1. Upon review of a state court judgment affirming convictions
of codefendants Malinski and Rudish on a charge of murder, denial
of rights under the due process clause of the Fourteenth Amendment
being claimed, the judgment against Malinski is reversed, and that
against Rudish is affirmed. Pp.
324 U. S. 402,
324 U. S.
412.
2. The case against the codefendant Rudish, both as tried and as
sustained on appeal, was not dependent on a subsequent confession
of Malinski (though assumed to have been coerced); on the record,
the questions raised involve matters of state procedure beyond the
province of this Court to review; and the judgment against Rudish
is therefore affirmed.
Anderson v. United States,
318 U. S. 350, and
Ashcraft v. Tennessee, 322 U. S. 143,
distinguished. Pp.
324 U. S. 410,
324 U. S.
412.
Opinion of DOUGLAS, J., in which BLACK, MURPHY and RUTLEDGE,
JJ., join:
3. The question whether there has been a violation of the due
process clause of the Fourteenth Amendment by the introduction of
an involuntary confession is one upon which this Court must make an
independent determination on the undisputed evidence. P.
324 U. S.
404.
4. If all the attendant circumstances indicate that the
confession was coerced or compelled, it may not be used to convict
a defendant. P.
324 U. S.
404.
5. A conviction obtained by use of a coerced confession will be
set aside even though the evidence apart from the confession might
have been sufficient to sustain the verdict. P.
324 U. S.
404.
6. The evidence of the circumstances in which Malinski made the
first of several confessions, together with the comments of the
prosecutor in his summation to the jury, show that that confession
was coerced; and, upon the record, the case must be considered as
one in which a coerced confession was used to obtain a conviction.
P.
324 U. S.
406.
7. The judgment against Malinski, resting in part on a coerced
confession, must be reversed. A majority of the Court do not reach
the question whether the subsequent confessions were free from the
infirmities of the first. P.
324 U. S.
410.
292 N.Y. 360, 55 N.E.2d 353, affirmed in part; reversed in
part.
Page 324 U. S. 402
Certiorari, 323 U.S. 694, to review the affirmance of
convictions of murder.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Malinski and Rudish were convicted along with one Indovino of
the murder of Leon Fox, a police officer who, late at night, was
escorting a manager of a theatre to a bank depository. The details
will be found in 292 N.Y. 360, 55 N.E.2d 353. There were no eye
witnesses to the crime who could identify the robbers. Malinski was
implicated by various witnesses -- by Spielfogel, an old friend and
a criminal serving a sentence of thirty to sixty years in Sing
Sing; by Malinski's girl friend; by Malinski's brother-in-law. Each
testified that Malinski confessed the crime to him or her. The
confessions to the girl friend and to the brother-in-law were made
a few hours after the crime, and were merely that Malinski had shot
a cop; but the confession to Spielfogel disclosed in detail the
planning and execution of the crime. Malinski denied making these
confessions. Yet, as the New York Court of Appeals pointed out (292
N.Y. p. 370) those confessions and other evidence of the State were
sufficient, if believed, to support the conviction, wholly apart
from another confession around which the present controversy turns.
But the circumstances under which the latter confession was
obtained raised the substantial federal question which prompted us
to grant the petition for a writ of certiorari, 323 U.S. 694.
Page 324 U. S. 403
I
Malinski was arrested while on his way to work on the morning of
Friday, October 23, 1942. The police did not then arraign him, but
took him to a room in the Bossert Hotel in Brooklyn, where he
arrived about 8 A.M. He was immediately stripped and kept naked
until about 11 A.M. At that time, he was allowed to put on his
shoes, socks and underwear and was given a blanket in which to wrap
himself. He remained that way until about 6 P.M. Malinski claims he
was beaten by the police during that period. The police denied
this. There was no visible sign of any beating, such as bruises or
scars, and Malinski made no complaint to the judge on arraignment
nor to the jail authorities where he was later held. Sometime
during Friday morning, Spielfogel was brought to the hotel. He and
Malinski were put alone together in a room sometime that afternoon.
Shortly after their conference -- apparently around 5:30 P.M. or
6:00 P.M. -- Malinski confessed to the police. After it was made,
Malinski was allowed to dress. Malinski was kept at the hotel that
night and the next three days. The record does not show exactly how
long and frequent the questioning was after the first confession.
But it is clear that Malinski was questioned in the early hours of
Saturday, the 24th, and at other times during that day. He was
further questioned on Sunday, the 25th, and taken with Spielfogel
from the hotel to the scene of the crime, where he identified
several places which had a relationship to the commission of the
crime and where he pointed out how the crime was executed. On
Monday, the 26th, he was taken from the hotel to the police garage,
where he identified the automobile used in the robbery. At about
5:00 P.M. on Monday, he was taken to a police station and
questioned. On Tuesday morning, October 27th, about 2 A.M., he made
a confession
Page 324 U. S. 404
at the police station. That confession was introduced at the
trial. Shortly thereafter -- about 4:00 A.M. -- he was booked and
put in a cell and soon arraigned.
The trial court held a preliminary hearing on the voluntary
character of the confession of October 27th before allowing it to
be introduced in evidence. There is a question in the case whether
the confession of October 23rd as well as that of October 27th was
submitted to the jury, a question to which we will return. It is
sufficient here to note that the trial court charged the jury that
a confession should not be considered by them unless they found
beyond a reasonable doubt that it was voluntary. And they were told
that although the delay in arraignment was not conclusive, they
might consider it in passing on the question of voluntariness. The
Court of Appeals sustained the judgment of conviction by a divided
vote. [
Footnote 1] But the
question whether there has been a violation of the due process
clause of the Fourteenth Amendment by the introduction of an
involuntary confession is one on which we must make an independent
determination on the undisputed facts.
Chambers v.
Florida, 309 U. S. 227;
Lisenba v. California, 314 U. S. 219;
Ashcraft v. Tennessee, 322 U. S. 143.
If all the attendant circumstances indicate that the confession
was coerced or compelled, it may not be used to convict a
defendant.
Ashcraft v. Tennessee, supra, page
322 U. S. 154.
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.
Lyons v. Oklahoma, 322 U.
S. 596,
322 U. S.
597.
If the evidence alone is considered, there is serious doubt
whether the confession made on the late afternoon of Friday,
Page 324 U. S. 405
October 23rd (the first day of Malinski's detention) was
admissible under the rule of
Chambers v. Florida, Lisenba v.
California, and
Ashcraft v. Tennessee, supra. If the
confession had been the product of persistent questioning while
Malinski stood stripped and naked, we would have a clear case. But
it was not. Malinski was stripped when he arrived at the hotel so
that he might be examined for bullet wounds. [
Footnote 2] He remained in that condition several
hours -- much longer than any such physical examination could
possibly justify. But it does not appear that he was subjected to
more than occasional questioning during that period. No confession
was obtained from him at that time. He said he was beaten, but that
was disputed. And the assertion has such a dubious claim to
veracity that we lay it aside. In any event, he soon had his shoes,
socks, and underwear back on and a blanket in which to wrap
himself. He complained of that treatment in his testimony. The
police justified it with the dubious explanation that it was to
make certain that Malinski did not escape. Yet the record does not
show any persistent and incessant -- let alone gruelling --
questioning by the police while Malinski was only partially
clothed. There are many gaps in the chronological narrative of what
transpired that day. But several circumstances stand out. Malinski
was held incommunicado; he was not allowed to see a lawyer, though
he asked for one, and he was not allowed to see friends, with one
exception. [
Footnote 3]
That
Page 324 U. S. 406
exception was Spielfogel. [
Footnote 4] As we have noted, he and Malinski had a
private conference that afternoon. Malinski was told that
Spielfogel was there. Malinski asked to see him. Spielfogel's
version of what transpired varies from Malinski's. The former says
that Malinski told him the police knew so much that Malinski
figured he "might as well go out there and tell them the rest."
Malinski said that he asked Spielfogel, "What are you doing with
me?", and that Spielfogel replied, "don't let them hit you. You
know you didn't do it. Go out and say I told you to tell the
truth." Shortly thereafter, Malinski made his confession of October
23rd. If that evidence alone is not sufficient to show that that
confession was coerced, the comments of the prosecutor place it
beyond doubt. For, in his summation to the jury, he made certain
statements which the Court of Appeals said were "indefensible" (292
N.Y. page 373) and which we think are sufficient to fill in any
gaps on the record before us and to establish that this confession
was not made voluntarily. He said that Malinski
Page 324 U. S. 407
"was not hard to break"; that "He did not care what he did. He
knew the cops were going to break him down." And he added:
"Why this talk about being undressed? Of course they had a right
to undress him to look for bullet scars, and keep the clothes off
him. That was quite proper police procedure. That is some more
psychology -- let him sit around with a blanket on him, humiliate
him there for a while; let him sit in the corner, let him think he
is going to get a shellacking."
If we take the prosecutor at his word, the confession of October
23rd was the product of fear -- one on which we could not permit a
person to stand convicted for a crime.
But it is said that this coerced confession was not introduced
in evidence, that it was submitted to the jury only insofar as it
threw light on the voluntary character of the subsequent
confessions, and that, under the rule of
Lyons v. Oklahoma,
supra, p.
322 U. S. 601,
the adequacy of that instruction to the jury is solely for the
state courts to determine. We do not think, however, that
Lyons
v. Oklahoma, supra, fits this case.
The confession of October 23rd was oral. Its details were not
put in evidence. But Spielfogel, a witness for the prosecution,
adverted to it in his testimony, saying that Malinski told
"everything" at that time. A police officer testified on behalf of
the prosecution to the same effect. The prosecutor referred to it
in his summation in language which we have already quoted. He added
that "Six o'clock in the evening after he (Malinski) was picked up,
he told the whole thing." When the confession of October 27th
(which was a detailed confession taken down by a stenographer) was
offered in evidence, a preliminary hearing was had. That hearing
covered the voluntary character of the October 23rd confession as
well as the October 27th confession. The trial court, in its charge
to the jury, reviewed the events leading up to the confession
Page 324 U. S. 408
of October 23rd -- the prosecutor's version, Malinski's version.
It then referred to the delay in arraigning Malinski, stating that
the police claimed they were willing to arraign Malinski on the day
of his arrest, but that Malinski preferred to stay at the hotel
with Spielfogel. It then charged:
"Be that as it may, I charge you that it was the duty of the
police to arraign the defendant before the nearest Magistrate
without unnecessary delay, and, further, that if a police officer
failed or refused to perform such duty, he is guilty of a
misdemeanor."
"But, gentlemen, you will bear in mind that the police
department is not on trial in this case. This testimony was adduced
solely on the question as to whether or not the alleged confession
later made was the result of the coercion, either direct or
implied, which is prohibited by the statute, and which invalidates
a confession if made. If you should find that the arraignment of
the defendant was delayed, you may consider that on the question of
the voluntariness of any confession made by Malinski, including the
one made in the early hours of October 27th at the Bath Beach
station house."
"However, I am charging you that the failure to arraign, in and
of itself, is not conclusive against the People, and does not, in
and of itself, standing alone, destroy the validity of the
confession. Is that clear?"
"On the question whether Malinski was coerced, you may consider
that he made no complaint to the Magistrate when arraigned, and did
not seek the services of the jail physician. That evidence, if
true, is not, however, conclusive against Malinski, but may be
considered by the jury on the issue of the voluntariness of the
confession."
Malinski made no objections to these references to his
confession of October 23rd. And while he asked for a mistrial
because of the prosecutor's comments, he made on this phase of the
case no requests to charge which were
Page 324 U. S. 409
refused. The Court of Appeals, however, did not hold that
Malinski was precluded from objecting [
Footnote 5] to the use made at the trial of his confession
of October 23rd. It considered his objection that "it was error for
the court to submit to the jury the confession made by Malinski
orally on October 23rd," as well as the other three confessions
made to the police. 292 N.Y. page 370. And it made plain, when it
held that Malinski's "confession" should not have been excluded as
a matter of law, that it meant
"not only the confession made orally to a police officer on the
Friday night of the arrest, but also the two automobile trips on
Sunday and Monday, one to the police garage to permit Malinski to
identify the automobile used in the crime and the other to Coney
Island to revisit a restaurant and the scene of the crime, and the
confession to the District Attorney which was taken
stenographically in the early morning of Tuesday, October
27th."
292 N.Y. pages 373-374. Its ruling was that none of the four
confessions was involuntary as a matter of law. Thus, as we read
the opinion of the Court of Appeals, it reviewed the judgment of
conviction on the basis that all four confessions to the police had
been submitted to the jury. We find no indication that it construed
the record to be like the one in
Lyons v. Oklahoma, supra,
where consideration of the first coerced confession was strictly
limited to the voluntary character of subsequent confessions. Nor
do we think that the record before us can be fairly construed in
that manner.
There were repeated references at the trial to the confession of
October 23rd. The prosecutor made emphatic references to it in his
summation. On this record, the fact
Page 324 U. S. 410
that Malinski confessed to the crime shortly after he was
arrested stands out in bold relief. The use made of the confession
could hardly have been more effective had its details been put in
evidence. It was not insulated from the trial. The part of the
charge to the jury which we have quoted may possibly have been an
effort in that direction. But it is more susceptible of the
interpretation that the delay in arraignment, not the first
confession, was to be considered "solely on the question as to
whether or not the alleged confession later made was the result of
the coercion." That seems to have been the interpretation given the
charge by the Court of Appeals. 292 N.Y. page 374. No more explicit
charge was given. The jury at no time was admonished that it could
not convict on the basis of the first confession nor consider it as
evidence against Malinski. We must consider the case, therefore, as
one in which a coerced confession was employed to obtain a
conviction. Coerced confessions would find a way of corrupting the
trial if we sanctioned the use made of the October 23rd confession
in this case. Constitutional rights may suffer as much from subtle
intrusions as from direct disregard.
It is thus apparent that the judgment before us rests in part on
a confession obtained as a result of coercion. Accordingly, a
majority of the Court do not come to the question whether the
subsequent confessions were free from the infirmities of the first
one. [
Footnote 6]
II
We have not mentioned Rudish. He did not confess to the police.
He was tried jointly with Malinski, his counsel electing not to ask
for a severance. We are asked to reverse as to Rudish because the
confession of October 27th which was introduced in evidence against
Malinski
Page 324 U. S. 411
was prejudicial to Rudish. It is argued that that course is
indicated by
Anderson v. United States, 318 U.
S. 350. In that case, we reversed a judgment of
conviction against all the defendants though the confessions which
had been introduced were the confession of only some of them. But,
in that case, we were reviewing a criminal proceeding in a federal
District Court over which we have more control than we do over
criminal trials in the state courts.
McNabb v. United
States, 318 U. S. 332.
Moreover, in the
Anderson case, the jury was told that, in
considering the guilt or innocence of each defendant, they could
consider the whole proof made at the trial. And it appeared that
the prosecution leaned heavily on the confessions to establish its
case against all the defendants. The furthest we have gone in a
comparable case from a state court is to vacate the judgment
against the codefendant who did not confess and remand the case to
the state court for further consideration. Thus, in
Ashcraft v.
Tennessee, 322 U. S. 143, we
followed that procedure, at the suggestion of the Attorney General
of the State, where the judgment against the codefendant who did
not confess was sustained by the state court on the assumption that
the confession which we held to be coerced was properly admitted
and that the conviction of the defendant who did confess was
valid.
We do not believe that procedure is appropriate in this case,
even though it be assumed
arguendo that the confession of
October 27th was involuntary. It is true that that confession
referred both to Rudish and to Indovino. But, before that
confession was offered in evidence, the trial court, with the
complete approval of counsel for Rudish, worked out a procedure for
protecting Rudish and Indovino. "X" was substituted for Rudish, "Y"
for Indovino. The jury were plainly instructed that the confession
was admitted against Malinski alone, and that they were not to
speculate concerning the identity of "X" or "Y." When it came to
the charge, the trial court submitted
Page 324 U. S. 412
the case against Rudish separately from the one against
Malinski. [
Footnote 7] The
Court of Appeals, in sustaining the judgment against Rudish, in no
respect relied on any confession to the police which Malinski made.
And when it turned to the comments of the prosecutor, which we have
quoted, it noted that they concerned Malinski, not Rudish. 292 N.Y.
p. 373.
On this record, the questions raised by Rudish involve matters
of state procedure beyond our province to review.
Barrington v.
Missouri, 205 U. S. 483.
Since the case against him, both as tried and as sustained on
review, was not dependent on Malinski's confession of October 27th,
we think it inappropriate to vacate the judgment as we did in
Ashcraft v. Tennessee, supra, though we assume that that
confession was coerced. Whether our reversal of the judgment
against Malinski would, as a matter of state law, affect that
judgment against Rudish is not for us to say. In each case, our
mandate will provide for a remand to the Court of Appeals for
proceedings not inconsistent with this opinion.
The judgment against Rudish is affirmed.
The judgment against Malinski is reversed.
It is so ordered.
[
Footnote 1]
The Court of Appeals did not divide on the issue which is before
us. The dissenting judges thought (1) that Spielfogel was an
accomplice and that the conviction of Rudish was not supported by
corroborative evidence; and (2) that the instruction concerning the
voluntary character of the confession was not adequate.
[
Footnote 2]
While the robbers were escaping, the wounded policeman fired
several shots, some of which hit the car in which they made their
escape.
[
Footnote 3]
The matter was described by the prosecutor in a rather shocking
manner:
"They hold men for several days. Are you satisfied with that?
They are not going to let him go home, or let him get hold of a
smart mouthpiece to preach about his rights and sue out writs. You
want a district attorney in this county that it worth his salt, not
a powderpuff district attorney. When you are trying a case of
murder, especially murder of a police officer, you don't go over
and give him a pat on the back and say, 'Do you want anything? Do
you want to have your lawyer or your wife or somebody else?' In
fact, after that, they would not even let him see Mr. Math, an
assistant in our office; they would not even let him talk to a
rabbi. Do you think McNally, 17 years in the Police Department, is
going to let this jerk from the East Side tell him his
business?"
[
Footnote 4]
As the Court of Appeals points out (292 N.Y. page 375),
Spielfogel and Malinski had an agreement that if either went to
prison, the one who was free would help take care of the other's
family. After Spielfogel went to Sing Sing, Malinski contributed
for a while to the support of Spielfogel's wife. When Malinski
refused to pay any more, Spielfogel unburdened himself to two other
convicts, Yellin and Kovner,
"but with no intention of acting against Malinski, for,
curiously enough, testimony is in this record that, after knowledge
of what had occurred in the shooting of Fox reached the police
department and a lieutenant of police was sent to Sing Sing prison
to interview Spielfogel, he refused to talk to the police officer.
Even after that police officer had told him all that Spielfogel
must have told to Yellin and Kovner, he still evinced no interest
in helping the police. It was only later that he consented to
talk."
[
Footnote 5]
New York has the rule that, in capital cases, a new trial may be
ordered in the interests of justice though no exception was taken
in the trial court. Gilbert's Anno. Criminal Code & Penal Law
(1943) § 528;
People v. Jung Hing, 212 N.Y. 393, 405, 106
N.E. 105;
People v. Lytton, 257 N.Y. 310, 313, 178 N.E.
290.
[
Footnote 6]
MR. JUSTICE BLACK, MR. JUSTICE MURPHY, and MR. JUSTICE RUTLEDGE
join in Part I of this opinion.
[
Footnote 7]
This treatment of the matter seems to have followed the
procedure adopted in New York in case of joint trials.
See
People v. Snyder, 246 N.Y. 491, 497, 159 N.E. 408;
People
v. Fisher, 249 N.Y. 419, 424, 427, 164 N.E. 336.
MR. JUSTICE FRANKFURTER.
It is also my view that the judgment as to Malinski calls for
reversal, leaving the disposition of Rudish's conviction in the
light of such reversal to the New York Court of Appeals.
Apart from permitting Congress to use criminal sanctions as
means for carrying into execution powers granted to it, the
Constitution left the domain of criminal justice
Page 324 U. S. 413
to the States. The Constitution, including the Bill of Rights,
placed no restriction upon the power of the States to consult
solely their own notions of policy in formulating penal codes and
in administering them, excepting only that they were forbidden to
pass may "Bill of Attainder" or "
ex post facto Law,"
Constitution of the United States, Art. I, § 10. This freedom of
action remained with the States until 1868. The Fourteenth
Amendment severely modified the situation. It did so not by
changing the distribution of power as between the States and the
central government. Criminal justice was not withdrawn from the
States and made the business of federal lawmaking. The Fourteenth
Amendment merely restricted the freedom theretofore possessed by
the States in the making and the enforcement of their criminal
laws.
Unlike the limitations of the Bill of Rights upon the use of
criminal penalties by federal authority, the Fourteenth Amendment
placed no specific restriction upon the administration of their
criminal law by the States. Congress, in proposing the Fourteenth
Amendment, and the States, in ratifying it, left to the States the
freedom of action they had before that Amendment excepting only
that, after 1868, no State could "abridge the privileges or
immunities of citizens of the United States," nor "deprive any
person of life, liberty, or property, without due process of law,"
nor deny to any person the "equal protection of the laws." These
are all phrases of large generalities. But they are not
generalities of unillumined vagueness; they are generalities
circumscribed by history and appropriate to the largeness of the
problems of government with which they were concerned. "The
privileges or immunities of citizens of the United States" derived
from the two aspects of citizenship in our federal system. The
safeguards of "due process of law" and "the equal protection of the
laws" summarize the history of freedom of English-speaking peoples
running back to Magna Carta and reflected in the constitutional
development of our
Page 324 U. S. 414
people. The history of American freedom is, in no small measure,
the history of procedure.
Here, we are concerned with the requirement of "due process of
law" in the enforcement of a state's criminal law. Experience has
confirmed the wisdom of our predecessors in refusing to give a
rigid scope to this phrase. It expresses a demand for civilized
standards of law. It is thus not a stagnant formulation of what has
been achieved in the past, but a standard for judgment in the
progressive evolution of the institutions of a free society. The
suggestion that "due process of law," as guaranteed by the
Fourteenth Amendment, is a compendious expression of the original
federal Bill of Rights (Amendments I to VIII) has been rejected by
this Court again and again and after impressive consideration.
See, e.g., Hurtado v. California, 110 U.
S. 516;
Twining v. New Jersey, 211 U. S.
78;
Brown v. Mississippi, 297 U.
S. 278;
Palko v. Connecticut, 302 U.
S. 319.
In the Bill of Rights, Eighteenth century statesmen formulated
safeguards against the recurrence of well defined historic
grievances. Some of these safeguards, such as the right to trial by
a jury of twelve and immunity from prosecution unless initiated by
a grand jury, were built on experience of relative and limited
validity. "Few would be so narrow or provincial as to maintain that
a fair and enlightened system of justice would be impossible
without them."
Palko v. Connecticut, supra, at
302 U. S. 325.
Others, like the freedom of the press or the free exercise of
religion or freedom from condemnation without a fair trial, express
rights the denial of which is repugnant to the conscience of a free
people. They express those "fundamental principles of liberty and
justice which lie at the base of all our civil and political
institutions,"
Hebert v. Louisiana, 272 U.
S. 312,
272 U. S. 316,
and are implied in the comprehensive concept of "due process of
law."
The Due Process Clause of the Fourteenth Amendment thus has
potency different from and independent of the
Page 324 U. S. 415
specific provisions contained in the Bill of Rights. Apart from
all other considerations, how could it be otherwise without
charging Madison and his great contemporaries in the framing and
adoption of the Bill of Rights with writing into it a meaningless
clause? The Fifth Amendment specifically prohibits prosecution of
an "infamous crime" except by indictment; it forbids double
jeopardy and self-incrimination, as well as deprivation of "life,
liberty, or property, without due process of law." Not to attribute
to due process of law an independent function, but to consider it a
shorthand statement of other specific clauses in the same
Amendment, is to charge those who secured the adoption of this
Amendment with meretricious redundancy by indifference to a phrase
-- "due process of law" -- which was one of the great instruments
in the very arsenal of constitutional freedom which the Bill of
Rights was to protect and strengthen. Of course, the Due Process
Clause of the Fourteenth Amendment has the same meaning. To suppose
that "due process of law" meant one thing in the Fifth Amendment
and another in the Fourteenth is too frivolous to require elaborate
rejection.
A construction which gives due process no independent function,
but makes of it a summary of the specific provisions of the Bill of
Rights, would tear up by the roots much of the fabric of law in the
several States. Thus, it would require all the States to prosecute
serious crimes through the grand jury system long ago abandoned by
many of them,
see Hurtado v. California, supra, to try
such crimes by a jury of twelve which some of the States have seen
fit to modify or abandon,
see Maxwell v. Dow, 176 U.
S. 581, to enforce the privilege against
self-incrimination with the technical requirements prevailing in
the federal courts when States, consistently with fundamental
notions of justice, have seen fit to make other arrangements,
see Twining v. New Jersey, supra, and to have jury trials
"[i]n suits at common law, where the value in controversy
Page 324 U. S. 416
shall exceed twenty dollars," a requirement which this Court has
held over and over again for more than a hundred years does not
apply to proceedings in state courts,
See
Livingston v.
Moore, 7 Pet. 469,
32 U. S. 551;
Walker v. Sauvinet, 92 U. S. 90;
Pearson v. Yewdall, 95 U. S. 294,
95 U. S. 296.
And we can hardly select one provision of the Bill of Rights and
reject another, as for instance the provision of the Fourth
Amendment against unreasonable search and seizure. Such a view
would not only disregard the historic meaning of "due process." It
leads inevitably to a warped construction of specific provisions of
the Bill of Rights to bring within their scope conduct clearly
condemned by due process but not easily fitting into the
pigeonholes of the specific provisions. But for contrary
suggestions, it would seem too late in the day to treat seriously
the argument that a phrase so laden with historic meaning as is
"due process of law" can be given an improvised content of some
selected provision of the original Bill of Rights.
And so, when a conviction in a state court is properly here for
review, under a claim that a right protected by the Fourteenth
Amendment has been denied, the question is not whether the record
can be found to disclose an infraction of one of the specific
provisions of the first eight amendment. To come concretely to the
present case, the question is not whether the record permits a
finding, by a tenuous process of psychological assumptions and
reasoning, that Malinski, by means of a confession, was forced to
self-incrimination in defiance of the Fifth Amendment. The exact
question is whether the criminal proceedings which resulted in his
conviction deprived him of the due process of law by which he was
constitutionally entitled to have his guilt determined. Judicial
review of that guaranty of the Fourteenth Amendment inescapably
imposes upon this Court an exercise of judgment upon the whole
course of the proceedings in order to ascertain
Page 324 U. S. 417
whether they offend those canons of decency and fairness which
express the notions of justice of English-speaking peoples even
toward those charged with the most heinous offenses. These
standards of justice are not authoritatively formulated anywhere as
though they were prescriptions in a pharmacopoeia. But neither does
the application of the Due Process Clause imply that judges are
wholly at large. The judicial judgment in applying the Due Process
Clause must move within the limits of accepted notions of justice,
and is not to be based upon the idiosyncrasies of a merely personal
judgment. The fact that judges among themselves may differ whether
in a particular case a trial offends accepted notions of justice is
not disproof that general, rather than idiosyncratic, standards are
applied. An important safeguard against such merely individual
judgment is an alert deference to the judgment of the state court
under review. But there cannot be blind acceptance even of such
weighty judgment without disregarding the historic function of
civilized procedure in the progress of liberty.
And so, with every respect for the contrary views of the
majority of the judges below and of some of my brethren here, I
cannot escape agreement with the Chief Judge of the New York Court
of Appeals and two of his associates that there was not in this
case a fair trial of issues vital to the determination of guilt or
innocence. Considering the circumstances of Malinski's detention,
the long and continuous questioning, the willful and wrongful delay
in his arraignment and the opportunity that that gives for
securing, by extortion, confessions such as were here introduced in
evidence,
* the flagrant
justification by the prosecutor of this illegality as a necessary
police procedure,
Page 324 U. S. 418
inevitably calculated to excite the jury -- all these in
combination are so below the standards by which the criminal law,
especially in a capital case, should be enforced as to fall short
of due process of law.
In reviewing a state criminal conviction, we must be deeply
mindful of the responsibilities of the States for the enforcement
of criminal laws, and exercise with due humility our merely
negative function in subjecting convictions from state courts to
the very narrow scrutiny which the Due Process Clause of the
Fourteenth Amendment authorizes. On the other hand, in the
discharge of that duty, we must give no ear to the loose talk about
society's being "at war with the criminal" if by that it is implied
that the decencies of procedure which have been enshrined in the
Constitution must not be too fastidiously insisted upon in the case
of wicked people. Despite the
Page 324 U. S. 419
fact that English criminal justice has serious inadequacies, and
lags behind some of our penological advances, it is undeniable that
on the whole it is much more effective than ours. Yet there can be
no doubt, as English parliamentary proceedings and the reports of
the English Court of Criminal Appeal amply prove, that practices
such as this record reveals are not there tolerated.
See, for
instance, Inquiry in Regard to the Interrogation by the Police
of Miss Savidge (1928), Cmd. 3147; 217 H.C.Deb. (5th ser. 1928),
May 17, 1928, 1303
et seq. Whatever differences there may
be between the situations in England and in this country in the
task of law enforcement, it is intolerable to suggest that we
cannot have effective law enforcement without conduct such as this
record spreads before us. The notion that we must resort to such
methods in order to check crime or to convict criminals has been
rejected by those who have had most to do with the criminal law.
After consideration of the problem, a committee of eminent lawyers
reported this conclusion:
"The remedy for the ills which afflict the administration of
criminal justice, whatever that remedy may be, will not be found in
measures which violate law. Such expedients, so far from restoring
health and vigor to the system, only aggravate and protract the
disorder. Under our form of government, the machinery of criminal
justice depends for its force and efficiency upon the enlightened
moral sense of the individuals to whom the public by their
constitution and laws have temporarily entrusted its operation. And
it is as unwise as it is unwarranted for these servants of the
public to violate the constitution and laws in the vain hope of
accomplishing useful or beneficial results."
Yearbook (1928) Association of the Bar of the City of New York,
235, 255. These were the views of three former United States
Attorneys for the Southern District of New York and three
Page 324 U. S. 420
former District Attorneys for New York County whose experience
and effectiveness as prosecutors would hardly countenance
doctrinaire or sentimental views.
* It is suggested that "the New York Court of Appeals
unanimously sustained the jury's verdict that the confessions were
not coerced." I do not so interpret the views of the minority of
that court. The opinion of Chief Judge Lehman, on behalf of the
three dissenting judges, will speak for itself:
"Here we are agreed that a finding by the jury that the
defendant's confession, though obtained while he was unlawfully
detained without arraignment, is not against the weight of the
evidence. The officers of the law deny that they beat the defendant
or threatened him. Whatever may have been the motive of the police
in taking Malinski to the Hotel Bossert instead of to a police
station or jail, we find no basis for any inference that the police
believed that the hotel was an appropriate place where a person
could, without too much risk of discovery, be beaten in order to
compel a confession. Nonetheless, in this case, as in
People v.
Mummiani (
supra [258 N.Y. 394], pp. 399-400), "the
conclusion is inescapable" that the police delayed the arraignment
of the defendant "for the purpose of subjecting him to an
inquisition impossible thereafter" at which he might be induced to
make a confession by resort to what the Supreme Court of the United
States has described as "those reprehensible practices known as the
third degree' which, though universally rejected as
indefensible, still find their way into use." There can be no fair
trial of the issue whether the confession is voluntary where the
jury is not properly informed that the detention was unlawful and
that they must take that fact into consideration. That has not been
done in this case."
People v. Malinski, 292 N.Y. 360, 387-388, 55 N.E.2d
353, 366.
MR. JUSTICE RUTLEDGE, dissenting in part.
I concur in reversing the judgment against Malinski, but dissent
from affirmance of the judgment against Rudish.
I agree that Malinski's oral confession of October 23, 1942, was
coerced, was used in evidence against him, and that this requires
reversal of the judgment against him. I therefore join in the
Court's opinion insofar as it relates to him. But I am unable to
agree that we should stop with the ruling grounded upon the
confession of October 23 alone. I think the subsequent confessions,
including the written one of October 27, were vitiated with all the
coercion which destroys admissibility of the first one.
Accordingly, their use in evidence also requires reversal of the
judgment against Malinski. Furthermore, since the written
confession also affected Rudish and, in my opinion, the devices
employed were ineffective to prevent its influencing the verdict
and the judgment against him, I think that judgment likewise should
be reversed.
I
However great the proof against him otherwise may be, under our
system, no man should be punished pursuant to a judgment induced
wholly or in part by a coerced confession. In my opinion, the
entire procedure, from the time Malinski was taken into custody
until his written confession was obtained nearly five days later,
was a single and continuous process of coercion of the type
commonly known as "the third degree." I do not think the
Constitution has room for this in company with all the protections
it throws around the individual charged with crime.
Page 324 U. S. 421
The State's summation boldly admitted the case was of that
character. It characterized Malinski's treatment as "quite proper
police procedure." It was
"some more psychology -- let him sit around with a blanket on
him, humiliate him there for a while; let him sit in the corner,
let him think he is going to get a shellacking."
The Court of Appeals characterized "the remarks" as
"indefensible." Not only the remarks, but also the conduct they
accurately depict must bear that condemnation, as the record
demonstrates.
The "psychology" got results. It produced a confession,
[
Footnote 2/1] the first in a
series. The Court of Appeals treated them as one, though its
opinion expressly recognized there were three or more. [
Footnote 2/2] The first came at the end of
ten hours of applied "psychology." [
Footnote 2/3] The others followed later in the course of
and at the end of four days of illegal detention.
Page 324 U. S. 422
By any test, the first confession was "involuntary." It was
unworthy of credence in any court. No other conclusion can be drawn
on the record. The undisputed facts [
Footnote 2/4] bear out this view, and the State's
admission that it was obtained by threat of "shellacking." The
evidence is in conflict on whether physical force was used.
[
Footnote 2/5] There is no conflict
that it was threatened. Nor is there room for inference that the
threat did not bring about the confession. "Malinski was not hard
to break." No conviction tainted with this confession's influence
can stand.
Moreover, the first confession was used to secure the
defendants' conviction. In more ways than one. In the first place,
it was used directly in evidence against the accused, as the Court
of Appeals expressly recognized when it sustained the trial court's
action in submitting that confession, together with the later ones,
to the jury, [
Footnote 2/6] and as
we now hold. Further, we would be innocent indeed if we did not
believe that "leads" furnished were followed, and that the evidence
thus procured and presented, as an immediate consequence of the
initial coercion, had part in bringing about the verdict. The
record bears out that belief. Else why was Malinski illegally
detained, incommunicado, at the hotel for three days after he had
told "the whole thing"? Whatever may be the rule as to the use of
evidence secured by means merely unlawful, [
Footnote 2/7] in
Page 324 U. S. 423
my judgment, the Constitution does not tolerate the use of
evidence obtained by unconstitutional methods, including coercive
ones, to bring about a conviction for crime which is
constitutional. [
Footnote 2/8] The
Constitution does not thus nullify its own terms, setting them at
war with each other. The "leads" thus secured in violation of both
the fundamental law and the law of the State [
Footnote 2/9] led directly to the later confessions,
including the written one, and vitiated them with every vice
infecting the first. In my judgment, all that followed the first
confession was the product of it, and therefore of the initial
coercion which induced it. Beyond this, the coercive influences
themselves continued throughout the period between the first
confession and the last, with the single exception that Malinski
was given back his clothing.
This fact is highly material as showing the initial coercion.
Without more, it belies the explanation that the prisoner was
stripped and kept naked or partly so for ten hours because
otherwise he might try to escape. [
Footnote 2/10] That danger, if it existed, continued as
much after the first confession as before it. It continued
throughout the whole
Page 324 U. S. 424
time he was detained at the hotel. Malinski was stripped and
held naked or partly so, not to prevent his escape, but to do just
what the prosecution says was intended, to "break" a man "who was
not hard to break" by inducing the fear of a "shellacking."
But the fact that Malinski was given back his clothing when, and
only when, he confessed does not show that the coercion ceased
then, or before the last confession was secured. It shows only that
one of the coercive tactics used had become no longer necessary,
and therefore no longer was employed. Otherwise, why was Malinski
not promptly booked and arraigned, as he was four nights later when
the written confession was secured? Why was he detained illegally
at the hotel for three days and four nights [
Footnote 2/11] after he admittedly had told
"everything"? Why, further, was he held incommunicado during all
this time, seeing only the police, the assistant prosecuting
attorney, and Spielfogel? Why also was he subjected to examination,
interrupted now and then, it is true, in some instances because he
fell asleep, but continuing throughout most of each day, including
the time of the trips to the scene of the crime and the police
garage, and to the early hours of each morning? [
Footnote 2/12]
Page 324 U. S. 425
All this, the State asks us to believe, was consistent with
Malinski's making a "clean breast" entirely voluntarily. All this
comports with the view that the coercion had worn off, and the
written confession was the act of a man freed from the fears and
the pressures which forced out the first one, or so a jury could
find. Such is the claim made in the view that the first confession
was not used in evidence against the accused.
I cannot accept this view. On the contrary, I think only one
conclusion can be drawn from the facts -- namely, that all the
conditions which forced out Malinski's first confession continued
in full effect until they extorted also the written one, excepting
only that he was given back his clothing. That fact alone is not
enough to show that the coercive conditions were wholly abated and
the influences they generated had no part in bringing about the
later confessions.
Page 324 U. S. 426
Taking away Malinski's clothes is not the controlling fact in
this case. It was only one feature of the initial duress. The
details of this need not be repeated here. Taken all together, the
first day's proceedings weave into a pattern typical of "third
degree" method.
This pattern was not torn apart when it "broke" Malinski and he
confessed for the first time. With that event, he was not arraigned
or released. His unlawful detention continued for three days and
four nights. The questioning continued at frequent intervals each
day and each night. [
Footnote
2/13] Spielfogel [
Footnote
2/14] continued to see him daily. No one else except his
imprisoners was allowed to see him at any time. That he did not ask
again to see counsel or others is but evidence that he had been
"broken." He and Spielfogel were taken to the scene of the crime
and to the police garage to identify the automobile used in the
crime. These two incidents, I think, show conclusively that the
coercion continued after, and did not abate with, the first
confession. They were, in themselves, confessions, as the Court of
Appeals recognized. In my view, they were at once the products of
the first confession and immediately connecting links between it
and the written one. They were the consequence of continuing,
though interrupted, examination extending from the time of the
first confession to the last, and carried within themselves that
confession's vice, transmitting it to the written one. They were
the process, with all else that went on during the period, by which
whatever had been obtained at the
Page 324 U. S. 427
first confession was checked, elaborated, verified and distilled
until the final essence was separated and bottled in the written
confession, a process typical of "third degree" procedure. That
they brought forth strong corroborating evidence does not negative
or nullify the existence of the coercive conditions which produced
both the inducing original confession and the corroboration thus
secured. [
Footnote 2/15] Finally,
when Malinski confessed the last time, it was in the early hours of
the morning, after a night and a day of questioning. Only after
this confession was obtained, but significantly very shortly
thereafter, was Malinski booked, arraigned and taken to the
jail.
All these facts stand undisputed on the record. With the facts
of the first day's proceedings, they establish beyond question the
pattern of the "third degree." They establish its application from
the time of the arrest throughout the first day until the first
confession. They prove with equal clarity, in my judgment, that
every thread in that pattern but one, no longer needed, continued
to hold through every moment from the first confession to the last.
No single occurrence, not excluding the return of the clothing,
took place which gives basis to conclude that the initial
psychological pressures were relaxed or their coercive influence
and effects were nullified.
If, after the clothing was returned, Malinski no longer feared a
"shellacking," an inference there is broad room to doubt, he knew
there were other pressures to take the place of this threat,
pressures made possible by its success in forcing from him the
first confession. He knew that all of the subsequent examination,
as it turned out through four nights and three days, would be
founded on this confession and that he would be forced to
square
Page 324 U. S. 428
every statement, both in it and made later, not only with every
other statement, but also with every fact to the discovery of which
any statement might lead. This, in fact, was what he was being
required to do, among other incidents, at the scene of the crime
and at the police garage. In short, he knew that he was "on the
grill," and would continue so until he made whatever statement
might satisfy the officials who had him in charge.
Cf. Chambers
v. Florida, 309 U. S. 227,
309 U. S.
240.
To say that, in such circumstances, the coercive influences had
ended before they produced the result at which the entire procedure
was aimed and with which it stopped, is, in my opinion, a
conclusion we cannot draw, and the facts allow no room for
permitting a jury to make such an inference.
Were the question wholly fresh, the conclusion would seem
doubtful in any case that a later confession could be entirely
voluntary and uncoerced where an earlier one had been compelled. A
man once broken in will does not readily, if ever, recover from the
breaking.
Cf. Mr. Justice Murphy, dissenting in
Lyons
v. Oklahoma, 322 U. S. 596,
322 U. S. 606.
No change in circumstances can wholly wipe out its effects upon
himself or upon others. Thereafter, he acts with knowledge that the
damage has been done. Others do likewise. He is suspect by his own
mouth, and must continue so whether he repudiates or confirms the
confession. If he repudiates, he incurs the additional suspicion of
lying, and his credibility as a witness in his own behalf is
impaired, if not destroyed. If he confirms, he does so with the
knowledge he has already confessed, and any other course will bring
upon him the suspicions and the burden of proof they entail.
For these reasons, a stricter standard is necessary where the
confession tendered follows a prior coerced one than in the case of
a single confession asserted to have been coerced. It would seem
consistent, therefore, with our constitutional
Page 324 U. S. 429
tradition that, once a coerced confession has been obtained, all
later ones should be excluded from evidence wherever there is
evidence that the coerced one has been used to secure the later
ones. In no other way can the effects of the coercion be wholly
excluded from the trial. In no other way can one who has been
subjected to use of force or coercive "psychology" be put upon an
equal plane for the determination of his guilt or innocence with
others who have escaped such unlawful action, or be put back in the
position he is entitled by law to occupy until his trial and a
verdict of guilty -- that of a man presumed to be innocent until
the contrary is proved by legal means beyond a reasonable doubt.
Cf. Lehman, Ch.J., dissenting in the Court of Appeals, 292
N.Y. at 383.
In any event, where there is a continuous process of coercion
such as existed in this case, resulting in a series of confessions
of which the first is the creative precursor of the later ones, and
they moreover are obtained under identical circumstances except for
relaxation in one of the initial pressures, there hardly can be
room for saying, as was said in the
Lyons case, that the
latter confessions are not coerced. [
Footnote 2/16] Accordingly, I think Malinski's
conviction was
Page 324 U. S. 430
vitiated as much by admission of the latter confessions as by
admitting the earlier oral one. If so, he should not be required to
stand another trial at which those confessions may be used against
him. Nor should the state officials be permitted to think they may
be used again, though the first one must be excluded.
II
This is a capital case. Rudish has been sentenced to death. The
written confession involved him. It was used in evidence against
Malinski. The court and counsel attempted what I think is and
proved to be the impossible, namely, to keep Rudish's identity as
one of the persons mentioned in the confession from the jury by
devices similar to those employed in
Anderson v. United
States, 318 U. S. 350,
318 U. S. 356,
with the same result. The devices were so obvious as perhaps to
emphasize the identity of those they purported to conceal. True,
the charge in the
Anderson case was not meticulous as was
the one given here to separate the defendants and apply the
confession only against the one as to whom technically it was
admitted. Nevertheless, I think the line too fine to draw, in
capital cases, at any rate, between that case and this one in this
respect. There could be no valid basis for admitting this
confession against Rudish in a separate trial. Due process does not
permit one to be convicted upon his own coerced confession. It
should not allow him to be convicted upon
Page 324 U. S. 431
a confession wrung from another by coercion. [
Footnote 2/17] A conviction supported only by such
a confession could be but a variation of trial by ordeal.
Cf.
Brown v. Mississippi, 297 U. S. 278,
297 U. S. 285;
Chambers v. Florida, supra, at
309 U. S.
236-237. The effect is not different because the two,
confessor and the person implicated, are tried together, or because
the torture is applied to other witnesses, but not to the accused.
Nor is it different, in this respect, because trial is in a state,
rather than a federal, court. Accordingly, I think the practice
followed in the
Anderson case and in
Ashcraft v.
Tennessee, 322 U. S. 143,
should be followed in this one, and the judgment against Rudish
should be reversed.
In
Lisenba v. California, 314 U.
S. 219, the Court stated:
"Like the Supreme Court of California, we disapprove the
violations of law involved in the treatment of the petitioner, and
we think it right to add that where a prisoner held incommunicado
is subjected to questioning by officers for long periods, and
deprived of the advice of counsel, we shall scrutinize the record
with care to determine whether, by the use of his confession, he is
deprived of liberty or life through tyrannical or oppressive
means.
Page 324 U. S. 432
Officers of the law must realize that, if they indulge in such
practices, they may, in the end, defeat, rather than further, the
ends of justice."
314 U.S. at
314 U. S.
240.
The warning exactly fits this case, as do also the repeated
warnings referred to by the dissenting opinion in the Court of
Appeals. [
Footnote 2/18] I think
they should be made effective. That can be done fully in this case
only if the judgments against both of the petitioners are
reversed.
MR. JUSTICE MURPHY joins in this opinion.
[
Footnote 2/1]
The evidence is undisputed that Malinski arrived at the hotel at
about 8:15 a.m., was immediately stripped, and was not given back
his clothing, except his shorts, until after he confessed that
evening. The summation added to the statement quoted above in the
text:
"McNally [a police officer] took one look at him and said, 'Come
here' -- just a little tough talk -- 'what do you know about it?'
Six o'clock in the evening after he was picked up, he told the
whole thing."
[
Footnote 2/2]
"Counsel have urged upon us, however, that it was error for the
court to submit to the jury the confession made by Malinski orally
on October 23rd by word and deed on October 25th and 26th and to an
Assistant District Attorney and a stenographer in the early morning
hours of October 27th. . . ."
"When we have spoken of Malinski's confession we include, of
course, not only the confession made orally to a police officer on
the Friday night of the arrest, but also the two automobile trips
on Sunday and Monday, one to the police garage to permit Malinski
to identify the automobile used in the crime and the other to Coney
Island to revisit a restaurant and the scene of the crime, and the
confession to the District Attorney which was taken
stenographically in the early morning of Tuesday, October
27th."
292 N.Y. 360, 370, 373-374, 55 N.E.2d 353, 357, 358, 359.
[
Footnote 2/3]
Cf. 324
U.S. 401fn2/1|>note 1.
[
Footnote 2/4]
They are stated fully in the Court's opinion.
[
Footnote 2/5]
Malinski testified to violence by two officers who contradicted
him in this respect. The majority in the Court of Appeals
characterized the testimony as to violence as being "not very
strong."
[
Footnote 2/6]
Cf. note 2
[
Footnote 2/7]
Compare People v. Adams, 176 N.Y. 351, 68 N.E. 636,
aff'd sub nom. Adams v. New York, 192 U.
S. 585;
People v. Defore, 242 N.Y. 13, 150 N.E.
585,
cert. denied, 270 U.S. 657;
with Boyd v. United
States, 116 U. S. 616;
Weeks v. United States, 232 U. S. 383;
Silverthorne Lumber Co. v. United States, 251 U.
S. 385;
Gouled v. United States, 255 U.
S. 298; dissenting opinions of Justices Holmes and
Brandeis,
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 469,
277 U. S. 471;
McNabb v. United States, 318 U. S. 332;
Anderson v. United States, 318 U.
S. 350.
See Fraenkel, Recent Developments in
the Law of Search and Seizure (1928) 13 Minn.L.Rev. 1; Atkinson,
Admissibility of Evidence Obtained through Unreasonable Searches
and Seizure (1925) 25 Col.L.Rev. 11; Chafee, Progress of the Law
(1922) 35 Harv.L.Rev. 673, 694.
[
Footnote 2/8]
Cf. Boyd v. United States, 116 U.
S. 616;
Weeks v. United States, 232 U.
S. 383.
[
Footnote 2/9]
This formed one of the chief grounds of the strong dissenting
opinion, concurred in by three judges, in the Court of Appeals. 292
N.Y. 376, 55 N.E.2d 360.
Cf. 324
U.S. 401fn2/18|>note 18
infra.
[
Footnote 2/10]
The officers also "explained" their failure to take Malinski
before a magistrate "without unnecessary delay" as the New York law
requires (Code Crim.Proc. § 165) by saying that, though he was
seized on October 23rd, he was not "arrested" until October 26th.
Cf. the dissenting opinion of Lehman, Ch.J., 292 N.Y. at
381-382.
[
Footnote 2/11]
The fourth night was devoted to final interrogation at the Bath
Beach Police Station.
[
Footnote 2/12]
The questioning of the first day and evening, Friday, October
23, continued after the oral confession and was still in progress
at 3:00 a.m. on Saturday, October 24. Ten to twelve persons were
usually present, and many participated in the questioning.
Investigators stayed for a time and left to return later. One
detective left the hotel at 10:00 or 11:00 p.m. on October 23 and,
on his return at 3:00 a.m., found the questioning still continuing.
The interrogation, on and off, had then proceeded for nineteen
hours.
Throughout October 24, a police lieutenant testified, many of
the detectives "continuously" examined and talked to Malinski. The
latter said, "They kept questioning me all that day and night."
Again, on October 25, he was questioned "to clear up certain
points," though an officer denied that this "went on for hours and
hours." On that day, Malinski was taken on a tour of the scene of
the crime. The assistant district attorney and a stenographer
accompanied the party. Malinski testified without contradiction
that he "was being questioned riding all the way back to the
hotel," and that the questioning continued there until 2:00
a.m.
On Monday, October 26, ten or twelve detectives were still
present with Malinski at the hotel. During the course of that day,
he was questioned and taken to a police garage to identify the
automobile used in the crime. There is much confusion in the
officers' testimony as to the time of this trip and whether it
preceded or followed one to the Bath Beach Police Station. The
weight of their evidence perhaps is that they went to the police
garage first, then to the police station, arriving there about 5:00
p.m. The State's supplementary brief supports this view and the
view that, on arrival at the station, questioning by the assistant
district attorney and others began. There is every reason to
believe that the final questioning of Malinski, leading to a
written confession at 2:10 a.m., October 27, had proceeded for some
nine hours. At the very least, we know that the questioning by a
battery of investigators (eight police officers in addition to the
assistant district attorney) was in progress at 7:00 p.m., October
26, and continued to midnight.
[
Footnote 2/13]
Cf. 324
U.S. 401fn2/12|>note 12
supra.
[
Footnote 2/14]
Spielfogel was as much a tool to secure Malinski's confession as
any member of the police. He was brought down from Sing Sing on
October 14, 1942, by the assistant district attorney and others
because of what he had revealed about the crime. He made a
statement to the police before Malinski was taken into custody and
was present at the hotel shortly after Malinski was brought there.
He at first refused to discuss the case with the state officials.
No satisfactory explanation is offered of his change in
attitude.
[
Footnote 2/15]
At the police garage, although Malinski had "confessed," he
still sought to protect himself by using his handkerchief to open
the car door because, he said at the trial, he "did not want to be
framed" by leaving his fingerprints.
[
Footnote 2/16]
That the written confession did not follow on the heels of the
first, in the present circumstances, only aggravated the original
coercion. The significant fact in
Lyons v. Oklahoma, not
present in this case, was that the second confession was made under
auspices entirely different from those surrounding the first. The
prisoner was in the custody of different officials, men shown by
the record to be persons whom he had no reason to fear. And there
was no evidence that they shared in, or at any time applied, the
brutal methods by which it was charged, and denied, the first
confession had been obtained. The principal question was whether
the lapse of time between the two confessions, only some twelve
hours, was sufficient so that the second could be taken as having
been made free of the compulsions which induced the first,
notwithstanding the change in officials having custody. A majority
held that the difference in time was sufficient to permit the
question to go to the jury. But the decision also took into account
the change in custodians. 322 U.S. at
322 U. S. 604.
The
Lyons case therefore is not authority for the view
that the jury might have found the second confession voluntary, if
there had been no such change. Nor does it rule that the coercing
officials, by prolonging the period of coercion, though relaxing it
in some of the tactics used, can escape its consequences and
nullify its continuing effects.
[
Footnote 2/17]
The matter goes beyond and deeper than mere violation of the
constitutional privilege against self-incrimination, to whatever
extent this may have been applied to the states by adoption of the
Fourteenth Amendment.
Compare Twining v. New Jersey,
211 U. S. 78,
and Snyder v. Massachusetts, 291 U. S.
97,
with Brown v. Mississippi, 297 U.
S. 278;
cf. Hysler v. Florida, 315 U.
S. 411, stating at
315 U. S.
413:
"However, if Florida, through her responsible officials,
knowingly used false testimony which was extorted from a witness
'by violence and torture,' one convicted may claim the protection
of the Due Process Clause against a conviction based upon such
testimony."
Although the majority thought the tender of proof insufficient
to require a trial on a writ of error
coram nobis, three
dissenting justices deemed it irrelevant whether the state
officials knew the coerced confessions were false, 315 U.S. at
315 U. S. 424,
and interpreted
Brown v. Mississippi, supra, and
Chambers v. Florida, supra, as barring "confessions wrung
from the accused or his accomplices. . . ."
Cf. also Mooney v.
Holohan, 294 U. S. 103, and
Pyle v. Kansas, 317 U. S. 213.
[
Footnote 2/18]
"We cannot close our eyes to the fact that our frequently and
solemnly repeated admonitions to law enforcement officers that they
are not above the law, and may not, in their zeal to obtain
convictions, hold, without arraignment, persons suspected of crime
in order to have opportunity to obtain confessions, are often
unheeded."
292 N.Y. at 386.
MR. JUSTICE MURPHY, dissenting in part.
As pointed out in the opinion of the Court, Malinski's oral
confession of October 23 was involuntary in character, and hence
its admission invalidated his conviction. But it is equally clear
to me that the pattern of mental fear continued until his
arraignment on October 27, thereby voiding as well his confessions
by word and deed on October 25 and 26 and the written confession
made during the early hours of October 27. It is inconceivable,
moreover, that the admission of these tainted confessions was
without influence in the conviction of the codefendant Rudish.
Accordingly, I agree with MR. JUSTICE RUTLEDGE that the judgment
should be reversed also as to Rudish.
The subhuman psychology applied by the police to Malinski began
soon after his arrest on October 23. He was stripped, humiliated
and threatened with a shellacking. He was questioned throughout the
day, and was denied the benefit of counsel, relatives or friends.
This succeeded in breaking Malinski's will, which the
prosecutor
Page 324 U. S. 433
boasted "was not hard to break," and the police were able to
extract an oral confession from him. But this was not enough; the
police wanted a written confession. So they continued to hold the
"broken" Malinski until such a confession was forthcoming on
October 27. During this period, he was illegally held without being
arraigned, was questioned at frequent intervals, and saw no one
save his questioners and Spielfogel. The only concession made to
him was the privilege of wearing all his clothes.
There is an absence of any evidence that the "broken" Malinski
regained his free independent will during the illegal detention, or
that the effects of the humiliation and threatened shellacking,
which caused him to "break" wore off prior to the written
confession on October 27. There was not even a twelve-hour interval
between the interrogations or a change of interrogators which this
Court in
Lyons v. Oklahoma, 322 U.
S. 596, thought sufficient to break the pattern of
coercion. The reign of mental fear and terror here was continuous
for four days, and Malinski's will was in a shattered state on the
occasion of making each confession. Such confessions cannot be
dignified with the adjective "voluntary," however noncoercive may
have been the immediate surrounding circumstances.
Once an atmosphere of coercion or fear is created, subsequent
confessions should automatically be invalidated unless there is
proof beyond all reasonable doubt that such an atmosphere has been
dispelled and that the accused has completely regained his free
individual will. Otherwise, we might as well discard all pretense
to a civilized and humane system of criminal justice, and adopt
without further ado the terroristic police practices of certain
past and present tyrannies in other parts of the world. Since all
the confessions here were made in a continuing background of
threatened coercion, it follows that they all were void.
One other matter is worthy of comment. Malinski, as well as his
codefendant Rudish, is an American of Jewish
Page 324 U. S. 434
ancestry. The prosecutor made certain remarks in his statement
to the jury that may have been intended, and were indicative, of a
desire to appeal to racial and religious bigotry. He spoke of
Malinski as a "jerk from the East Side," and referred to his
residence in "the lower east side of Manhattan, where your life is
not worth a pretzel." This is a characterization of a territory
containing a large proportion of Americans of like origin.
Those clothed with authority in courtrooms of this nation have
the duty to conduct and supervise proceedings so that an accused
person may be adjudged solely according to the dictates of justice
and reason. This duty is an especially high one in capital cases.
Instead of an attitude of indifference and carelessness in such
matters, judges and officers of the court should take the
initiative to create an atmosphere free from undue passion and
emotionalism. This necessarily requires the exclusion of attacks or
appeals made by counsel tending to reflect upon the race, creed or
color of the defendant. Here, the defendants' very lives were at
stake, and it was of the utmost importance that the trial be
conducted in surroundings free from poisonous and dangerous
irrelevancies that might inflame the jury to the detriment of the
defendants. Brazen appeals relating to their race or faith had no
relevance whatever to the grave issue facing the jury, and could
only be designed to influence the jury unfairly; and subtle and
indirect attacks were even more dangerous and effective. Statements
of this character are the direct antithesis of every principle of
American justice and fair play. They alone are enough to cast grave
doubts upon the validity of the entire proceedings.
MR. CHIEF JUSTICE STONE.
MR. JUSTICE ROBERTS, MR. JUSTICE REED, MR. JUSTICE JACKSON, and
I think the judgment should be affirmed as to both petitioners.
Page 324 U. S. 435
Malinski, charged with murder, made several confessions of
guilt, which were introduced in evidence at his trial. Two, made to
the police, are alleged to have been coerced, the first on October
23rd and the other four days later on October 27th. During that
time, he admitted to the police other isolated facts which tended
to fasten guilt upon him. Three friends of Malinski also testified
that, on several occasions shortly after the commission of the
crime and long before his arrest, he voluntarily admitted to them
and to his sister that he had committed the crime.
The testimony as to whether the first confession to the police
was coerced was sharply conflicting. There was no evidence that
petitioner was subjected to any coercion at or about the time of
the second confession to the police, save as the jury could find
that the coercion, if any, attending the first confession continued
to operate so as to induce the second.
The trial court, after reviewing fully the evidence of
petitioner's detention and the coercion by the police which is said
to have attended his first confession, and of the delay in his
arraignment, instructed the jury:
"This testimony was adduced solely on the question as to whether
or not the alleged confession later made was the result of the
coercion, either direct or implied, which is prohibited by the
statute and which invalidates a confession if made. If you should
find that the arraignment of the defendant was delayed, you may
consider that on the question of the voluntariness of any
confession made by Malinski, including the one made in the early
hours of October 27th. . . ."
The trial court also correctly instructed the jury that
petitioner's contention was that the confession of October 27 was
tainted by the detention and coercion which had preceded it, and
that "you must find beyond a reasonable doubt that this confession
was a voluntary one before you would have the right to consider
it." With respect to
Page 324 U. S. 436
this later confession, the jury was further instructed:
"If you find beyond a reasonable doubt that the confession is a
voluntary one, you will then determine whether or not the
statements inculpating the defendant, therein contained, are true.
If you shall have resolved both these questions in favor of the
prosecution, then and only then will you consider the confession in
determining the guilt or innocence of the defendant. . . ."
There were no exceptions to these instructions, and no requests
for a further charge on this subject.
After a painstaking review of the facts, the New York Court of
Appeals unanimously sustained the jury's verdict that the
confessions were not coerced. [
Footnote
3/1] That court, on appeal from a judgment of death, has power,
which we are not free to exercise in a case coming from a state
court, to make new findings of fact, Art. 6, § 7 of the New York
Constitution of 1939; [
Footnote
3/2]
People v. McGrath, 202 N.Y. 445, 450, 96 N.E. 92,
and also to give judgment without regard to technical errors,
defects or exceptions not affecting substantial rights. N.Y.Code
Crim.Proc. § 542.
It seems to be recognized by this Court that the question
whether the second confession was coerced was properly submitted to
the jury. But it holds that the first confession was coerced and
was submitted to the jury as itself proof of guilt, and that, for
that reason, the verdict must be set aside although the jury found
under the instructions of the court, which we have quoted, that the
second confession was not coerced.
Even though the first confession were the product of coercion,
the trial court, as we have pointed out, instructed
Page 324 U. S. 437
the jury that the evidence with respect to the first confession
was adduced only to show that the second was coerced. And the jury
was instructed that it could consider the second confession only if
it found it voluntary, and that it could convict in that case. In
view of these instructions, we cannot say that the first confession
was submitted to the jury, or that, in the absence of any exception
or request to charge more particularly, there was any error of
which petitioner can complain. Hence, the jury's verdict must be
taken as conclusively establishing that the second confession was
voluntary and was not induced by any coercion attending the first.
Lyons v. Oklahoma, 322 U. S. 596.
But even if it could be said, as the Court of Appeals seems to
have thought, that the jury's verdict was a determination that the
first confession was not coerced, we perceive no ground on which
that determination can be disregarded. This Court recognizes that,
if only the testimony submitted to the jury be considered, the
question whether the first confession was coerced was for the jury.
The Court sets aside the jury's verdict solely because of the
interpretation it places upon the conflicting testimony in the
light of certain remarks, which the opinion of MR. JUSTICE DOUGLAS
quotes, made by the prosecuting attorney in the course of his
summation to the jury. But the prosecutor did not testify in the
case, and it does not appear that he was present at any of the
interviews of petitioner by the police, or had any knowledge of the
alleged coercion. At most, his remarks were an ill advised attempt
at justification of the coercion which the defense had alleged. He
added no word by way of proof or admission to the evidence already
before the jury. The jury, acting within its province, could have
concluded, as it evidently did, that the prosecutor's remarks did
not tend to prove anything more than his own ineptitude. The
Page 324 U. S. 438
Court's decision thus sets aside the conviction by the process
of reweighing the conflicting testimony as to the alleged coercion
in the light of the arguments addressed to the jury.
It is not the function of this Court, in reviewing, on
constitutional grounds, criminal convictions by state courts, to
weigh the evidence on which the jury has pronounced its verdict,
also in the light of the arguments of counsel, or to sit as a
superjury. We have, in appropriate cases, set aside state
convictions as violating due process where we were able to say that
the case was improperly submitted to the jury or that the
unchallenged evidence plainly showed a violation of the
constitutional rights of the accused.
Brown v.
Mississippi, 297 U. S. 278;
Chambers v. Florida, 309 U. S. 227;
Ward v. Texas, 316 U. S. 547. But
we have not hitherto overturned the verdict of a state court jury
by weighing the conflicting evidence on which it was based.
The rightful independence of the states in the administration of
their own criminal laws in their own courts requires that, in such
cases, we scrupulously avoid retrying the facts which have been
submitted to the jury except on a clear showing of error
substantially affecting the constitutional rights of the accused.
We agree that the controlling principles upon which this Court
reviews on constitutional grounds a state court conviction for
crime are as stated in the opinion of MR. JUSTICE FRANKFURTER. But
the due process clause of the Fourteenth Amendment is concerned
with matters of substance. It cannot rightly be made the instrument
of reform of the manners of state officials. And however
reprehensible or even criminal the acts of state officials may be,
insofar as the conduct of the trial is concerned, they do not
infringe due process unless they result in the use against the
accused of evidence
Page 324 U. S. 439
which is coerced or known to the State to be fraudulent or
perjured, or unless they otherwise deny to him the substance of a
fair trial, which is due process.
See Lisenba v.
California, 314 U. S. 219,
314 U. S.
235-238;
Buchalter v. New York, 319 U.
S. 427, and authorities cited.
Judged by these standards, we think that there was no denial of
due process in submitting petitioner Malinski's confessions to the
jury in the manner in which they were in fact submitted, and that
there is no constitutional ground for setting aside the jury's
verdict against him. We cannot say on this record that the jury was
not rightly permitted to determine whether petitioner's confessions
of guilt to the police were coerced, or that the verdict was
without support in the evidence, or that the instruction that the
jury could find the defendant guilty if it found that the second
confession was not the result of the alleged coercion at the time
of the first, was not properly given.
Petitioner Rudish has raised no substantial federal question
reviewable here, and his conviction, as well as Malinski's, should
be affirmed.
[
Footnote 3/1]
The chief judge and two others, dissenting, thought that the
conviction should be reversed because of the insufficiency of the
charge as to the delay in arraignment; they apparently relied on
state grounds, and not on the federal constitution.
[
Footnote 3/2]
The amendment to Art. 6, § 7, effective January 1, 1944, retains
this power in the Court of Appeals.