Petitioner, a 14-year-old boy, and another juvenile followed an
elderly man to a hotel, got into his room on a ruse, assaulted and
overpowered him, stole $13 from his pockets and fled. Picked up 12
days later by police, petitioner immediately admitted the assault
and robbery. Over two weeks later, he was convicted in a juvenile
court of "assault to injure," and was committed to the State
Industrial School for an indeterminate period. Subsequently, the
victim died, and petitioner was charged with first degree murder.
At his trial in a state court, a jury found him guilty. The crucial
evidence introduced at the trial was a formal confession which
petitioner had signed before his victim died, before petitioner had
been brought before a judge, and after he had been held for five
days without seeing a lawyer, parent, or other friendly adult,
although his mother had attempted to see him.
on the totality of the circumstances in this
case, the formal confession on which petitioner's conviction may
have rested was obtained in violation of due process, and the
judgment sustaining his conviction is reversed. Pp. 370 U. S.
145 Colo. 53, 358 P.2d 1028
Mr. Justice DOUGLAS delivered the opinion of the Court.
Petitioner, a child of 14, and another juvenile followed an
elderly man to a hotel, got into his room on a ruse, assaulted him,
overpowered him, stole $13 from his pockets, and fled. All this
happened on December 20,
Page 370 U. S. 50
1958. Petitioner was picked up by the police on January 1, 1959,
and immediately admitted the assault and robbery. At that time,
however, the victim of the robbery was still alive, though
hospitalized. He died on January 26, 1959, and forthwith an
information charging first degree murder was returned against
petitioner. A jury found him guilty, the crucial evidence
introduced at the trial being a formal confession which he signed
on January 7, 1959, after he had been held for five days during
which time he saw no lawyer, parent or other friendly adult. The
Supreme Court of Colorado affirmed the judgment of conviction. 145
Colo. 53, 358 P.2d 1028
We granted the petition for certiorari, 368 U.S. 815.
After petitioner's arrest on January 1, the following events
took place. His mother tried to see him on Friday, January 2, but
permission was denied, the reason given being that visiting hours
were from 7 p.m. to 8 p.m. on Monday and Thursday. From January 1
through January 7, petitioner was in Juvenile Hall, where he was
kept in security, though he was allowed to eat with the other
inmates. He was examined by the police in Juvenile Hall January 2,
and made a confession which an officer recorded in longhand. On
January 3, 1959, a complaint was filed against him in the Juvenile
Court by the investigating detectives.
The State, in its brief, calls this preliminary procedure in
Juvenile Hall being "booked in." As noted, petitioner signed a full
and formal confession on January 7. The trial in the Juvenile Court
took place January 16 on a petition dated January 13 containing a
charge of "assault to injure." He was committed to the State
Industrial School for an indeterminate period. Thereafter, as noted
above, the victim of the robbery died, and the murder trial was
Confessions obtained by "secret inquisitorial processes"
(Chambers v. Florida, 309 U. S. 227
309 U. S. 237
Page 370 U. S. 51
since such procedures are conducive to the use of physical and
psychological pressures. Chambers v. Florida, supra; Leyra v.
Denno, 347 U. S. 556
reason that due process, as used in the Fourteenth Amendment,
condemns the obtaining of confessions in that manner is a compound
of two influences. First is the procedural requirement stated in
Chambers v. Florida, supra, 309 U. S.
"From the popular hatred and abhorrence of illegal confinement,
torture and extortion of confessions of violations of the 'law of
the land' evolved the fundamental idea that no man's life, liberty
or property be forfeited as criminal punishment for violation of
that law until there had been a charge fairly made and fairly tried
in a public tribunal free of prejudice, passion, excitement and
tyrannical power. Thus, as assurance against ancient evils, our
country, in order to preserve 'the blessings of liberty,' wrote
into its basic law the requirement, among others, that the
forfeiture of the lives, liberties or property of people accused of
crime can only follow if procedural safeguards of due process have
We emphasized this point in Ashcraft v. Tennessee,
322 U. S. 143
322 U. S. 152
where we said that "always evidence concerning the inner details of
secret inquisitions is weighted against an accused. . . ."
Second is the element of compulsion which is condemned by the
Fifth Amendment. Chief Justice Hughes in Brown v.
Mississippi, 297 U. S. 278
297 U. S. 285
emphasized that ingredient of due process. After noting that the
Court had held that the exemption from compulsory
self-incrimination in the courts of the States is not guaranteed by
the Due Process Clause of the Fourteenth Amendment, he went on to
"But the question of the right of the state to withdraw the
privilege against self-incrimination is not
Page 370 U. S. 52
here involved. The compulsion to which the quoted statements
refer is that of the processes of justice by which the accused may
be called as a witness and required to testify. Compulsion by
torture to extort a confession is a different matter."
Brennan, The Bill of Rights and the States, 36
We reiterated that view in Ashcraft v. Tennessee,
where we held that the principle in Bram v. United
States, 168 U. S. 532
168 U. S.
-563, was applicable to state proceedings. 322 U.S.
at 322 U. S. 154
note 9. We said:
"We think a situation such as that here shown by uncontradicted
evidence is so inherently coercive that its every existence is
irreconcilable with the possession of mental freedom by a lone
against whom its full coercive force is brought to
bear. It is inconceivable that any court of justice in the land,
conducted as our courts are, open to the public, would permit
prosecutors serving in relays to keep a defendant witness under
continuous cross examination for thirty-six hours without rest or
sleep in an effort to extract a 'voluntary' confession. Nor can we,
consistently with Constitutional due process of law, hold voluntary
a confession where prosecutors do the same thing away from the
restraining influences of a public trial in an open courtroom."
322 U.S. at 322 U. S. 154
The application of these principles involves close scrutiny of
the facts of individual cases. The length of the questioning
(Spano v. New York, 360 U. S. 315
the use of fear to break a suspect (Malinski v. New York,
324 U. S. 401
the youth of the accused (Haley v. Ohio, 332 U.
) are illustrative of the circumstances on
Page 370 U. S. 53
cases of this kind turn. The youth of the suspect was the
crucial factor in Haley v. Ohio, supra,
at 332 U. S.
"What transpired would make us pause for careful inquiry if a
mature man were involved. And when, as here, a mere child -- an
easy victim of the law -- is before us, special care in
scrutinizing the record must be used. Age 15 is a tender and
difficult age for a boy of any race. He cannot be judged by the
more exacting standards of maturity. That which would leave a man
cold and unimpressed can overawe and overwhelm a lad in his early
teens. This is the period of great instability which the crisis of
adolescence produces. A 15-year-old lad, questioned through the
dead of night by relays of police, is a ready victim of the
inquisition. Mature men possibly might stand the ordeal from
midnight to 5 a.m. But we cannot believe that a lad of tender years
is a match for the police in such a contest. He needs counsel and
support if he is not to become the victim first of fear, then of
panic. He needs someone on whom to lean lest the overpowering
presence of the law, as he knows it, crush him. No friend stood at
the side of this 15-year-old boy as the police, working in relays,
questioned him hour after hour, from midnight until dawn. No lawyer
stood guard to make sure that the police went so far and no
farther, to see to it that they stopped short of the point where he
became the victim of coercion. No counsel or friend was called
during the critical hours of questioning. A photographer was
admitted once this lad broke and confessed. But not even a gesture
towards getting a lawyer for him was ever made."
The fact that petitioner was only 14 years old puts this case on
the same footing as Haley v. Ohio, supra.
Page 370 U. S. 54
was here no evidence of prolonged questioning. But the five-day
detention -- during which time the boy's mother unsuccessfully
tried to see him and he was cut off from contact with any lawyer or
adult advisor -- gives the case an ominous cast. The prosecution
says that the boy was advised of his right to counsel, but that he
did not ask either for a lawyer or for his parents. But a
14-year-old boy, no matter how sophisticated, is unlikely to have
any conception of what will confront him when he is made accessible
only to the police. That is to say, we deal with a person who is
not equal to the police in knowledge and understanding of the
consequences of the questions and answers being recorded, and who
is unable to know how to protest his own interests or how to get
the benefits of his constitutional rights.
The prosecution says that the youth and immaturity of the
petitioner and the five-day detention are irrelevant, because the
basic ingredients of the confession came tumbling out as soon as he
was arrested. But if we took that position, it would, with all
deference, be in callous disregard of this boy's constitutional
rights. He cannot be compared with an adult in full possession of
his senses and knowledgeable of the consequences of his admissions.
He would have no way of knowing what the consequences of his
confession were without advice as to his rights -- from someone
concerned with securing him those rights -- and without the aid of
more mature judgment as to the steps he should take in the
predicament in which he found himself. A lawyer or an adult
relative or friend could have given the petitioner the protection
which his own immaturity could not. Adult advice would have put him
on a less unequal footing with his interrogators. Without some
adult protection against this inequality, a 14-year-old boy would
not be able to know, let alone assert, such constitutional rights
as he had. To
Page 370 U. S. 55
allow this conviction to stand would, in effect, be to treat him
as if he had no constitutional rights.
There is no guide to the decision of cases such as this, except
the totality of circumstances that bear on the two factors we have
mentioned. The youth of the petitioner, the long detention, the
failure to send for his parents, the failure immediately to bring
him before the judge of the Juvenile Court, the failure to see to
it that he had the advice of a lawyer or a friend -- all these
combine to make us conclude that the formal confession on which
this conviction may have rested (see Payne v. Arkansas,
356 U. S. 560
356 U. S. 568
was obtained in violation of due process.
MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITE took no part in
the consideration or decision of this case.
MR. JUSTICE CLARK, with whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART join, dissenting.
As Chief Justice John Marshall said a century and a quarter ago,
"[i]f courts were permitted to indulge their sympathies, a case
better calculated to excite them can scarcely be imagined."
Cherokee Nation v.
5 Pet. 1, 30 U. S. 15
(1831). A 14-year-old boy stands convicted of murder, and has been
sentenced to imprisonment for life. But, as Mr. Justice Paterson
said in Penhallow v. Donane's
3 Dall. 54, 88-89 [argument of counsel --
omitted] (1795), "motives of commiseration, from whatever source
they flow, must not mingle in the administration of justice."
The Court sets aside the conviction here on due process grounds,
finding that the formal confession made by petitioner on January 7
was obtained by "secret inquisitorial processes" and other forms of
compulsion. In so doing, it turns its back on the spontaneous oral
Page 370 U. S. 56
by petitioner at the time of arrest on January 1, as well as a
detailed confession made the next day, all long before the formal
confession was given five days later. Moreover, I find nothing in
the record that suggests any "secret inquisitorial processes" were
used, or any compulsion was exerted upon petitioner, even during
that longer period. With due deference, I cannot see how the Court
concludes from the record that petitioner was "cut off from contact
with any lawyer or adult advisor" and "made accessible only to the
police," that there was a failure to bring him before the juvenile
judge in the manner required in juvenile delinquency cases, or that
Gallegos' case is in anywise on the same footing with Haley v.
Ohio, 332 U. S. 596
(1948), or the other cases cited by the majority.
As the Court says, "the totality of circumstances" is the only
guide we have in confession cases. However, in view of the hop,
skip, and jump fashion in which the Court deals with them here, I
believe it is first necessary to detail the facts.
The record through the testimony of Officer Chism, a special
juvenile officer, shows that, on Thursday evening, January 1, he
was investigating the assault on Mr. Smith, [Footnote 1
] an 80-year-old man, when he noticed
three boys who appeared to fit the description furnished him of the
ones involved. The three, who were sitting on the curb outside of
Dutchman's Inn, were the Gallegos brothers: petitioner Robert (14),
Charles (12), and Richard (8). The officer, who was alone and in
street clothes, stopped his car across the street from the inn. He
approached the boys, told them he was a police officer, and asked
them to come over and sit in his car. They did so, and the officer
asked them about the Smith assault. Richard orally confessed, and
the petitioner "admitted he had a
Page 370 U. S. 57
part in it." Officer Chism then took the boys to Juvenile Hall,
where the petitioner again admitted his participation, as did his
youngest brother, Richard. Both stated that the third brother,
Charles, had nothing to do with the matter, but that their cousin,
Eddie Martinez, had accompanied them. Charles, having been cleared
of any involvement in the assault, was taken home that very evening
by Officer Chism, who told Mrs. Gallegos that the petitioner and
Richard were being held at Juvenile Hall, and that visiting hours
were on Monday and Thursday evenings. He also informed her of her
sons' right to counsel.
The next evening, January 2, Officer Chism talked to the
petitioner, Richard, and Martinez, who by this time was also at
Juvenile Hall. As the officer took notes, [Footnote 2
] petitioner again described his
participation in the assault on Mr. Smith in the following manner
as narrated by Officer Chism at the trial:
"[After his participation in an assault on a Mr. Kruhd,] he
proceeded down to 18th and Curtis Street where he was shining
shoes. . . . [U]pon seeing an old man, who was later identified as
Robert F. Smith, he followed him to a hotel on 18th street. . . .
[H]e . . . was with his younger brother, Richard, and one Eddie
Martinez. . . . They followed the old man to the hotel, and Richard
stayed downstairs and watched out for cops. He and Eddie went
upstairs and they lost track of the old man; they asked several if
they had seen his grandfather come in, that he had just come in and
was drunk . . . , [and] a man told . . . [them] he just went down
the hallway, and, upon knocking on the door, a man opened the door,
and he told him he was looking for his grandfather, that he was
drunk, and the man told
Page 370 U. S. 58
him the old man next door had just come in. He said, upon
knocking on the other door, someone told him to come in, that he
opened the door, and he seen it was the man he was looking for. . .
. [A]t that time, Eddie Martinez asked the old man for a drink of
water, and, when the old man brought the water, Eddie grabbed him
and he, Robert, hit the old man about the head and face with a shoe
brush; that when the old man fell to the floor, he took a knife and
held it to the old man's throat and took his billfold out [of] his
back pocket. . . . [T]hey all left then and went to the
Twenty-third Street Viaduct, where he gave Eddie $3.00 and he kept
$10.00 to split between him and Richard, and they then went home. .
That same evening, January 2 at 11:30 p.m., Mrs. Gallegos
attempted to visit her two sons at Juvenile Hall, but was again
informed that visiting hours were 7 p.m. to 8 p.m. on Mondays and
Thursdays. At the trial, she testified that she made no effort to
see her sons on the next visiting day, which was Monday, but waited
until Thursday, January 8.
The record shows that, on January 3, the officer filed in the
juvenile court a detailed report of the arrest and petitioner's
confessions, together with a petition charging petitioner with
juvenile delinquency. This was supplemented on the 5th by the
report of the Kruhd assault and Kruhd's identification of
petitioner and the other boys. The officer followed, as he was
obliged to do, the juvenile court law of Colorado, which provides
for commitment in Juvenile Hall, report to the juvenile judge who
supervises the Hall and its inmates, and the filing of a
For the first few days at Juvenile Hall, petitioner was placed
in "security," which meant that he did not participate in the
school program. The uncontradicted testimony
Page 370 U. S. 59
of the Hall Superintendent was that the decision to keep the
petitioner out of the program was made by his unit supervisor in
order to size up the boy, who had been charged with a serious
crime, before placing him in the regular activities with the
others. During this time, he had all his meals with the other boys
and conversed with his younger brother, who was held in another
ward. Although the petitioner did not testify at the trial in the
presence of the jury, he admitted at a hearing held to determine
the admissibility of the formal confession that he was only
questioned three times between January 1 and January 7, and that no
threats or physical coercion was used at any time.
On January 7, the police department sent a man over to formalize
the earlier confessions. Officer Miller, who took the confession,
testified that he told petitioner of the possibility of a murder
charge, warned him that he did not have to make a statement, and
told him that he could have his parents and an attorney present if
he desired. Petitioner indicated that he did not so desire, and a
formal confession was taken which was substantially identical to
the statement given on January 2, as related by Officer Chism in
his testimony. The confession was typed, and Officer Chism took it
over to Juvenile Hall for petitioner to sign. He testified that
petitioner read it aloud before signing it. Above his signature was
the admission that the confession was made voluntarily and upon
warning that it could be used against him.
On January 16, the three assailants were committed to the
Industrial School by the juvenile court. Upon the death of Mr.
Smith, petitioner, on information, was tried for murder. As noted
above, the evidence included testimony of his admissions upon
arrest and his confession on January 2, as well as the formal
confession of January 7. These were admitted after independent
Page 370 U. S. 60
voluntariness by the trial judge and jury. The latter was
instructed that, in determining whether petitioner freely and
voluntarily made the confessions, it was to take into account
"the age, maturity, physical and mental condition of the
defendant, the length of his confinement, his opportunity or lack
of opportunity to seek friendly or professional aid, the advice or
lack of advice given him as to his constitutional rights, and all
other facts and circumstances surrounding such confession."
Before discussing the admissibility of the formal confession of
January 7, I must first comment on the Court's treatment of the
earlier confessions, viz.,
those of January 1 and 2.
Although the Court carefully refrains from holding these
confessions inadmissible under due process standards, its innuendo
that they were acquired "in callous disregard of this boy's
constitutional rights" cannot pass unexposed. In regard to these
confessions, the test of voluntariness as evidenced by the
"totality of circumstances" leads the Court not to question them.
Here, there were no "secret inquisitorial processes" or compulsion
of any kind as the Court envisions in relation to the confession of
January 7. The Court's only criticism is that petitioner "would
have no way of knowing what the consequences of his confession were
without advice as to his rights. . . ." [Footnote 3
] The truth of the matter is that the
singular circumstance pointed out by the Court has never been
thought to render a confession inadmissible. See Culombe v.
Connecticut, 367 U. S. 568
367 U. S.
-602 (1961) (opinion of MR. JUSTICE FRANKFURTER).
Page 370 U. S. 61
The Court is overturning petitioner's conviction because it
flows in part from the formal confession of January 7. I cannot
draw from this record a conclusion that this confession was
involuntary. Petitioner freely admitted in testimony before the
trial judge that he was not threatened or physically coerced in any
way, and that he was not intensively questioned. Moreover, prior to
the formal confession, he was told that he did not have to make a
statement and warned of the possibility of a murder charge, as well
as informed that he could have an attorney and his parents present.
Officer Chism's testimony as to this matter was documented by the
confession itself, which recites that it was voluntary and given
after notice that it could be used against him.
Petitioner was never placed in solitary confinement, as might be
implied from the Court's opinion, but was merely kept out of the
organized activities until the unit supervisor could determine
whether his full-time participation would have an adverse effect on
others. And, even under this schedule, he had all his meals with
the other boys and conversed freely with them.
Nor was petitioner "cut off" from contact with lawyers or adults
and "made accessible only to the police." His mother made no effort
to obtain an attorney although informed of the right to do so.
] And she was not
prevented from seeing him, but was merely asked to comply with
reasonable visiting regulations. She was informed on two occasions
that she could see him Monday, January 5, two days before the
formal confession which the Court finds invalid, but she did not
attempt to do so. And petitioner himself passed up the offer to
confer with his parents and an attorney before making this
In support of the above factors indicating that the confession
of January 7 was voluntary is the undeniable fact
Page 370 U. S. 62
that petitioner admitted on January 1 his participation in the
assault and confessed in detail thereto on January 2. Both of these
statements occurred prior to the events which the Court finds to
have coerced the confession of January 7. I am hard pressed to
understand how one could conclude that the police found it
expedient to coerce the January 7 confession or that the events
discussed by the Court rendered it involuntary when, five days
earlier, a substantially identical confession was made in the
absence of the "coercive" events.
As I have noted, in light of these facts, I cannot conclude that
this confession was involuntary. A fortiori,
I could not
determine, as the Court must, that so clear a case of coercion was
made out that three prior findings that the confession was
voluntary -- including one by the jury which was specifically
instructed to consider each of the factors relied on by the
majority -- can be reversed. I have carefully examined the cases
upon which the Court relies, and can find not one among them which
in the least is apposite. There were no "secret inquisitorial
processes" as in Chambers v. Florida, 309 U.
(1940). There, Chambers, a Negro, for a week
after arrest was kept incommunicado, moved from one jail to
another, constantly questioned, and was finally subjected to
around-the-clock interrogation by a relay of from 4 to 10 persons.
Nor does Leyra v. Denno, 347 U. S. 556
(1954), in any way resemble this case. There, the accused had
requested a doctor in order to get relief from a painful sinus
attack. The police brought in a psychiatrist who, by subtle means,
induced him to confess after an hour or two of questioning. The
state court found this confession invalid because of mental
coercion. However, at the second trial, subsequent confessions were
admitted in evidence. This Court held that the psychiatric
inducement used to extract the first confession poisoned and
invalidated the subsequent ones. Likewise, the reference of the
Court to Chief Justice
Page 370 U. S. 63
Hughes' statement in Brown v. Mississippi, 297 U.
, 297 U. S. 285
(1936), concerning the "element of compulsion which is condemned by
the Fifth Amendment," is misleading and inapposite. "The question
in this case," he said in Brown
with his usual
"is whether convictions, which rest solely upon confessions
shown to have been extorted by officers of the state by brutality
and violence, are consistent with the due process of law required
by the Fourteenth Amendment of the Constitution of the United
at 297 U. S. 279
Brown and the other suspects, the Chief Justice pointed out, had
been stripped, laid over chairs and beaten with a leather strap
with buckles until their backs were cut to pieces, and they
confessed. Nor does the holding in Ashcraft v. Tennessee,
322 U. S. 143
(1944), have any bearing on this case. It also involved
"prosecutors serving in relays" keeping a person under continuous
cross-examination for 36 hours without rest or sleep. Nor can it,
in my view, be said that Spano v. New York, 360 U.
(1959), has any weight under the facts here. In
that case, continuous, all-night cross-examination by four
officers, the refusal of repeated requests to consult his counsel,
together with the use of an old friend who was a fledgling police
officer as bait to break down the accused, led us to invalidate the
confession. And in Malinski v. New York, 324 U.
(1945), the accused was stripped of his clothing
and his request for counsel ignored while he remained in solitary
confinement and without food until, led to believe that he was
going to get a "shellacking," he confessed from apparent fear of
his jailors. Finally, I see no similarity in Haley v.
Ohio, 332 U. S. 596
(1948), the last case cited by the Court. There, a 15-year-old boy,
never before in trouble, was questioned "through the dead of night"
by five to six policemen in relays of one or two each, and then
only was led to confess by being shown alleged statements of two
confederates incriminating him.
Page 370 U. S. 64
does not indicate that youth alone is sufficient
to render a juvenile's confession inadmissible. Here, we do not
have any of the factors which led to the comment: "What transpired
would make us pause for careful inquiry if a mature man were
332 U. S. 599
I regret that, without support from prior cases and on the basis
of inference and conjecture not supported in the record, the Court
upsets this conviction.
At this time, Smith was still alive. He died on January 26, and
the murder prosecution here at issue followed.
These notes were signed by petitioner.
There is no basis for the Court's suggestion that the officers
improperly failed to bring petitioner before the juvenile judge
when they first arrested him. The procedure used in Denver of
filing a report with the juvenile judge and temporarily placing the
offender in Juvenile Hall pending a hearing is in keeping with
advanced procedures being followed with reference to juvenile
offenders throughout the United States.
Indeed, no attorney was obtained for petitioner's trial in the