
truck, with Waterbury tied up inside, on a side road and left the
rental truck at the place where the car had been parked during the
commission of the crime. They drove back toward New York in the
car. When they got to the Bronx, they parked the car and went on by
subway and taxicab to Dorfman's apartment in Brooklyn, where they
divided up the proceeds and separated. Subsequently, Dorfman and
one Homishak went up to the Bronx and picked up the car.
Under New York law, Dorfman's testimony, since he was an
accomplice, required corroboration. [
Footnote 7] It was afforded in the following ways: (1)
Mrs. Dorfman testified that Cooper, Stein and Wissner had come to
her apartment with her husband on the evening of April 3 and that
they carried with them the tan valise which Dorfman had identified
as that used on the robbery. It was established by police testimony
that this valise had been found in June in Dorfman's apartment,
and, when searched, was found to contain a fragment of paper from
an order form used by the Reader's Digest in April of
Page 346 U. S. 165
1950 -- an order form to which subscribers frequently attached
cash in such manner that, on removal of the cash, a portion of the
order form would come with it. (2) Police testified that Dorfman's
automatic was found near the area where he said that he had thrown
it away on April 3. (3) It was established that Petrini was killed
by a bullet from a .38 revolver. (4) Homishak testified that he saw
Dorfman in the company of the three petitioners on April 3,
[
Footnote 8] and that he
accompanied Dorfman to the Bronx to pick up the car that night. (5)
An employee of the Reader's Digest at Pleasantville testified that
he had seen the Spring Rental truck on the premises on April 3 and
on one prior occasion. (6) Jeppeson's testimony substantiated
Dorfman's story about rental of the truck. [
Footnote 9] It was established that Cooper had absented
himself from his job on April 3. (8) Waterbury's testimony about
the events of April 3 and identification of Stein and Wissner
checked with Dorfman's story. (9) The two confessions, if accepted
by the jury, also were corroborative of the accomplice Dorfman in
many details.
The defendants made no attempt to contradict or explain away any
of this damaging testimony. Cooper's counsel, during a colloquy
with the court, admitted that Cooper had rented the truck involved
on April 3, and offered no explanation as to how this fact could be
consistent with his client's claim of innocence. An effort
Page 346 U. S. 166
was made on summation to convince the jury that Dorfman, who did
not have a prior criminal record, was the killer, and had accused
these other three, with his wife's cooperation, in order to save
his own life. The tenor of the defense appears from Cooper's
counsel on summation:
"I don't care whether Cooper is innocent or guilty, that is
insignificant in the solution of the fundamental problem as to
whether the state troopers and other enforcing authorities
themselves have violated far more fundamental principles. . .
."
". . . Don't narrow yourselves into a mere solution of a petty
murder. . . . Of course, we want a solution to that, but that is
secondary, if the solution of that means that you are going to
weaken the very foundations of the republic; then you would be
unfit to be jurors."
Wissner's counsel devoted about half of his summation to arguing
that the murder was not "premeditated" -- a point without legal
significance in felony murder under New York law.
II
. FACTS ABOUT THE CONFESSIONS
Against this background, we come to the controversy over the
confessions. Uncontroverted evidence establishes the following:
Cooper. -- Cooper, who made the first and most crucial
confession, was arrested by the state police at 9 o'clock on Monday
morning, June 5, under circumstances previously described. His
father, who was with him at the time, also was arrested. Both were
taken to a police station in New York City, where they were held
(but not booked) until early in the afternoon. Thence, they were
taken to state police headquarters at Hawthorne, in Westchester
County, the county of the offense, arriving at about 2 o'clock.
Page 346 U. S. 167
At Hawthorne, the Coopers were separated; the father was
detained in the police barracks, and the son was taken to an office
across the courtyard, known as the Bureau of Identification room,
where Cooper's interrogation and his ultimate confession took
place.
Although Cooper was continuously under guard and handcuffed, no
one questioned him until 8 p.m., at which time three officers
interrogated him for four or five hours. During this period, Cooper
was confronted with his former prison mate, Brassett. However, he
did not confess. Questioning was resumed the following day
(Tuesday) at 10 a.m., and continued until 6 p.m., the same three
officers participating. Just after 6 p.m., Cooper began to discuss
confessing. At this time, his father was being held at Howthorne;
his brother Morris had been arrested in New York, where his mere
presence violated terms of his parole and rendered him subject to
disciplinary action. Cooper first obtained a commitment by the
police that his father would be released if he confessed. He then
asked to see an official of the Parole Board in order to obtain
assurance that, if he confessed, his brother Morris would not be
prosecuted for parole violation. Accordingly, about 8 p.m.,
Reardon, an employee of the Parole Board, came to see Cooper, but
the latter was not satisfied with his interview. Reardon's
superior, Parole Commissioner Donovan, was sent for. Donovan
arrived at about 10 p.m., and gave Cooper satisfactory assurance
that Morris would be unmolested if Cooper "cooperated." Cooper then
confessed orally to Reardon and Donovan. Thus, the confession was
first imparted not to the police who are charged with brutality,
but to visiting parole officials not so accused, and called in at
his own request. Thereupon, a typewritten confession was prepared
which Cooper signed after making certain corrections, at about 1:30
or 2 on the morning of the 7th. It is twelve pages long, in great
detail; it is
Page 346 U. S. 168
corroborated throughout by other evidence, and its general
character is such that it could have been fabricated only by a
person gifted with extraordinarily creative imagination.
Stein. -- Stein was arrested at his brother's home at 2
a.m. on the morning of the 6th, before Cooper confessed. He was
taken immediately to Hawthorne Barracks, and confined in a room in
the basement. The following morning, Captain Glasheen, commandant
at the barracks, questioned him for an hour. After lunch,
questioning was resumed, with another officer joining in the
questioning, and continued for two or three hours. That evening,
Captain Glasheen returned and interrogated Stein from 7 p.m. until
2 a.m., with no result. At 2 a.m., Stein was informed about
Cooper's confession, and left with the advice to "sleep on it." The
following morning, Stein was ready to confess. By afternoon, a
statement had been prepared, corrected and signed. This seven-page
statement, like Cooper's, was so complete and detailed and so
dovetailed with the extrinsic evidence that, if it were not true,
its author was possessed of amazing powers of divination.
The following day, Stein went to Pleasantiville with two
officers, and explained on the ground how the crime had been
committed.
Wissner. -- Wissner was arrested about 9 a.m. on June 7
-- subsequent to Cooper's confession, which implicated him -- and
taken to Hawthorne, where he remained until his arraignment. He
made no confession.
There is no direct testimony that petitioners were subjected to
physical violence or the threat of it during their detention.
[
Footnote 10] None of the
defendants took the witness
Page 346 U. S. 169
stand to substantiate their claims. With one exception, every
police officer who had contact with Cooper or Stein during
detention was or could have been questioned about it by the
defense. The exception came into contact with Stein only, and was
not shown to have been with him except in the presence of others
who were witnesses. Thus, police testimony was consistent and
unshaken that no violence or threats were used, that the accused
were given food at mealtimes and, with the exceptions we have
stated, were allowed to sleep at night.
The defendants' contentions as to physical violence rest
entirely on circumstantial evidence. They would be utterly without
support except for inferences, which they urge, from the admitted
fact that, when first physically examined the day after
arraignment, they showed certain bruises and injuries which could
have been sustained from violent "third-degree" methods. On the
morning of June 9, they were examined by the prison physician.
Cooper had been in custody at the barracks between three and four
days, Stein three days, and Wissner two days.
Testimony by the prison doctor who examined them predicated
mainly on the notes he made at that time was that Wissner had a
broken rib and various bruises and
Page 346 U. S. 170
abrasions on the side, legs, stomach and buttocks; Cooper had
bruises on the chest, stomach, right arm, and both buttocks; Stein
had a bruise on his right arm. Counsel for the petitioners, who
examined them on the 9th and 10th of June, testified that then
injuries sustained by each were more extensive than those described
in the doctor's testimony.
The record stands that the injuries were of such nature that
they might have been received prior to arrest; [
Footnote 11] indeed, one of the petitioners
-- Wissner, who exhibited perhaps the worst of the injuries but
never confessed -- was undergoing treatment at the time he was
arrested. [
Footnote 12]
III
. CONSTITUTIONALITY OF PROCEDURES EMPLOYED BELOW
In the setting of these facts, the constitutional issues raised
by petitioners involve procedural features not heretofore
adjudicated by this Court. In view of the uncontradicted direct as
well as circumstantial evidence against the defendants, the part,
if any, played by the confessions in the conviction is uncertain.
The jury was instructed to consider the confessions only if it
found them to have been voluntary. It rendered a general verdict of
guilty.
Under these circumstances, we cannot be sure whether the jury
found the defendants guilty by accepting and relying, at least in
part, upon the confessions or whether it rejected the confessions
and found them guilty on the other evidence. Indeed, except as we
rely upon a presumption that the jurors followed instructions, we
cannot
Page 346 U. S. 171
know that some jurors may not have acted upon one basis, while
some convicted on the other. Also, since the Court of Appeals
affirmed without opinion, we are not certain whether it did so on
the ground that the confessions were properly relied on or that,
even without them, the verdict was adequately supported. [
Footnote 13]
The New York procedures in this case therefore must be examined
not only as to their own constitutionality, but as to their
consequence if valid, and the weight to be given to conclusions so
reached.
The ideal of fair procedure was self-imposed by New York long
before it was imposed upon her. New York's Constitution has
enjoined observance of due process of law at least since 1821,
[
Footnote 14] and statute
law has provided for exclusion from evidence of coerced confessions
since 1881. [
Footnote 15]
The Court of Appeals is charged by the State with ultimate
authority in such a case as this to adjudge and redress violations
of that mandate.
Their appeal, taken as matter of right, afforded petitioners a
review with a latitude much wider than is permitted to us. That
court, in a death case, is empowered by statute to order a new
trial for errors of law, or if the
Page 346 U. S. 172
conviction is found to be "against the weight of evidence", or
if the court is satisfied for any reason whatever "that justice
requires a new trial". [
Footnote
16] Even where it finds that the jury could "reasonably credit
the denial of the police", if it considers that the prosecution had
failed to produce all reasonably available evidence to clear
charges of coercion, it will order "a new trial, where there can be
a more adequate search for the truth."
People v. Mummiani,
258 N.Y. 394, 403, 180 N.E. 94, 97, 98.
Although, even within this range, the Court of Appeals found no
cause for upsetting this conviction, our review penetrates its
judgment and searches the record in the trial court.
The procedure adopted by New York for excluding coerced
confessions relies heavily on the jury. It requires a preliminary
hearing as to admissibility, but does not permit the judge to make
a final determination that a confession is admissible. He may --
indeed, must -- exclude any confession if he is convinced that it
was not freely made or that a verdict that it was so made would be
against the weight of evidence. But, while he may thus cast the die
against the prosecution, he cannot do so against the accused. If
the voluntariness issue presents a fair question of fact, he must
receive the confession and leave to the jury, under proper
instructions, the ultimate determination of its voluntary character
and also its truthfulness.
People v. Weiner, 248 N.Y. 118,
161 N.E. 441. The judge is not required to exclude the jury while
he hears evidence as to voluntariness,
People v. Brasch,
193 N.Y. 46, 85 N.E. 809, and perhaps is not permitted to do so,
People v. Randazzio, 194 N.Y. 147, 159, 87 N.E. 112,
117.
The trial court held a preliminary hearing as to admissibility
of these confessions before the jury. No defendant
Page 346 U. S. 173
objected or requested hearing with the jury absent. The court
advised counsel for each defendant that he might cross-examine all
witnesses called by the State and offer any on his own behalf, and
both privileges were exercised. The judge ruled that a question of
fact resulted, which he submitted under instructions which
authorized the jury to find the confessions coerced not only
because of "force and intimidation and fear," but also for any
"implied coercion because of the manner in which they [the
confessors] were kept in custody," and, on both grounds, the burden
to prove beyond reasonable doubt was placed upon the State.
[
Footnote 17]
Page 346 U. S. 174
New York procedure does not leave the outcome finally to the
caprice of a lay jury, unfamiliar with the techniques of trial
practice. The trial judge, too, has a heavy responsibility
resulting from broad powers to set aside a verdict if he thinks the
evidence does not warrant it. [
Footnote 18] Petitioners submitted such a motion, which
the judge denied, thus adding the weight of his own approval to the
jury verdict.
An attack on the fairness of New York procedure is that
petitioners could not take the witness stand to support, with their
own oaths, the charges their counsel made against the state police
without becoming subject to general cross-examination. State law on
the subject is disputed and uncertain. It is clear that the Court
of Appeals would not have held it error had such witnesses been
subjected to general cross-examination. [
Footnote 19] Respondents, however, contend, and
petitioners deny, that it is the practice of trial courts to limit
cross-examination under these circumstances, and each cites records
of prosecutions to confirm firm its position.
It is not impossible that cross-examination could be employed so
as to work a denial of due process. But no basis is laid for such a
contention here. Appellate courts
Page 346 U. S. 175
leave an exceptional discretion to trial courts to prevent abuse
and injustice. But here, the defendants took no step which would
call for or permit an exercise of such discretion. They made no
request for a ruling by the trial court, and made no offer or
suggestion of readiness to testify, however restricted the
cross-examination might be. [
Footnote 20] We do not know whether, or how far, the
court would have permitted any line of cross-examination, nor what
specific limitation defendants would have claimed. We will not
adjudge a trial court guilty of constructive abuse by imputing to
it a ruling that never was made on a proposition that never was put
to it.
Petitioners' attack is so unbounded and unqualified that it
could prevail only if the Fourteenth Amendment were construed to
allow them to testify to their coercion by the police, shielded
from any cross-examination whatever. If they had given such
testimony, it would have been in direct conflict with that of the
police, and the decision would depend on which was believable.
Certainly the Constitution does not prohibit tests of credibility
which American law uniformly applies to witnesses. If in open
court, free from violence or threat of it, defendants had been
obliged to admit incriminating facts, it might bear on the
credibility of their claim that the same facts were admitted to the
police only in response to beating. And if they became
Page 346 U. S. 176
witnesses, does the Constitution compel the State to forego
attack on their credibility by showing former convictions? We now
know that each had an impressive felony record, one including
murder and another perjury. [
Footnote 21] Doubtless, to have testified would have
resulted in disclosing this to the jury, while silence would keep
it from being brought to light until after the verdict. We think,
on any realistic view of this case, they stayed off the stand not
because the State would subject them to any improper
cross-examination, but because their records made them vulnerable
to any proper one.
The State did not seek to draw any inference adverse to
defendants from their choice of silence,
cf. Adamson v.
California, 332 U. S. 46,
beyond the obvious fact that their confessions have not been
repudiated, their charge of police violence is left without
testimonial support, and
Page 346 U. S. 177
the police account of the confessions is undenied. In trial of a
coercion issue, as of every other issue, when the prosecution has
made a case to go to the jury, an accused must choose between the
disadvantage from silence and that from testifying. The
Constitution safeguards the right of a defendant to remain silent;
it does not assure him that he may remain silent and still enjoy
the advantages that might have resulted from testifying. We cannot
say that petitioners have been denied a fair hearing of the
coercion charge.
Petitioners suffer a disadvantage inseparable from the issues
they raise in that this procedure does not produce any definite,
open and separate decision of the confession issue. Being cloaked
by the general verdict, petitioners do not know what result they
really are attacking here. For all we know, the confession issue
may have been decided in their favor. The jury may have agreed that
the confessions were coerced, or at least that the State had not
met the burden of proving beyond a reasonable doubt that they were
voluntary. If the method of submission is, as we believe,
constitutional, it leaves us to review hypothetical
alternatives.
This method of trying the coercion issue to a jury is not
informative as to its disposition. Sometimes the record permits a
guess or inference, but where other evidence of guilt is strong, a
reviewing court cannot learn whether the final result was to
receive or to reject the confessions as evidence of guilt. Perhaps
a more serious, practical cause of dissatisfaction is the absence
of any assurance that the confessions did not serve as makeweights
in a compromise verdict, some jurors accepting the confessions to
overcome lingering doubt of guilt, others rejecting them but
finding their doubts satisfied by other evidence, and yet others or
perhaps all never reaching a separate and definite conclusion as to
the confessions, but returning an unanalytical and impressionistic
verdict
Page 346 U. S. 178
based on all they had heard. Courts uniformly disapprove
compromise verdicts, but are without other means than admonitions
to ascertain or control the practice. Defendants, when two or more
issues are submitted, are entitled to instructions appropriate to
discountenance, discourage and forbid such practice. However, no
question is raised in this respect as to the charge in this
case.
In civil cases, certainty and exposure of the process is
sometimes sought by the special verdict or by submission of
interrogatories.
E.g., Fed.Rules Civ.Proc., 49. But no
general practice of these techniques has developed in American
criminal procedure. Our own Rules of Criminal Procedure make no
provision for anything but a general verdict. Indeed, departure
from this has sometimes been resisted as an impairment of the right
to trial by jury,
see People v. Tessmer, 171 Mich. 522,
137 N.W. 214;
State v. Boggs, 87 W.Va. 738, 106 S.E. 47,
which usually implies one simple general verdict that convicts or
frees the accused.
Nor have the courts favored any public or private post-trial
inquisition of jurors as to how they reasoned, lest it operate to
intimidate, beset and harass them. This Court will not accept their
own disclosure of forbidden quotient verdicts in damage cases.
McDonald v. Pless, 238 U. S. 264. Nor
of compromise in a criminal case whereby some jurors exchanged
their convictions on one issue in return for concession by other
jurors on another issue.
Hyde v. United States,
225 U. S. 347.
"If evidence thus secured could be thus used, the result would
be to make what was intended to be a private deliberation the
constant subject of public investigation, to the destruction of all
frankness and freedom of discussion and conference."
McDonald v. Pless, supra, at
238 U. S.
267-268.
But this inability of a reviewing court to see what the jury has
really done is inherent in jury trial of any two or more issues,
and departure from instruction is a risk
Page 346 U. S. 179
inseparable from jury secrecy and independence. The uncertainty,
while the cause of concern and dissatisfaction in the literature of
the profession, does not render the customary jury practice
unconstitutional.
The Fourteenth Amendment does not forbid jury trial of the
issue. The states are free to allocate functions as between judge
and jury as they see fit.
Cf. Walker v. Sauvinet,
92 U. S. 90;
Minneapolis & St. L. R. Co. v. Bombolis, 241 U.
S. 211. Many states emulate the New York practice,
[
Footnote 22] while others
hold that presence of the jury during preliminary hearing is not
error. [
Footnote 23] Despite
the difficult problems raised by such jury trial, we will not
strike down as unconstitutional procedures so long established and
widely approved by state judiciaries, regardless of our personal
opinion as to their wisdom.
We have, therefore, to consider the constitutional effect of
both alternatives left to the jury by the court's instruction,
assuming it to have followed one or the other. They involve very
different considerations, and are best discussed separately.
IV
. WAS IT UNCONSTITUTIONAL IF THESE CONFESSIONS
WERE USED AS THE BASIS OF CONVICTION?
Since these convictions may rest in whole or in part upon the
confessions, we must consider whether they are a constitutionally
permissible foundation for a finding of guilt.
Inquiries on which this Court must be satisfied are: (1) Under
what circumstances were the confessions obtained? (2) Has the use
of the confessions been repugnant to "that fundamental fairness
essential to the very concept of justice"?
Lisenba v.
California, 314 U. S. 219,
Page 346 U. S. 180
314 U. S. 236.
The first is identical with that litigated before the trial court
and jury. The second is within, if not identical with, those
questions considered by the state appellate court. As to both
questions, we have the identical evidence that was before both
state courts. At the threshold of our inquiry, therefore, lies the
question: what, if any, weight do we give to the verdict of the
jury, the rulings of the trial judge and the determination of the
state appellate court?
Petitioners' argument here essentially is that the conclusions
of the New York judges and jurors are mistaken, and that, by
reweighing the same evidence, we, as a superjury, should find that
the confessions were coerced. This misapprehends our function and
scope of review, a misconception which may be shared by some state
courts, with the result that they feel a diminished sense of
responsibility for protecting defendants in confession cases.
[
Footnote 24]
Page 346 U. S. 181
Of course, this Court cannot allow itself to be completely bound
by state court determination of any issue essential to decision of
a claim of federal right, else federal law could be frustrated by
distorted fact finding. But that does not mean that we give no
weight to the decision below, or approach the record
de
novo or with the latitude of choice open to some state
appellate courts, such as the New York Court of Appeals. Mr.
Justice Brandeis, for this Court, long ago warned that the
Fourteenth Amendment does not, in guaranteeing due process, assure
immunity from judicial error.
Milwaukee Electric Railway &
Light Co. v. Milwaukee, 252 U. S. 100,
252 U. S. 106.
It is only miscarriages of such gravity and magnitude that they
cannot be expected to happen in an enlightened system of justice,
or be tolerated by it if they do, that cause us to intervene to
review, in the name of the Federal Constitution, the weight of
conflicting evidence to support a decision by a state court.
It is common courtroom knowledge that extortion of confessions
by "third-degree" methods is charged falsely, as well as denied
falsely. The practical problem is to separate the true from the
false. Primary, and in most cases final, responsibility for
determining contested facts rests, and must rest, upon state trial
and appellate courts.
A jury and the trial judge -- knowing local conditions, close to
the scene of events, hearing and observing the witnesses and
parties -- have the same undeniable advantages over any appellate
tribunal in determining the charge of coercion of a confession as
in determining the
Page 346 U. S. 182
main charge of guilt of the crime. When the issue has been
fairly tried and reviewed, and there is no indication that
constitutional standards of judgment have been disregarded, we will
accord to the state's own decision great and, in the absence of
impeachment by conceded facts, decisive respect.
Gallegos v.
Nebraska, 342 U. S. 55,
342 U. S. 60;
Lyons v. Oklahoma, 322 U. S. 596,
322 U. S.
602-603;
Lisenba v. California, 314 U.
S. 219.
Accordingly, we accept this verdict and judgment as a
permissible resolution of contradictions in evidence or conflicting
inferences unless, as is urged, undisputed facts indicate use of
incorrect constitutional standards of judgment. This may best be
determined by separate examination of the following conclusions,
implicit in the judgments below: (1) that these confessions were
not extorted by physical coercion; (2) that these confessions were
not extorted by methods which, though short of physical coercion,
were so oppressive as to render the confessions inadmissible; and
(3) that admitted illegal detention of petitioners at the time of
the confessions did not render them inadmissible.
1.
Physical violence. -- Physical violence or threat of
it by the custodian of a prisoner during detention serves no lawful
purpose, invalidates confessions that otherwise would be
convincing, and is universally condemned by the law. When present,
there is no need to weigh or measure its effects on the will of the
individual victim. The tendency of the innocent, as well as the
guilty, to risk remote results of a false confession rather than
suffer immediate pain is so strong that judges long ago found it
necessary to guard against miscarriages of justice by treating any
confession made concurrently with torture or threat of brutality as
too untrustworthy to be received as evidence of guilt.
Admitted injuries and bruises on defendants' bodies after
arraignment were mute but unanswerable witnesses
Page 346 U. S. 183
that their persons recently had been subjected to violence from
some source. Slight evidence, even interested testimony, that it
occurred during the period of detention or at the hands of the
police, or failure by the prosecution to meet the charge with all
reasonably available evidence, might well have tipped the scales of
decision below. [
Footnote
25] Even here, it would have force if there were any evidence
whatever to connect the admitted injuries with the events or period
of interrogation. But there is no such word in the record.
On the contrary, we have positive testimony of the police, not
materially inconsistent or inherently improbable, unshaken on
cross-examination. The only expert testimony on the subject is
undisputed, and is that the injuries may have been sustained before
arrest. This becomes more than a possibility when we consider that
neither defendants nor anyone else tell us what defendants were up
to in the period just prior to arrest. We are not convinced from
their criminal records and way of life as now known to us, though
not to the jury, that their free days or nights were secure from
violence. This, with the whole evidence concerning the confessions,
leaves us no basis for throwing out the decisions of the courts
below unless we simply prefer the unsworn claims of defendants'
counsel against the evidence.
As to the inferences to be drawn from unexplained injuries,
under these circumstances, we should defer to the advantages of
trial judge and jury. For seven weeks, they observed the day-to-day
demeanor of defendants, their attitudes and reactions; all the
knowledge we have of their personalities is still photographs of
two of them. The trial judge and jury also for long periods could
observe the police officers whose conduct was in question, knew not
only what they answered but how they answered,
Page 346 U. S. 184
could form some opinions of their attitudes -- of the personal
characteristics which never can get into a printed record but which
make for belief or unbelief that they were guilty of cruelty and
violence.
We determine that the state court could properly find that the
confessions were not obtained by physical force or threats.
2.
Psychological coercion. -- Psychological coercion is
claimed as a secondary contention. It is urged that admitted facts
show psychological pressure by interrogation, such as to overpower
these petitioners' mental resistance and induce involuntary
confessions. Of course, a process of interrogation can be so
prolonged and unremitting, especially when accompanied by
deprivation of refreshment, rest or relief, as to accomplish
extortion of an involuntary confession.
But the inquiry as to such allegations has a different point of
departure. Interrogation is not inherently coercive, as is physical
violence. Interrogation does have social value in solving crime, as
physical force does not. By their own answers, many suspects clear
themselves, and the information they give frequently points out
another who is guilty. Indeed, interrogation of those who know
something about the facts is the chief means to solution of crime.
The duty to disclose knowledge of crime rests upon all citizens. It
is so vital that one known to be innocent may be detained, in the
absence of bail, as a material witness. [
Footnote 26] This Court never has held that the
Fourteenth Amendment prohibits a state from such detention and
interrogation of a suspect as under the circumstances appears
reasonable and not coercive.
Of course, such inquiries have limits. But the limits are not
defined merely by calling an interrogation an "inquisition,"
Page 346 U. S. 185
which adds to the problem only the emotions inherited from
medieval experience. The limits in any case depend upon a weighing
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.
Both Stein and Cooper confessed only after about twelve hours of
intermittent questioning. In each case this, was stretched out over
a 32-hour period, with the suspect sleeping and eating in the
interim. In the case of Cooper, a substantial part of this time he
spent driving a bargain with the police and the parole officers. It
also is true that the questioning was by a number of officers at a
time and by different officers at different times. But we cannot
say that the use of successive officers to question these
petitioners for the periods of time indicated is so oppressive as
to overwhelm powers of resistance. While we have reversed
convictions founded on confessions secured through interrogations
by "relays," [
Footnote 27]
we have also sustained conviction when, under different
circumstances, the relay technique was employed. [
Footnote 28] But we have never gone so far
as to hold that the Fourteenth Amendment requires a one-to-one
ratio between interrogators and prisoners, or that extensive
questioning of a prisoner automatically makes the evidence he gives
in response constitutionally prohibited.
The inward consciousness of having committed a murder and a
robbery and of being confronted with evidence of guilt which they
could neither deny nor explain seems enough to account for the
confessions here. These men were not young, soft, ignorant or
timid. They were not
Page 346 U. S. 186
inexperienced in the ways of crime or its detection, nor were
they dumb as to their rights. At the very end of his interrogation,
the spectacle of Cooper naming his own terms for confession,
deciding for himself with whom he would negotiate, getting what he
wanted as a consideration for telling what he knew, reduces to
absurdity his present claim that he was coerced into confession. Of
course, these confessions were not voluntary in the sense that
petitioners wanted to make them or that they were completely
spontaneous, like a confession to a priest, a lawyer, or a
psychiatrist. But, in this sense, no criminal confession is
voluntary.
Cooper's and Stein's confessions obviously came when they were
convinced that their dance was over and the time had come to pay
the fiddler. Even then, Cooper was so far in control of himself and
the situation as to dictate the
quid pro quo for which he
would confess. That confession came at a time when he must have
known that the police already knew enough, from Jeppeson and
Brassett, to make his implication inevitable. Stein held out until
after Cooper had confessed and implicated him. [
Footnote 29] Both confessions were
"voluntary" in the only sense in which confessions to the police by
one under arrest and suspicion ever are. The state court could
properly find an absence of psychological coercion.
3.
Illegal detention. -- Illegal detention alone is
said to void these confessions. All three of the prisoners were
held incommunicado at the barracks until the evening of June 8,
when they were taken before a nearby magistrate and arraigned. This
delay in arraignment was held by the trial judge to be unreasonable
as a matter
Page 346 U. S. 187
of law and a violation of the statutes of the State of New York.
[
Footnote 30] However, such
delay does not make a confession secured during such period of
illegal detention necessarily inadmissible as a matter of New York
law. [
Footnote 31]
To delay arraignment, meanwhile holding the suspect
incommunicado, facilitates and usually accompanies use of
"third-degree" methods. Therefore, we regard such occurrences as
relevant circumstantial evidence in the inquiry as to physical or
psychological coercion. As such, it was received and the jury was
instructed to consider it in this case. But the petitioners'
contention here goes farther -- it is that the delayed arraignment
compelled the rejection of the confessions.
Petitioners confuse the more rigid rule of exclusion which, in
the exercise of our supervisory power, [
Footnote 32] we have promulgated for federal courts
with the more limited requirements of the Fourteenth Amendment.
[
Footnote 33] This, we have
held, did not impose rules of evidence on state courts which bind
them to exclude a confession because, without
Page 346 U. S. 188
coercion, it was obtained while a prisoner was uncounseled and
illegally detained.
Stroble v. California, 343 U.
S. 181,
343 U. S. 197;
Lisenba v. California, 314 U. S. 219.
From the foregoing considerations, we conclude that, if the jury
resolved that the confessions were admissible as a basis for
conviction, it was not constitutional error.
V
. IF THE JURY REJECTED THE CONFESSIONS, COULD IT
CONSTITUTIONALLY BASE A CONVICTION
ON OTHER SUFFICIENT EVIDENCE?
Petitioners raised this question by a request for instruction to
the jury that, if it found the confessions to have been coerced, it
must return a verdict of acquittal. This was refused. Their
principal authority for the requested charge is
Malinski v. New
York, 324 U. S. 401,
which was tried by the same procedure followed here. This Court
reversed the conviction, and the opinion of four justices said of
the confession found therein to have been coerced, (p. 404):
"And if it is introduced at the trial, the judgment of
conviction will be set aside even though the evidence apart from
the confession might have been sufficient to sustain the jury's
verdict."
Similar expressions are to be found in other cases.
It is hard to see why a jury should be allowed to return a
verdict which cannot be allowed to stand. If having heard an
illegally obtained confession prevents a legal verdict of guilty on
other sufficient evidence, why permit return of one foredoomed to
be illegal? The alternative, of course, is an acquittal, which is
what petitioners asked.
The claim is far-reaching. There can be no jury trial of the
coercion issue without bringing to the knowledge of the jurors the
fact of confession, and usually its contents. But American practice
has evolved no technique for learning, through special verdict or
otherwise, what part the knowledge plays in the result. Hence, the
dilemma of this case is always present, if not presented in
Page 346 U. S. 189
earlier cases. If this uncertainty invalidates any conviction or
requires an acquittal, it is a grave matter, for most states, like
New York, permit no prosecution after acquittal. [
Footnote 34] This would go far toward
making it impracticable to submit the issue of coercion to the
jury, a traditional practice assumed on the whole to be of
advantage to the defense and an additional protection to the
accused.
The claim also is novel. This Court never has decided that
reception of a confession into evidence, even if we held it to be
coerced, requires an acquittal or discharge of a defendant. On the
contrary, this Court has returned all such cases for retrial, which
we should not have done if obtaining and attempted use of a coerced
confession were enough to require acquittal.
It is not deniable, that apart from the
Malinski
statement, there have been other similar utterances.
Lyons v.
Oklahoma, 322 U. S. 596,
322 U. S. 597
(footnote);
Stroble v. California, 343 U.
S. 181,
343 U. S. 190;
Gallegos v. Nebraska, 342 U. S. 55,
342 U. S. 63. It
is clear, however, that these statements were dicta about a
proposition not essential to the result, since, in each instance,
those confessions were sustained and the convictions affirmed. And,
of course, the present consequences were not asserted or argued at
the bar, nor anticipated or approved by anything appearing in the
opinions.
Except in
Malinski, the question presented here could
not have been raised or decided. This Court's power to reverse such
a conviction was first exerted in
Brown v. Mississippi,
297 U. S. 278, in
which the only evidence in the trial consisted of a confession
admittedly secured through mob violence. The Court there reasoned
that, if the defendant's "trial" consisted solely of the
introduction of such evidence, he had only a "mere pretense" of a
trial; the actual trial had occurred during the extortion of the
confession, and the subsequent proceeding
Page 346 U. S. 190
was only a formal ratification of the mob's action. Such a
proceeding would be a violation of the Due Process Clause under
even the most restricted view. In
Ashcraft v. Tennessee,
322 U. S. 143,
322 U. S. 145,
and
Ward v. Texas, 316 U. S. 547, we
noted that, without the confession, there could be no conviction.
And, in
Lyons, there was no credible evidence of guilt in
the record except the confession; in the
Gallegos case, it
is noted that conviction without the confession "would logically
have been impossible,"
342 U. S. 60,
and this Court therefore assumed that the jury found the statements
voluntary.
Against this factual background, we do not think our cases
establish that to submit a confession to a state jury for judgment
of the coercion issue automatically disqualifies it from finding a
conviction on other sufficient evidence, if it rejects the
confession. [
Footnote 35]
Here, the evidence of
Page 346 U. S. 191
guilt, consisting of direct testimony of the surviving victim,
Waterbury, and the well corroborated accomplice, Dorfman, as well
as incriminating circumstances unexplained, is enough apart from
the confessions so that it could not be held constitutionally or
legally insufficient to warrant the jury verdict. Indeed, if the
confession had been omitted and the convictions rested on the other
evidence alone, we would find no grounds to review, not to mention
to reverse, it.
We would have a different question if the procedure had been
that which may have been in mind when some of our cases were
written. Of course, where the judge makes a final determination
that a confession is admissible and sends it to the jury as a part
of the evidence to be considered on the issue of guilt and the
ruling admitting
Page 346 U. S. 192
the confession is found on review to be erroneous, the
conviction, at least normally, should fall with the confession.
But here, the confessions are put before the jury only
tentatively, subject to its judgment as to voluntariness and with
binding instructions that they be rejected and ignored unless found
beyond reasonable doubt to have been voluntary. By petitioners'
hypothesis on this point, the jury itself rejected the confession.
The ample other evidence makes this a possible, if not very
convincing, explanation of the verdict. By the very assumption,
however, there has been no error, for the confession finally was
rejected as the free choice of the jury.
We could hold that such provisional and contingent presentation
of the confessions precludes a verdict on the other sufficient
evidence after they are rejected only if we deemed the Fourteenth
Amendment to enact a rigid exclusionary rule of evidence, rather
than a guarantee against conviction on inherently untrustworthy
evidence. We have refused to hold it to enact an exclusionary rule
in the case of other illegally obtained evidence.
Wolf v.
Colorado, 338 U. S. 25;
Schwartz v. Texas, 344 U. S. 199;
Snyder v. Massachusetts, 291 U. S. 97.
See Adamson v. California, 332 U. S.
46;
United States v. Carignan, 342 U. S.
36. Coerced confessions are not more stained with
illegality than other evidence obtained in violation of law. But
reliance on a coerced confession vitiates a conviction because such
a confession combines the persuasiveness of apparent conclusiveness
with what judicial experience shows to be illusory and deceptive
evidence. A beaten confession is a false foundation for any
conviction, while evidence obtained by illegal search and seizure,
wiretapping, or larceny may be and often is of the utmost verity.
Such police lawlessness therefore may not void state convictions,
while forced confessions will do so.
Page 346 U. S. 193
We find no error in refusing the instruction asked in this
case.
But this does not exhaust petitioners' arsenal of objections.
They argue that, even if the jury were permitted to find the
verdict, a reviewing court must set it aside. They say that
affirmance without opinion may mean that, while the Court of
Appeals thought the treatment of the confessions erroneous, it may
have affirmed on the basis that, in view of other sufficient
evidence, the error was harmless. The New York statute, [
Footnote 36] like the Federal Rules
of Criminal Procedure, [
Footnote
37] Commands reviewing courts to disregard errors and
irregularities which do not affect substantial rights. That such a
general legislative mandate is constitutional is not in question.
If the general rule is not prohibited, the question in each case
becomes one as to the propriety of its application to the evidence.
In a trial such as this, lasting seven weeks, where objections by
three defense counsel required in excess of three hundred rulings
by the trial court without the long deliberation and debate
possible for appellate court consideration, it would be a miracle
if there were not some questions on which an appellate court would
rule otherwise than did the trial judge. The harmless error
statutes have been adopted to give discretion to overlook errors
which cannot be seen to do injustice.
But, whatever may have been the grounds of the Court of Appeals,
we base our decision not upon grounds that error has been harmless,
but upon the ground that we find no constitutional error. We have
pointed out that it was not error if the jury admitted and relied
on the confession, and was not error if they rejected it and
convicted on
Page 346 U. S. 194
other evidence. To say that, although there was no error in the
trial, an appellate court must reverse would require justification
by more authority than we are able to discover.
VI
. WISSNER's CASE
Wissner's case is somewhat different and its disposition
involves other considerations. Wissner never confessed, but he was
implicated by those who did. His objections raise questions of
admissibility of the confessions to which he was not a party.
However, we find as regards Wissner no constitutional error such
as would justify our setting aside his conviction.
Our holding that it was permissible for the state courts to find
that the confessions were voluntary takes away the support for
Wissner's position here. But, even if the confessions were
considered to have been involuntary, their use would not have
violated any federal right of Wissner's.
Malinski v. New
York, 324 U. S. 401,
324 U. S.
410-412. This Court there refused to reverse the
conviction of Rudish, a codefendant of Malinski who had been named
in the latter's confession. It is true that Rudish's name was there
deleted, and an "X" substituted in its place before the jury got
the confession. Use of this device does not appear to have been
controlling in the Court's decision, and Mr. Justice Rutledge,
dissenting, pointed out what no one questioned -- that "The devices
were so obvious as perhaps to emphasize the identity of those they
purported to conceal." P.
324 U. S. 430.
On remand, the New York Court of Appeals, on its own initiative,
ordered a new trial for Rudish as well as Malinski.
People v.
Rudish, 294 N.Y. 500, 63 N.E.2d 77. Surely in the light of the
other testimony, such a deletion from the confessions here would
not have diverted their incriminating statements from Wissner to an
anonymous nobody.
Page 346 U. S. 195
Wissner, however, contends that his federal rights were
infringed because he was unable to cross-examine accusing
witnesses,
i.e., the confessors. He contends that the
"privilege of confrontation" is secured by the Fourteenth
Amendment, relying on one sentence in
Snyder v.
Massachusetts, 291 U. S. 97,
291 U. S. 107.
[
Footnote 38] However, the
words cited were quoted verbatim from
Dowdell v. United
States, 221 U. S. 325,
221 U. S. 330,
in which the language was used to describe the purpose of the Sixth
Amendment provision on confrontation in federal cases. It was
transposed to
Snyder solely to point out the distinction
between a right of confrontation and a mere right of an accused to
be present as his own trial. [
Footnote 39] The Court in
Snyder specifically
refrained from holding that there was any right of confrontation
under the Fourteenth Amendment, [
Footnote 40] and clearly held to the contrary in
West
v. Louisiana, 194 U. S. 258, in
which it was decided that the Federal Constitution did not preclude
Louisiana from using affidavits on a criminal trial.
Page 346 U. S. 196
Basically, Wissner's objection to the introduction of these
confessions is that as to him they are hearsay. The hearsay
evidence rule, with all its subtleties, anomalies and
ramifications, will not be read into the Fourteenth Amendment.
Cf. West v. Louisiana, supra.
Perhaps the methods adopted by the New York courts to protect
Wissner against any disadvantage from the State's use of the Cooper
and Stein confessions were not the most effective conceivable.
But
"[i]ts procedure does not run foul of the Fourteenth Amendment
because another method may seem to our thinking to be fairer, or
wiser, or to give a surer promise of protection to the prisoner at
the bar."
Snyder v. Massachusetts, supra, at
291 U. S.
105.
VII
Third-degree violence has been too often denounced by courts for
anything useful to come out of mere repetition of invectives. It is
a crime under state law and, in some circumstances, under federal
law.
Screws v. United States, 325 U. S.
91;
Koehler v. United States, 189 F.2d 711,
342 U. S. 852.
When the penalty is death, we, like state court judges, are
tempted to strain the evidence and even, in close cases, the law,
in order to give a doubtfully condemned man another chance. But we
cannot see the slightest justification for reading the Fourteenth
Amendment to deny the State of New York the power to hold these
defendants guilty on the record before us. [
Footnote 41]
We are not willing to discredit constitutional doctrines for
protection of the innocent by making of them mere
Page 346 U. S. 197
technical loopholes for the escape of the guilty. The
petitioners have had fair trial and fair review. The people of the
State are also entitled to due process of law.
Affirmed.
* Together with No. 392,
Wissner v. New York, and No.
393,
Cooper v. New York, also on certiorari to the same
court.
[
Footnote 1]
A homicide committed by a person engaged in the commission of a
felony. It is first-degree murder, and carries a mandatory death
sentence unless the jury recommends life imprisonment. New York
Penal Law, §§ 1044(2), 1045, 1045-a. No such recommendation was
made here.
[
Footnote 2]
People v. Cooper, 303 N.Y. 856, 104 N.E.2d 917.
[
Footnote 3]
344 U.S. 815.
[
Footnote 4]
The defense argued that Waterbury's recollection was inaccurate,
and that he had only 25% vision in one eye.
[
Footnote 5]
The defense says that this constitutes a coerced confession --
Stein having made the statement in police custody. It was not a
confession of guilt, but an admission of a specific fact. Although
New York may impose the same requirements for admissibility on an
admission as it does on a confession,
see People v.
Reilly, 181 App.Div. 522, 528, 169 N.Y.S. 119, 123,
affirmed, 224 N.Y. 90, 120 N.E. 113, such utterances are
not usually subject to the same restrictions on admissibility as
are confessions.
See Wigmore on Evidence (3d ed.) §
821(3). In the face of the weight of authority to the contrary, it
cannot be said that any such requirement is imposed by the
Fourteenth Amendment. Even if this admission were subject to the
same reliability tests as confessions, there is no evidence that
Stein was under any coercion thirty hours after his confession of
June 7.
[
Footnote 6]
The defense point out that: Waterbury went through the lineup
two or three times before identifying Wissner; the lineup consisted
of Wissner and several state troopers, each of whom was several
inches taller than Wissner; two ladies who had seen a man who might
have been the killer lurking in the vicinity of the Reader's Digest
on April 3 also went through the lineup, and each of them
identified as that man one of the state troopers in the lineup who
was in Long Island on the day of the murder. The facts show that
the lineup was not so constructed as to suggest Wissner as the man
to be identified.
[
Footnote 7]
N.Y.Code Crim.Proc. § 399.
People v. Goldstein, 285
N.Y. 376, 34 N.E.2d 362.
[
Footnote 8]
There is conflict between the testimony of Homishak and Dorfman,
the former placing the four conspirators on April 3 at a place
different from that where Dorfman says they were.
[
Footnote 9]
Jeppeson stated that the truck was rented in each case on a
Saturday and returned on two occasions early Monday morning, which
contradicts Dorfman's testimony that each junket to Pleasantville
had been on a Monday morning. Jeppeson was testifying from
recollection, unaided by record.
[
Footnote 10]
The defense sought, unsuccessfully, to introduce an affidavit
submitted on a prior motion by Stein's counsel which, according to
Stein's brief here, set forth an account which counsel received
from Stein concerning police brutality. (This affidavit, though
marked for identification, was not made part of the record here.)
During oral argument on trial, counsel for defendants made many
allusions as to violent conduct on the part of the police, and
petitioner Cooper made an outburst accusing a police witness of
lying, but did not become his own witness. Other than this,
defendants took no action to establish their contentions. Prior to
the trial, the defendants brought a proceeding in the Supreme Court
of Westchester County to have the two confessions suppressed on the
ground that they were illegally obtained. The prosecution denied
the allegations of police misconduct which the defendants advanced
in support of this motion and, in view of the conflict in the
evidence, determination of the admissibility of the confessions was
postponed until the trial.
[
Footnote 11]
Dr. Vosburgh, the physician who had examined petitioners on June
9, testified that it was difficult to state exactly how long the
bruises had been there; that the bruises on Cooper's body could
have been as much as six days old (he had been in custody three
days); and that Stein's bruises could have been sustained prior to
arrest.
[
Footnote 12]
This evidence was hearsay, but was not objected to by the
defendants.
[
Footnote 13]
A prior decision of the Court of Appeals indicates that it will
reverse whenever a coerced confession appears in evidence,
regardless of the other evidence.
See People v. Leyra, 302
N.Y. 353, 364, 98 N.E.2d 553, 559. However, it appears probable
that the court there was applying a doctrine not of New York law,
but one which it considered to be imposed by this Court and the
Fourteenth Amendment. For the New York rule does not appear to us
to be free from doubt.
See People v. Fisher, 249 N.Y. 419,
426, 164 N.E. 336, 338;
People v. Samuels, 302 N.Y.
163,
173,
96 N.E.2d 757, 762;
People v. Leyra, 304 N.Y. 468, 108
N.E.2d 673.
[
Footnote 14]
N.Y.Const., Art. I, § 6.
[
Footnote 15]
N.Y.Code Crim.Proc., § 395. Prior to 1881, coerced confessions
were excluded under common law doctrines of evidence.
See
People v. Mondon, 103 N.Y. 211, 8 N.E. 496;
People v.
McMahon, 15 N.Y. 384.
[
Footnote 16]
N.Y.Code Crim.Proc., § 528.
[
Footnote 17]
The jury were instructed as follows:
"Ladies and gentlemen, there have been received in evidence
statements alleged to have been made by the defendant Calman Cooper
and the defendant Harry A. Stein. It is the contention of the
People that these statements are in the nature of confessions and
that they were made freely and voluntarily. On the other hand, it
is the contention made on behalf of the defendant Calman Cooper and
on behalf of the defendant Harry A. Stein that these alleged
confessions are valueless as evidence against either of them,
because it is contended on behalf of each of these defendants that
these statements were made because of force and intimidation and
fear visited upon each of them by certain members of the state
police and implied coercion because of the manner in which they
were kept in custody from the time of apprehension until the
alleged confessions were made. You must find beyond a reasonable
doubt that these confessions, or either of them, was a voluntary
one before you would have a right to consider either of them."
"I charge you that the law of this State with respect to a
confession is this, that a confession made by a defendant, whether
in the course of a judicial proceeding or to a private person, can
be given in evidence against him unless made under the influence of
fear produced by threats. . . ."
The judge further instructed them that, if they found that the
confessions were voluntary, they were then to consider whether
their contents, or any part of them, were true.
The jury also was instructed that they should not consider a
statement by one defendant as any evidence of guilt against any
other defendant.
These portions of the court's charge were not objected to.
For the first time, the petitioners here claim that this charge
set forth the requirements for voluntariness under state law, but
did not set forth the requirements for voluntariness under the
Fourteenth Amendment. They construe the court's charge as
instructing the jury that "implied coercion" does not make a
confession involuntary. We do not agree with their construction of
the charge, and the fact that no objection was made to it indicates
that they did not so construe it at the time it was made. In any
event, failure to object made the matter unavailable here.
[
Footnote 18]
N.Y.Code Crim.Proc. § 465.
[
Footnote 19]
See People v. Trybus, 219 N.Y. 18, 113 N.E. 538.
[
Footnote 20]
As was done, without success, in
Witt v. United States,
196 F.2d 285. In
Witt, the defendant had testified in the
absence of the jury -- as he could under federal procedure -- as to
the voluntariness of a confession. After the court had determined
that it was admissible, the defendant sought to testify further on
the same subject in the presence of the jury, but requested an
order in advance from the court that, if he did so,
cross-examination would be restricted to what had been said on
direct. The court refused to so order, and defendant refrained from
taking the stand.
See also Raffel v. United States,
271 U. S. 494,
271 U. S.
497.
[
Footnote 21]
Petitioners' prior convictions were as follows:
bwm:
COOPER
-------------------------------------------------------------------------------
1928 Waycross, Ga. Auto theft Probation 2 years.
1930 Norfolk, Va. Auto theft Atlanta 3 years.
1934 Brooklyn, N.Y. Attempted grand ---- 3 years
larceny. (suspended).
1934 Brooklyn, N.Y. Murder Sing Sing 20 years to life.
1948 U.S. Court, N.Y.C. Dyer Act Lewisburg 3 years.
-------------------------------------------------------------------------------
STEIN
-------------------------------------------------------------------------------
1918 New York Grand Larceny ---- Sentence
suspended.
1918 New York Petty Larceny ---- Sentence
suspended.
1921 Bronx, N.Y. Robbery Sing Sing 10 years.
1931 New York Robbery Sing Sing 25 years.
1933 U.S. Court, N.Y.C. Perjury Lewisburg 2 years.
-------------------------------------------------------------------------------
WISSNER
-------------------------------------------------------------------------------
1928 Brooklyn, N.Y. Attempted Reform School,
robbery. Elmira, N.Y.
1934 Westchester, Co. Robbery Sing Sing 15 years.
-------------------------------------------------------------------------------
ewm:
[
Footnote 22]
See cases cited in 3 Wigmore on Evidence (3d ed.) §
861.
[
Footnote 23]
See Annotation in 148 A.L.R. 546.
Cf. United States
v. Carignan, 342 U. S. 36,
342 U. S. 38,
for the rule in federal courts.
[
Footnote 24]
The Texas Court of Criminal Appeals, in
Newman v.
State, 148 Tex.Cr.R. 645, 651-652, 187 S.W.2d 559, 562-563,
said:
"The voluntary or involuntary character of a confession is
determined by a conclusion as to whether the accused at mental
freedom to confess or to deny a mental freedom to confess or to
deny a suspected participation in a crime and to determine which
the Supreme Court of the United States will itself make an
independent examination of the facts and, from that examination,
reach a conclusion based upon what it finds to be the conceded and
uncontroverted facts."
"
* * * *"
". . . [T]here is no escape from the conclusion that the Supreme
Court of the United States has potential jurisdiction in all State
cases where it is claimed by the accused that the conviction was
based upon his involuntary confession."
"Such being true, the position this Court occupies in relation
to such cases is both unique and difficult -- unique in that, by
the Constitution and the laws of this State (Const. Art. 5, sec. 5,
Vernon's Ann.St.; Art. 812, C.C.P.), we are the court of last
resort in criminal cases. If we reach a conclusion that the
confession was involuntary, such conclusion is binding upon the
State and society, for, under our Constitution (Art. 5, sec. 26),
the State is expressly denied the right of appeal in a criminal
case, and is therefore barred from seeking a review of that
conclusion by the Supreme Court. On the other hand, if we conclude
that the confession was voluntary, such conclusion is in no sense
final, binding the accused only until reviewed by the Supreme Court
of the United States."
[
Footnote 25]
See People v. Barbato, 254 N.Y. 170, 172 N.E. 458.
[
Footnote 26]
N.Y.Code Crim.Proc. § 618b;
cf. Fed.Rules Crim.Proc.,
46(b).
[
Footnote 27]
Malinski v. New York, 324 U. S. 401;
Watts v. Indiana, 338 U. S. 49;
Turner v. Pennsylvania, 338 U. S. 62;
Harris v. South Carolina, 338 U. S.
68;
Ashcraft v. Tennessee, 322 U.
S. 143.
[
Footnote 28]
Lisenba v. California, supra, at
314 U. S.
229.
[
Footnote 29]
An officer testified that, subsequent to his confession,
"He [Stein] said, 'That rotten ___ ___ ___ ___ Cooper, it is
hard to believe he would put me in the way he did; he put me right
into the . . .' [continuing] -- into the seat; I was the best
friend he ever had; well, if I must go, I will take him with
me."
[
Footnote 30]
Under New York law, a defendant must be promptly taken before a
magistrate, Code of Criminal Procedure § 165, and failure to do so
renders the arresting officer liable to criminal prosecution. N.Y.
Penal Law § 1844.
[
Footnote 31]
Under New York law, the fact that a confession was given during
a period of illegal detention is one factor to be considered in
determining whether or not it was voluntary, but it does not make
the confession inadmissible
per se. People v.
Trybus, 219 N.Y. 18, 113 N.E. 538;
People v.
Mummiani, 258 N.Y. 394, 180 N.E. 94.
[
Footnote 32]
Admissibility in federal courts is governed by "principles of
the common law as they may be interpreted by the courts of the
United States in the light of reason and experience." Fed.Rules
Crim.Proc., 26.
[
Footnote 33]
Compare McNabb v. United States, 318 U.
S. 332,
with Stroble v. California,
343 U. S. 181,
343 U. S. 197;
Weeks v. United States, 232 U. S. 383,
with Wolf v. Colorado, 338 U. S. 25;
Nardone v. United States, 302 U.
S. 379,
and Weiss v. United States,
308 U. S. 321,
308 U. S. 329,
with Schwartz v. Texas, 344 U. S. 199.
See also United States v. Carignan, 342 U. S.
36.
[
Footnote 34]
N.Y.Const., Art. I, § 6.
[
Footnote 35]
Bram v. United States, 168 U.
S. 532 has been cited as authority, for the proposition
that an inadmissible confession automatically requires reversal,
because of this language (p.
168 U. S.
541):
"Having been offered as a confession, and being admissible only
because of that fact, a consideration of the measure of proof which
resulted from it does not arise in determining its admissibility.
If found to have been illegally admitted, reversible error will
result, since the prosecution cannot, on the one hand, offer
evidence to prove guilt, and which, by the very offer, is vouched
for as tending to that end, and, on the other hand, for the purpose
of avoiding the consequence of the error caused by its wrongful
admission, be heard to assert that the matter offered as a
confession was not prejudicial, because it did not tend to prove
guilt."
But the language, while superficially applicable to the question
at hand, was addressed to no such problem in the
Bram
case. There, the prosecution had introduced into evidence a
conversation between an illegally held and uncounseled prisoner and
a detective in which the prisoner stated, in reply to an allegation
that one "X" had seen the prisoner commit a crime from his vantage
point at a ship's wheel, that "he (X) could not see me from there."
The Government took the position in the
Bram case that
this statement, even if not voluntary, was not a confession, since
its author purported to deny, not admit, guilt. The quoted language
of the Court is the answer to this position. As the Court points
out, the evidence was introduced on the theory that it tended to
admit guilt, and only on that theory would it have been admissible.
It therefore must be treated as a confession. The sentences
immediately preceding the quoted language brings this out:
"It is manifest that the sole ground upon which the proof of the
conversation was tendered was that it was a confession, as this was
the only conceivable hypothesis upon which it could have been
legally admitted to the jury. It is also clear that, in determining
whether the proper foundation was laid for its admission, we are
not concerned with how far the confession tended to prove
guilt."
Thus,
Bram merely decided that a confession otherwise
erroneous could not be used merely because the defendant claimed
that it did not incriminate him. This is precisely what this Court
subsequently held in
White v. Texas, 310 U.
S. 530.
In any event, the
Bram case was a federal case where we
exercised supervisory power, rather than merely enforced the
Fourteenth Amendment. It is not a rock upon which to build
constitutional doctrine. According to Wigmore (3d ed., Vol. 3, pp.
240-241, n. 2), this decision represents "the height of absurdity
in misapplication of the law," and has been discredited by
subsequent cases.
[
Footnote 36]
N.Y.Code Crim.Proc. § 542.
[
Footnote 37]
Fed.Rules Crim.Proc., 52(a).
[
Footnote 38]
"'It was intended to prevent the conviction of the accused upon
depositions or
ex parte affidavits, and particularly to
preserve the right of the accused to test the recollection of the
witness in the exercise of the right of cross-examination.'"
Petitioner Wissner erroneously assumes that "It" at the
beginning of the sentence refers to the Fourteenth Amendment.
[
Footnote 39]
Snyder involved a contention by a state convict that he
was denied due process when the court prevented him from going
along when the jury went to view the area where the crime was
committed. Among the many bases for deciding against the defendant,
the Court, through Mr. Justice Cardozo, pointed out that even if he
had a federal right to confrontation (and the Court indicated he
did not), his exclusion from a view would not offend it. Hence, the
use of the language quoted describing the nature of the right of
confrontation.
[
Footnote 40]
"For present purposes, we assume that the privilege is
reinforced by the Fourteenth Amendment, though this has not been
squarely held. [Citing cases, one of which is
West v.
Louisiana.]"
291 U.S. at
291 U. S.
106.
[
Footnote 41]
See Hall, Police and Laws in a Democratic Society, 28
Ind.L.J. 133, 175-176; Inbau, The Confession Dilemma in the United
States Supreme Court, 43 Ill.L.Rev. 442.
MR. JUSTICE BLACK, dissenting.
I concur in MR. JUSTICE DOUGLAS' opinion.
More constitutional safeguards go here -- one, the right of a
person to be free from arbitrary seizure, secret confinement and
police bludgeoning to make him testify against himself in absence
of relative, friend or counsel; another, the right of an accused to
confront and cross-examine witnesses who swear he is guilty of
crime. Tyrannies have always subjected life and liberty to such
secret inquisitorial and oppressive practices. But, in many cases,
beginning at least as early as
Chambers v. Florida,
309 U. S. 227,
this Court set aside state convictions as violative of due process
when based on confessions extracted by state police while suspects
were held incommunicado. That line of cases is greatly weakened, if
not repudiated, by today's sanction of the arbitrary seizure and
secret questioning of the defendants here. State police wishing to
seize and hold people incommunicado are now given a green light.
Moreover, the Court actually holds (unnecessarily, I think) that
states are free to deny defendants an opportunity to confront and
cross-examine witnesses who testify against them, even in death
cases. This also runs counter to what we have said due process
guarantees an accused.
In re Oliver, 333 U.
S. 257,
333 U. S.
273.* Lastly, today's opinion takes this opportunity
Page 346 U. S. 198
to narrow the scope this Court has previously given the Fifth
Amendment's guarantee that no person "shall be compelled in any
criminal case to be a witness against himself."
Bram v. United
States, 168 U. S. 532,
168 U. S. 544,
held that this constitutional provision forbids federal officers to
"browbeat" an accused, or to "push him into a corner, and to entrap
him into fatal contradictions. . . ." The Court adds the
Bram case to those it repudiates today, apparently
agreeing with Professor Wigmore that Mr. Justice White's opinion
there represents "the height of absurdity. . . ."
In short, the Court's holding and opinion break down barriers
that have heretofore stood in the way of secret and arbitrary
governmental action directed against persons suspected of crime or
political unorthodoxy. My objection to such action by any
governmental agent or agency has been set out in many opinions.
See for illustration, Chambers v. Florida, supra, and
Ashcraft v. Tennessee, 322 U. S. 143,
327 U. S. 274
(alleged confessions extracted without violence while suspects held
incommunicado at the mercy of police officers);
In re
Oliver, 333 U. S. 257
(secret conviction based on incommunicado questioning by three
judges where the accused had neither relative, friend or counsel
present);
Joint Anti-Fascist Refugee Committee v. McGrath,
341 U. S. 123,
341 U. S. 142
(Attorney General's public condemnation of groups as treasonable
and subversive based on secret information without notice or
hearing); dissenting opinions,
Gallegos v. Nebraska,
342 U. S. 55,
342 U. S. 73
(arbitrary arrest, secret imprisonment and systematic questioning
to obtain an alleged confession);
Carlson v. Landon,
342 U. S. 524,
342 U. S. 547
(Attorney General's denial of bail based on secret charges by
secret informers without affording accused a hearing);
Ludecke
v. Watkins, 335 U. S. 160,
335 U. S. 17
(Attorney General's judicially unreviewable banishment of an alien
based on secret undisclosed information
Page 346 U. S. 199
and without a hearing);
Shaughnessy v. United States ex rel.
Mezei, 345 U. S. 206,
345 U. S. 216
(Attorney General's judicially unreviewable imprisonment and denial
of bail to an alien based on secret undisclosed information and
without a hearing).
I join MR. JUSTICE FRANKFURTER and MR. JUSTICE DOUGLAS in
protesting the Court's action in these cases.
* I do not understand that
West v. Louisiana,
194 U. S. 258,
held the contrary. It did hold, at pp.
194 U. S.
263-264, that a state could introduce depositions for
the reason that the accused had
"been once confronted with the witness, and has had opportunity
to cross-examine him . . . , and he is a nonresident, and is
permanently beyond the jurisdiction of the state. . . ."
MR. JUSTICE FRANKFURTER, dissenting.
1. Of course, the Fourteenth Amendment is not to be applied so
as to turn this Court into a tribunal for revision of criminal
convictions in the State courts. I have on more than one occasion
expressed my strong belief that the requirements of due process do
not hamper the States, beyond the narrow limits of imposing upon
them standards of decency deeply felt and widely recognized in
Anglo-American jurisdictions, either in penalizing conduct or in
defining procedures appropriate for securing obedience to penal
laws. Nor is this substantial autonomy of the States to be
curtailed in capital cases.
2. It is common ground that the third degree -- the colloquial
term for subjecting an accused to police pressures in order to
extract confessions -- may reach a point where confessions,
although not resulting from the application of physical force, are,
as a matter of human experience, equally the results of coercion in
any fair meaning of that term, and therefore not "voluntary" in any
relevant sense. Differences of view inevitably arise among judges
in deciding when that point has been reached. Such differences are
reflected in a long series of cases in this Court. An important
factor, no doubt, influencing the different conclusions is the
varying intensity of feeling on the part of different judges that
coercive police methods not only may bring into question the
trustworthiness of a confession, but tend to brutalize habits
of
Page 346 U. S. 200
feeling and action on the part of the police, thereby adversely
affecting the moral tone of the community.
Of course, the most serious deference is to be accorded the
conclusion reached by a State court that a confession was not
coerced.
See my concurring opinions in
Malinski v. New
York, 324 U. S. 401,
324 U. S. 412;
Haley v. Ohio, 332 U. S. 596,
332 U. S. 601.
But the duty of deference cannot be allowed imperceptibly to slide
into an abdication by this Court of its obligation to ascertain
whether, under the circumstances of a particular case, a confession
represents not the candor of a guilty conscience, the need of an
accused to unburden himself, but the means of release from the
tightening of the psychological police screws. This issue must be
decided without regard to the confirmation of details in the
confession by reliable other evidence. The determination must not
be influenced by an irrelevant feeling of certitude that the
accused is guilty of the crime to which he confessed. Above all, it
must not be influenced by knowledge, however it may have revealed
itself, that the accused is a bad man with a long criminal record.
All this not out of tenderness for the accused, but because we have
reached a certain stage of civilization.
In the light of these considerations, I am compelled to conclude
that the confessions here were the product of coercive police
pressure. I cannot believe that these confessions, in view of the
circumstances under which they were elicited, would be admitted in
a criminal trial in England, or in the courts of Canada, Australia
or India. I regret that the Court reaches another conclusion on the
record, though I respect a conscientious interpretation of the
record differing from mine.
3. But the Court goes beyond a mere evaluation of the facts of
this record. It makes a needlessly broad ruling of law which
overturns what I had assumed was
Page 346 U. S. 201
a settled principle of constitutional law. It does so
sua
sponte. The question was not raised and not argued, and has
emerged for the first time in the Court's opinion. Unless I am
mistaken about the reach of the Court's opinion, and I profoundly
hope that I am, the Court now holds that a criminal conviction
sustained by the highest court of a State, and more especially one
involving a sentence of death, is not to be reversed for a new
trial even though there entered into the conviction a coerced
confession which, in and of itself, disregards the prohibition of
the Due Process Clause of the Fourteenth Amendment. The Court now
holds that it is not enough for a defendant to establish in this
Court that he was deprived of a protection which the Constitution
of the United States affords him; he must also prove that, if the
evidence unconstitutionally admitted were excised, there would not
be enough left to authorize the jury to find guilt.
An impressive body of opinion, never questioned by any decision
or expression of this Court, has established a contrary principle.
And this not only with reference to the admissibility of coerced
confessions; the principle has governed other aspects of disregard
of the requirements of the Fourteenth Amendment in State trials. I
refer,
inter alia, to cases of discrimination in the
selection of personnel of a grand jury which found an indictment.
We have reversed in such cases even though there was no error in
the conduct of the trial itself.
4. It is painful to be compelled to say that the Court is taking
a retrogressive step in the administration of criminal justice. I
can only hope that it is a temporary, perhaps an
ad hoc,
deviation from a long course of decisions. By its change of
direction, the Court affords new inducement to police and
prosecutors to employ the third degree, whose use the Wickersham
Commission found "widespread" more than thirty years ago and
Page 346 U. S. 202
which it unsparingly condemned as "conduct . . . violative of
the fundamental principles of constitutional liberty." IV Reports,
National Commission on Law Observance and Enforcement, 1, 4, 6
(1931).*
The Wickersham Commission deemed it its duty "to lay the facts
-- the naked, ugly facts -- of the existing abuses before the
public,"
id. at 6, in the hope of arousing public
awareness, and thereby public condemnation, of such abuses. It
surely is not self-deluding or boastful to believe that the series
of cases in which this Court reversed convictions because of such
abuses helped to educate public opinion and to arouse in
prosecutors and police not only a wholesome fear, but also a more
conscientious feeling against resort to these lazy, brutal
methods.
In addressing himself to law enforcement officials, Director J.
Edgar Hoover of the Federal Bureau of Investigation has made these
observations:
"One of the quickest ways for any law enforcement officer to
bring public disrepute upon himself, his organization and the
Page 346 U. S. 203
entire profession is to be found guilty of a violation of civil
rights. . . . Civil rights violations are all the more regrettable
because they are so unnecessary. Professional standards in law
enforcement provide for fighting crime with intelligence, rather
than force."
"(FBI Law Enforcement Bulletin, September, 1952, p. 1.) But if
law officers learn that, from now on, they can coerce confessions
without risk, since trial judges may admit such confessions
provided only that, perhaps through the very process of extorting
them, other evidence has been procured on which a conviction can be
sustained, police in the future, even more so than in the past,
will take the easy but ugly path of the third degree. I do not
remotely suggest that any such result is contemplated by the Court.
But it will not be the first time that results neither desired nor
foreseen by an opinion have followed."
5. The matters which I have thus briefly stated cut so deep as
to call for full exposition. Since promptness in the disposition of
criminal cases is one of the most important factors for a civilized
system of criminal justice, I must content myself now with this
summary of my views without their elaboration.
* The great weight to be attached to the findings of the
Wickersham Commission is attested by the impressive experience
represented by the members of that Commission. The Chairman, George
W. Wickersham, was one of the most notable Attorneys General in the
history of that office; Newton D. Baker, after a distinguished
public career as Mayor of Cleveland and Secretary of War, became a
recognized leader of our bar; William I. Grubb had a long career as
one of the most esteemed judges on the federal bench; William S.
Kenyon served with distinction first as a United States Senator and
later as a federal judge; Monte M. Lemann contributed the balanced
judgment derived from his recognized position at the bar; Frank L.
Loesch, apart from his general qualifications, brought to the work
of the Commission specialized competence in the administration of
the criminal law; Paul J. McCormick was a United States district
judge of conspicuous courage and hardheadedness; Dean Roscoe
Pound's "Criminal Justice in America" is only one bit of evidence
of the authority with which he speaks in this field.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
If the opinion of the Court means what it says, we are entering
upon a new regime of constitutional law that should give every
citizen pause. Heretofore, constitutional rights have had greater
dignity than rules of evidence. They have constituted guarantees
that are inviolable. They have been a bulwark against overzealous
investigators, inhuman police, and unscrupulous prosecutors. They
have placed a prohibition on practices which history showed were
infamous. An officer
Page 346 U. S. 204
who indulged in the prohibited practices was acting lawlessly,
and he could not in any way employ the products of his lawless
activities against the citizen whose constitutional rights were
infringed. But now it is said that, if prejudice is not shown, if
there was enough evidence to convict regardless of the invasion of
the citizen's constitutional right, the judgment of conviction must
stand, and the defendant sent to his death.
In taking that course, the Court chooses a short-cut which does
violence to our constitutional scheme.
The denial of a right guaranteed to a defendant by the
Constitution has never been treated by this Court as a matter of
mere error in the proceedings below which, if not affecting
substantial rights, might be disregarded.
Powell v. Alabama, 287 U. S. 45,
established the rule that due process requires, in certain cases at
least, that the state court appoint counsel to represent an
indigent defendant. And the right to counsel includes the right to
have counsel appointed in time to allow adequate preparation of the
case. Neither in the
Powell case nor in any of those which
followed it has the weight of the evidence against the defendant
been deemed relevant to the issue of the validity of the
conviction.
See Smith v. O'Grady, 312 U.
S. 329;
Williams v. Kaiser, 323 U.
S. 471;
Tomkins v. Missouri, 323 U.
S. 485;
De Meerleer v. Michigan, 329 U.
S. 663. In
Hawk v. Olson, 326 U.
S. 271, at
326 U. S. 278,
we said:
"Continuance may or may not have been useful to the accused, but
the importance of the assistance of counsel in a serious criminal
charge after arraignment is too large to permit speculation on its
effect. . . ."
"Petitioner states a good cause of action when he alleges facts
which support his contention that, through denial of asserted
constitutional rights, he
Page 346 U. S. 205
has not had the kind of trial in a state court which the due
process clause of the Fourteenth Amendment requires."
A similar rule prevails where the prosecution has made knowing
use of perjured testimony to convict an accused.
Mooney v.
Holohan, 294 U. S. 103,
294 U. S. 112;
Hysler v. Florida, 315 U. S. 411;
Pyle v. Kansas, 317 U. S. 213. It
has never been thought necessary to attempt to weed the perjured
testimony from the nonperjured for the purpose of determining the
degree of prejudice which resulted.
In
In re Oliver, 333 U. S. 257, we
reversed a conviction for contempt based on a secret trial in which
the defendant was denied reasonable notice of the charge against
him, the opportunity to prepare a defense, the right to testify on
his own behalf, the right to confront the witnesses against him,
and the right to be represented by counsel. No one, I suppose,
would argue that such a conviction should be sustained merely
because the record indicated quite conclusively that the defendant
was guilty.
In
Moore v. Dempsey, 261 U. S. 86, the
Court dealt with a claim that the defendants had been convicted in
a trial dominated by a mob. The defendants were charged with the
murder of one Lee. They professed their innocence before the Court.
Mr. Justice Holmes disposed of the assertion with these words:
"The petitioners say that Lee must have been killed by other
whites, but that we leave on one side, as what we have to deal with
is not the petitioners' innocence or guilt, but solely the question
whether their constitutional rights have been preserved."
Another illustration is the practice of discriminating against
Negroes in the selection of juries. In none of the cases from
Neal v. Delaware, 103 U. S. 370, and
Carter
Page 346 U. S. 206
v. Texas, 177 U. S. 442,
177 U. S. 443,
down to
Avery v. Georgia, 345 U.
S. 559, has the lack of a showing of actual prejudice
precluded reversal. We indeed said in the
Avery case that
if the jury commissioners failed in their duty to use a
nondiscriminatory method of selecting a jury, the "conviction must
be reversed -- no matter how strong the evidence of petitioner's
guilt." The reason is plain. The Constitution gives Negroes the
right to be tried by juries drawn from the entire community, not
hand-picked from the white people alone. Must a Negro now show that
he suffered actual prejudice because none of his race served on the
jury?
The requirement of counsel, the right of the accused to be
confronted with the witnesses against him, his right to be given
notice of the charge, his right to a fair and impartial tribunal,
his right to a jury drawn from a fair cross-section of the
community -- none of these guarantees given by the Constitution is
more precise than the prohibition against coerced confessions.
The rule now announced is, indeed, contrary to our prior
decisions dealing with the effect of a coerced confession on a
judgment of conviction.
See Malinski v. New York,
324 U. S. 401,
324 U. S. 404;
Stroble v. California, 343 U. S. 181,
343 U. S. 190;
Lyons v. Oklahoma, 322 U. S. 596,
322 U. S. 597;
Haley v. Ohio, 332 U. S. 596,
332 U. S. 599;
and
Gallegos v. Nebraska, 342 U. S.
55,
342 U. S.
63.
The Court's characterization of these rulings as dicta is not
correct. In the
Malinski case, a conviction was reversed
even though other evidence might have supported the verdict. In the
Lyons case (where the second confession was drawn in
question), we noted (322 U.S. at
322 U. S.
598), that a third confession was introduced without
objection. Yet, in spite of that fact, we devoted a whole opinion
to an analysis of whether the second confession
Page 346 U. S. 207
was voluntary. In the
Stroble case, the California
Supreme Court had held that the use of a challenged confession had
not deprived petitioner of due process, since it did not appear
that the outcome of the trial would have been different if the
confession had been excluded. 343 U.S. at
343 U. S. 189.
We disapproved that view, and proceeded on the authority of our
decisions in the
Malinski and
Lyons cases to
examine the facts surrounding the confession to see if it was
voluntary.
Id. at
343 U. S. 190-191.
In each of those three cases, we dealt with the merits of the
claims that the confessions were coerced -- a wholly unnecessary
task had the rule as stated in the
Malinski case not been
controlling.
And with respect to the
Malinski case, it should be
noted that, despite a dissent by four Justices, no one took
exception to the rule that the use of a coerced confession violates
due process.
Perhaps the decision in the instant cases is premised on the
view that Due Process prohibits the use of coerced confessions
merely because of their inherent untrustworthiness. If so, that too
is a radical departure from the rationale of our prior decisions.
In
Lisenba v. California, 314 U.
S. 219,
314 U. S. 236,
Mr. Justice Roberts, speaking for the Court concerning the
inadmissibility of coerced confessions, said:
"The aim of the requirement of due process is not to exclude
presumptively false evidence, but to prevent fundamental unfairness
in the use of evidence, whether true or false."
As MR. JUSTICE FRANKFURTER states in his dissenting opinion,
that rule is the product of a civilization which, by respecting the
dignity even of the least worthy citizen, raises the stature of all
of us and builds an atmosphere of trust and confidence in
government.
Page 346 U. S. 208
The practice now sanctioned is a plain violation of the command
of the Fifth Amendment, made applicable to the States by the
Fourteenth,
see Brown v. Mississippi, 297 U.
S. 278,
297 U. S. 286;
Chambers v. Florida, 309 U. S. 227,
309 U. S. 238,
that no man can be compelled to testify against himself.* That
should be the guide to our decisions until and unless the Fifth
Amendment is itself amended to incorporate the rule the Court today
announces.
* From the undisputed facts, it seems clear that these
confessions would be condemned if the constitutional school of
thought which prevailed when
Haley v. Ohio, 332 U.
S. 596;
Watts v. Indiana, 338 U. S.
49;
Turner v. Pennsylvania, 338 U. S.
62, and
Harris v. South Carolina, 338 U. S.
68, were decided still was the dominant one.